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The [American Constitution] Justifies Itself

Nova_CNova_C Sniff Sniff SnorfBeyond The WallRegistered User regular
edited February 2012 in Debate and/or Discourse
I've been having a debate on another board about the Second Amendment to the US Constitution, the one about the right of the people to keep and bear arms. I managed to drag [chat] into it, but rather than start another gun control debate, there's something else that bothers me about these discussions.

The tendency for people to think that the constitution is it's own justification.

For example, people keep telling me that since I am Canadian, and have not grown up under the US Constitution, I would just not understand the importance of such a thing. This makes no sense as not only does Canada have a constitution of its own, but the document is just a piece of paper. The implementation of its ideals and the consequences of that implementation is the reality that we should be discussing, not what the forefathers wanted (Who gives a shit!?) or what the chances of a tyrannical oppressor overthrowing the US government by means of military oppression are.
spool32 wrote:
No,no, no,no, a thousand times no. We should not have to constantly justify our inherent rights, rights described in the Constitution but not granted to us by it. Those who wish to restrict those rights should have to justify their wish, at each and every step.

The people have the right to defend themselves, their families, their communities, their nation, and their freedom. bearing I arms to this end is inherent, and does not need to be constantly justified. It is restrictions on this right that bear the burden of proof.

So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights? If I say that requiring licensing to purchase and use a firearm has a proven track record of reducing firearms related deaths, is that argument invalidated in an American context simply because of the US constitution? Or are defenders of the right to keep and bear arms obligated to formulate a response that is based on real world consequences of curtailing that right?

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  • AManFromEarthAManFromEarth Their ideas are old and their ideas are bad. The King in the SwampRegistered User regular
    The idea is that the Constitution limits what the government can and cannot do. No law in the US is supposed to exist that is contrary to the Constitution. At the same time, it isn't a suicide pact and as we go forward its supposed to grow and change with the times while still retaining the basic idea of protecting the rights of the people and entrusting the government with the duties outlined in the preamble.

    Now, there's the debate between a living document and originalists on just how much it should change and be interpreted and certain segments of our population call foul on any law they don't like on "CONSTITUTION!" grounds. The courts have found that some rights are limited (for example you can't shout fire in a crowded theater).

    But, we're raised up from primary school to believe that yes, the constitution does justify itself since all our laws are supposed to exist within its provided framework. But we also have an amendment system for a reason so if we find something no longer works it can be changed. And that system is purposefully slow and cumbersome to keep radical change from happening.

    Personally I'm rather fond of it but I do enjoy talking with my British and Canadian friends about the differences between our forms of government.

    Hope this was helpful.

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  • shrykeshryke Registered User regular
    The main problem with the argument that the US Constitution justifying itself is that the US constitution is not just a document enumerating rights.

    It is also (I'd say principally) a document laying out a system of government.

    The specific setup of the US government being an inherent right is a ridiculous argument. It can perhaps be said to contain certain things that are inherent rights though, but the document as a whole? Just silly.

  • wazillawazilla Registered User regular
    The Constitution wasn't written in a vacuum... the ideas represented by it were influenced by the thoughts and ideas many prominent enlightenment era philosophers and each of them had to attempt to justify their beliefs in their respective works. Why should the Constitution be any different? This shit wasn't handed down from on high. So no, the Constitution should absolutely not be its own justification.

  • AManFromEarthAManFromEarth Their ideas are old and their ideas are bad. The King in the SwampRegistered User regular
    wazilla wrote: »
    The Constitution wasn't written in a vacuum... the ideas represented by it were influenced by the thoughts and ideas many prominent enlightenment era philosophers and each of them had to attempt to justify their beliefs in their respective works. Why should the Constitution be any different? This shit wasn't handed down from on high. So no, the Constitution should absolutely not be its own justification.

    I think this is the most important thing that people forget about US government. Moses didn't come down Mt Rushmore with the Bill of Rights on a tablet from God.

    Lh96QHG.png
  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    The consitution is central to our entire system of government. The government is literally created pursuant to it, and all of its powers flow from it. Because of this, the touchstone for determining if an act of government is valid is to determine if it is within the powers granted by the constitution. To begin challenging the constitution itself to is to question the validity of all government actions, which would eliminate out current ability to point to a valid act of congress and say "this is the law." With no agreed on way to determine what is and is not law, we would lose the rule of law itself, since noone would be able to predict the validity or enforcability of a law, and therefore, noone would be able to order their actions so that they comply with law.

    Also, please don't forget that the consitution actually provides a mechanism for amending it, which power has been exercised many times in the short history of our nation. If you don't like something about the consitution, you are always free to try and change it, although you will need the vast majority of America on your side to succeed. . .

