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The [American Constitution] Justifies Itself

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  • PantsBPantsB Registered User regular
    edited February 2012
    Anid Maro wrote: »
    Whether or not we consider the US gov't pre-13th Amendment to be legitimate is irrelevant because we were not part of the people of that time whose legitimacy the government rested upon. Frankly, the government back in the mid 1800s wasn't our government so we have no power to actually cause it to be illegitimate. Which goes back to an earlier statement of mine, which admittedly could've been made clearer:
    Anid Maro wrote: »
    As in yes technically the pre-13th Amendment US Gov't could be seen as illegitimate, but that doesn't mean much of anything if the people did not perceive the government as illegitimate nor are willing to overthrow it.

    Indeed the one time where a group of people deemed the US gov't, as in their government of their time, as illegitimate was the Civil War when the South seceded from the Union. The end result was the defeat and occupation of the South and each Southern State, to regain admittance to the Union and no longer be an occupied territory, had to reaffirm the legitimacy of the US Constitution and the Federal Government.

    Well I think its fair to assume that the slaves didn't think the government was legitimate. However, simply declaring a government illegitimate doesn't make it so. You need an actual (series) of grievances. You can't simply say "Obama is Hitler!" and refuse to pay taxes, but if Obama actually started rounding up evangelicals in concentration camps then "Obama is Hitler" would be a valid argument about the illegitimacy of the government. The South didn't have anything resembling a legitimate grievance, even if you bought their (obviously fundamentally evil premise) that they had a right to slavery in the Territories and absolutely.

    PantsB on
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    QEDMF xbl: PantsB G+
  • Anid MaroAnid Maro Registered User regular
    Actually the South did have a legitimate grievance, States' Rights. Specifically the right of a State to recognize their own rights, to decide for themselves what should be. Disagree with it if you will, I certainly do, but at the time it was a legitimate grievance as put by John Calhoun whose idea of Nullification stated that States were not subordinate to the Federal Government and could individually interpret the Constitution as they wished.

    That's why after the Civil War there was the 14th Amendment, which basically says that States cannot violate the rights of a citizen. One major result of the Civil War was the primacy of the Federal Government over the State Governments, before that wasn't so certain.

    Obviously the slaves didn't consent to the government (nor did women until much later), unfortunately they were not part of the people and thereby not part of the social contract. Without getting into too much detail, I think it suffices to say I'm glad that shit got sorted out (though way later and at higher cost than it should've been).

  • enlightenedbumenlightenedbum Registered User regular
    That wasn't their grievance, as you can see if you read the documents of secession. Their grievance was a fear that Lincoln would try to end slavery. The Civil War was about slavery, full stop. It was only after they lost that the South reformed the argument.

    Herbert Hoover got 40% of the vote in 1932. Friendly reminder.
  • jothkijothki Registered User regular
    Hey, it could also have been about a bunch of aristocrats believing that they deserved to continue ruling the country, despite being in a democracy and not possessing the (already heavily rigged) demographics needed to do so legitimately.

  • enlightenedbumenlightenedbum Registered User regular
    It could have been, but it wasn't.

    Herbert Hoover got 40% of the vote in 1932. Friendly reminder.
  • YarYar Registered User regular
    edited February 2012
    Civil War debate rah!

    Yeah so even if we just accept that the Civil War was about slavery (that's not wrong, but it does misconstrue the context somewhat), there's an Article of the Constitution many people don't even know about.

    Article IV, Section 2, Clause iii: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

    But there were all these Personal Liberty Laws and Fugitive Slave Laws that kept this a contentious issue. And then Lincoln got elected and so states started leaving the Union.

    Yar on
  • Dis'Dis' Registered User regular
    PantsB wrote: »
    Cameron does have the power, given support from his party/coalition members, to declare himself Prime Minister for Life by extending the Parliamentary term indefinitely. He (and when I say "he" here I mean Parliament) could declare that Parliament is no longer elected but inherited. He could say "kill every first born son" within the law of the land because there is no check on the power of Parliament.

