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?
The ERA is unnecessary because all citizens are already entitled to equal protection of law via the Fourteenth Amendment.
Actually, the ERA remains necessary because it clarifies that legal discrimination on the basis of gender does violate the Equal Protection Clause.
Take same-sex marriage laws, for example.
No, it's still unnecessary. Opponents of gay marriage argue that restricting it ISN'T discrimination based on gender. Not that discrimination based on gender isn't unconstitutional.
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?
The ERA is unnecessary because all citizens are already entitled to equal protection of law via the Fourteenth Amendment.
Actually, the ERA remains necessary because it clarifies that legal discrimination on the basis of gender does violate the Equal Protection Clause.
Take same-sex marriage laws, for example.
No, it's still unnecessary. Opponents of gay marriage argue that restricting it ISN'T discrimination based on gender. Not that discrimination based on gender isn't unconstitutional.
Except that it is, very much, discrimination based on gender, since marriage laws make no mention of sexual orientation and instead deal only with biological gender.
Right now it's not guaranteed that discrimination on the basis of gender is unconstitutional, since the courts have the legal leeway to determine if gender qualifies for equal protection with each new case regarding gender discrimination.
The ERA would provide a much stronger, and much broader, and much more reliable protection against gender discrimination.
If you think the judicial system has become progressive enough that the ERA is unnecessary because there's no way gender discrimination could be ruled to be Constitutional, then I have two words for you:
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?
However it does not reduce deaths due to violent crime. Are you really interested in the weapon used to kill you if death is equally assured? Really it just seems you are arguing from a position of ignorance trying to support an agenda without any real factual basis to begin with. Why do you feel an individual right enshrined in our Bill of Rights should become a privilege granted by said government? You seek to legitimize tyranny of the majority, when no such majority in fact exists.
Hell Canada seems to feel the same considering they are now voting to abolish their own long gun registry.
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?
However it does not reduce deaths due to violent crime. Are you really interested in the weapon used to kill you if death is equally assured? Really it just seems you are arguing from a position of ignorance trying to support an agenda without any real factual basis to begin with. Why do you feel an individual right enshrined in our Bill of Rights should become a privilege granted by said government? You seek to legitimize tyranny of the majority, when no such majority in fact exists.
Hell Canada seems to feel the same considering they are now voting to abolish their own long gun registry.
Be careful about how much you assume from me providing a generalized example. If you would like to discuss gun control, however, feel free to make another thread as I wish to keep this thread focused on using a constitution or, specifically, the US constitution as an authority in a debate.
It is trivially easy to show that the US constitution does not create rights. It was created by people on various dates, by a process which allows change. Did those rights not exist before those dates? How did it ever change if it shows inalienable rights? Were they not inalienable rights before?
So this is easy to show. And yet this thread could go on for more than 100 pages without people who feel that way accepting that logic.
The US consitution, for many, has the place of a religious document. An attack on it is an attack on America, and through that, the individual patriot who views 'American' as a fundamental part of their identity.
Burn the constitution, spit on the constitution, change the constitution? Burn the Bible, spit on the Koran. The emotions these images provoke are, I think, the same. You could burn my nation's constitution and I would't feel a thing.
So, to the OP, I have to say, yes, for many people the US constitution is its own authority. It is a special document different from any other legal document. And we just have to accept that's how people feel about it, because debate will not change that feeling.
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?
The ERA is unnecessary because all citizens are already entitled to equal protection of law via the Fourteenth Amendment.
Actually, the ERA remains necessary because it clarifies that legal discrimination on the basis of gender does violate the Equal Protection Clause.
Take same-sex marriage laws, for example.
No, it's still unnecessary. Opponents of gay marriage argue that restricting it ISN'T discrimination based on gender. Not that discrimination based on gender isn't unconstitutional.
Except that it is, very much, discrimination based on gender, since marriage laws make no mention of sexual orientation and instead deal only with biological gender.
Right now it's not guaranteed that discrimination on the basis of gender is unconstitutional, since the courts have the legal leeway to determine if gender qualifies for equal protection with each new case regarding gender discrimination.
The ERA would provide a much stronger, and much broader, and much more reliable protection against gender discrimination.
If you think the judicial system has become progressive enough that the ERA is unnecessary because there's no way gender discrimination could be ruled to be Constitutional, then I have two words for you:
Oh, it's absolutely discrimination based on gender. Don't confuse for one second my own position with my description of the positions of others.
As for the ERA and our buddy A-dog, wouldn't matter. If he's bigoted enough to handwave women out of the Fourteenth, he's bigoted enoughto
handwave discrimination out of potential ERA cases.
Any faith I had that explicit protection in the Constitution provided broad and reliable protection of rights in the courts died long ago. I have zero reason to believe that an ERA would provide much beyond the protection already inherent in the existing equal protection clause.
Be careful about how much you assume from me providing a generalized example. If you would like to discuss gun control, however, feel free to make another thread as I wish to keep this thread focused on using a constitution or, specifically, the US constitution as an authority in a debate.
I am really more interested in the argument you are attempting to construct whereby a government should restrict peoples freedoms with no compelling need to do so except tyranny. If the social contract we choose to be governed under is merely a piece of paper what makes any other contract legally binding? Whether we agree that our rights come from by nature of simple existing, or are privileges bestowed upon us either way they have enshrined within our culture. The Constitution and the Bill of Rights are the documents we put forth to govern ourselves, and separate us from the large and small tyrannies many fled here to escape. When you seek to undermine the safe guards we constructed to prevent the very erosion of our freedoms you propose do we really need anything more than to justify the documents our entire society is built around?
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Nova_CI have the needThe need for speedRegistered Userregular
edited February 2012
Except that's not at all what I am saying.
The entire point of this thread is that the US Constitution is not justification for the rights enshrined within all by itself. Why did the writers of the constitution and the bill of rights decide those were the rights to be specifically protected? Did they pull them out of a hat?
I'm guessing no. So when discussing the merits of the rights within the constitution, why is the constitution itself used as some kind of reason for the existence of its contents? Again, if someone makes the argument that the right to keep and bear arms should be restricted in some way, shouldn't the reasoning behind that statement be reasoned with?
Or, as you have done Detharin, do we accuse anyone who reasons against any right within the constitution for any reason as advocating tyrannical oppression and simply not engage their point of view?
The entire point of this thread is that the US Constitution is not justification for the rights enshrined within all by itself. Why did the writers of the constitution and the bill of rights decide those were the rights to be specifically protected? Did they pull them out of a hat?
I'm guessing no. So when discussing the merits of the rights within the constitution, why is the constitution itself used as some kind of reason for the existence of its contents? Again, if someone makes the argument that the right to keep and bear arms should be restricted in some way, shouldn't the reasoning behind that statement be reasoned with?
Or, as you have done Detharin, do we accuse anyone who reasons against any right within the constitution for any reason as advocating tyrannical oppression and simply not engage their point of view?
Well, one reason is that it's been a pretty stable document, especially if we include the first 10 amendments as part of the original text (which is fair, as they had to be promised to get it ratified). With one notable lapse because of the Constitution's major original failure. And stability lends legitimacy. We've done pretty well for ourselves. That's why we think we've got something pretty good, that should be used as an example. Is it perfect? Of course not.
I personally think the second amendment is as outdated as the electoral college (the idea that a handgun could resist the US military in the event of some kind of oppression worthy of violent resistance is... laughable). And I would eliminate the Senate entirely, or make it a mostly symbolic relic like the House of Lords.
enlightenedbum on
Self-righteousness is incompatible with coalition building.
It provides the backbone of our legal system. Every law in the United States must comply with the Constitution. All countries have a constitution that is a part of their laws that things must comply to. Ours is just written down and super hard to edit.
No I get that, but what about the US Constitution makes it a more valid authority on rights than any other nation's constitution?
It's not...
It is, because here we place it at the top of the pyramid, and require all government to be subordinate to it. I'm not familiar with the structure of every democracy in the world, but my limited understanding is that this arrangement is unique among the democratic nations. PantsB described the the UK's Constitutional monarchy earlier, and it's a good example of how we're different.
No, that's actually the standard way to run a democracy these days. The U.S. democracy is in no way special or different. Rather the U.K. is for not having a written constitution.
That being said, the U.S. constitution, as amended, is undiluted awesomesauce. I immigrated to this country to a large extent because of it. It's unbelievable how good it is and that most of it had been figured out in the 18th century.
For a document that's apparently "undiluted awesomesauce", it sure creates a very dysfunctional government.
It provides the backbone of our legal system. Every law in the United States must comply with the Constitution. All countries have a constitution that is a part of their laws that things must comply to. Ours is just written down and super hard to edit.
No I get that, but what about the US Constitution makes it a more valid authority on rights than any other nation's constitution?
It's not...
It is, because here we place it at the top of the pyramid, and require all government to be subordinate to it. I'm not familiar with the structure of every democracy in the world, but my limited understanding is that this arrangement is unique among the democratic nations. PantsB described the the UK's Constitutional monarchy earlier, and it's a good example of how we're different.
