Yeah that’s insane. While we’ve had occasionally civil riots in the United States in which businesses get looted, outside of that I think there is way too much intrinsic respect for, if nothing else, the property rights of business owners for anyone to be doing that. In some States there’d be people shot for doing that, actually.
Given the history of British libel law abuses and the existence of a “royal” charter overseeing (and chilling) newspaper publication rights in the U.K., it’s a bit nervy for Brits to criticize American protections of freedom of speech.
And thankyouverymuch for your vast concern over the Bill of Rights, but I think we’ve done nicely with it and I suggest you work on ridding your own garden of weeds.
I’m going to nit pick this:
First, this should have applied to Amendment 6 (criminal versus tort), but that’s fairly minor. Making a deal in tort cases is something I prefer - it’s less cost to the government to work out a deal between private parties.
Second, overcharges are a threat and rarely make it to trial, even when people don’t plea bargain - it’s basically a police tactic akin to saying they are going to “throw the book at you”. If they meet the requirements for a charge, they’ll add it to the charges, but in most cases because if they overcharge and exclude a lesser charge and that higher charge gets thrown out in a trial phase, they lose the option to retry for the lesser charge in most circumstances. (There are some legal wiggling options in this area, but it’s not a huge set of loop holes.)
Finally, plea bargaining is an elective process. If you want to give the finger to a court representative trying to make a plea bargain with you, you have every right to go to court. In most jurisdictions (I think actually ALL jurisdictions, but I’m not certain), you can do this completely free, also.
I disagree. This enshrines that the government can’t legislate, by default, anything not expressly granted in the BORs. This was done to prohibit the government from, for instance, outlawing the internet because “Freedom of speech” doesn’t cover “internet-provided documents.” Because of clauses like this is why censoring new forms of communication doesn’t really take off in the US, and there have been several court battles about this sort of thing with new technologies.
Beaten like a red-headed step child. 
This is something that a lot of people mistake about First Amendment guarantees: They are for the government in actions upon the citizens.
So, if I’m a celebrity that says “Obama is the anti-christ!” and then buy PBS air time to show myself painting devil horns on “Change” posters plastered on the streets of Chicago, I can do that.
But you also have the right to do the same exact thing and/or completely ignore me and/or boycott my movies/albums/whatever-I’m-famous-for as your own form of speech. I’ve seen more than one celebrity stick their foots straight down their throats and out their asses and then go “But…I thought we were America with freedom of speech!” when they are socially rejected for their statements.
Dirty hippy! 
As tumultuous as the 60s and 70s where, things have settled down a lot. While we aren’t the bastion of freedom and other red-white-and-blue colored things I’d prefer, we are thankfully not nearly as terribad as we were 50 years ago.
Hate speech isn’t banned in the U.S.
You don’t need “suppression” when you can have disproportionate representation, and do it all in the cynically invoked name of free speech! Speech – effective, widely disseminated speech – costs money, and nowhere is it driven by money as much as in the US. Putting a large price tag on “speech” and then claiming that it’s “free” is the new political oxymoron. Ever wonder why so much of the “speech” you hear seems uniquely intended to promote the interests of those with a lot of money to spend on promoting them? Maybe the reason you don’t hear a lot of dissenting views is that someone like the Koch brothers can buy with their lunch money more PR effort, advocacy initiatives, and political favors than a dissenting organization could buy in a lifetime of fundraising.
Well, obviously, what’s going on here is a bit more than Europeans having their own way of doing things.
I don’t think there’s any doubt that European traditions and approaches to the legal protection of human rights owe an enormous amount to the US experience and example. In particular, the notion of constitutionally-entrenched overarching statements of rights which “trump” ordinary legislation, and which the courts can enforce, is a US invention which Europe has observed, admired and (eventually) adopted. If there was no US Bill of Rights, or if its reach had not been clarified in Marbury -v- Madison, I don’t think Europe would ever have had anything like the ECHR. So I don’t think it makes sense to think of the US Bill of Rights and the ECHR as exemplifying opposing or contrasting approaches to the legal protection of human rights. The two systems have much more in common than they do to distinguish them. And much of what they have in common is a US invention, which should be acknowledged as such.
Secondly, Pjen shows his UK origins when he treats the ECHR as the principle legislative protection of human rights in Europe. Most European countries in fact have domestic constitutionally-entrenched human rights protections, just like the US. The UK is the outlier here, not the US. And a surprising disproportion of the cases which come before the European Court of Human Rights originate from the UK - not because human rights abuses are more common in the UK, but because other countries have better domestic mechanisms for addressing them, and victims are less likely to need to have recourse to the European Court. This situtation has improved with the incorporation of the ECHR into UK domestic law, but it still doesn’t enjoy the same degree of consitutional supremacy that human rights codes in the US, and in other European countries, do.