    All those things technically require the assent of the monarch. You seem to conflate the powers the Prime Minister has with the permanence the US President has - the Prime Minister can be unmade in an hour.
    A dictator could follow the will of the people and respect their rights in all things and would still be a dictator. A government could largely act as if it were egalitarian and democratic and still not be because it depends on the rule of people, not law. If we think there should be limits on what a government can do - both in regards to how government officials gain that position and what its allowed to do in terms of individual rights and the enforcement of laws - then those limitation should be legal limits, not "well he's a good boy he'd never do something like that" limits.

    Ah, the law as a big shining glowing letters in the sky. All the 'rule of law' doesn't mean shit if the people are bad - look at Ecuador with its carbon copy of the US system being quickly amended to presidents for life.

    The law might be nice I guess, but a popular enough 'bad boy' as you put it is going to be able to break it anyway, or the mass of the people can just ignore the law, so the results are the same. And results are what people have to live in.

  • RandomEngyRandomEngy Registered User regular
    IMO the two retroactive copyright extension acts should have been struck down as unconstitutional. It doesn't expressly prohibit such a law but it seems clear that it violates the stated intent: "To promote the Progress of Science and useful Arts". That philosophy still stands on its own merits, but it was simply cast aside for no good reason. When that kind of crap happens I want the courts to come in and slap it down.

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  • belligerentbelligerent Registered User regular
    I was very satisfied by this thread. I was interested to read the well articulated arguments on both sides (all sides?) I'm pro-gun control, and yet I found it hard to disagree with some of the premises put forth by the "other side."

  • ronyaronya Arrrrrf. the ivory tower's basementRegistered User regular
    edited February 2012
    Detharin wrote: »
    ronya wrote: »
    o_O

    Still ignoring the question!

    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.

    This is a late reply, so briefly: you cannot both assert that the Constitution is the be-all and end-all of rights in the United States, so that all sensible discussion collapses without it, and also assert that
    Detharin wrote: »
    ... the Bill of Rights is good because it both lays out what we consider to be inalienable rights inherently present in all people ...

    which demands an answer to "well, why are these rights inalienable and these others are not". The reply of "because they are in the Constitution" is the epitome of begging the question.

    Are the rights embedded in the 14th just as inalienable? On what basis might we consider a nontrivial amendment to rights described in the constitution, as the 14th did? And are these rights inherently present in all people, including people in other countries vis a vis their governments, or just US citizens? Do realize it is you here who is carelessly asserting that other governments are illegitimately suppressing rights, which is I think partly what Nova_C was criticizing in the OP.

    ronya on
  • PhyphorPhyphor Building Planet Busters Tasting FruitRegistered User regular
    PantsB wrote: »
    Obama doesn't have the power to declare himself President for Life. Its explicitly not within his authority and doing so would have no legal weight. In order to enact such a declaration he would need to break the law.

    Cameron does have the power, given support from his party/coalition members, to declare himself Prime Minister for Life by extending the Parliamentary term indefinitely. He (and when I say "he" here I mean Parliament) could declare that Parliament is no longer elected but inherited. He could say "kill every first born son" within the law of the land because there is no check on the power of Parliament.

    No, but if the entire US legislature + state governments decided it wanted to do so it could too, via amendments. What you're proposing would require ridiculous support in both houses, and of the monarch, and the public, pretty much equivalent to the support needed to amend your constitution. The PM can't just declare things to be so, he would have to pass a bill extending the term of Parliament indefinitely. Which the lords would block, if his own party didn't dissolve the government before the monarch did.