No, that's actually the standard way to run a democracy these days. The U.S. democracy is in no way special or different. Rather the U.K. is for not having a written constitution.
That being said, the U.S. constitution, as amended, is undiluted awesomesauce. I immigrated to this country to a large extent because of it. It's unbelievable how good it is and that most of it had been figured out in the 18th century.
For a document that's apparently "undiluted awesomesauce", it sure creates a very dysfunctional government.
That's mostly a product of Senate rules, rather than the document itself. And recall that enc0re is decidedly conservative, so is not exactly pained by the current governing situation.
Self-righteousness is incompatible with coalition building.
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.
1)Rights don't need to be justified, that's why they are rights. Restriction on those rights need to be justified. If they needed to be justified they'd be called privileges.
2)Its a good argument because it stems from the will of those it effects. There is no final arbiter of rights to appeal to(well God if that's your view but lets not go to God's will as justification). If American's collectively agree it is a fundamental right it is, in the USA. There's no one to award you points for having a more convincing argument, besides the people who are collectively saying "nyah".
This is circular reasoning. Pretty much the exact type the OP was referring to.
You need to justify that they are rights.
No. Man started with unlimited rights(state of nature). We then restrict these rights(with justification and consent) to form society. The other way around doesn't make any sense. Because unless you have a super-body that grants the rights, where do they come from?
Did people have the right to freedom of speech before someone thought of and justified, through argument, the concept?
Tin Whiskers has it down, this is the basis of enlightenment thought. The US just happened to scrap together our paper first. Without the consent of the governed, the governors don't stand a hope of anything. The Constitution, in the US is the contract between the people and the state.
Not really. It's the constitution of the government of the United States of American. It's right there on the tin.
The entire point of this thread is that the US Constitution is not justification for the rights enshrined within all by itself. Why did the writers of the constitution and the bill of rights decide those were the rights to be specifically protected? Did they pull them out of a hat?
I'm guessing no. So when discussing the merits of the rights within the constitution, why is the constitution itself used as some kind of reason for the existence of its contents? Again, if someone makes the argument that the right to keep and bear arms should be restricted in some way, shouldn't the reasoning behind that statement be reasoned with?
Or, as you have done Detharin, do we accuse anyone who reasons against any right within the constitution for any reason as advocating tyrannical oppression and simply not engage their point of view?
You do realize the Bill of Rights was a compromise between two factions within our forming government. One said we had no reason to spell out the individual rights men benefited from, and argued that doing so would grant the government more power as if you have spelled out what they cannot do then arguably they could do everything else. The other side was arguing for guarantees that they we not giving up their inalienable rights upon entering into this new government.
One side is arguing that no one of sound mind could have any good reason for infringing on basically accepted human rights short of tyranny and spelling them out could only lead to giving the government more power than intended, while the other side argues what happens when we end up with tyrannical idiots wanting to trample all over these accepted rights and demanding all rights be spelled out thus preventing the government from taking them away.
We have a compromise where one side agrees that some rights be spelled out, but was never intended to be an exhaustive list. It was the 10 rights they considered the most in need of enshrining as so mind baffling obvious that really they should not require explaining. In the end they were both partially right. The government can, has, and did grab as much power as it could and did its best to erode as many of the basic rights that at the time seemed so obvious there was no reason to codify them.
So we return to you, who asks the question why we cannot simple ignore the foundation of our government. The documents declaring that in fact we as a country acknowledge there are fundamental basic human rights, some of them we have codified in law, others we have not. If we ignore those documents, we are left with the position that there are in fact no fundamental basic human rights, you have no right to life, self defense, or property. You have no right to freedom, no right to vote, and are left with the simple reality of might makes right.
Do you want the most technologically advanced military on the planet to completely abandon any pretense of human rights, and instead operate under might makes right?
Well, there are closer to like, 20 enumerated rights in the Bill of Rights.
I checked:
Religion, press, speech, assembly, petition, bear arms, no quartering, no search and seizure without probable cause, grand jury, no double jeopardy, no compelling someone to testify against themselves, due process, right to property, speedy trial, cross examination of witnesses against you, trial by jury, and no excessive bail. (17)
Yes, this is obnoxiously pedantic.
enlightenedbum on
Self-righteousness is incompatible with coalition building.
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Nova_CI have the needThe need for speedRegistered Userregular
edited February 2012
Again, Detharin, would you read the fucking thread?
I am not arguing that your constitution should be flat out ignored by your government. Jesus fucking Christ, this is exactly what I'm talking about. No one can talk about any single right guaranteed by the constitution without someone coming in and shitting up the discussion. What this is about, Deth, since you are continually ignoring it and doing your best to stifle discussion outright, is not whether the US government should be regulated by the constitution. That is completely irrelevant to the discussion.
The discussion is, for the nth goddamn time, The constitution is not the reason for a right and should not be used in a debate about rights as justification for the right's existence.
And I'm absolutely convinced you are still going to go on and on about blah blah blah government oppression as if it is at all relevant, so I'm going to once again give the same example that I have already given and you have completely ignored:
If someone says that the right to keep and bear arms should be restricted for reasons A, B and C, opponents who support the right should do more than simply say "It's in the constitution fucker!" and think that ends the debate.
I will even go further to say that in Canada, we do not have a right to keep and bear arms and live in a relatively free society that is no more oppressive than the US. So, does that mean that a Canadian and American can not have a debate about gun control at all because the only reason for it is simply "US CONSTITUTION LALALLALAA!"? Or can someone who supports the right formulate a response that actually means something to someone who does not have that right and doesn't believe it should be a right?
Again, Detharin, would you read the fucking thread?
I am not arguing that your constitution should be flat out ignored by your government. Jesus fucking Christ, this is exactly what I'm talking about. No one can talk about any single right guaranteed by the constitution without someone coming in and shitting up the discussion. What this is about, Deth, since you are continually ignoring it and doing your best to stifle discussion outright, is not whether the US government should be regulated by the constitution. That is completely irrelevant to the discussion.
Oh I've read the thread, hence my original post about how you have arrived at an opinion from a position of ignorance and you dislike the fact that you cannot further your agenda because the documents we base are entire system of government around are inconvenient to said agenda. You are throwing a pissy bitch fit. I am sorry you do not like the fact that the entire basis of our social contract revolves around the idea of both codified and unwritten individual rights. I am sorry those rights are inconvenient to you. I am not interested in pissing around the proverbial bush because when you start spewing the crazy on some other board, or in some other thread people point out that the same reason i cannot kick in your door, beat you to death with a 2x4 , rape your wife, eat your dog, successfully parent your children causing them to abandon their dreams of joining the circus and instead go on to become successful neurosurgeons, steal your TV, fill your plumbing with cement, drink your last pepsi without asking, and then go home without any fear of reprisal.
I am sorry that our founding fathers had to have arguments where one side said no one could possible be dumb enough to hold your opinions, and the other side arguing that yes in fact someone will be that dumb and we should probably write something up just in case.
If someone says that the right to keep and bear arms should be restricted for reasons A, B and C, opponents who support the right should do more than simply say "It's in the constitution fucker!" and think that ends the debate.
Do you want to have a theoretical debate or a practical one? If you want to discuss A, B, and C we can always theoretically discuss the potential effects of various ideals in a hypothetical world. However if we are having a practical discussion then yes, its in the constitution fucker and you do not the ability to change it even though the constitution directly spells out a process for changing it. You do not have an argument of sufficient merit to warrant doing so.
We can sit around, drink a bunch of beers and discuss how we would do the perfect murder, or rob a bank, or whatever else. In the end no matter how great our plan someone is going to point out "but its ILLEGAL!" well no shit. We are not really going to commit the perfect murder, or rob a bank. Its a mental exercise. Just like your imaginary A, B, and C.
Or can someone who supports the right formulate a response that actually means something to someone who does not have that right and doesn't believe it should be a right?
When confronted by someone who has a problem identifying individual rights, and demands an explanation as to why the government cannot use the powers granted to it by the constitution to do the stuff the constitution says it cannot do we are left with no option but to treat you like the three year old asking why? Its an individual right. Why? Because it is a right we recognize every human as having merely by right of existing. Why? Because at some point we had some really smart individuals who thought all this stuff up, in fact we even had a Bill of Rights declaring some of these rights. Why? Because some people thought that mankind would eventually breed a better idiot who would need them spelled out. Why? Because mankind did.
If you assert that basis of your system of rights is based on something more fundamental than "because a previous set of governments said so", then it does behoove you to specify what it is.
On the other hand, if you do say that it is just because a previous government hammered such and such an agreement out, then you would have to accept the attack that this is a rather arbitrary way to do things.
Again, Detharin, would you read the fucking thread?
I am not arguing that your constitution should be flat out ignored by your government. Jesus fucking Christ, this is exactly what I'm talking about. No one can talk about any single right guaranteed by the constitution without someone coming in and shitting up the discussion. What this is about, Deth, since you are continually ignoring it and doing your best to stifle discussion outright, is not whether the US government should be regulated by the constitution. That is completely irrelevant to the discussion.