  • JepheryJephery Registered User regular
    edited February 2012
    Well, what Spool wrote is correct. In terms of natural rights, in the state of nature everyone has the right to do whatever the hell they want. People then realize that this isn't the best situation, and start putting restrictions on each others' rights to form a civil society, forming a social contract where they give up to right to exercise force and make laws to an agreed upon government that rules by their consent.

    In that sense, the Constitution isn't really about what our rights are, but what rights we are giving up in order to have a functioning society (i.e. what our system of government is and what it can or cannot do).

    Its pretty easy to justify gun control though. There is nothing wrong with background checks or keeping people from buying heavy weapons and explosives that are way beyond the realm of self defense.

    A lot of out rights have restrictions on them. That you can't outright libel other people or scream fire in a crowded theater is a restriction on speech, for one.

    Jephery on
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  • MrMisterMrMister Valuing scholarship above all elseRegistered User regular
    Nova_C wrote:
    So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights?

    Practically, yes. Of course, one might argue that the constitution ought to be amended, and that is a fine argument to have, but the process is arduous. For most policy debates constitutional rights provide boundaries to what there is any point in discussing, simply because modifying the constitution is only politically feasible in rather extreme circumstances.

  • TenekTenek Registered User regular
    I would also say that it does not justify itself. I would further say that there's a tendency for people to assume that they way things are for them is the natural order of things, so people in America just assume that the American system is a great idea regardless of what happens because of it. The Constitution has at least one, probably two time bombs in it (slavery and the Electoral College) and accordingly it is seriously flawed.

    Hell, the 9th amendment even indicates that you have all kinds of rights not listed therein.

  • Sir LandsharkSir Landshark Registered User regular
    I feel like this thread is going to reach consensus relatively quickly. The supposed counter-argument in the OP even states that rights are "described in the Constitution but not granted to us by it."

    It's clearly a living document, otherwise we wouldn't have amendments (including one that got put in and later nullified).

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  • shrykeshryke Registered User regular
    The consitution is central to our entire system of government. The government is literally created pursuant to it, and all of its powers flow from it. Because of this, the touchstone for determining if an act of government is valid is to determine if it is within the powers granted by the constitution. To begin challenging the constitution itself to is to question the validity of all government actions, which would eliminate out current ability to point to a valid act of congress and say "this is the law." With no agreed on way to determine what is and is not law, we would lose the rule of law itself, since noone would be able to predict the validity or enforcability of a law, and therefore, noone would be able to order their actions so that they comply with law.

    The specific form of the government's powers come from the constitution. And even that, under the constitution itself, is subject to change. To challenge the constitution is explicitly allowed within said constitution.

    Also, please don't forget that the consitution actually provides a mechanism for amending it, which power has been exercised many times in the short history of our nation. If you don't like something about the consitution, you are always free to try and change it, although you will need the vast majority of America on your side to succeed. . .

    When was the last time again? Cause amending the constitution has become untenable and everyone fucking knows it. Which really shits all over the constitution itself, which was explicitly designed to be amendable.

  • emnmnmeemnmnme Heard about this on conservative radio:Registered User regular
  • Nova_CNova_C Sniff Sniff Snorf Beyond The WallRegistered User regular
    I feel like this thread is going to reach consensus relatively quickly.

    That is quite likely, but I am really tiring of debates being stymied with Americans because of the constitution. Honestly, I would like to be able to debate the merits of gun control with Americans without being entangled in the right to keep and bear arms. It's not a right to me, and should not be, and the US constitution has not bearing on my point of view. So how do I debate with "But it's guaranteed by the constitution."?

    That's what this thread is about, mostly.

    I also am looking for Americans perspectives on the basis of the constitution being so difficult to amend. I know it's been amended several times, but one amendment (I think the 27th) took 200 years or so to be fully ratified.

    Like, if you're gonna do it, do it. :P

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  • LoserForHireXLoserForHireX Registered User regular
    Nova_C wrote:
    I've been having a debate on another board about the Second Amendment to the US Constitution, the one about the right of the people to keep and bear arms. I managed to drag [chat] into it, but rather than start another gun control debate, there's something else that bothers me about these discussions.

    The tendency for people to think that the constitution is it's own justification.

    For example, people keep telling me that since I am Canadian, and have not grown up under the US Constitution, I would just not understand the importance of such a thing. This makes no sense as not only does Canada have a constitution of its own, but the document is just a piece of paper. The implementation of its ideals and the consequences of that implementation is the reality that we should be discussing, not what the forefathers wanted (Who gives a shit!?) or what the chances of a tyrannical oppressor overthrowing the US government by means of military oppression are.
    spool32 wrote:
    No,no, no,no, a thousand times no. We should not have to constantly justify our inherent rights, rights described in the Constitution but not granted to us by it. Those who wish to restrict those rights should have to justify their wish, at each and every step.

