WOW. I’d never, ever heard the issue of slavery in the United States described quite that way. It kind of makes you feel sorry for the plantation owners, having their rights stripped away like that.
I mean, clearly this was an issue for the states to decide. The vast majority of Georgians believed that slavery was an acceptable and even necessary “right” for white landowners to have, and the system worked for all concerned. Well, all relevant people concerned. It was improper for the federalist North to come in and deny slaveowners of this right against the will of the people. Whatever happened to self-determination for the states?
Where did this concept of “freedom” for all human beings – no, wait, excuse me, colored people – come from? It was clearly an invention of intrusive abolitionists. The very idea that human beings – oops, there I go again, slaves – should be fundamentally entitled to the very same right to self-determination and pursuit of their own happiness. What a completely foreign and unfamiliar concept! How did they just come up with this idea?
Now, now, don’t get me wrong. I have sympathy for the people – ah, did it again, niggers – who had to be ripped from their homes, separated from their families, beaten, tortured, and died in captivity. I really do. But I’m not talking about that. I’m talking about a very clear, established legal process. It’s simply the way things are done in this country – it’s how our country works. And you can’t just go messing around with that against the majority will for the sake of some imaginary, made up “right” to live your life in peace and happiness.
I agree that it’s a useful rhetorical device. But it’s just that: a rhetorical device. As long as we recognize that rightspeak (to coin a phrase) is nothing more than a nice poetic turn of phrase, and that the rights spoken of don’t “exist” in any meaningful way apart from a corresponding remedy, then we are in agreement.
The country fought a war over this precise issue. Lincoln’s election was an endorsement of the notion that the nation could not indefinitely remain half-slave and half-free. The slave-holding states didn’t see it that way, and the rule of law failed. It took military force to restore it.
Please don’t paint me with the brush of a racist because I am unwilling to join you on your serene cloud, plucking “rights” from the ether as they please you. The enslavement of human beings was wrong, and is wrong, and will be wrong evermore. But there was a legal right to own human beings in the United States before the 13th Amendment came along, and if you fail to recognize that, you are simply blind to history.
If we’re talking about legal rights, then this is practically a tautology. Not much to debate.
If we’re talking about moral rights, then this is clearly false, since there is no logical connection between legal rights and moral rights - though naturally there are frequently causal connections where lawmakers are concerned with justice.
If you’re denying that moral rights exist, I’d tend to agree with you (I’m a consequentialist, and think deontological moral theory is fuzzy-headed at best), but not for the reason you give: namely, that there’s no established means of resolving moral disputes. Strictly speaking, in fact, there being no established means of resolving moral disputes cannot entail that moral rights do not exist, but can only entail either 1) that statements about moral rights are neither true nor false (that is, that they are either literally nonsensical, or are merely expressions of positive or negative emotions or something similar, and are not statements of fact. This group of views is known collectively as noncognitivism. Or 2) that the truth of moral statements is relative, whether it be relative to individuals, cultures, or something else.
Based on my reading of many of Bricker’s posts, I don’t believe he is either a noncognitivist or a relativist. I must conclue, then that he is either making an utterly uncontraversial claim about legal rights, or that he is mistaken.
And I guess I should point out that the lack of an established means of resolving moral disputes doesn’t actually entail either relativism or noncognitivism, though it can form the basis of arguments for either position.
I know you’re trying to be funny, but you should delve into some constitutional history before you shoot your mouth off. The first use of “substantive” due process – the chief engine of extratextual judicial rights creation – was in the infamous Dredd Scott decision, and it was premised on exactly that notion that the slaveowner had property rights that needed protecting.
Judicial rights creation has a long and dubious history. He who thinks the judiciary can properly create whatever rights it wishes must explain why Dred Scott was wrong when it was decided. He must explain why Lochner, invalidating maximum-hour laws on grounds of a “right to freely contract” was wrong when it was decided. He must explain away many pages of precedents that reach results not to his liking. Because when the judiciary is the ultimate arbiter of rights, we hang our futures on the benevolence of whoever happens to be on the court at any given time.
The passage of the 13th amendment made slavery a federal issue. Passage of a constitutional amendment giving the federal government power over a given area invalidates any states-rights arguments against the feds legislating in that area.
Well, or, that while objective moral rights may exist, because we live in a pluralistic society and there’s not a common consensus about what those rights are, it’s not the obligation of the state to enforce those rights. Instead, it’s the obligation of the state merely to enforce legal rights, first, because it’s the obligation of the state to enforce the law, and second, because, for those rights to be written into law, enough of a shared moral consensus must exist.
