I’m not talking about legal application - I’m talking about the more important philisophical ideas that it is based on. I know that, legally speaking, technically, a foreigner the army arrests in another country and holds outside of our country isn’t technically subject to our Constitutional rights.
But morally, philisophically, what is the basis that the Constitutional rights - the founding ideas of our society, the bedrock our government is based on - should not be applied to people outside of our country? How would the authors feel about such gross violations to foreign citizens, even at a time of war? Did they intend for it to only apply to Americans, or does their philosophy of freedom and liberty extend to other people?
To answer these questions, we need to look at historical context and foreign relations during their time period. We’re talking the Barbary Coast, the French Naval War of 1799/1800, the war of 1812, and also the general written documents of the period from people like Jefferson, and their influences, like Payne.
From what I recall, at the time our wars seem to have been more restrained at the time. Even our first navy, with the little Jefferson boats, was very non-threatening, and based on defense. So is the idea of militias instead of a standing army (which continues in a form to this day with the Reserves).
So, would Tommy J and Ben Franklin be rolling in their graves at this point? Have we become what we started out to stop?
How valid a comparison can be made to the Barbary Coast conflict and modern international terrorism?
Bluntly, the droits de l’homme – the “natural rights” of the Enlightenment – on which Washington, Jefferson, Franklin, Madison, and their fellow FFs based the theories that underpin our foundational documents – include all men, everywhere. In Rousseau’s famous quote, “Man is born free, and everywhere he is in chains.”
The idea that freedom from overweening government authority, to be exerted at will, consists only in a few specific guarantees explicitly spelled out, and “This offer is not valid outside the 48 contiguous states, Alaska, and Hawaii. Void where prohibited by the Department of Law. Excludes persons in the military and their dependents” – that idea is the product of some contemporary camelivorous gnat-strainers, who will have to defend their POV for themselves.
No, no, no. The Declaration of Independence was based on “philosophical ideas.” The Constitution was not. It was worked out as a practical political compromise – though undoubtedly influenced by the latest thinking in political theory, particularly Montesquieu’s, if The Federalist is to be relied on. The Bill of Rights, added later, might have been influenced by “philosophical ideas” but owed much more to the traditions of English laws and liberties as the Americans understood them. It would be hard to come up with a “philosophical” justification for the right to trial by jury.
I would argue that the Constitution is not the place to look for America’s founding ideals. At the time constitutions tended to begin with extended statements of the basic principles of the state. The Constitution has only the brief preamble. I would suggest instead looking to the Declaration of Independence as a better guide. It asserts, along with Polycarp, universal rights.
But taking a look at the Constitution we can see that it doesn’t rely on militias but rather authorizes a standing army. Attempts were made during the federal convention to limit the size of the regular army and were rejected. This is likely largely due to Washington’s influence. As the former commander of the Continental Army and a British officer during the Seven Years War he had extensive experience with militias. He held their military capabilities in contempt.
I would also disagree with the characterization that our wars were more restrained back then. The opposite is true. At the time we were involved in continual genocidal conflict as we pried this country from the cold dead hands of its former inhabitants. Sure we weren’t as beligerent around the world as we are today but we didn’t have the power to impose our will that we do today. Rather than some imaginary golden age I would say that a more accurate interpretation was that replacing the decentralized federation with a strong central government with unlimited war powers was the first step toward our current imperial pretensions. Indeed, one of the accusations the Antifederalists leveled at the Constitution was that it would forge the US into an empire.
Actually, it’s very easy to come up with a philosophical justification for the right to trial by jury - actors for the state should not be both the accuser and the arbitrator of guilt. Justice can only be achieved if independent actors - representing the conscience of the community - are the arbitrators of guilt or innocence.
No “American” is “bound by” the Constitution. Only government is bound by it. An individual, of course, might commit a crime by violating legislation passed pursuant to the Constitution.