    Magic Box
    Academician Prokhor "Phyphor" Zakharov, Chief Scientist of China, Provost of the University of Planet - SE++ Megagame
  • valhalla130valhalla130 13 Dark Shield Perceives the GodsRegistered User regular
    One thing to remember about the Constitution (and this may have already been said) is that although, yes, it does grant certain rights, and those rights are pretty much set in stone at any one point in time, the document can be, and has been, changed by adding amendments. If enough people don't think we should have the right to bear arms, then all it takes is an amendment, and we no longer have those. The constitution is a living, breathing document. It's supposed to keep up with the times, and unfortunately, some people forget this, and only want to base their beliefs about it on what some middle-aged dude who lived 200 years ago (granted, a middle-aged dude probably way smarter than I am) was thinking.

  • poshnialloposhniallo Registered User regular
    Any time you use normative language, you are expressing a moral thought. If you say 'should', as in 'we should follow the law', that is morality.

    It may be Utilitarianism (if we follow the law that is good for society, and therefore good for everyone). It may be quasi-religious respect for the Constibible (The Forefatherfounders decreed this to be so!). But if it's not morality, why should someone do it? If you keep asking 'why?' eventually you get to 'because that's the right thing to do', which is a moral claim.

    I think a lot of the public debate on this has been polluted by ideas such as 'don't legislate morality' or 'everyone has their own ethics', and by demagogues presenting their moral thoughts as somehow not moral thoughts. So people are confused about what is morality and what isn't.

    But everytime you tell me what I should do, or what we should do, that's ethics.

    I figure I could take a bear.
  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    But that law would not have met the procedural requirements, since it would purport to amend the constitution without having followed the valid procedure for doing so. If the law was challenged, went to the supreme court, and the court ruled it valid, that would be the more interesting case, but it is also effectively unimaginable that the court would do so, so this isn't really a hypothetical grounded in reality or plausability.

    And if the Congress opened their law saying "Nothing in this law shall be construed as an attempt to amend the US Constitution...(1)No more free speech."

    If you think it is a facetious example, I bring it up both because law-making bodies around the world seriously do this kind of nonsensical "We don't intend to do exactly what we intend to do with this law", and because it is a very clear example of something that we know is a right.

    What if the law said all firstborn sons had to be killed? That Congressmen could claim droit du seigneur in their districts?

    I get what you are saying here. Maybe we should use an example more clearly within the bounds of congressional power. The Federal government could decide to raise the income tax rate to 100%, and to make sure the courts stay out of it, they could also raise the salary for supreme court justices to $100 billion a year.

    If this happened, I still don't think you would get anywhere saying the government was not valid. The people would complain, and if there was an election before the law went into effect, they would vote its supporters out. But what if everyone who was running for office also supported the bill, so there was no way for the people to prevent this from occuring through the system? Well, then you probably wind up with a revolt, and if the revolt succeeds, then you have a new government, at which point the old government will cease to be valid, becasuse it will cease to exist. But as long as the government follows the process, I don't see any reason to say that it is invalid unless and until it is overthrown.

    7zh9uu9etcor.jpg
    Chanus wrote:
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  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    Anid Maro wrote: »
    Anid Maro wrote: »
    MrMister wrote: »
    I think it's rather incredible to believe that Southern slaves had the moral obligation to bend over and accept the lash, simply because the government of the white man had passed laws saying such was their lot.

    Why is everyone conflating the law and morality? The slaves had a legal obligation to continue on as slaves (I would hope that is beyond dispute) but this has no bearing on their moral obligations (other than the trivial obligation to follow the law because breaking the law erodes its normative effect). If a slave struck their master or ran away, could they argue they did not violate the law, because that law was not valid, or that they did violate a valid law because following it required them the break their moral obligations? I think the latter is both the correct and more compelling argument.

    I'd think a more nuanced and correct argument would be: The slave violated a State law that was itself in violation of the US Constitution, and the US Constitution should take precedence.

    Usually that argument was resolved by running to a State that didn't recognize slavery.

    But yes, as far as State law was concerned the slave did have a legal obligation to continue on as a slave. However slavehood depended quite a bit on whether or not the slave was to be considered a person or property. Those who thought slaves were property thought any attempt to free them was in violation of their right to property, those who thought slaves were people thought this servitude was in violation of the slave's rights.