I think everybody’s right, er, correct. The problem is largely one of language. A claim to a right precedes societal protection of that right. Societal protection is necessary for rights to be enjoyed by those not strong enough to protect themselves against interference with their enjoyment of rights. But claims use the phrase “we have a right” because it (a) is shorthand for saying “we should have a right” and (b) because the word confers a moral suasion, an appeal to ethical behavior, that is not present in the locution “please give us/allow us to do/free us from X.” The Declaration of Independence asserted some general rights before there was an American government to protect them, much less the actual legal structure to do so. The Universal Declaration of Human Rights recognizes rights of people some of whose societies’ legal structures actively frustrate those rights. Do those people have rights? It depends on whom you ask. Similarly, after a claim has gained legal protection, we often speak of the right as something that has always existed but up until a certain time was unfairly denied. I think we do this mostly as a rhetorical device because we want to remind ourselves that there can be unjust laws. If there is no right without protection of law, than there can be no such thing as a law that violates our rights, except as it is contradicted by another law enforced by a greater power. This is anathema to those of us whose concept of American history begins with the idea that government is an instrument of the people and must constantly strive toward liberty and justice for all – abstract concepts that at our best we work to make real.
A couple of other things. Societies, I think, can protect these claims in ways other than through legal institutions. There are societies without lawyers, courts or formal legal codes that do have feelings about property, community and individuality and manage to enforce them socially. Social stigma, even here, keeps us from doing all sorts of things that no one ever thought to put on the books. Second, I wonder if the language problem is worse for English speakers because the word “right” pops up in so many contexts that the meanings become conflated into a Godandtruthandright/therightthingtodo/therightanswer
/humanrights blob.
I do think the OP has a point. The word “right” has become corrupted by too many people who just want something. It may be a benign thing, even a good thing. But if I want a new car, even if Congress passes an appropriations bill to give me one, I won’t consider it a vindication of my rights.
There was a war? Get out! You’d think in the 26 years I lived in Georgia, I would’ve heard something about it.
You claim that the enslavement of human beings was wrong and is wrong. How did you come to that conclusion? It was an economic system that worked. It was supported by a majority of the people of southern states. It had hundreds if not thousands of years of social and legal precedent. As you say, the rule of law failed, and it was not only judicial fiat or federalist intervention, but some obscure “war” that you mention that was required to change that system. Where does “wrong” even enter the picture, anyway? Aren’t we just talking about the process? About states’ rights, and the will of the people? When did we start talking about “right” vs “wrong,” anyway?
Are you not irritated by the idea that slaves and abolitionists just plucked some fanciful idea out of the ether, the idea that human beings have the right to their own self-determination and should not be forcibly bound into servitude and treated as if they were property? Are you not offended at the sheer gall of people who, spending pleasant sunny days in the cotton fields, decided on a lark that they might be entitled to the exact same freedoms that their owners enjoyed?
You claim that I “paint you with the brush of a racist.” Where did I do that? Is it because I used racist terms? Don’t you understand that these terms were necessary for slavery to last for as long as it did? Do you believe that every single one of the people who owned slaves in America’s history was a hateful, racist monster? Or is it far more likely that most were otherwise good people who could only rationalize the process of slavery by thinking of black people as less than human? By focusing on that distinction. By believing that yes, human beings have the right to be free, but that didn’t apply here, because of some moral failing on their part, or lack of education, or lack of proper Christian upbringing, or by some inherent genetic difference between blacks and whites that made them less deserving. The idea that white men were entitled to a set of unalienable rights from birth, but black men were not.
It’s a little like the idea that a man and a woman can become married in the eyes of society and the state simply by signing a document and proving they’re not blood relatives. But a man and another man must settle for a “civil union” or, in the case of LA’s glorious decision, nothing at all. And the idea that they would expect to be able to get married just by virtue of being in love – that’s ridiculous! Clearly there’s a difference there! Apparently, the “right” to marriage is indeed extremely alienable.
And as long as I’m sitting on my serene cloud, making fanciful wishes, I do have a particularly absurd request. Please don’t in one post claim that you have compassion and sympathy for me and the thousands of other people whose relationships are being mocked, invalidated, condemned, and banned, and then create a thread celebrating the ruling that does the same thing to thousands of people in Louisiana. Please don’t claim to be aware of the “human cost involved” and then go on to say that the very idea that my relationship could be as valid as that of yours and your wife’s is an absurd, fanciful notion “plucked out of the ether.”
And perhaps you should delve into at least a token attempt to interpret my sarcasm before you go shooting your mouth off. I’m not talking about judicial rights creation. I’m saying that the entire notion of turning this into an issue of “states’ rights” when thousands of people are being grievously mistreated is an offensive attempt to obfuscate the issue and justify the surpression, mockery, and humiliation of human beings.
But still, apparently I have to repeat what I’ve said countless times before. Dred Scott does not invalidate the entire concept of the judicial branch of the United States. It is hypocritical to claim that same-sex marriage proponents only cite the examples of judicial legislation that suit their purposes, and then do the same thing yourself to somehow “prove” that it doesn’t always work. No, it doesn’t always work. No single branch of government always makes the right decision. That is why the Constitution calls for three, and checks and balances between each. We are supposed to believe that Dred Scott proves the fact that judicial legislation is an abhorrent concept, and yet accept that the rulings in Missouri and Louisiana are “the right way” to do things, simply because they’re different? How does that work, exactly?