As already mentioned in this thread, there is a distinction between the US tradition of expressing rights as limitations on the power of government and the European tradition of expressing them as affirmative entitlements of individuals. If there is a constitutional prohibition on the government discriminating on the grounds of race or religion, say, that doesn’t on the face of it prevent me, as a private individual, from refusing to rent a property to a Jewish tenant or to serve a black diner in my restaurant. And, as we know, it took the US a long time to build up effective legal protections and defences against discrimination by non-government agencies and individuals. I think the European approach of declaring affirmative rights may provide a sounder foundation for getting to that point more quickly.
One other distinction that occurs to me - and I’m not quite sure of the origins of this distinction - is that in the US human rights are often considered not as human rights but as civil rights - i.e. the rights of citizens of a republic. And one of the weaknesses of the US approach is that this can leave non-citizens without protection. Take Guantanamo Bay, for example; the US legal system tolerates what goes on there partly on the basis that no US citizen is ever sent there, and any US citizen who does get sent there is entitled to immediate extraction and either release, or due process in a criminal trial. From a human rights point of view, that make no sense whatsoever; we have human rights because we’re human, not because of citizenship status, and if imprisoning someone indefinitely without charge or trial is a breach of human rights then it doesn’t cease to be so because the person imprisoned has this nationality rather than that nationality.
I see the same issue come up in the discourse about, say, surveillance by the NSA or other agencies; it seems to be accepted that those agencies can spy on non-citizens in a way which would not be permitted with respect to US citizens. Relatively recently, there’s been critical coverage in the US media about operations run to “spy on Muslim citizens”, and the tone of at least some of the converage seems to suggest that it’s the word “citizens” which makes those operations scandalous. That seems to punch a large hole in the concept of “human rights”, but it’s a hole that’s accepted not just by the legal system but by American popular discourse.
The European Convention on Human Rights (and at least some domestic European systems) do not suffer from this defect. The ECHR, for example, states badly that “everyone” has the rights to liberty, to fair criminal process, to respect for privacy, etc. Citizenship status doesn’t enter into it at all.
Fortunately (depending on one’s point of view, I guess) the U.S. Supreme Court has been pretty steadily extending such rights to non-citizens.
As an example, California tried to deny social services (including schooling!) to illegal immigrants, and the Supreme Court said no to that.
So, yes, as a fundamental philosophy, you’re right. In practice, it’s limited.
I’m inclined to see this citizen/non-citizen distinction as something which, logically and as a matter of principle, should go the way of male/female and black/white distinctions.
We marvel at the fact that (rich white) men of the Enlightenment could come up with foundational statements about human rights that we still value and respect, and at the same time maintain the institution of race-based slavery, exclude women from the professions, impose property qualifications for voting, etc, etc. But they did, because we’re all capable of double-think where our own interests and privileges are concerned.
It would be a mistake to think that they were capable of double-think but we are not; of course we are. And therefore there are aspects of our implemention of our own professed principles and values that future generations will boggle at. This, I think, is one of them. The instances you point to suggest that there is progress on this front. But much remains to be done.
I think the key issue that UDS was alluding to was not so much citizens/non-citizens with in the borders of the us, vs those two demographics outside the US borders.
But you also bring up the dichotomy between immigrants in the US legally, and those here illegally. Legal, Non-citizen residents generally cannot vote, but they are still afforded the rights of free speech, habeas corpus, a speedy trial, etc.
Both, really. The Guantanamo example I gave related to things done by the US outside US territory; the “spying on Muslim citizens” to things done within US territory.
If we’re talking about human rights abuses by governments, in general governments have rather more power within their own territory than they do outside it, and correspondingly more scope for the abuse of that power. But in modern conditions a superpower like the US also has considerable scope for wielding (and abusing) power outside its own borders. And, a bit like the citizen/non-citizen distinction, the inland/overseas distinction is in principle irrelevant; if it’s an abuse of human rights to detain people without charge or trial within the borders of the US, it’s equally an abuse to detain the same people without charge or trial on land which the US government leases from Cuba.
I think if a particular country’s legal mechanisms for vindicating human rights aren’t effective outside the country’s own borders, then state authorities wishing to abuse human rights have an obvious incentive to do so offshore. As somebody who’s not very close to the legal issues connected with Guantanamo, that seems to be what is happening here; the US has established its prison there precisely because what the US executive does in Guantanamo is not subject to review and control by the US courts - or at any rate, to the same degree of review and control as what it does on US territory. So that possibly is another lacuna in US legal mechanisms for the protection of human rights. But I suspect it’s a lacuna that might well be found in the corresponding European mechanisms as well. It’ll only be eliminated if the legal system accepts the idea that the mechanisms for defending human rights must always extend to wherever the state’s potential for abusing them extends.