    So by crossing into a State that recognized the slave as a person instead, the slave person would shrug that legal obligation.

    Except that we had a series of Federal fugitive slave acts, and quite frankly, the pattern of institutional nonenforcement and jury nullification in response to those laws was a low point for the rule of law in America. The property/personhood debate is also a good example of why clarity in the law is important, and why the ability of the states to make inconsistent law can be toxic to the goal of having a clear and ordered set of rules which people can use as the basis for making long term plans. Full faith and credit is a really key factor for maintaining the rule of law in America.

    Yes, we did have the Federal Fugitive slave acts. I had forgotten, so we had a slave who violated a State law by going to another State where their act was not in violation of that State's law yet a Federal law compelled that State to comply with the earlier State's law however both the Federal and earlier State's laws were arguably in violation of the US Constitution.

    It's all quite the grand mess, and ultimately "validity" is what the people and gov't decide it is. One day the law may be such, then another day the law may be changed to that. One day the law may be read as such, then another day the same law may be read as that. The necessary stability comes from judicial precedent, allowing society as a whole to agree on what the law should mean.

    The American people, being simultaneously subordinate to the law and the base of its legitimacy, have a dual duty to obey the law and challenge it. Yes citizens should follow the law, but also citizens should act to nullify laws that should not be in the first place.

    Incidentally, this is why I like the idea of civil disobedience. It manages to both obey and challenge the law.

    Also, and more to the point, the general idea is that the people and the government are to be one in the same. The whole overthrow of government thing is meant for when they and the people are no longer one in the same.
    Anid Maro wrote: »
    Anid Maro wrote: »
    MrMister wrote: »
    poshniallo wrote: »
    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

    This talk about "natural rights" and invalid governments terrifies me. Would you call the US government invalid prior to the abolition of slavery? If you would, then it seems to me that you are locked into believing that an invalid form of government was somehow replaced by a valid form of government the instant abolition occured, made up of the same people, following the same governing documents, and recognizing as valid all the acts of the "invalid" government that existed before abolition.

    I really don't think we can talk coherently about any rights you have which you cannot enforce against the government or your neighbors. If we lived in a country without free speech and spoke out against the government I don't see what value there would be in arguing that the government is not valid because it does not recognize your natural right to free speech. You can argue that there SHOULD be free speech there, but you have to recognize that this argument would be an act of civil disobedience, and when you are caught and punished, that punishment would be a valid action by a valid government. In fact, it is this recognition that gives civil disobedience its strength.

    Put another way, you can hold whatever views you want about your rights as a person, but this is a completely distinct discussion from your rights as a member of American society, and one does not neccessarily have any bearing on the other.

    I think it must be kept in mind that not only must there be some reconciliation between the natural rights espoused in Enlightenment philosophy and an actual working political system, there is also the interference of the peoples', as a group, perception and interpretationof their rights. As in yes technically the pre-13th Amendment US Gov't could be seen as illegitimate, but that doesn't mean much of anything if the people did not perceive the government as illegitimate nor are willing to overthrow it*.

    It's one thing to say "US Gov't is in violation of X Amendment and is illegitimate!" and a whole 'nother to convince damn near the entire citizenry to overthrow said government.

    *Speaking of which it's of some amusement to me that a great portion of the US did in fact call the government illegitimate and attempted to break off from it, they just happened to be the pro-slavery faction.

    What I am saying is that validity is nothing more than a matter of following the correct procedural requirements. The idea that the US government was illegitimate before the 13th amendment and was valid after, despite there being no change in the procedures that we use to elect government officials, no change in the procedures they use to adopt laws, and no change in the composition of that government is astonishing to me. Would this mean that if I broke a law unrelated to slavery then I could justifiably aruge that I should not be punished because I was violating a rule made by an invalid "government" and that the post-abolition government should accept this argument, even though they took no formal action to recognize any break from the past non-government?