As to whether the federal government can do things while operating abroad that it could not do within America’s borders – that’s controversial. The Bush Admin seems to think that it can, or at least that it can get away with it. Guantanomo Bay was chosen as a prison for suspected terrorists precisely because it is outside the U.S., and the Administration is holding to the position that the Bill of Rights does not really apply there, or does not apply to non-citizens there, or something . . . it’s rather hard to keep track. From :
In fact, the Admin has even tried to claim it has the authority to designate an American citizen arrested on American soil as an “enemy combatant” with neither the protections of a criminal suspect under the Constitution nor the protections of a POW under international law. (http://en.wikipedia.org/wiki/Enemy_combatant.) The Supreme Court rejected that in the Jose Padilla case (http://en.wikipedia.org/wiki/Jose_Padilla).
But there is no philosophical difference there (although there might well be a practical difference) between trial by jury and trial by judge – so long as the judiciary really is insulated from political pressure from the executive branch. In any case, that’s just one example. The Bill of Rights guarantees a lot of “rights” no philosopher would have thought of, such as the right not to have troops quartered in your home. (And the right to bear arms, but let’s not open up that one yet again! )
No, even those rights have philosophical jurisdiction. The right not to have troops quartered in your home comes out of the right to private property and from William Pitt’s famous quote about a person’s power over his own home:
[quoye]The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement
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The right to bear arms comes from, firstly, the right of people to revolt against their government if it becomes tyrannical, and secondly, the right of the individual to help defend his family, his home, and his country from invasion.
What about the twenty dollar threshold before the right to jury trial kicks in (for “suits at common law”). What’s the philosophical justification for that, especially given the change in the value of twenty dollars over the past 200 years? It seems arbitrary to me.
It was a 1780s figure for “significant amount at stake” – balancing the principle of “trial by one’s peers” against De minimis non curat lex. Admittedly, having a number that has lessened in value over the years is a bit strange, but I suspect the FF picked that a a good dividing line intentionally. They were not, after all, unfamiliar with inflation, some of them being creditors of significant loans that were “not worth a Continental” to them.
Stirring words, but philosophy it ain’t. Also, I believe that’s about protection from unwarranted searches, not quartering of troops (in fact, I’m not sure English law prohibited quartering of troops).
Having read the thread which you’ve linked, I find the “insurrection theory” neither historically, legally, or morally indefensible. Are you sure you linked to the correct thread?
At the risk of hijacking this thread (which I don’t hope to do), the “insurrection theory” does not imply some Constitutional right to rebel against the government. The government can always act against insurrection, and the Framers were aware that the government always would. But, as the Framers had so recently experienced, the government can sometimes be wrong. So the right to keep and bear arms relates to the citizens’ right to self defense – from each other and the government, if necessary.
A “militia” is an army of ordinary citizens rather than professional soldiers. It does not necessarily imply association with the government. See e.g. Michigan Militia, The.
So even if you think the 2nd Amendment is limited to “well regulated militia[s],” I’m not sure how you can argue that the Constitution says that protecting the people from invasions of their home, family, and country is solely the province of the government. At bare minimum, the 2nd Amendment provides a means by which individuals could organize into militias and come to their own defense without relying on the government.
God I hate the literal interpretations on this board. You know damn well what I was trying to say, however clumsily or technically innacurate.
In any case, I went at length in my post to extend the discussion from this nation’s founding documents to include the national policy followed by the founders. The only thing more relevant than their words is there actions.
So I’ll rephrase. Do the philisophical foundations of freedom and natural rights of this country apply in our foreign relations?
And knock off that hijack about the militia, that was a passing comment to describe the levels of militarism in early America and not meant to be the debate.
I don’t know that I agree with this, but John “The American Taliban” Walker was prosecuted in the U.S. for violating U.S. statutes for his conduct while he was within Afghanistan.
I didn’t think there was anything wrong with your OP. I just felt there was a better starting point for the debate I thought you were trying to spark.
And I made the point that you were misinterpreting the actions of the Founders.
I’m afraid you are looking in the wrong place to answer your question. The actions of the national leaders back then didn’t live up to their pretty words. You know… just like today. According to your formulation that actions are more important than words you haven’t shown that freedom and natural rights ARE our founding principles. ( And we haven’t even gotten to the Alien and Sedition Acts or slavery ) . You seem to be seeking a moral answer and I doubt you see hypocrisy is a moral value.
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