What are our Rights?

Great Debates
81

No problem, we can buy each other a pint, by serving ourselves one.

This is one of the most complicated things to deal with, which you have presented excellent examples of.

Logically, it should not have been necessary to pass several Amendments, as what was there to begin with should have been interpreted to cover the concerns.

Something to be accepted, is that neither the Constitution, nor the people who think they uphold it, are as perfect as many like to pretend. This is the natural result of the limits of the perfection of language, but it is also partly due to the fact that from the beginning, we haven’t been nearly as “United” as our more popular Histories tend to imply. That means that just as happens in Congress now, passages in the Constitution were PURPOSELY written in vague ways, in order to garner sufficient support and allegiance, to allow people who actually don’t like each other, to nevertheless agree to accept the same document as law.

I read somewhere long ago, I don’t recall where, that part of the reason why what we call the Bill of Rights was appended to the original Constitution, and not written directly into it, was because some of the authors believed that there was no need to spell them out, and that they were implied by the rest of the text.

To this day, the fact that they ARE enumerated, continues to cause many people to deduce that our Constitutional Rights are being granted to us BY the government that the Constitution created, hence this discussion.

I get both specific and intense about the subject, because in my studies of the past, AND observations of the present, we are beset by people who are interpreting what is and isn’t in the documents, with the purposeful intent of “pulling a fast one.” The only way to prevent them from doing so, is to try to be as clear as we can ourselves, what the true seat of power in the United States actually is.

Which could cause us to have an interesting discussion split off from this thread, wherein we debate who exactly “The People” of the United States actually are. Particularly since we are again suffering through a time when some segments of our population are actively trying to declare other citizens, to be less than equal.

82

Grin! To your health, sir! Also, at this point, I very much agree with what you are saying.

Yep! Screwy, because the 9th and 10th very specifically negate that interpretation. No less than Supreme Court Justice Anthony Scalia (may he rot in hell forever) when ruling on Gay Rights, argued that, if gays wanted rights, they needed to go to the legislature and have them pass bills giving them those rights – which is exactly the opposite of how the constitution is crafted!

83

Well, yes, but only if you start from the assumption that the particular “rights” that the gay community wanted at that particular time were those retained by the people under the 9th or 10th amendments or otherwise derived from English common law or natural law.

And therein lies the whole debate. Even if we assume that Jefferson was right insofar that we have rights from our Creator guaranteeing life, liberty, and the pursuit of happiness, then what are the specific contours of that? If we define them that broadly, then we argue over whether same sex marriage, carrying guns, driving a car, or smoking marijuana is part of them.

If we define rights narrowly and make a long list of them, there is a danger that something gets omitted from the list, or we then fall back on the same argument that something should be on the list and be a “right” or not be on the list and be a mere “privilege” that can be taken away.

84

In a sense, I agree. But that nullifies the 9th and 10th amendments, by saying, “No, that wasn’t what the framers had in mind, but is, instead, too broad.”

It’s similar to the argument that Washington, Franklin, Madison, et al, would never have wanted the First Amendment to apply to “Debbie Does Dallas.” Maybe they wouldn’t have…but is porn still a form of protected speech? Today it is, and the framers’ (hypothetical) views aren’t important.

But, as you say, where are the boundaries and contours?

(Easy! Way over on my side!) :wink:

85

As there is no creator nor a natural law to bestow rights to people, this 18th century document is the thing itself that bestows your rights, as U.S. citizens.
IOW, It is still your government that gives you these rights. That kind of nullifies the difference between a right and a privilege, I would say.

86

I don’t think the Court has exactly said that porn is protected speech, but it’s close enough to go with. So, we have a situation where we agree that the founding fathers would not believe that porn is protected speech, but today it “is.”

That highlights the argument from my side about how dangerous it is that we allow the judiciary to assume such a power. We would agree that the new “right” of porn that we are talking about did not come from our Creator, from natural law, or from English common law. Nor did it come from the Bill of Rights (because as we agree, the founders when they wrote the document did not believe they were recognizing such a right).

So, when we look at the source of this “right” to porn, the only possible source of it comes from a majority vote of nine on the Supreme Court. Nine people serving life terms, unelected by anyone, and not representative of a cross sample of the population who can take away our right of self rule and self determination? That is abhorrent in my view, and your side seems to like it only because the majority of those nine are ruling in your way at the moment.

I truly believe that unless both parties attempt to wrest power from the Court that it will eventually be the undoing of our representative democracy.

87

I can point to one lower court which alluded to this explicitly. Some California district attorney had tried to prosecute x-rated film producers for facilitating prostitution, since he was paying people to have sex. (On camera.) A judge shot him down, accusing him of “An end-run around the First Amendment.” So there’s at least one ruling that says x-rated movies are protected by the F.A.

While they are scary, without them Congress would have a much freer hand, and that would be a threat to our democracy.

I do see your point, and, yes, the court has to power to screw us over, bigly, but right now, they are pretty much the weakest of the three branches of the Federal Government.

88

I would agree with this in principle, it’s important to define our terms.

When people talk about “inalienable rights” these are rights we have by virtue of being human, to all persons. The key is, as someone put it, it’s not incumbent on anyone else to perform to exercise those rights. They are basic human individual rights. The right of self defense, for example. The right of free speech, the freedom to assemble.

The problem arises when people conflate rights with “things that would be really nice.”
At the risk of sounding heartless, just because someone “needs” something doesn’t mean they have an automatic claim on my resources.