    I guess you could try arguing that, but I'd imagine the immediate counter-argument would be that regardless of the legitimacy of the pre-13th Amendment Gov't the current Gov't adheres to the procedures of the old as well as any procedures added or revised since and you're still in violation of the law of this legitimate Gov't.

    Personally, I find it strange to think that a government cannot become illegitimate and then through a specific change towards whatever caused this state then regain legitimacy.

    Though this would be interesting for a Confederate leaning Southerner to answer. Since at one point the South, for different reasons, determined the Gov't was illegitimate and did reject their authority and was compelled by force to recognize the Gov't they had rejected.

    That is a disaster though. Congress never formally reapproved all of its acts taken prior to the passage of the 13th amendment, so how are we to know what ennactments of the pre-13th amendment non-government are and are not valid law? It is both more accurate in terms of how the government operates and more satisfying from a legal perspective to treat the government as always having been valid. When congress starts "passing" and enforcing laws with 30% approval or which are not signed by the president, then we no longer have a valid government. Until then, the procedural rules themselves are proof of validity.

    Whether or not we consider the US gov't pre-13th Amendment to be legitimate is irrelevant because we were not part of the people of that time whose legitimacy the government rested upon. Frankly, the government back in the mid 1800s wasn't our government so we have no power to actually cause it to be illegitimate. Which goes back to an earlier statement of mine, which admittedly could've been made clearer:
    Anid Maro wrote: »
    As in yes technically the pre-13th Amendment US Gov't could be seen as illegitimate, but that doesn't mean much of anything if the people did not perceive the government as illegitimate nor are willing to overthrow it.

    Indeed the one time where a group of people deemed the US gov't, as in their government of their time, as illegitimate was the Civil War when the South seceded from the Union. The end result was the defeat and occupation of the South and each Southern State, to regain admittance to the Union and no longer be an occupied territory, had to reaffirm the legitimacy of the US Constitution and the Federal Government.

    Unless and until the government is literally overthrown and a new government is put into place (this could be accomplished through violent revolution or through a new constitutional convention) I don't see how its status as a valid government could change. I don't understand your point about the past being the past, and therefore irrelevant. We have a history of peaceful changes in government composition stretching back to the first congress and president, and the validity of the government is derived from that unbroken chain. In modern times we have not "reaffirmed" that the government remains legitimate. We just accept that it is because it follows the form that it has followed since it first became the legitimate government of the US. I reject the idea that we decide the legitimacy of the government in the moment and that we may render it illegitimate at any time, because if this is the system we are living under, then we literally have no stability of government or laws, and should be factoring this risk of sudden illegitimacy into all of the decisions that we make. This is a mentality that breeds building bomb shelters and hoarding gold to protect against the risk of government collapse at any moment. It is unproductive, and actively damaging to our societies ability to exist as a society.

    7zh9uu9etcor.jpg
    Chanus wrote:
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    @chanus
  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    poshniallo wrote: »
    Any time you use normative language, you are expressing a moral thought. If you say 'should', as in 'we should follow the law', that is morality.

    It may be Utilitarianism (if we follow the law that is good for society, and therefore good for everyone). It may be quasi-religious respect for the Constibible (The Forefatherfounders decreed this to be so!). But if it's not morality, why should someone do it? If you keep asking 'why?' eventually you get to 'because that's the right thing to do', which is a moral claim.

    I think a lot of the public debate on this has been polluted by ideas such as 'don't legislate morality' or 'everyone has their own ethics', and by demagogues presenting their moral thoughts as somehow not moral thoughts. So people are confused about what is morality and what isn't.

    But everytime you tell me what I should do, or what we should do, that's ethics.