    The people have the right to defend themselves, their families, their communities, their nation, and their freedom. bearing I arms to this end is inherent, and does not need to be constantly justified. It is restrictions on this right that bear the burden of proof.

    So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights? If I say that requiring licensing to purchase and use a firearm has a proven track record of reducing firearms related deaths, is that argument invalidated in an American context simply because of the US constitution? Or are defenders of the right to keep and bear arms obligated to formulate a response that is based on real world consequences of curtailing that right?

    Is your contention then that there are no basic rights that ought never be denied to any citizen by their government?

    Because it seems like this is your claim. Either that, or you simply disagree on which rights are or are not those basic rights. You might say that the constitution guarantees rights that it ought not, but all it does is seek to ennumerate those particular rights. Sometimes there are changing notions of what exactly those rights are or aren't, and it's possible to change what we believe those rights to be though we generally don't want to be mucking about with that. Our concept of what those rights ought to be doesn't actually change that often.

    "The only way to get rid of a temptation is to give into it." - Oscar Wilde
    "We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Neitzsche
  • spool32spool32 Contrary Library Registered User regular
    Shryke, let's agree for the sake of discussion that when we say "The Constitution" we're also including the amendments. It'll get silly otherwise - we're talking about the Bill of Rights and the rest of the Amendments, not just Articles 1-3.

    Firstly, it's not "just a piece of paper". It's the system by which we frame government and its limited powers. In the context of Rights, it is the document that describes rights inherent to us as a free people. Your question:
    So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights?

    is a strawman. The argument here is whether inherent rights, specifically those rights important enough to require specific limits on government's ability to restrict them, need to be re-justified and re-asserted whenever someone feels like the government ought to be able to restrict them more. When someone says "The US Constitution guarantees the right" they are incorrect - the US Constitution limits our government's ability to place restrictions on rights that we have as free men and women, purely by virtue of our own existence, handed down by no authority and granted to us by none (except God himself, if you believe that sort of thing).

    For those who wish to increase the government's power to limit these rights, the burden lies with them to demonstrate the need.

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  • TenekTenek Registered User regular
    Nova_C wrote: »
    I also am looking for Americans perspectives on the basis of the constitution being so difficult to amend. I know it's been amended several times, but one amendment (I think the 27th) took 200 years or so to be fully ratified.

    Like, if you're gonna do it, do it. :P

    I'm not American, but I offer an opinion regardless: Any amendment is going to piss somebody off, and they're pretty easy to block if you're dedicated. You need extensive bipartisan support in Congress and 38 states to sign off on it. Take something like the following:
    Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

    The above is the text of the Equal Rights Amendment, which failed. If you can't pass that, what the hell can you pass?

  • enlightenedbumenlightenedbum Ann Arbor, MichiganRegistered User regular
    We've recently started adding clauses to amendments that pass the Congress (not that one has in... what, 35 years? ERA was the last one that did, I think) that the states have to ratify it within x years or they have to try again. So the 27th won't happen again. The reason it's hard to amend is so it doesn't become a cluttered mess like certain Constitutions (like the state of Alabama's). It was probably a bit overdone, though I tend to think that's preferable. If something is so foundational it needs to go directly in the social contract (which is what the thing is, to answer the thread's initial question), there should be broad consensus. Frustrating at the moment, with the desperate need to put campaign financing right in the damn thing so the courts won't fuck it up out of utter myopia.

  • AManFromEarthAManFromEarth Their ideas are old and their ideas are bad. The King in the SwampRegistered User regular
    Nova_C wrote: »
    I feel like this thread is going to reach consensus relatively quickly.

    That is quite likely, but I am really tiring of debates being stymied with Americans because of the constitution. Honestly, I would like to be able to debate the merits of gun control with Americans without being entangled in the right to keep and bear arms. It's not a right to me, and should not be, and the US constitution has not bearing on my point of view. So how do I debate with "But it's guaranteed by the constitution."?

    That's what this thread is about, mostly.

    I also am looking for Americans perspectives on the basis of the constitution being so difficult to amend. I know it's been amended several times, but one amendment (I think the 27th) took 200 years or so to be fully ratified.

    Like, if you're gonna do it, do it. :P

    Well, the founders were afraid of mob rule (because mob rule is a bad idea and they were all rich land owners), which is why we have things like the electoral college, the Senate, and the long as fuck amendment process.

    The Constitution, when talking about natural rights, does justify itself I think because it comes out of the enlightenment and the evolving ideal of liberty and such.