If by “power” you mean “capability”, I agree. But the US has a wider range of authority for activities outside US borders. I’d be surprised if that were not true of European countries as well, else they would not be able to spy.
Mostly true, except Federal Courts as well as the SCOTUS have, in fact, ruled on issues related to Guantanamo detainees.
This has been an excellent thread, with much to think about. Kudus.
You’ve mostly been addressing particular points, however, so a few words from 30,000 feet may be a useful addendum.
The difference between the U.S. Constitution and the European Convention on Human Rights is that between apples and apple pie. The U.S. is a raw framework created by the founders with the expectation that the legislature and the courts would fill in the specifics. Think of it as a building. Over time, the incredibly varying circumstances of a nation of millions and the changes brought on with time not only stuffed the insides of the building with a rabbit warren of ever-shifting rooms but also found that by necessity it padded the framework a bit with extra stories, balconies, antennae, and a selection of gargoyles.
The ECHR, like many other modern constitutions, looked at that experience and decided to try to design a new building. It’s much more elaborate in its specifications about what is allowed inside and incorporates in its structure all those extra bits and pieces to reinforce it better against storms.
And that’s the thing that Pjen is ignoring. Those storms haven’t yet appeared and we have no idea how well any of this structure will hold up. The EC is a post-war structure. How would it have handled WW1 or WW2? We cannot know. There have been no wars between major states, no major civil wars, no total societal breakdown. No real tests of the kind that have pointed out the strengths and flaws of the Constitution. They might be coming: I predict the kind of enormous immigration in the next few decades that so scarred the U.S. that the powers that be felt it had to cut itself off from the rest of the world in the 1920s. Will the ECHR stand up to the abuses that will surely follow? It’s already failing the test of the Internet. Heck, it doesn’t even allow for single sex marriage. It looks superficially strong and flexible but no one can know that until the worst happens.
This is not a real argument. Creating plans for better futures is crucial and admirable. But you cannot seriously compare the actual past with the unreal future and make a judgement. You put up your best building, await the storm, and see what the damage is. Only then does the argument begin.
Uh, yes it does, SSM happens to exist in several of the countries under it and in fact one of the big arguments used to defend its implementation is that not having SSM available goes against HRs as it amounts to discrimination by reason of sexual orientation. Where it has been contested, it’s been contested under local laws, but never under grounds of “the ECHR doesn’t allow it” or “the Treaty of [whichever the current edition is called] doesn’t allow it”.
It’s important to remember that American laws only grant those rights that are specifically listed, whereas European ones only limit those which are specifically limited.
No, no, no-- a thousand times no.
Pjen’s point is that more rights are explicitly protected in the detail of ECHR than in the U.S. without having to trust in court rulings. I’m using this to suggest that the future is already making this problematic. No matter how detailed a document is, future change will bring up issues that the framers never thought about. There is no fundamental difference between Europe and America in this regard.
As for American laws, John Mace is correct. Americans have whatever rights the legislature and the court say they do. The Constitution just serves as a barrier against limiting those rights beyond a certain point. Again, no fundamental difference.
Incorrect, and exactly what the Ninth Amendment was put in place to correct. The rights of Americans are not limited to those enumerated in the Constitution. To assert so is to disparage other rights not so enumerated.
The Constitution exists only to define and limit the powers and role of government. Certain rights are brought under the protection of the federal government. Others are left unmentioned, and are therefore the federal government may neither take responsibility for creating them nor interfere with their exercise.
And no, SSM is not an example of a right to be protected or created by the federal government. The Tenth Amendment says specifically how rights are brought under the protection of the federal government, and federal judges pulling it out of their asses because it sounds like a good idea to them is not how it’s done.
For the federal government, whatever is not forbidden is mandatory. This is not the case for the citizens.
Regards,
Shodan
Yes, and I said precisely that.
This, however, is a point of view about how you think it’s supposed to be. Federal judges tend to disagree, which is precisely why I said - factually - that courts and legislatures enumerate American rights for all practical purposes. Always have, for every minute of their existence. And practical purposes seem to be the point of this thread.
Therefore, whether federal judges’ opinions about rights are to your approval is not a part of reality that anybody else needs to care about. Reality works without any of our approvals.
No. The Ninth Amendment explicitly states that other unlisted rights exist. I’ll grant that people are reluctant to invoke a claim to rights based on the Ninth Amendment.
That’s not true. Some right wing scholars argued that in regards to Griswold V. Connecticut, the Ninth Amendment explicitly says otherwise.