    In this case, the normative language is just a convenience though, and is not required. Instead, we could say "If you do not follow the law, you will be punished" but be indifferent to the outcome. I actually think that this is the better framework to approach the issue from anyway, since rational actors will sometimes choose to disobey the law, unless we have perfect enforcement and perfectly balanced sanctions which render violation of the law to always be irrational. You only harm the ability for rational actors to make decisions when you throw the validity of the law into doubt, since you take away the ability for rational actors to determine (1) if the law will be enforced and (2) if other people will follow it. You might think this is the same as a light sanction world, but it is not, because in the light sanction world the rational actor knows they will benefit by violating the law in some cases. This is more like a random sanction world, where the risk of being caught and being punished if you are caught cannot be determined, making it difficult for a rational actor to plan around.

    7zh9uu9etcor.jpg
    Chanus wrote:
    It's been a butt come true! I get to work with the absolute best boobs in the business. What more could a money ask for? Kids, aim for the freeloaders !

    @chanus
  • jothkijothki Registered User regular
    Unless and until the government is literally overthrown and a new government is put into place (this could be accomplished through violent revolution or through a new constitutional convention) I don't see how its status as a valid government could change. I don't understand your point about the past being the past, and therefore irrelevant. We have a history of peaceful changes in government composition stretching back to the first congress and president, and the validity of the government is derived from that unbroken chain. In modern times we have not "reaffirmed" that the government remains legitimate. We just accept that it is because it follows the form that it has followed since it first became the legitimate government of the US. I reject the idea that we decide the legitimacy of the government in the moment and that we may render it illegitimate at any time, because if this is the system we are living under, then we literally have no stability of government or laws, and should be factoring this risk of sudden illegitimacy into all of the decisions that we make. This is a mentality that breeds building bomb shelters and hoarding gold to protect against the risk of government collapse at any moment. It is unproductive, and actively damaging to our societies ability to exist as a society.

    That doesn't make it untrue. We achieve stability by using social engineering to convince enough people that rights are somehow inherent, and that traditions have meaning beyond our willingness to carry them out.

    It works well, but I feel there's some merit in occasionally stepping back and looking at what we're doing to ourselves, if only to verify that it is indeed a benefit.

  • UltimanecatUltimanecat Registered User regular
    I get what you are saying here. Maybe we should use an example more clearly within the bounds of congressional power. The Federal government could decide to raise the income tax rate to 100%, and to make sure the courts stay out of it, they could also raise the salary for supreme court justices to $100 billion a year.

    If this happened, I still don't think you would get anywhere saying the government was not valid. The people would complain, and if there was an election before the law went into effect, they would vote its supporters out. But what if everyone who was running for office also supported the bill, so there was no way for the people to prevent this from occuring through the system? Well, then you probably wind up with a revolt, and if the revolt succeeds, then you have a new government, at which point the old government will cease to be valid, becasuse it will cease to exist. But as long as the government follows the process, I don't see any reason to say that it is invalid unless and until it is overthrown.

    I'm not particularly arguing over the validity of government - it's an interesting legal topic to be sure but I don't think a government necessarily loses its mandate simply due to passing an otherwise unconstitutional act. I was simply commenting on how I believe procedural or formal validity is not all that is required to ensure a law is effective in a legal system that recognizes unenumerated and/or fundamental rights. As is often said, it is necessary but not sufficient.

    SteamID : same as my PA forum name
  • poshnialloposhniallo Registered User regular
    It is absurd to call a government valid or invalid while rejecting any discussion of ethics.

    Just as it is absurd to call the US constibible a source of authority while rejecting any discussion of ethics.

    I think that this point has been made quite clear in this thread.

    Also, SKFM, the rhetorical device of using the royal 'we' in order to make your own ideas appear to be more than just your own ideas is getting fairly wearing.

    I figure I could take a bear.
  • spool32spool32 Contrary Library Registered User regular
    poshniallo wrote: »
    Also, SKFM, the rhetorical device of using the royal 'we' in order to make your own ideas appear to be more than just your own ideas is getting fairly wearing.

    Dn't be obtuse. We phrase things that way when we're talking about society, or the nation, or the group of people under discussion if we belong to that group. It's not pretentious, it's a standard construction when we talk about Constitutional issues.