Oh I've read the thread, hence my original post about how you have arrived at an opinion from a position of ignorance and you dislike the fact that you cannot further your agenda because the documents we base are entire system of government around are inconvenient to said agenda. You are throwing a pissy bitch fit. I am sorry you do not like the fact that the entire basis of our social contract revolves around the idea of both codified and unwritten individual rights. I am sorry those rights are inconvenient to you. I am not interested in pissing around the proverbial bush because when you start spewing the crazy on some other board, or in some other thread people point out that the same reason i cannot kick in your door, beat you to death with a 2x4 , rape your wife, eat your dog, successfully parent your children causing them to abandon their dreams of joining the circus and instead go on to become successful neurosurgeons, steal your TV, fill your plumbing with cement, drink your last pepsi without asking, and then go home without any fear of reprisal.
I am sorry that our founding fathers had to have arguments where one side said no one could possible be dumb enough to hold your opinions, and the other side arguing that yes in fact someone will be that dumb and we should probably write something up just in case.
If someone says that the right to keep and bear arms should be restricted for reasons A, B and C, opponents who support the right should do more than simply say "It's in the constitution fucker!" and think that ends the debate.
Do you want to have a theoretical debate or a practical one? If you want to discuss A, B, and C we can always theoretically discuss the potential effects of various ideals in a hypothetical world. However if we are having a practical discussion then yes, its in the constitution fucker and you do not the ability to change it even though the constitution directly spells out a process for changing it. You do not have an argument of sufficient merit to warrant doing so.
We can sit around, drink a bunch of beers and discuss how we would do the perfect murder, or rob a bank, or whatever else. In the end no matter how great our plan someone is going to point out "but its ILLEGAL!" well no shit. We are not really going to commit the perfect murder, or rob a bank. Its a mental exercise. Just like your imaginary A, B, and C.
Or can someone who supports the right formulate a response that actually means something to someone who does not have that right and doesn't believe it should be a right?
When confronted by someone who has a problem identifying individual rights, and demands an explanation as to why the government cannot use the powers granted to it by the constitution to do the stuff the constitution says it cannot do we are left with no option but to treat you like the three year old asking why? Its an individual right. Why? Because it is a right we recognize every human as having merely by right of existing. Why? Because at some point we had some really smart individuals who thought all this stuff up, in fact we even had a Bill of Rights declaring some of these rights. Why? Because some people thought that mankind would eventually breed a better idiot who would need them spelled out. Why? Because mankind did.
I think this post proves my earlier point quite clearly.
I am inclined to agree, but perhaps Detharin actually has a notion of fundamental rights in mind that he has yet to spell out.
On a separate note. The US constitution is a vision of a very weak federal government with no permanent standing army, militia loosely spread among the states, no judicial review, etc. - with, I think, the most important innovations of (1) incorporation (2) non-apportioned taxes (3) criminalization of slavery (4) equal protection among given social classes tacked on. I do not think it was ever envisioned during the lifetimes of the authors to have a federal government exercising the powers currently normally accepted in the major liberal democracies of the West: vastly centralized and substantial permanent military power with overseas projection (with a substantive right to secrecy in the same), a complex regulatory state that actively intervenes in every area of commerce (and is indeed popularly accepted to be obliged to do so in some sense), and extensive social insurance and transfers on a scale large enough to be a nontrivial fraction of national income.
Medicare and Social Security are not intuitively part of the enumerated powers (AFAIK their current status, dating to SCOTUS's reinterpretation following the court-packing plan, is to shelve it all under "general welfare". You are welcome to suggest what manner of state action might be unjustifiable to a "breed [of] better idiot" in an appeal to the general welfare!). The part which puzzles me is why proponents of stricter interpretations go on to say, well, so much the worse for Social Security. Why not invert it and say: so much the worse for an originalist Constitution?
Lincoln re-wrote the Constitution (by his actions and partially at Gettysburg) and the Declaration (at Gettysburg) to mean something much, much better than was originally written.
enlightenedbum on
Self-righteousness is incompatible with coalition building.
I am inclined to agree, but perhaps Detharin actually has a notion of fundamental rights in mind that he has yet to spell out.
On a separate note. The US constitution is a vision of a very weak federal government with no permanent standing army, militia loosely spread among the states, no judicial review, etc. - with, I think, the most important innovations of (1) incorporation (2) non-apportioned taxes (3) criminalization of slavery (4) equal protection among given social classes tacked on. I do not think it was ever envisioned during the lifetimes of the authors to have a federal government exercising the powers currently normally accepted in the major liberal democracies of the West: vastly centralized and substantial permanent military power with overseas projection (with a substantive right to secrecy in the same), a complex regulatory state that actively intervenes in every area of commerce (and is indeed popularly accepted to be obliged to do so in some sense), and extensive social insurance and transfers on a scale large enough to be a nontrivial fraction of national income.
Medicare and Social Security are not intuitively part of the enumerated powers (AFAIK their current status, dating to SCOTUS's reinterpretation following the court-packing plan, is to shelve it all under "general welfare". You are welcome to suggest what manner of state action might be unjustifiable to a "breed [of] better idiot" in an appeal to the general welfare!). The part which puzzles me is why proponents of stricter interpretations go on to say, well, so much the worse for Social Security. Why not invert it and say: so much the worse for an originalist Constitution?
I think we could all agree that our founding fathers could never have foreseen how the US government currently functions. We have expanded well beyond what was probably ever intended as far as government involvement in peoples lives. Which I think really shows that both sides really were right. The government has pretty much grabbed as much power as possible, and used the Bill of Rights as a list of things they cannot do. However by the same token absent it I think we would see far more strict regulations on things protected by it. General Welfare and Interstate Commerce really have become a catch all for "We want to do it, we are going to do it, and nothing in the Bill of Rights says we can't"
I should also point out that the postwar US has seen substantial waxes and wanes in economic regulation without any constitutional amendments directly relevant to this power, which does suggest that the constitution itself is not the binding constraint.
e: so is the constitution as-is effective at binding idiots, or not effective at binding idiots? As a concrete matter, aside from the topic over whether it should be seen primarily as a way to bind idiots?
ronya on
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Nova_CI have the needThe need for speedRegistered Userregular
edited February 2012
Detharin, if the US Constitution did not exist, yet the United States was exactly as it is now and had just come to this place by other means, how would you defend the right of the people to keep and bear arms?
EDIT: You may also want to note that as I've said multiple times, I am Canadian and as such I am not part of your social contract and I am not under your constitution. At some point I'm hoping you will clue in to the fact that outside of America there are other nations with other points of view and a different set of rights and that citizens of those countries are, in many cases, just as free as Americans.
From a strict Constitutional standpoint the waters have been heavily muddled to the point where largely what we can and cannot do is inevitably determined by what the Supreme court eventually rules after we have passed whatever law we are not sure we have the power to actually do in the "best" interests of the time. Take for instance Wickard v. Filburn. Quite a few of our founding fathers would probably have outright scoffed at the idea that eventually the government they formed would both have, and utilize the authority to tell a farmer what to grow on his own private land, as well as making a criminal out of him for growing wheat for personal consumption.
You ask why we cannot just scoff, and do whatever we please and tell the strict constitutionalists tough titties. The reality is that largely that is exactly what has been done for the last hundred years. Pretty much the only bastion that remains is the Bill of Rights, which has in some ways remained a bastion for said constitutionalists. Nowhere does it say exactly what you can and cannot use General Welfare or Interstate Commerce to justify.
When it comes to the Bill of Rights they were pretty clear what they meant. It was written in common language, and you pretty much need "a better breed of idiot" to really get it wrong. It is a lot harder to muddy the waters when you are up against a list of things you cannot do. It looks really tempting, especially when you are used being able to utilize Commerce or Welfare to legislate quite a few "abuses" of power. Whether these "abuses" were right, or wrong they exist in that grey area that consists of "stuff we are not forbidden from doing, nor expressly told we can do, but at the time it was right, stupid, proper, popular, seemed like a good idea, bone headed, or just plain crazy."
When we get to the Bill of Rights it gets a lot trickier, as well it should. Effectively tossing the Bill of Rights out the window and brazenly admitting we are ignoring would be problematic. In the end we will probably see the rights enshrined therein continue to be slowly eroded until at some point the entire system loses any shred of credibility dystopian future style.
You're ignoring the question. Justify the Bill of Rights without using a circular argument (i.e. the Bill of Rights is good because it's the Bill of Rights). Or more to the point, justify the second amendment, as I think we're mostly in agreement that the first and the fourth through eighth are basically fundamental human rights.
enlightenedbum on
Self-righteousness is incompatible with coalition building.
So it hasn't actually been able to restrain a "better breed of idiot"? Except for the Bill of Rights? I suppose I should now point out that the First, Second, Fourth, Fifth, Sixth, and Tenth amendments have especially received exhaustive judicial reinterpretation, so it is hardly immune to the phenomenon of "muddying" you describe.