    However, we have an amendment process and there's no reason not to debate justifications for amending the constitution. Any American who just says CONSTITUTION and then shuts down needs to take a chill pill and a civics class.

    When we get down to structure and form of government, there are legitimate things to talk about changing (I for one would take a serious look at the electoral college and its relevance in the modern world, I'm not convinced that it has any anymore).

    Lh96QHG.png
  • shrykeshryke Registered User regular
    edited February 2012
    spool32 wrote: »
    Shryke, let's agree for the sake of discussion that when we say "The Constitution" we're also including the amendments. It'll get silly otherwise - we're talking about the Bill of Rights and the rest of the Amendments, not just Articles 1-3.

    Firstly, it's not "just a piece of paper". It's the system by which we frame government and its limited powers. In the context of Rights, it is the document that describes rights inherent to us as a free people.

    See, the first statement is not the same as the second. These are two different ideas.

    The Constitution describes how the government works. It does not establish inherent rights.

    To refer specifically to to the argument from the OP, the Constitution says (just simplifying here) the government can't take away your guns. It does not say you have some inherent right to those guns that exists outside the constitution.

    And again, the constitution specifically makes itself amendable, further undermining the idea that the document is enumerating inherent rights. Rather, it is simply describing how the government will work.

    Quite simply, the 2nd amendment does not justify it's own existence. Just because it is doesn't mean it should be.

    Your question:
    So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights?

    is a strawman. The argument here is whether inherent rights, specifically those rights important enough to require specific limits on government's ability to restrict them, need to be re-justified and re-asserted whenever someone feels like the government ought to be able to restrict them more. When someone says "The US Constitution guarantees the right" they are incorrect - the US Constitution limits our government's ability to place restrictions on rights that we have as free men and women, purely by virtue of our own existence, handed down by no authority and granted to us by none (except God himself, if you believe that sort of thing).

    For those who wish to increase the government's power to limit these rights, the burden lies with them to demonstrate the need.

    And the point of the OP is that "because the constitution says so" is not an argument against that demonstration.

    So basically, yeah, you do need to justify it because it being part of the constitution now does now mean it has to be. It's existence now does not lend weight to arguments for it's existence.

    shryke on
  • shrykeshryke Registered User regular
    We've recently started adding clauses to amendments that pass the Congress (not that one has in... what, 35 years? ERA was the last one that did, I think) that the states have to ratify it within x years or they have to try again. So the 27th won't happen again. The reason it's hard to amend is so it doesn't become a cluttered mess like certain Constitutions (like the state of Alabama's). It was probably a bit overdone, though I tend to think that's preferable. If something is so foundational it needs to go directly in the social contract (which is what the thing is, to answer the thread's initial question), there should be broad consensus. Frustrating at the moment, with the desperate need to put campaign financing right in the damn thing so the courts won't fuck it up out of utter myopia.

    Well, the problem with this idea is it lends unearned weight to the things already enumerated within the constitution.

    And the constitution, right from the start, was full of shitty shitty things.

  • Regina FongRegina Fong Allons-y, Alonso Registered User regular
    Nova_C wrote: »
    I feel like this thread is going to reach consensus relatively quickly.

    That is quite likely, but I am really tiring of debates being stymied with Americans because of the constitution. Honestly, I would like to be able to debate the merits of gun control with Americans without being entangled in the right to keep and bear arms. It's not a right to me, and should not be, and the US constitution has not bearing on my point of view. So how do I debate with "But it's guaranteed by the constitution."?

    That's what this thread is about, mostly.

    I also am looking for Americans perspectives on the basis of the constitution being so difficult to amend. I know it's been amended several times, but one amendment (I think the 27th) took 200 years or so to be fully ratified.

    Like, if you're gonna do it, do it. :P

    While the Constitution doesn't "justify itself" it is the highest law in our country. The argument that the Constitution is a "living document" doesn't negate the fact that if you want to impinge on something that the Bill of Rights says is a right, what you are talking about is amending the Constitution. A lot of gun control advocates want to creatively reinterpret the Constitution, quite against the majority wishes in many cases. That shouldn't fly for all sorts of reasons. I know you said you didn't want a gun control thread, but there it is. Reading the second amendment in such a way that only National Guard members and police should have access to firearms is disingenuous in the extreme. The Supreme Court has allowed some gun control, but if they go ahead and just toss out the second amendment because it's old and archaic then what is to stop them from throwing out other amendments?

    There's a reason amending the Constitution is arduous. It wasn't meant to be easy, fast, or something that could be done by a small group of people who just happen to feel real strongly, no matter how logical their arguments.