  • _J__J_ Pedant Registered User, __BANNED USERS regular
    I tend to agree with scholars who characterize the Constitution as an antiquated legal document that does not articulate perennial truths of reality, but rather needs to be heavily modified to accommodate the ways in which the world has changed since 1787.

    We tend to reify the document, but that doesn't seem helpful.

  • enc0reenc0re Registered User regular
    _J_ wrote: »
    We tend to reify the document, but that doesn't seem helpful.

    But, but it is real.

  • _J__J_ Pedant Registered User, __BANNED USERS regular
    enc0re wrote: »
    _J_ wrote: »
    We tend to reify the document, but that doesn't seem helpful.

    But, but it is real.

    I meant treating what it says as something other than man-made legal abstractions, treating the 2nd ammendment as some all-powered holy thing rather than a rule made up by some now-dead white guys.

  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    I get what you are saying here. Maybe we should use an example more clearly within the bounds of congressional power. The Federal government could decide to raise the income tax rate to 100%, and to make sure the courts stay out of it, they could also raise the salary for supreme court justices to $100 billion a year.

    If this happened, I still don't think you would get anywhere saying the government was not valid. The people would complain, and if there was an election before the law went into effect, they would vote its supporters out. But what if everyone who was running for office also supported the bill, so there was no way for the people to prevent this from occuring through the system? Well, then you probably wind up with a revolt, and if the revolt succeeds, then you have a new government, at which point the old government will cease to be valid, becasuse it will cease to exist. But as long as the government follows the process, I don't see any reason to say that it is invalid unless and until it is overthrown.

    I'm not particularly arguing over the validity of government - it's an interesting legal topic to be sure but I don't think a government necessarily loses its mandate simply due to passing an otherwise unconstitutional act. I was simply commenting on how I believe procedural or formal validity is not all that is required to ensure a law is effective in a legal system that recognizes unenumerated and/or fundamental rights. As is often said, it is necessary but not sufficient.

    That is an interesting point. I suppose that the answer is that the government needs to follow the right procedures, and the people need to follow those rules. The more accepting people are of the rules, the easier that will be, and I guess that in extreme examples like military dictatorships, they need to rely almost completely on force and fear to get their rules enforced. I think the more interesting question which you raised is how the idea of "fundamental" rights can impact this second measure of validity. If the whole population thinks that they have a fundamental right to keep their earnings, but you impose a 100% tax, then even if you follow the procedure perfectly in passing that rule, you may be hard pressed to enforce it, and if you can't enforce it, then I can see why it would be questionable if it was really a law. So even if fundamental rights are not formally incorporated in the legal system, it doesn't mean that they don't impact the system.

    Actually, now that I have thought it through in writing the post, this is actually basically what I said in one of my first posts in this thread. The law is the law, but if your morals require you to disobey the law, then that may be what you have to do, and acts of civil disobedience can cause the laws to change if the people are sympathetic to the cause of the sanctioned protester.

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    Chanus wrote:
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  • Fallout2manFallout2man Registered User regular
    edited February 2012
    At the risk of seeming like a fool I'd like to respond to the original sentiment which created this thread:
    spool32 wrote:
    No,no, no,no, a thousand times no. We should not have to constantly justify our inherent rights, rights described in the Constitution but not granted to us by it. Those who wish to restrict those rights should have to justify their wish, at each and every step.

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

    Inherent rights as in what? Inherent as in inherently present? If so those are no different than a list of natural laws which govern the physical capability of humans. Basically Hobbes view of morality. But in such a system there is no morality, only capability. So if you're fine living in a world defined in terms of people who have the power to kill you, and those who don't, fine by me, but I'd rather not be so paranoid.