In particular the Bill of Rights did not originally apply to the states, for example. It took the Fourteenth, a judicial reinterpretation of the Fourteenth three decades after, and a reinterpretation of the Bill to force states to abide by the amendments. This is rather substantial increase in the power of the federal government, albeit merely to tell states what not to do. Bluntly your country already does ignore intentionalist originalism.
As previously stated the Bill of Rights is good because it both lays out what we consider to be inalienable rights inherently present in all people, as well as declares to the world that we consider rights to not be something granted by the government upon the governed. It is of course not an exhaustive list, not ever intended to be.
The Second Amendment requires no justification, as self defense is one of those fundamental human rights. Moreover it exists not just to declare that the people have the ability to fight not only for said rights, but also for the ability to choose how and by whom they will be governed.
Some say the Second Amendment is the teeth behind the first, or that it guarantees we will always have the First. The Second Amendment is both a preemptive declaration of war against tyranny, as well as a reminder to potential foreign invaders that ultimately it is not the government, or the military you would need to defeat/control, but the hearts and minds of the American population itself that will prove to be the true enemy that any despot or invader would need to ultimately deal with.
The OP does raise a very good question I think, which does reflect upon my experiences discussing questions of rights with Americans on the net and IRL. A similar device is seen with the UN Declaration, but I guess I have less problem with that as it has a weaker status and applies to almost all of us equally, making for a more inclusive discussion
But, in all honesty, there's no further answer to the OP than American's believe in, for better or for worse, in American Exceptionalism and the Constitution is basically our national religion. You'll have hard luck trying to change any of our minds about that, and frankly I don't think you should any more than we should try to shame other countries about theirs.
This stifles debate and encourages isolationism. "Well, they won't understand why we are the way we are because their *bill of rights/charter of freedoms/random document* is different from ours, so why even both listening/talking to them?"
I think (as is the case with almost all nations) there is a civil religion in place, much as Robert Bellah postulated, that in our case takes various religious myths and themes and applies them onto the American narrative.
As Hannah Arendt claimed in On Revolution, we needed some sort of quasi-religious touchstone so that governance didn't dissolve into a situation akin to the latter stages of the French Revolution, where the "higher power" and "faithful executive" became one and the same (i.e., Jacobins). We thus [somewhat unintentionally] established in our national identity the near-divinity of the Dec. of Ind. and Constitution as the seats of the transcendent legitimacy and authority, removed from the faithful who would follow it. This obviously creates some tension re: the desire for it to be a living, breathing document when it has almost been apotheosized, to the point where even the very human and fractious creators of the latter document are deified...
The Constitution, then, could perhaps justify itself if our goal was to create a traditional-religious state model, one that focuses on a common (and unifying) civil religion - however, I believe that this was an unintentional and perhaps misguided appropriation of a document that conspicuously did not have either God or a specific religion stated, a deliberate decision on the part of the conventioneers...
In contrast, the Constitution cannot have self-justification if we want to operate in the liberal-secular state model, wherein the object is a search for progress rather than a return or adherence to a utopian past. The justification for our belief in the Constitution, then, must stem from outside of it, whether it be a belief in the potency of its suggestions and implications, - and that rationale is perhaps different to every American. I myself believe that the legitimacy of the document is justified by its goals, a chief one being to create and maintain a diverse yet cohesive democracy, where there is equality under the law, and where certain rights are protected if not guaranteed. This also, to me, partially solves the dilemma of "which rights are unalienable?" - those either explicitly codified or logically synthesized from the fundamentally enunciated; although obviously there are many complications in this sweeping overview.
"and the morning stars I have seen
and the gengars who are guiding me" -- W.S. Merwin
The OP does raise a very good question I think, which does reflect upon my experiences discussing questions of rights with Americans on the net and IRL. A similar device is seen with the UN Declaration, but I guess I have less problem with that as it has a weaker status and applies to almost all of us equally, making for a more inclusive discussion
I'm no proper philosopher, but I often see 'rights' adjectivised in ways that I think are unclear. I see inalienable rights, legal rights, natural rights, human rights and more. My guess is that the uses I see are inconsistent - the speaker is using the adjective to mean 'really important'.
But I also suppose that these have clear philosophical or political meanings. That natural rights are different from legal rights.
I find that, in conversations with Americans about rights, all of these different types of rights seem to get conflated. In particular, 'legal' seems to not be sufficiently separated from other kinds of rights. I don't say this to attack Americans, but just to explain a philosophical disconnect I often find in these kinds of discussion.
I wish someone like MrMr would explain the difference between these types of rights.
The OP does raise a very good question I think, which does reflect upon my experiences discussing questions of rights with Americans on the net and IRL. A similar device is seen with the UN Declaration, but I guess I have less problem with that as it has a weaker status and applies to almost all of us equally, making for a more inclusive discussion
I'm no proper philosopher, but I often see 'rights' adjectivised in ways that I think are unclear. I see inalienable rights, legal rights, natural rights, human rights and more. My guess is that the uses I see are inconsistent - the speaker is using the adjective to mean 'really important'.
But I also suppose that these have clear philosophical or political meanings. That natural rights are different from legal rights.
I find that, in conversations with Americans about rights, all of these different types of rights seem to get conflated. In particular, 'legal' seems to not be sufficiently separated from other kinds of rights. I don't say this to attack Americans, but just to explain a philosophical disconnect I often find in these kinds of discussion.
I wish someone like MrMr would explain the difference between these types of rights.
They're basically things which Enlightenment scholars took as being foundational to human freedom.
Natural rights (which usually get conflated with human rights, and Jefferson called inalienable) are rights that aren't granted by a government, but are fundamental to humanity. Generally these trace back to Locke in our tradition, and he identified them as "life, liberty, and property (he meant land)." Which basically gives you amendments 1-8 (+ 13), in an 18th century context. Though there's some disagreement about "property" (after all, it can change hands) which is why it was changed to "pursuit of happiness" in the famous phrase.
Legal rights are rights granted by the government. Or alternately, those which are subject to agreement between the government and the governed.
Self-righteousness is incompatible with coalition building.
Perhaps you should just directly ask me whatever question you seem to think I am not answered sufficiently to your taste. Frankly not every post I have an interest in answering or commenting upon. If your are somehow referring to the OP's original question the Bill or Rights does not confer any rights upon anyone. It is a list of natural rights that were recognized as existing before we formed our government, and there were concerns that the new government might infringe upon them.
This is probably why the OP is having so many problems with constructing whatever flawed argument he dances around but never spells out. The problem is that in his dancing around the issue we do not know if he is putting forth something that could actually be debated with his chosen issue. I mean he could be proposing we ban all guns, in which case he could be getting told how feasible that is, the impossibility of passing said legislation, or perhaps people are just short handing all of that and assuming that he is smart enough to understand the sheer impossibility of his suggestion and just saying "its unconstitutional."
Much like my previous example if I am sitting around drinking beers with a friend and he says "lets rob a bank" my response is probably going to be "You know that's illegal right?" I could ask "ok which bank? How do you expect to handle cameras, and security? How many people do you think we need? How are we going to guarantee we get the most money for our risk? Why do you think this is a good idea? Are we leaving the country or just trying to disappear with the money back into the population?" Rather than spend the next period or time shooting down every single one of his poorly thought out ideas I can just throw out there a simple "You know that's illegal right?" I do not need to spend the sheer amount of time refuting his point, because I know already his point cannot stand scrutiny we squash it and move on.
However we could also take the point in the OP where he discusses licensing to own a gun. Let us take a similar thread on the forums where we are discussing voter disenfranchisement due to being required to have a government issue ID in order to vote. This has caused quite a stir as while a government ID can cost as little as 30 dollars it places an undue burden upon the poor. These same arguments can be used against his mentioned licensing system. Now we can explain why this is a bad thing, how much like the voting ID requirements is not going to do anything to solve the problem it is being proposed to solve, and ultimately is just a needless infringement upon natural rights.
When confronted with someone who refuses to see their position is wrong or impossible you can argue until you are blue in the face, or say something like "it is illegal" or "It is against the Constitution" and wander off. You legitimized it as a valid argument as soon as you decided to start arguing to change the laws or in the Canada/USA example acknowledged us as a country. Either we are a legitimate government with a framework you would need to work with in order to bring about your ideals and therefore work within what is constitutionally possible, or we are not a legitimate government. If we are not a legitimate government or you just don't care then you have a completely different problem and the Bill or Rights never comes into the discussion. If your argument is "Why cant I bribe the Reptilon army living on the moon into invading North America, and make them institute my no guns, no freedom, and everyone works the twinkie mines policy." Then the bill of rights doesn't matter, just your supply of shiny gems and Emplodium for their reactors.
Detharin on
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
I wish someone like MrMr would explain the difference between these types of rights.
... is that the bat-sign!?