  • tinwhiskerstinwhiskers Registered User regular
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

  • enlightenedbumenlightenedbum Ann Arbor, MichiganRegistered User regular
    edited February 2012
    shryke wrote: »
    We've recently started adding clauses to amendments that pass the Congress (not that one has in... what, 35 years? ERA was the last one that did, I think) that the states have to ratify it within x years or they have to try again. So the 27th won't happen again. The reason it's hard to amend is so it doesn't become a cluttered mess like certain Constitutions (like the state of Alabama's). It was probably a bit overdone, though I tend to think that's preferable. If something is so foundational it needs to go directly in the social contract (which is what the thing is, to answer the thread's initial question), there should be broad consensus. Frustrating at the moment, with the desperate need to put campaign financing right in the damn thing so the courts won't fuck it up out of utter myopia.

    Well, the problem with this idea is it lends unearned weight to the things already enumerated within the constitution.

    And the constitution, right from the start, was full of shitty shitty things.

    No disagreement on that point. I don't think making it easier to alter would have changed much though, honestly. The American Civil War was inevitable.

    enlightenedbum on
  • shrykeshryke Registered User regular
    edited February 2012
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    shryke on
  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    MrMister wrote: »
    Nova_C wrote:
    So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights?

    Practically, yes. Of course, one might argue that the constitution ought to be amended, and that is a fine argument to have, but the process is arduous. For most policy debates constitutional rights provide boundaries to what there is any point in discussing, simply because modifying the constitution is only politically feasible in rather extreme circumstances.

    I second this.

    The reason it's hard to amend is so it doesn't become a cluttered mess like certain Constitutions (like the state of Alabama's). It was probably a bit overdone, though I tend to think that's preferable. If something is so foundational it needs to go directly in the social contract (which is what the thing is, to answer the thread's initial question), there should be broad consensus.

    California's state Constitution is another good counterpoint. Much like Alabama's, ours is a monstrosity.

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  • enlightenedbumenlightenedbum Ann Arbor, MichiganRegistered User regular
    shryke wrote: »
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    As for that question, some of them I think are, but not because they're in the Constitution. Basically the 1st, 4th-8th, 13th, 15th, 19th, 24th, 26th (or the franchise generally).

  • LoserForHireXLoserForHireX Registered User regular
    shryke wrote: »
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    As is the right to participate in your government, or speak freely.

    If these rights are inherent to the human condition then there reason to criticize any government that does not recognize these rights is flawed because of that. Otherwise the only justification for the rights is instrumental, that they simply happen to provide for the greatest good, but as times and situations might change perhaps some day it might not be for the best that people ought not to be slaves, or have laws of the government apply equally to them as well as others.

    Is that what you want to commit to?

    "The only way to get rid of a temptation is to give into it." - Oscar Wilde
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  • shrykeshryke Registered User regular
    shryke wrote: »
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    As for that question, some of them I think are, but not because they're in the Constitution. Basically the 1st, 4th-8th, 13th, 15th, 19th, 24th, 26th (or the franchise generally).

    Agreed though even on those points you'll find plenty of disagreement (see the thread on hate speech laws for the differing view of things like the rights given in the first)

    And that's pretty much what I was trying to say in my first post. The US Constitution enumerates the governments powers and while doing so does enumerate rights that I'd say 99% of us would agree are inherent beyond their existence in the constitution, but that's not all it does.

  • spool32spool32 Contrary Library Registered User regular
    edited February 2012
    shryke wrote: »
    spool32 wrote: »
    Shryke, let's agree for the sake of discussion that when we say "The Constitution" we're also including the amendments. It'll get silly otherwise - we're talking about the Bill of Rights and the rest of the Amendments, not just Articles 1-3.

    Firstly, it's not "just a piece of paper". It's the system by which we frame government and its limited powers. In the context of Rights, it is the document that describes rights inherent to us as a free people.

    See, the first statement is not the same as the second. These are two different ideas.

    The Constitution describes how the government works. It does not establish inherent rights.

    To refer specifically to to the argument from the OP, the Constitution says (just simplifying here) the government can't take away your guns. It does not say you have some inherent right to those guns that exists outside the constitution.

    And again, the constitution specifically makes itself amendable, further undermining the idea that the document is enumerating inherent rights. Rather, it is simply describing how the government will work.

    Quite simply, the 2nd amendment does not justify it's own existence. Just because it is doesn't mean it should be.

    Your question:
    So, the question is, should the constitution be its own justification, that is, simply saying "The US constitution guarantees the right" is a valid and unassailable response to an argument to curtail certain rights?

    is a strawman. The argument here is whether inherent rights, specifically those rights important enough to require specific limits on government's ability to restrict them, need to be re-justified and re-asserted whenever someone feels like the government ought to be able to restrict them more. When someone says "The US Constitution guarantees the right" they are incorrect - the US Constitution limits our government's ability to place restrictions on rights that we have as free men and women, purely by virtue of our own existence, handed down by no authority and granted to us by none (except God himself, if you believe that sort of thing).