89

Exactly. The source of the rights is right there in the opening words of the Constitution:

[QUOTE=Some old white dudes in wigs]
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
[/QUOTE]

The theory in support of that protection of rights may well be grounded on natural law. Or on a political ideology that says rights are a good thing. Or some other political theory that I’m not aware of. But the source in law today in the US is that document, established by the people through a political process.

90

You should read that 18th century document more closely, and The Federalist,
they recognized that inalienable rights were a pre-existing condition, that these rights predated the government they set up. If you don’t believe in a creator or natural law, then it doesn’t matter anyway and you shouldn’t be worried about it.

The declaration of independence and constitution were “revolutionary” exactly because of this, because they believed that government rule should not be by kings and queens and hereditary lines of succession, nor despots or dictators, nor mob rule etc.

91

i don’t think it’s that simple. Remember, Roe wasn’t about federal restrictions on abortions, and you can make the argument that the Constitution doesn’t grant the federal government the power to restrict abortions.

But the issue in Roe was state restrictions on abortions. And pointing to the 9th and 10th don’t resolve the issue of whether the states can restrict abortions. Look at the text of the 10th:

So the fact that the power to restrict abortions is not granted to Congress is consistent with the 10th, but the 10th in turn reserves powers to the states or to the people. And that’s what the states who want abortion restrictions would point to: the 10th preserves the powers of the states to restrict abortions, likely as part of the “police power” of the states. Looking at the 10th, can you say definitively that the 10th reserves the issue of abortion autonomy solely to the people, and not in any way to the states? I don’t see it myself…

But if that’s the case, and you favour a constitutional restriction on the powers of the states to restrict abortions, then you’re back to the federal Constitution and the Bill of Rights as the source of a possible restriction on the states.

92

That’s exactly why they described a negative system of liberty. It’s impossible to list everything, so they went at it the other direction, describing what the government cannot do. The whole bill of rights is practically “congress shall make no law” and “the right of the people shall not be infringed”

Somewhere jurisprudence got twisted. For example, the government outlawed booze. Might have been a really dumb idea, but, as near as I can tell they got enough states to sign on, and got a constitutional amendment passed to do it. That sounds about right. Today? Hell they’ve practically outlawed incandescent light bulbs, smoking in bars, and the Easter Bunny. Point being at one time they thought it necessary to do this (amendments) for beer and liquor, but not for say, weed, high flow shower heads, and two stroke lawnmowers. Clearly the central idea was that government would be forever constrained from insinuating itself from every facet of our day to day lives, and yet here we are.

93

Ah! Superlatively good point! Thank you! I was kinda overlooking that context!

94

Recognized is not the right word. Believed would be a better term.

I can’t make sense of this sentence, could you explain further?

95

If you don’t believe in a creator, or natural law, upon what do your base your system of ethics and beliefs? This is what Adams was alluding to:

"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

I should point out that personally am certainly no prude, or “uptight” or a churchgoer. But I recognize that the western worldview has been shaped by western thought and philosophy, based upon Judeo-Christian values, and these are good things and in very large part why the west has been so successful - a tradition among other things, of individual human rights, virtually unheard of, and equality before the law. The Declaration and Bill of Rights are a product of enlightenment thought, and not surprisingly we are still arguing exactly those same principles today, what is the role of government in our lives. In that sense nothing has changed. When someone says those pieces of parchment are “outdated” or archaic, they are lying to you.

96

A distinction without a difference.

Do you believe you have the right of self defense?

97

A moral people, yes. We have to have some basic morality (from whatever source) in order to be decent citizens. (It’s a necessity for civics.)

But religious, no. Atheists can be perfectly good citizens, adhering to a morality that even religious people would recognize as good.

The religious heritage of western civilization is mixed. We have a lot of both good and bad. The Holy Inquisition is a part of that religious heritage.

Yes, the Bible is outdated and archaic, when it comes to serving as a basis for modern consensus morality. We don’t need the Bible in order to be good people. Religion often promotes morality, but atheists also promote morality.

Between “recognized” and “believed?” A giant difference!

Yes, certainly, I have the right of self defense. Where does that right originate, and how is it maintained? I say it comes only from human interests, and is maintained by the large moral consensus that it is a good thing.

Do you have the right to slaughter a horse to cook the meat for dinner? In California, you do not. But you do have the right to slaughter a hog. Where is the difference, in terms of “absolute” or “God-given” morality?

98

You seem to be equivocating “government” between the federal and state governments. I agree that the federal government is one of enumerated powers and should not be outlawing alcohol or drugs or incandescent light bulbs.

However, the power to outlaw alcohol at the state level is a permissible police regulation. Nobody has an inherent right from his or her Creator, or the Constitution to drink alcohol or smoke in a bar. I don’t discount the Libertarian philosophy that as long as what a person does is not harming another individual should be permitted, but nothing in our history or traditions suggest that it must be. See, e.g., laws against working on Sunday, obscenity laws, drug laws, sodomy laws, fornication laws, etc.

99

They are outdated in the sense that these people, from the period of enlightenment, still tried to make it out as if someone or something higher gave the these rights they came up with.

I’m not saying individual rights are outdated, just that they are ‘nice to haves’ for a comfortable and just society to live in. They exist by grace of this society not by a god or some natural law.

That is also an incentive to remain vigilant about these freedoms. In the 200 years since this document we have seen an increase in the number of rights/freedoms society thinks people should have, in order to be able to have a nice life. And lately also animals.
But to lean back and think these rights are preserved and watched after by something higher, could leave you vulnarable to those that want to take your liberties away.

100

Yes, but not because they aren’t human, but rather instead because they can’t indicate a desire or interest in participating on those processes. If that somehow changed, and they could, they would have the right to do so.