The clearest distinction in rights-talk, I think, is between natural rights on the one hand and legal or conventional rights. The idea is that there are some rights which you have just because the government decided to give them to you: for instance, you have the right to drive on the right side of the road (but not the left!) provided you have the proper documentation, vehicle, etc. These are conventions society creates in the ordinary business of drawing up laws, and together consist in your legal or conventional rights. But you also have some rights which are importantly different, such as the rights to the freedom of conscience and security in your bodily person. It is not up to society to decide whether you have these rights; these rights are such that any government which tried to curtail them would, just by virtue of trying, be illegitimate. We generally think of the constitution as trying to encode those latter sorts of rights, which is why it makes sense that it ought be so difficult to amend.
Inalienable rights are sometimes used interchangeably with natural rights, but I think the technical meaning is rather that an inalienable right is one which you cannot in any circumstance relinquish; for instance, you cannot forfeit your right to free speech by selling it to someone else, even if you wanted to. There is naturally a fair amount of overlap between rights you cannot relinquish and the natural rights; this perhaps explains why they sometimes get used interchangeably.
Similarly, human rights get used interchangeably with natural and inalienable rights; they're rights you have just in virtue of being human. It's not clear whether there's any meaningful different here between the rights you have just in virtue of being human and natural rights. Human rights, I think, have the least clear distinctly philosophical meaning, and are mostly used as a political call to action.
I wish someone like MrMr would explain the difference between these types of rights.
... is that the bat-sign!?
The clearest distinction in rights-talk, I think, is between natural rights on the one hand and legal or conventional rights. The idea is that there are some rights which you have just because the government decided to give them to you: for instance, you have the right to drive on the right side of the road (but not the left!) provided you have the proper documentation, vehicle, etc. These are conventions society creates in the ordinary business of drawing up laws, and together consist in your legal or conventional rights. But you also have some rights which are importantly different, such as the rights to the freedom of conscience and security in your bodily person. It is not up to society to decide whether you have these rights; these rights are such that any government which tried to curtail them would, just by virtue of trying, be illegitimate. We generally think of the constitution as trying to encode those latter sorts of rights, which is why it makes sense that it ought be so difficult to amend.
Inalienable rights are sometimes used interchangeably with natural rights, but I think the technical meaning is rather that an inalienable right is one which you cannot in any circumstance relinquish; for instance, you cannot forfeit your right to free speech by selling it to someone else, even if you wanted to. There is naturally a fair amount of overlap between rights you cannot relinquish and the natural rights; this perhaps explains why they sometimes get used interchangeably.
Similarly, human rights get used interchangeably with natural and inalienable rights; they're rights you have just in virtue of being human. It's not clear whether there's any meaningful different here between the rights you have just in virtue of being human and natural rights. Human rights, I think, have the least clear distinctly philosophical meaning, and are mostly used as a political call to action.
Also: see enlightenedbum
Thanks loads. But my problem now is that I thought that was what those words meant, but that just doesn't seem to be how people use the words here and elsewhere. If the right to bear arms is an inalienable right, then all humans should have it, for X reason. The fact that it is a legal right in the US is neither here nor there. And something being a legal right doesn't make it automatically an inalienable right, so this idea that the existence of the US constitution being an argument for anything at all holds no water.
The right to self defense, as previously mentioned, is largely considered a natural right. Quite a few countries have placed various restrictions on that right, including our own. In the end the American people have put a high value on rights such as self defense, and freedom that the tools necessary to guarantee those rights were made part of them. It was important not just that people have the right to defend themselves, but the ability to. Many cultures seem to ignore this, count on someone else to do the fighting, or prefer to sidestep the issue. To a degree ignorance and fear of guns plays directly into that.
Well, I'll give this a crack. Long, possibly rambling, post incoming.
Why the Constitution? What is its basis?
In short, Enlightenment beliefs from the 18th century. Specifically ideas set forth by John Locke in his "Two Treatises of Government" are of paramount importance as well as the arguments presented in the Federalist Papers penned by Alexander Hamilton, James Madison, and John Jay. Amongst these ideas are the beliefs that people have inalienable rights that are inherited at birth, and that government may only exist at the consent of the people in the form of a social contract. Should a government violate said contract, the people retain the right to overthrow that government.
What's so special about the Constitution?
One very distinct feature of the Constitution is the Bill of Rights where some of the intrinsic rights of man are specifically enumerated. Although it is not to say that there are no rights beyond those stated, indeed it was a matter of dispute on whether there should even be a Bill of Rights as some feared it would restrict the rights of man, it is understood that these particular rights are without question.
Furthermore the Constitution was designed to be the 'ultimate law of the land', above all other governments within the United States. This was so that regardless of whom may lead the country at any given time, or whatever tendencies a particular state may have, all people may have the guarantee of all that was written in the Constitution. It is the Social Contract for the United States of America, the backbone for our government, there is no manner of legitimate governance without it.
So, about that 2nd Amendment...
Yes, one of those rights is for the bearing of arms. Now that could mean the right to militias, the right for individuals to own firearms, or perhaps even the literal act of replacing ones arms with those from a bear, but regardless of interpretation there is without question a right that involves arms and bearing them. Arguably firearms are a bad thing and the average citizen has no need for them, there are a great many arguments in this vein and it will suffice to say they are with merit. However...
As I had said, the Constitution is the social contract between our government and the people of the USA. Part of that Constitution is the Bill of Rights, and one of those rights is to bear arms. Common interpretation of the 2nd Amendment is that individuals retain the right to own and wield firearms, any law preventing that would be in violation of the 2nd Amendment. The problem with violating the 2nd, or any, Amendment is that the Constitution is the ultimate law of the land above the Federal government and its three branches as well as above the individual State, County, or City governments and any violation of that law automatically revokes the legitimacy of that governing body.
Afterall, if the 2nd Amendment can be blithely ignored then why cannot any other? The social contract falls apart, the people retain the right to overthrow the government, et cetera.
So this is why gun ownership is an important issue in the United States.
Okay, but why do Americans think people in other countries should have this or other rights?
This is a bit of a stretch for me, as I'm somewhat of an isolationist mindset and would rather just let other countries be. They can do whatever, we have our freedoms and anybody who would enjoy them is welcome to join the party and such.
But I would say that the idea that other people in wildly different cultures should enjoy the same rights is a logical extension of the belief in natural rights. Note that the Constitution doesn't say that these are the rights for American people only, or that John Locke doesn't say the only people who have rights are those who recognize them. An essential part of the idea behind natural rights is that they are inherent in all people whether they want them or not.
So the Bill of Rights in the US Constitution, in the minds of Americans, not only enumerates (note that it does not give) certain rights but also alludes to other unwritten rights that belong to all of mankind. This isn't because America is speschial, or the Constitution is just that awesome, or that our Founding Fathers were supposedly infallible, but because of a deeply entrenched strain of Enlightenment philosophy that insists natural rights are a part of each and every individual on this Earth and cannot be stripped away.
Not every American feels this way, a great many are really just concerned with the rights of American citizens and could care less beyond that. But there are also many Americans who really take natural rights to the full logical conclusion. That's why we end up with the ACLU advocating for the rights of terrorists, because they're people too and therefore have natural rights that shall not be stripped away from them.
Someone compared this to a religious belief, and I think that's spot on. There's not really any particular evidence for natural rights other than a certain branch of philosophy, and even that in its time did not go unchallenged, but Americans believe in it very strongly. Even I, who doesn't advocate for the 'exportation of Democracy and Rights' and thinks we should largely keep to ourselves, believe that each and every person has natural rights whether they recognize them or not.
So there you go, I hope that answers some questions. All of this was off the top of my head so I apologize if I misspoke anywhere.
Is "the constitution guarantees X right" a justification for said right? No. But maybe it has become accepted as one here in the US due to the way our national history is taught, both in high schools and in college gen-eds (this is not inclusive of advanced degrees, or more specific History degrees). There's a certain air of infallibility attributed to our mode of government from the earliest point we begin to learn about it, and as a result there is a tendency for the constitution to be treated as a holy relic.
This is a something that many Americans go on to investigate further and form opinions beyond the accepted curriculum, but at least a strong minority do not.
Looking back, the tone taken when learning about the drafting of the Constitution + Bill of Rights (both in high school and in college) was very similar to my weekly Public School Religion classes (I'm a recovering Catholic). There is a level of reverence instilled in both cases that eventually develops into viewing the core document as a sort of totem which lets us access directly the intent of the far-wiser-than-us ancestors who drafted it. As with how I was taught religion, this sort of thinking and prevailing attitude of 'there are those who agree with us and those who are unenlightened' is what leads to any debate with a Constitution Thumping American to use it in the way you've described: and really, whenever the constitution is brought up as a justification, it is likely the parroting of one of two arguments from some legislator or another:
1. X is unconstitutional! Let's haul it to the center of the village and burn it!
2. Y needs to be protected by the constitution because if you let them take your Y away (or force you to take Y, or whatever), soon they'll come after your Z!
It's an argument used at the highest levels of government here to stir up a certain vocal (what I hope is a) minority. My suggestion is to not argue with someone who will not see that "The constitution says so" is not a trump card. They probably don't have an opinion beyond that anyhow, because why should they have to form one? The constitution says so.