Why is it a horrifying concept to hang our future on the benevolence of a few people in court at any given time, but it’s perfectly acceptable for homosexuals to hang their future and their happiness on the benevolence of people who hate them? When does this stop being an academic legal discussion? When, exactly, are we allowed to point out that what is going on in Missouri and Louisiana is wrong?
All rights come from our desire to have the government off our backs and not telling us how we can act. So, anything not harming others should be considered your right to do, even if not explicitly stated in laws.
So, if I want to dress up like Spiderman every Friday, it should be my right to be able to do so. There is no need for a special law that enables people to dress up like Spiderman on Fridays.
Yes, I see the distinction, but I don’t see that it makes much practical difference.
Assume for the sake of argument that there are, in fact, unenumerated rights possessed by everyone that only need to be recognized. How do we agree what they are, and how do we go about getting them recognized?
I would say it should be done by the recognition of the right by the majority, or by the consensus that it is established by the text of the Constitution. That is to say, by statue, referendum, or amendment.
Then, of course, there is no need for a Bill of Rights at all, or even any check on the power of judges (or any other politician). A simple-hearted faith in the inherent goodness and omniscence of anyone in a black robe, and our rights are completely safe.
I pointed out the same thing over in the Louisiana-related thread. Under a strict-constructionist reading of the Constitution, slavery was Constitutional up until the passage of the 13th Amendment. Hell, slaves were counted (at least a fraction were) in determing representation in Congress.
That leads me to a question, though- where did the original right to buy and sell slaves come from? Was it a law enacted through a legislative process. Did a legislative body pass a law saying, in effect, “You may purchase slaves,” or did the right to do so stem from the idea (picked from the ether) that slaves were property?
My friend, the text has to be interpreted as it stands. Picking at random from the established text:
[ul][li]"…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution…" Who decides what’s necessary and proper?[/li][li]“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Oh, really? What does this mean?[/li][li]“The right of the people to be secure…against unreasonable searches and seizures, shall not be violated…” Who decides what’s “unreasonable”?[/li][li]"…nor shall any person … be deprived of life, liberty, or property, without due process of law…" So what does “due process” mean? [/li][li]"…nor shall public property be taken for public use, without just compensation." Who decides what compensation is “just”?[/li][li]“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” Who decides what’s speedy and what’s public?[/li][li]“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Who decides what’s excessive, and what’s cruel and unusual?[/li][li]“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Yeah, right! May I suggest that you’re in violation of this provision simply by making the points you have in this and the Louisiana-amendment debate? And if you say I’m wrong in that allegation, who in the world would decide?[/li][li]Last, but far from least: “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That, sir, is a provision of the Constitution. It must actually mean something. It has enough generalized statements in it to keep us going with Great Debates for the next ten years at minimum. Who decides what it means, and how it’s to be applied? [/ul][/li]
And, as people have pointed out innumerable times on this board, the entire point of having Constitutional protection of rights is to defend the right of a given individual or minority group against the will of the majority.
A right which is valid only when the majority agrees that it’s cool that you exercise it, is no “right” at all – but a privilege revocable on the whim of the mobile vulgus.
And of course, my statement was intended to show the inadequacy of Dewey’s attack on the judiciary as the “ultimate arbiter of rights” and that “we hang our futures on the benevolence of whoever happens to be on the court at any given time.” In point of blindingly obvious fact, we depend on both judges and the law for protection of our rights.
I wasn’t celebrating the amendment in Lousiana. I was pointing out that the celebration by gay activists of the Massachusetts court ruling was premature, since it would create a backlash against same-sex marriage.
So far as I’m aware, the amendment in Lousiana does not prevent civil unions.
I am sorry if my language about plucking rights out of the ether offended you, although I must point out that you might expect a certain amount of harsh rejoinder when your previous post suggested that I endorsed slavery and the use of the word “nigger.” But I recognize that emotions run high here, and that you are genuinely pained that society is not prepared to recognize your loving and committed relationship with the word “marriage.” But awareness of your pain does not mean that I am prepared to call for an end to the basic principles of self-governance that are at the heart of the system that rules our government.
According to Taney in Dred Scott, the affirmative right to own, buy and sell slaves is in the Constitution itself, because:
The Constitution says a slave is to be considered 3/5 a person for taxation and representation
The Constitution says an escaped slave has to be brought back to his owner.
The Constitution allowed the import of slaves until 1808.
Therefore, because the Constitution allows such ownership, and because citizens have the right to freedom of movement, and don’t lose their constitutional rights when they go into a territory or another state, neither Congress or a state can pass a law banning slavery.