    For those who wish to increase the government's power to limit these rights, the burden lies with them to demonstrate the need.

    And the point of the OP is that "because the constitution says so" is not an argument against that demonstration.

    So basically, yeah, you do need to justify it because it being part of the constitution now does now mean it has to be. It's existence now does not lend weight to arguments for it's existence.

    You're using "establish", "describe", and "enumerate" as if they are interchangeable terms when in this context they are not. The 2nd says that "... the right of the people... shall not be infringed". Implicit in this is the idea that the right exists, and the Constitution does not "establish" that right. It exists, inherently, for all people. The 2nd makes clear the limits that exist on our government when they wish to restrict that right.

    Of course something being part of the Constitution now doesn't mean it must be forever and always, but right now, it is. The burden rests on those who wish to change or remove the 2nd to demonstrate why the government should be allowed more power to restrict that right. That is a fundamental difference and you really can't just wave it away by going nun-uh. It's how we operate with respect to the Constitution.

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  • Regina FongRegina Fong Allons-y, Alonso Registered User regular
    shryke wrote: »
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    No but you can say that you shouldn't be able to change it without changing the Constitution.

    Which in the case of firearms, is exactly the same thing as saying you can't change it. When enough of the country feels differently, the situation will be different. Right now though? Just wishing won't make it so.

    The difficulty in changing the Constitution has also kept some shitty amendments out. We would probably have a constitutional amendment banning gay marriage if it were easier to pass a new amendment, for example.

  • AManFromEarthAManFromEarth Their ideas are old and their ideas are bad. The King in the SwampRegistered User regular
    The constitution exists to a.) lay out the "natural rights" inherent to all peoples, b.) limit the government's powers, and c.) provide the structure of the American government.

    I think you'd be hard pressed to get a movement that would remove any of the rights of the people from the Constitution, and rightly so. The constitution is meant to limit the government, not the people. At the same time, your rights end where another's begin, so I guess in that sense it does limit the people to a degree, but not to the degree of the government.

    The idea is to give people more freedom, not less.

    At least, that's my interpretation.

    Lh96QHG.png
  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    edited February 2012
    shryke wrote: »
    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    Of course, interpretations of the Constitution may differ, sometimes quite dramatically.

    Up until the last few years, the standing Supreme Court interpretation of the Second Amendment was that it confers a collective right, not an individual one. It's only been as recently as 2008 (DC v. Heller) that the right to keep and bear arms has been considered an individual right.

    Through most of the 20th Century, the courts held that the Second Amendment was connected to militia service. It was permissible, for instance, for a state to pass a ban on certain barrel lengths of shotgun because such weapons did not serve a military purpose and consequently, such bans did not interfere with a private citizen's militia duties. In Heller, this standard was reversed and the Supreme Court said that the right to keep and bear arms is independent of militia service.

    Even then, the Court reaffirmed that individuals do not have "the right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." They reaffirmed several different broad types of gun control.

    When you said in another post, "just because it is doesn't mean it should be," you were absolutely right. The actual decisions made on Constitutional matters often come down, at least in part, to what should be rather than what is. A strict adherence to precedent in 2008 would have rendered a different decision in Heller - they would have upheld the 'collective rights' and militia-related interpretations of the Second Amendment. The law changes partly because the members of SCOTUS thought it should be changed. If they didn't think that, then they wouldn't have heard the case at all.

    The interpretation may yet reverse again, in some year in the distant future.

    Feral on
    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
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  • enlightenedbumenlightenedbum Ann Arbor, MichiganRegistered User regular
    edited February 2012
    shryke wrote: »
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    No but you can say that you shouldn't be able to change it without changing the Constitution.

    Which in the case of firearms, is exactly the same thing as saying you can't change it. When enough of the country feels differently, the situation will be different. Right now though? Just wishing won't make it so.

    The difficulty in changing the Constitution has also kept some shitty amendments out. We would probably have a constitutional amendment banning gay marriage if it were easier to pass a new amendment, for example.

    Flag burning would be pointlessly banned in the Constitution itself, too.