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No, it's still unnecessary. Opponents of gay marriage argue that restricting it ISN'T discrimination based on gender. Not that discrimination based on gender isn't unconstitutional.
Except that it is, very much, discrimination based on gender, since marriage laws make no mention of sexual orientation and instead deal only with biological gender.
Right now it's not guaranteed that discrimination on the basis of gender is unconstitutional, since the courts have the legal leeway to determine if gender qualifies for equal protection with each new case regarding gender discrimination.
The ERA would provide a much stronger, and much broader, and much more reliable protection against gender discrimination.
If you think the judicial system has become progressive enough that the ERA is unnecessary because there's no way gender discrimination could be ruled to be Constitutional, then I have two words for you:
Antonin Scalia.
However it does not reduce deaths due to violent crime. Are you really interested in the weapon used to kill you if death is equally assured? Really it just seems you are arguing from a position of ignorance trying to support an agenda without any real factual basis to begin with. Why do you feel an individual right enshrined in our Bill of Rights should become a privilege granted by said government? You seek to legitimize tyranny of the majority, when no such majority in fact exists.
Hell Canada seems to feel the same considering they are now voting to abolish their own long gun registry.
Be careful about how much you assume from me providing a generalized example. If you would like to discuss gun control, however, feel free to make another thread as I wish to keep this thread focused on using a constitution or, specifically, the US constitution as an authority in a debate.
So this is easy to show. And yet this thread could go on for more than 100 pages without people who feel that way accepting that logic.
The US consitution, for many, has the place of a religious document. An attack on it is an attack on America, and through that, the individual patriot who views 'American' as a fundamental part of their identity.
Burn the constitution, spit on the constitution, change the constitution? Burn the Bible, spit on the Koran. The emotions these images provoke are, I think, the same. You could burn my nation's constitution and I would't feel a thing.
So, to the OP, I have to say, yes, for many people the US constitution is its own authority. It is a special document different from any other legal document. And we just have to accept that's how people feel about it, because debate will not change that feeling.
Oh, it's absolutely discrimination based on gender. Don't confuse for one second my own position with my description of the positions of others.
As for the ERA and our buddy A-dog, wouldn't matter. If he's bigoted enough to handwave women out of the Fourteenth, he's bigoted enoughto
handwave discrimination out of potential ERA cases.
Any faith I had that explicit protection in the Constitution provided broad and reliable protection of rights in the courts died long ago. I have zero reason to believe that an ERA would provide much beyond the protection already inherent in the existing equal protection clause.
I am really more interested in the argument you are attempting to construct whereby a government should restrict peoples freedoms with no compelling need to do so except tyranny. If the social contract we choose to be governed under is merely a piece of paper what makes any other contract legally binding? Whether we agree that our rights come from by nature of simple existing, or are privileges bestowed upon us either way they have enshrined within our culture. The Constitution and the Bill of Rights are the documents we put forth to govern ourselves, and separate us from the large and small tyrannies many fled here to escape. When you seek to undermine the safe guards we constructed to prevent the very erosion of our freedoms you propose do we really need anything more than to justify the documents our entire society is built around?
The entire point of this thread is that the US Constitution is not justification for the rights enshrined within all by itself. Why did the writers of the constitution and the bill of rights decide those were the rights to be specifically protected? Did they pull them out of a hat?
I'm guessing no. So when discussing the merits of the rights within the constitution, why is the constitution itself used as some kind of reason for the existence of its contents? Again, if someone makes the argument that the right to keep and bear arms should be restricted in some way, shouldn't the reasoning behind that statement be reasoned with?
Or, as you have done Detharin, do we accuse anyone who reasons against any right within the constitution for any reason as advocating tyrannical oppression and simply not engage their point of view?
Well, one reason is that it's been a pretty stable document, especially if we include the first 10 amendments as part of the original text (which is fair, as they had to be promised to get it ratified). With one notable lapse because of the Constitution's major original failure. And stability lends legitimacy. We've done pretty well for ourselves. That's why we think we've got something pretty good, that should be used as an example. Is it perfect? Of course not.
I personally think the second amendment is as outdated as the electoral college (the idea that a handgun could resist the US military in the event of some kind of oppression worthy of violent resistance is... laughable). And I would eliminate the Senate entirely, or make it a mostly symbolic relic like the House of Lords.
For a document that's apparently "undiluted awesomesauce", it sure creates a very dysfunctional government.
That's mostly a product of Senate rules, rather than the document itself. And recall that enc0re is decidedly conservative, so is not exactly pained by the current governing situation.
Shit, I wouldn't be so quick to ascribe great things to a document that only got around to banning poll taxes in the 60s. :P
Not really. It's the constitution of the government of the United States of American. It's right there on the tin.
You do realize the Bill of Rights was a compromise between two factions within our forming government. One said we had no reason to spell out the individual rights men benefited from, and argued that doing so would grant the government more power as if you have spelled out what they cannot do then arguably they could do everything else. The other side was arguing for guarantees that they we not giving up their inalienable rights upon entering into this new government.
One side is arguing that no one of sound mind could have any good reason for infringing on basically accepted human rights short of tyranny and spelling them out could only lead to giving the government more power than intended, while the other side argues what happens when we end up with tyrannical idiots wanting to trample all over these accepted rights and demanding all rights be spelled out thus preventing the government from taking them away.
We have a compromise where one side agrees that some rights be spelled out, but was never intended to be an exhaustive list. It was the 10 rights they considered the most in need of enshrining as so mind baffling obvious that really they should not require explaining. In the end they were both partially right. The government can, has, and did grab as much power as it could and did its best to erode as many of the basic rights that at the time seemed so obvious there was no reason to codify them.
So we return to you, who asks the question why we cannot simple ignore the foundation of our government. The documents declaring that in fact we as a country acknowledge there are fundamental basic human rights, some of them we have codified in law, others we have not. If we ignore those documents, we are left with the position that there are in fact no fundamental basic human rights, you have no right to life, self defense, or property. You have no right to freedom, no right to vote, and are left with the simple reality of might makes right.
Do you want the most technologically advanced military on the planet to completely abandon any pretense of human rights, and instead operate under might makes right?
I checked:
Religion, press, speech, assembly, petition, bear arms, no quartering, no search and seizure without probable cause, grand jury, no double jeopardy, no compelling someone to testify against themselves, due process, right to property, speedy trial, cross examination of witnesses against you, trial by jury, and no excessive bail. (17)
Yes, this is obnoxiously pedantic.
I am not arguing that your constitution should be flat out ignored by your government. Jesus fucking Christ, this is exactly what I'm talking about. No one can talk about any single right guaranteed by the constitution without someone coming in and shitting up the discussion. What this is about, Deth, since you are continually ignoring it and doing your best to stifle discussion outright, is not whether the US government should be regulated by the constitution. That is completely irrelevant to the discussion.
The discussion is, for the nth goddamn time, The constitution is not the reason for a right and should not be used in a debate about rights as justification for the right's existence.
And I'm absolutely convinced you are still going to go on and on about blah blah blah government oppression as if it is at all relevant, so I'm going to once again give the same example that I have already given and you have completely ignored:
If someone says that the right to keep and bear arms should be restricted for reasons A, B and C, opponents who support the right should do more than simply say "It's in the constitution fucker!" and think that ends the debate.
I will even go further to say that in Canada, we do not have a right to keep and bear arms and live in a relatively free society that is no more oppressive than the US. So, does that mean that a Canadian and American can not have a debate about gun control at all because the only reason for it is simply "US CONSTITUTION LALALLALAA!"? Or can someone who supports the right formulate a response that actually means something to someone who does not have that right and doesn't believe it should be a right?
Oh I've read the thread, hence my original post about how you have arrived at an opinion from a position of ignorance and you dislike the fact that you cannot further your agenda because the documents we base are entire system of government around are inconvenient to said agenda. You are throwing a pissy bitch fit. I am sorry you do not like the fact that the entire basis of our social contract revolves around the idea of both codified and unwritten individual rights. I am sorry those rights are inconvenient to you. I am not interested in pissing around the proverbial bush because when you start spewing the crazy on some other board, or in some other thread people point out that the same reason i cannot kick in your door, beat you to death with a 2x4 , rape your wife, eat your dog, successfully parent your children causing them to abandon their dreams of joining the circus and instead go on to become successful neurosurgeons, steal your TV, fill your plumbing with cement, drink your last pepsi without asking, and then go home without any fear of reprisal.
I am sorry that our founding fathers had to have arguments where one side said no one could possible be dumb enough to hold your opinions, and the other side arguing that yes in fact someone will be that dumb and we should probably write something up just in case.
Do you want to have a theoretical debate or a practical one? If you want to discuss A, B, and C we can always theoretically discuss the potential effects of various ideals in a hypothetical world. However if we are having a practical discussion then yes, its in the constitution fucker and you do not the ability to change it even though the constitution directly spells out a process for changing it. You do not have an argument of sufficient merit to warrant doing so.