    So, two amendments with sunsets have failed:
    ERA (approved 40 years ago March 22) and getting 35/38 required states by 1982
    Non-statehood but two Senators and a full voting representative for DC, passed in 1978, but only ratified by 16 states

    There are also four that could still be ratified as they never had a sunset provision included:
    One that guarantees a representative for every 50,000 citizens (11 states)
    One that strips citizenship from anyone who accepts a foreign title of nobility (12 states)
    The Corwin Amendment, to ban future Amendments from addressing slavery (3 states; well done Ohio, Maryland, and Illinois)
    A Child Labor Amendment, which made Congress the one and only entity to deal with child labor laws (28 states, with 12 rejecting it outright)

    Proposed but never passed by Congress things include:
    Banning public money to religious purposes, but especially Catholics
    One to amend the Preamble to strictly refer to the Christian God (proposed five times, failed four times, didn't come to a vote in 1954)
    A variety of pro-slavery bullshit!
    Banning interracial marriage (three attempts)
    Anti-UN conspiracy mongering
    A really vague ecological amendment: "The right of citizens of the United States to use and enjoy air, water, wildlife, and other renewable resources determined by the Congress to be common property shall not be impaired, nor shall such use impair their availability for the use of future generations."
    Abolishing the death penalty (four times, none out of committee)
    A ban on flag burning (passed the house several times, failed by a vote in the Senate)
    Overturning Roe (many, many times, 18 votes in the Senate is the closest it's come)
    An amendment to make any declaration of war subject to a national referendum, unless it was reciprocal
    The Worst Idea since Dred Scott (Balanced Budget Amendment)
    School Prayer Amendment
    An Amendment to enshrine the word "God" in the Pledge of Allegiance and National Motto... seriously
    An Amendment to abolish the electoral college
    The Tom Clancy novel amendment, to reconstitute the government without special elections if a Japanese airline hits the Capitol during a joint session
    The President Schwarzenegger/Granholm Amendment
    A repeal of the 17th Amendment
    Ban on gay marriage
    A repeal of the 22nd (Presidential term limits)
    Ending jus soli citizenship
    Congressional term limits
    Ending corporate personhood

    So it's... a decidedly mixed bag.

    enlightenedbum on
  • spool32spool32 Contrary Library Registered User regular
    The Constitution emphatically does not say that the keeping and bearing arms is a right.

    The Constitution acknowledges that the right exists, and describes the limits on government's power to infringe on that right.

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  • Nova_CNova_C Sniff Sniff Snorf Beyond The WallRegistered User regular
    edited February 2012
    spool32 wrote:
    Of course something being part of the Constitution now doesn't mean it must be forever and always, but right now, it is. The burden rests on those who wish to change or remove the 2nd to demonstrate why the government should be allowed more power to restrict that right. That is a fundamental difference and you really can't just wave it away by going nun-uh. It's how we operate with respect to the Constitution.

    I'm not saying that, though. What I'm saying is the fact that second amendment exists is not justification of it's continued existence.

    As in, if I say "Guns should be restricted for reasons A, B and C" the response "But the constitution says no, so nyah!" does not a good argument make. Rights should be justified by their consequences, good and bad, in society, not because it is written down somewhere.

    Nova_C on
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  • FeralFeral Who needs a medical license when you've got style? Registered User regular
    Nova_C wrote: »
    Rights should be justified by their consequences, good and bad, in society, not because it is written down somewhere.

    If I want to be technical, restrictions should be justified by their consequences, good and bad.

    In the absence of that justification, all things are presumed permissible.

    every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
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  • PantsBPantsB Registered User regular
    edited February 2012
    There's two issues here really.

    The first is the difference between fundamental right that exist inherently and the fundamental protections built into the system of government. The thing is that fundamental rights are laid out in the Bill of Rights, but not everything in the Bill of Rights speaks to a fundamental right. First Amendment? Fundamental right underlying the entire philosophy behind Democratic/Republican/egalitarian government. The Third Amendment - "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law" - completely irrelevant now, and fundamentally a product of that era. The 4th through 8th? Limits on the government's ability to intrude on individual liberty/the implementation of law. The Second Amendment? Some would argue its a fundamental right. Others would argue that its a limited right relating to militias. Some would argue its a clarifying amendment like the 9th, 10th or 12th Amendment where the relationship between the federal government state governments and people are defined more clearly. I personally don't see how it could be viewed as fundamental like the first or 13-15 but some people do.

    The second is the United States, unlike Canada or the UK or many other nations, has a coherent system of government. In most other countries everything is ad hoc. For instance, the United Kingdom's police powers in a real way could be viewed as fundamentally illegitimate. The Parliament is elected but they base their power not on the people but on the consent of the monarchy. Is a de facto democracy legitimate if de jure its a monarchy? Often its stylized a "Constitutional monarchy" but the laws of parliament that limit the monarchy are only applicable due to the consent of the monarch. The monarch technically has a veto that can not be overridden under the law. Under the law, the monarch could refuse assent for all laws passed by Parliament, dissolve Parliament or declare any one he/she wanted Prime Minister. All laws are in the name of the monarch. Parliament could ignore these directives - but only in violation of the basis of their own power.