We can sit around, drink a bunch of beers and discuss how we would do the perfect murder, or rob a bank, or whatever else. In the end no matter how great our plan someone is going to point out "but its ILLEGAL!" well no shit. We are not really going to commit the perfect murder, or rob a bank. Its a mental exercise. Just like your imaginary A, B, and C.
When confronted by someone who has a problem identifying individual rights, and demands an explanation as to why the government cannot use the powers granted to it by the constitution to do the stuff the constitution says it cannot do we are left with no option but to treat you like the three year old asking why? Its an individual right. Why? Because it is a right we recognize every human as having merely by right of existing. Why? Because at some point we had some really smart individuals who thought all this stuff up, in fact we even had a Bill of Rights declaring some of these rights. Why? Because some people thought that mankind would eventually breed a better idiot who would need them spelled out. Why? Because mankind did.
On the other hand, if you do say that it is just because a previous government hammered such and such an agreement out, then you would have to accept the attack that this is a rather arbitrary way to do things.
I think this post proves my earlier point quite clearly.
On a separate note. The US constitution is a vision of a very weak federal government with no permanent standing army, militia loosely spread among the states, no judicial review, etc. - with, I think, the most important innovations of (1) incorporation (2) non-apportioned taxes (3) criminalization of slavery (4) equal protection among given social classes tacked on. I do not think it was ever envisioned during the lifetimes of the authors to have a federal government exercising the powers currently normally accepted in the major liberal democracies of the West: vastly centralized and substantial permanent military power with overseas projection (with a substantive right to secrecy in the same), a complex regulatory state that actively intervenes in every area of commerce (and is indeed popularly accepted to be obliged to do so in some sense), and extensive social insurance and transfers on a scale large enough to be a nontrivial fraction of national income.
Medicare and Social Security are not intuitively part of the enumerated powers (AFAIK their current status, dating to SCOTUS's reinterpretation following the court-packing plan, is to shelve it all under "general welfare". You are welcome to suggest what manner of state action might be unjustifiable to a "breed [of] better idiot" in an appeal to the general welfare!). The part which puzzles me is why proponents of stricter interpretations go on to say, well, so much the worse for Social Security. Why not invert it and say: so much the worse for an originalist Constitution?
I think we could all agree that our founding fathers could never have foreseen how the US government currently functions. We have expanded well beyond what was probably ever intended as far as government involvement in peoples lives. Which I think really shows that both sides really were right. The government has pretty much grabbed as much power as possible, and used the Bill of Rights as a list of things they cannot do. However by the same token absent it I think we would see far more strict regulations on things protected by it. General Welfare and Interstate Commerce really have become a catch all for "We want to do it, we are going to do it, and nothing in the Bill of Rights says we can't"
I should also point out that the postwar US has seen substantial waxes and wanes in economic regulation without any constitutional amendments directly relevant to this power, which does suggest that the constitution itself is not the binding constraint.
e: so is the constitution as-is effective at binding idiots, or not effective at binding idiots? As a concrete matter, aside from the topic over whether it should be seen primarily as a way to bind idiots?
EDIT: You may also want to note that as I've said multiple times, I am Canadian and as such I am not part of your social contract and I am not under your constitution. At some point I'm hoping you will clue in to the fact that outside of America there are other nations with other points of view and a different set of rights and that citizens of those countries are, in many cases, just as free as Americans.
You ask why we cannot just scoff, and do whatever we please and tell the strict constitutionalists tough titties. The reality is that largely that is exactly what has been done for the last hundred years. Pretty much the only bastion that remains is the Bill of Rights, which has in some ways remained a bastion for said constitutionalists. Nowhere does it say exactly what you can and cannot use General Welfare or Interstate Commerce to justify.
When it comes to the Bill of Rights they were pretty clear what they meant. It was written in common language, and you pretty much need "a better breed of idiot" to really get it wrong. It is a lot harder to muddy the waters when you are up against a list of things you cannot do. It looks really tempting, especially when you are used being able to utilize Commerce or Welfare to legislate quite a few "abuses" of power. Whether these "abuses" were right, or wrong they exist in that grey area that consists of "stuff we are not forbidden from doing, nor expressly told we can do, but at the time it was right, stupid, proper, popular, seemed like a good idea, bone headed, or just plain crazy."
When we get to the Bill of Rights it gets a lot trickier, as well it should. Effectively tossing the Bill of Rights out the window and brazenly admitting we are ignoring would be problematic. In the end we will probably see the rights enshrined therein continue to be slowly eroded until at some point the entire system loses any shred of credibility dystopian future style.
In particular the Bill of Rights did not originally apply to the states, for example. It took the Fourteenth, a judicial reinterpretation of the Fourteenth three decades after, and a reinterpretation of the Bill to force states to abide by the amendments. This is rather substantial increase in the power of the federal government, albeit merely to tell states what not to do. Bluntly your country already does ignore intentionalist originalism.
The Second Amendment requires no justification, as self defense is one of those fundamental human rights. Moreover it exists not just to declare that the people have the ability to fight not only for said rights, but also for the ability to choose how and by whom they will be governed.
Some say the Second Amendment is the teeth behind the first, or that it guarantees we will always have the First. The Second Amendment is both a preemptive declaration of war against tyranny, as well as a reminder to potential foreign invaders that ultimately it is not the government, or the military you would need to defeat/control, but the hearts and minds of the American population itself that will prove to be the true enemy that any despot or invader would need to ultimately deal with.
Still ignoring the question!
I think (as is the case with almost all nations) there is a civil religion in place, much as Robert Bellah postulated, that in our case takes various religious myths and themes and applies them onto the American narrative.
As Hannah Arendt claimed in On Revolution, we needed some sort of quasi-religious touchstone so that governance didn't dissolve into a situation akin to the latter stages of the French Revolution, where the "higher power" and "faithful executive" became one and the same (i.e., Jacobins). We thus [somewhat unintentionally] established in our national identity the near-divinity of the Dec. of Ind. and Constitution as the seats of the transcendent legitimacy and authority, removed from the faithful who would follow it. This obviously creates some tension re: the desire for it to be a living, breathing document when it has almost been apotheosized, to the point where even the very human and fractious creators of the latter document are deified...
The Constitution, then, could perhaps justify itself if our goal was to create a traditional-religious state model, one that focuses on a common (and unifying) civil religion - however, I believe that this was an unintentional and perhaps misguided appropriation of a document that conspicuously did not have either God or a specific religion stated, a deliberate decision on the part of the conventioneers...
In contrast, the Constitution cannot have self-justification if we want to operate in the liberal-secular state model, wherein the object is a search for progress rather than a return or adherence to a utopian past. The justification for our belief in the Constitution, then, must stem from outside of it, whether it be a belief in the potency of its suggestions and implications, - and that rationale is perhaps different to every American. I myself believe that the legitimacy of the document is justified by its goals, a chief one being to create and maintain a diverse yet cohesive democracy, where there is equality under the law, and where certain rights are protected if not guaranteed. This also, to me, partially solves the dilemma of "which rights are unalienable?" - those either explicitly codified or logically synthesized from the fundamentally enunciated; although obviously there are many complications in this sweeping overview.
and the gengars who are guiding me" -- W.S. Merwin
I'm no proper philosopher, but I often see 'rights' adjectivised in ways that I think are unclear. I see inalienable rights, legal rights, natural rights, human rights and more. My guess is that the uses I see are inconsistent - the speaker is using the adjective to mean 'really important'.
But I also suppose that these have clear philosophical or political meanings. That natural rights are different from legal rights.
I find that, in conversations with Americans about rights, all of these different types of rights seem to get conflated. In particular, 'legal' seems to not be sufficiently separated from other kinds of rights. I don't say this to attack Americans, but just to explain a philosophical disconnect I often find in these kinds of discussion.
I wish someone like MrMr would explain the difference between these types of rights.
They're basically things which Enlightenment scholars took as being foundational to human freedom.
Natural rights (which usually get conflated with human rights, and Jefferson called inalienable) are rights that aren't granted by a government, but are fundamental to humanity. Generally these trace back to Locke in our tradition, and he identified them as "life, liberty, and property (he meant land)." Which basically gives you amendments 1-8 (+ 13), in an 18th century context. Though there's some disagreement about "property" (after all, it can change hands) which is why it was changed to "pursuit of happiness" in the famous phrase.
Legal rights are rights granted by the government. Or alternately, those which are subject to agreement between the government and the governed.
Perhaps you should just directly ask me whatever question you seem to think I am not answered sufficiently to your taste. Frankly not every post I have an interest in answering or commenting upon. If your are somehow referring to the OP's original question the Bill or Rights does not confer any rights upon anyone. It is a list of natural rights that were recognized as existing before we formed our government, and there were concerns that the new government might infringe upon them.
This is probably why the OP is having so many problems with constructing whatever flawed argument he dances around but never spells out. The problem is that in his dancing around the issue we do not know if he is putting forth something that could actually be debated with his chosen issue. I mean he could be proposing we ban all guns, in which case he could be getting told how feasible that is, the impossibility of passing said legislation, or perhaps people are just short handing all of that and assuming that he is smart enough to understand the sheer impossibility of his suggestion and just saying "its unconstitutional."
Much like my previous example if I am sitting around drinking beers with a friend and he says "lets rob a bank" my response is probably going to be "You know that's illegal right?" I could ask "ok which bank? How do you expect to handle cameras, and security? How many people do you think we need? How are we going to guarantee we get the most money for our risk? Why do you think this is a good idea? Are we leaving the country or just trying to disappear with the money back into the population?" Rather than spend the next period or time shooting down every single one of his poorly thought out ideas I can just throw out there a simple "You know that's illegal right?" I do not need to spend the sheer amount of time refuting his point, because I know already his point cannot stand scrutiny we squash it and move on.
However we could also take the point in the OP where he discusses licensing to own a gun. Let us take a similar thread on the forums where we are discussing voter disenfranchisement due to being required to have a government issue ID in order to vote. This has caused quite a stir as while a government ID can cost as little as 30 dollars it places an undue burden upon the poor. These same arguments can be used against his mentioned licensing system. Now we can explain why this is a bad thing, how much like the voting ID requirements is not going to do anything to solve the problem it is being proposed to solve, and ultimately is just a needless infringement upon natural rights.
When confronted with someone who refuses to see their position is wrong or impossible you can argue until you are blue in the face, or say something like "it is illegal" or "It is against the Constitution" and wander off. You legitimized it as a valid argument as soon as you decided to start arguing to change the laws or in the Canada/USA example acknowledged us as a country. Either we are a legitimate government with a framework you would need to work with in order to bring about your ideals and therefore work within what is constitutionally possible, or we are not a legitimate government. If we are not a legitimate government or you just don't care then you have a completely different problem and the Bill or Rights never comes into the discussion. If your argument is "Why cant I bribe the Reptilon army living on the moon into invading North America, and make them institute my no guns, no freedom, and everyone works the twinkie mines policy." Then the bill of rights doesn't matter, just your supply of shiny gems and Emplodium for their reactors.
... is that the bat-sign!?
The clearest distinction in rights-talk, I think, is between natural rights on the one hand and legal or conventional rights. The idea is that there are some rights which you have just because the government decided to give them to you: for instance, you have the right to drive on the right side of the road (but not the left!) provided you have the proper documentation, vehicle, etc. These are conventions society creates in the ordinary business of drawing up laws, and together consist in your legal or conventional rights. But you also have some rights which are importantly different, such as the rights to the freedom of conscience and security in your bodily person. It is not up to society to decide whether you have these rights; these rights are such that any government which tried to curtail them would, just by virtue of trying, be illegitimate. We generally think of the constitution as trying to encode those latter sorts of rights, which is why it makes sense that it ought be so difficult to amend.
Inalienable rights are sometimes used interchangeably with natural rights, but I think the technical meaning is rather that an inalienable right is one which you cannot in any circumstance relinquish; for instance, you cannot forfeit your right to free speech by selling it to someone else, even if you wanted to. There is naturally a fair amount of overlap between rights you cannot relinquish and the natural rights; this perhaps explains why they sometimes get used interchangeably.
Similarly, human rights get used interchangeably with natural and inalienable rights; they're rights you have just in virtue of being human. It's not clear whether there's any meaningful different here between the rights you have just in virtue of being human and natural rights. Human rights, I think, have the least clear distinctly philosophical meaning, and are mostly used as a political call to action.
Also: see enlightenedbum
Thanks loads. But my problem now is that I thought that was what those words meant, but that just doesn't seem to be how people use the words here and elsewhere. If the right to bear arms is an inalienable right, then all humans should have it, for X reason. The fact that it is a legal right in the US is neither here nor there. And something being a legal right doesn't make it automatically an inalienable right, so this idea that the existence of the US constitution being an argument for anything at all holds no water.
Why the Constitution? What is its basis?
In short, Enlightenment beliefs from the 18th century. Specifically ideas set forth by John Locke in his "Two Treatises of Government" are of paramount importance as well as the arguments presented in the Federalist Papers penned by Alexander Hamilton, James Madison, and John Jay. Amongst these ideas are the beliefs that people have inalienable rights that are inherited at birth, and that government may only exist at the consent of the people in the form of a social contract. Should a government violate said contract, the people retain the right to overthrow that government.
What's so special about the Constitution?
One very distinct feature of the Constitution is the Bill of Rights where some of the intrinsic rights of man are specifically enumerated. Although it is not to say that there are no rights beyond those stated, indeed it was a matter of dispute on whether there should even be a Bill of Rights as some feared it would restrict the rights of man, it is understood that these particular rights are without question.
Furthermore the Constitution was designed to be the 'ultimate law of the land', above all other governments within the United States. This was so that regardless of whom may lead the country at any given time, or whatever tendencies a particular state may have, all people may have the guarantee of all that was written in the Constitution. It is the Social Contract for the United States of America, the backbone for our government, there is no manner of legitimate governance without it.
So, about that 2nd Amendment...
Yes, one of those rights is for the bearing of arms. Now that could mean the right to militias, the right for individuals to own firearms, or perhaps even the literal act of replacing ones arms with those from a bear, but regardless of interpretation there is without question a right that involves arms and bearing them. Arguably firearms are a bad thing and the average citizen has no need for them, there are a great many arguments in this vein and it will suffice to say they are with merit. However...
As I had said, the Constitution is the social contract between our government and the people of the USA. Part of that Constitution is the Bill of Rights, and one of those rights is to bear arms. Common interpretation of the 2nd Amendment is that individuals retain the right to own and wield firearms, any law preventing that would be in violation of the 2nd Amendment. The problem with violating the 2nd, or any, Amendment is that the Constitution is the ultimate law of the land above the Federal government and its three branches as well as above the individual State, County, or City governments and any violation of that law automatically revokes the legitimacy of that governing body.
Afterall, if the 2nd Amendment can be blithely ignored then why cannot any other? The social contract falls apart, the people retain the right to overthrow the government, et cetera.
So this is why gun ownership is an important issue in the United States.
Okay, but why do Americans think people in other countries should have this or other rights?
This is a bit of a stretch for me, as I'm somewhat of an isolationist mindset and would rather just let other countries be. They can do whatever, we have our freedoms and anybody who would enjoy them is welcome to join the party and such.
But I would say that the idea that other people in wildly different cultures should enjoy the same rights is a logical extension of the belief in natural rights. Note that the Constitution doesn't say that these are the rights for American people only, or that John Locke doesn't say the only people who have rights are those who recognize them. An essential part of the idea behind natural rights is that they are inherent in all people whether they want them or not.
So the Bill of Rights in the US Constitution, in the minds of Americans, not only enumerates (note that it does not give) certain rights but also alludes to other unwritten rights that belong to all of mankind. This isn't because America is speschial, or the Constitution is just that awesome, or that our Founding Fathers were supposedly infallible, but because of a deeply entrenched strain of Enlightenment philosophy that insists natural rights are a part of each and every individual on this Earth and cannot be stripped away.
Not every American feels this way, a great many are really just concerned with the rights of American citizens and could care less beyond that. But there are also many Americans who really take natural rights to the full logical conclusion. That's why we end up with the ACLU advocating for the rights of terrorists, because they're people too and therefore have natural rights that shall not be stripped away from them.
Someone compared this to a religious belief, and I think that's spot on. There's not really any particular evidence for natural rights other than a certain branch of philosophy, and even that in its time did not go unchallenged, but Americans believe in it very strongly. Even I, who doesn't advocate for the 'exportation of Democracy and Rights' and thinks we should largely keep to ourselves, believe that each and every person has natural rights whether they recognize them or not.
So there you go, I hope that answers some questions. All of this was off the top of my head so I apologize if I misspoke anywhere.
This is a something that many Americans go on to investigate further and form opinions beyond the accepted curriculum, but at least a strong minority do not.
Looking back, the tone taken when learning about the drafting of the Constitution + Bill of Rights (both in high school and in college) was very similar to my weekly Public School Religion classes (I'm a recovering Catholic). There is a level of reverence instilled in both cases that eventually develops into viewing the core document as a sort of totem which lets us access directly the intent of the far-wiser-than-us ancestors who drafted it. As with how I was taught religion, this sort of thinking and prevailing attitude of 'there are those who agree with us and those who are unenlightened' is what leads to any debate with a Constitution Thumping American to use it in the way you've described: and really, whenever the constitution is brought up as a justification, it is likely the parroting of one of two arguments from some legislator or another:
1. X is unconstitutional! Let's haul it to the center of the village and burn it!
2. Y needs to be protected by the constitution because if you let them take your Y away (or force you to take Y, or whatever), soon they'll come after your Z!
It's an argument used at the highest levels of government here to stir up a certain vocal (what I hope is a) minority. My suggestion is to not argue with someone who will not see that "The constitution says so" is not a trump card. They probably don't have an opinion beyond that anyhow, because why should they have to form one? The constitution says so.