    And even if we accept that parliament is supreme, its not bound by any limitations. Parliament is within its power to declare itself elected for life. There is no real check on these powers, including the length of service. Their actions might be wrong but they would not be illegal.

    The answer to this is generally "but they wouldn't do that." I would argue that when you must depend on people to govern under a system of government such that it is egalitarian (which obviously the UK system is not fundamentally but mostly is) and democratic, then you don't actually have a democratic and egalitarian system of government.


    PantsB on
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    Spoiler:
  • YarYar Registered User regular
    edited February 2012
    It pretty much justifies itself by laying out a reasonable way to change anything about it.

    Most "living document" arguments aren't even about Amendments, though, and usually amount to "the Constitution is a nice suggestion and all, but whenever I don't like having to obey the law I'll just say 'living document'."

    IMO the Second Amendment logically loses meaning after the Civil War and the 14th. It was intended as a guarantee that a state could keep their militias, in case they ever decide that the federal government isn't doing their job and they want to wage war on them. After that happened, and the militias lost, and an Amendment was passed that completely flipped the balance of power and the arbitration of rights between the Fed and states, the Second Amendment sort of got left in limbo. Sure, it's still ideologically true that an armed population is better equipped to prevent authoritarian rule, but even the original Amendment framed that in terms of a state militia armed for freedom, not individuals arming themselves for whatever purpose.

    Yar on
  • shrykeshryke Registered User regular
    edited February 2012
    shryke wrote: »
    If you subscribe to the social-contract view of governments, the constitution is literally that contract. You can argue for amending the contract, but breaking it is different. And thus the arguments you have to present are different.

    You aren't arguing cost-benefit analysis like with most laws. You are arguing fundamental rights.

    The OP is not arguing to break it though.

    The OP is arguing that the things the constitution enumerates are not inherent rights beyond their existence in the constitution. That because the constitution is changeable, so are those rights.

    The right to bear arms is a right because the constitution says it is and that's it. And since what the constitution says can be changed, so can that right. Therefore if you don't want that right to change, you can't just say "you can't change it because it's a right".

    As is the right to participate in your government, or speak freely.

    If these rights are inherent to the human condition then there reason to criticize any government that does not recognize these rights is flawed because of that. Otherwise the only justification for the rights is instrumental, that they simply happen to provide for the greatest good, but as times and situations might change perhaps some day it might not be for the best that people ought not to be slaves, or have laws of the government apply equally to them as well as others.

    Is that what you want to commit to?

    But these rights are not "inherent to the human condition" because they are enumerated in the constitution. Nor is every right enumerated in the constitution "inherent to the human condition".

    Neither of these concepts implies the other.

    You are making a false assumption about what I am committing to.

    shryke on
  • never dienever die Registered User regular
    Spoiler:

    Adding this to my signature, i love it.

    I agree with Reg. Also, as said above, the constitution limits the governments ability to restrict your rights, as well as laying out a system of government. To allow the government to restrict your rights more, a compelling argument has to be made and eventually a consensus has to be made by the majority of states. For example, to allow the government to restrict people's rights to own guns, you need to make a compelling argument for that (which can be done).

    I will say a side effect of doing this is that people have those rights engrained into their brain because the things that the U.S. government are restricted from controlling are eventually understood to be inherent rights of people living in the country, hence the name of the amendments being the "Bill of Rights."

    The difficulty with what the OP is talking about seems to be more of a problem of people from the U.S. having difficulty thinking outside of their box and seeing everything in terms of their rules and constitution. In a discussion with people outside of your country about rights then both sides need to justify their reasons for a rule or law.

    Spoiler:
  • spool32spool32 Contrary Library Registered User regular
    edited February 2012
    Nova_C wrote: »
    spool32 wrote:
    Of course something being part of the Constitution now doesn't mean it must be forever and always, but right now, it is. The burden rests on those who wish to change or remove the 2nd to demonstrate why the government should be allowed more power to restrict that right. That is a fundamental difference and you really can't just wave it away by going nun-uh. It's how we operate with respect to the Constitution.

    I'm not saying that, though. What I'm saying is the fact that second amendment exists is not justification of it's continued existence.

    As in, if I say "Guns should be restricted for reasons A, B and C" the response "But the constitution says no, so nyah!" does not a good argument make. Rights should be justified by their consequences, good and bad, in society, not because it is written down somewhere.

    You're right, that's a terrible response to reasons why guns should be restricted. A better response would be to either explain why those are bad reasons, or explain why they aren't compelling enough to expand the government's limited ability to restrict the right.

    spool32 on
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