    The Constitution as well as each and every human document that purports to have significance MUST justify itself or it has no reason to exist. This doesn't invalidate your premise that the burden of proof should lie on the person wishing to change our current system of government to prove their reason. Still, to act as if the constitution is a giant body of "Just 'cuz!" is incredibly insulting to our founders and the long hours and hard-fought compromises which enabled us today to even exist. Someone who cannot even understand why they hold their own beliefs, let alone formulate an opinion that does not appear to have been handed to them from a TV does not have the standing to say anything on the matter.

    The constitution DOES justify itself in that it has produced a remarkably stable system of government that despite many attempts to subvert has not yet destroyed all of its original foundations. The Bill of Rights justifies itself in that we've seen through ample historical example what happens to a population when power is given to control or suppress certain things. It's proven in cases like Brown V. Board of Education, which ended Segregation, or Engle V Vitale which ended compulsory school prayer. Freedom of speech? It's helped society stop from blaming video games, metal music, and porn as convenient scapegoats for all that's wrong. The Right to Bear arms is never more necessary in some areas when you considering Warren V. DC and Castle Rock V Gonzalez. Failure to elaborate reasons why something is good is admission you do not even understand why you have your "rights" or what they were for.

    We don't restrict things because of all of the good that can come about when people are given adequate space to be responsible and that is as eloquent a self-justification as I can muster for the whole thing. Someone who cannot find a responsible need for doing things a certain way or having certain privileges will easily lose out to a compelling argument born from millions doing things irresponsibly. Still, this is a justification, by screaming like a child that reasons are evil, and you should have things "just 'cuz!" you ignore your own responsibility to yourself to defend the rights you have when they are under attack.

    TL;DR: Someone cannot understand something without knowing firmly the answer to the question of "Why?" Someone who does not understand their rights cannot defend them; Someone who cannot defend their rights will soon lose them.

    Fallout2man on
    On Ignorance:
    Kana wrote:
    If the best you can come up with against someone who's patently ignorant is to yell back at him, "Yeah? Well there's BOOKS, and they say you're WRONG!"

    Then honestly you're not coming out of this looking great either.
  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    poshniallo wrote:
    It is absurd to call a government valid or invalid while rejecting any discussion of ethics.

    Just as it is absurd to call the US constibible a source of authority while rejecting any discussion of ethics.

    I think that this point has been made quite clear in this thread.

    Also, SKFM, the rhetorical device of using the royal 'we' in order to make your own ideas appear to be more than just your own ideas is getting fairly wearing.

    I have taken every one of your posts seriously, and responded to them with the assumption that you were arguing in good faith. I looked over the thread again, and while I see many arguments in favor of your position, I also see that I have responded to them all. Your last argument (that all normative language implies some form of morality) was a good one, but I don't see why my response provoked you to make this post. It seems like you are effectively taking your ball and going home, which is a real shame, since this is an interesting discussion.

    7zh9uu9etcor.jpg
    Chanus wrote:
    It's been a butt come true! I get to work with the absolute best boobs in the business. What more could a money ask for? Kids, aim for the freeloaders !

    @chanus
  • _J__J_ Pedant Registered User, __BANNED USERS regular
    The Constitution as well as each and every human document that purports to have significance MUST justify itself or it has no reason to exist.

    Why can't we say that the society's belief in the document justifies it? Similar to how money has value because we act as if money has value.

  • Anid MaroAnid Maro Registered User regular
    Unless and until the government is literally overthrown and a new government is put into place (this could be accomplished through violent revolution or through a new constitutional convention) I don't see how its status as a valid government could change. I don't understand your point about the past being the past, and therefore irrelevant. We have a history of peaceful changes in government composition stretching back to the first congress and president, and the validity of the government is derived from that unbroken chain. In modern times we have not "reaffirmed" that the government remains legitimate. We just accept that it is because it follows the form that it has followed since it first became the legitimate government of the US. I reject the idea that we decide the legitimacy of the government in the moment and that we may render it illegitimate at any time, because if this is the system we are living under, then we literally have no stability of government or laws, and should be factoring this risk of sudden illegitimacy into all of the decisions that we make. This is a mentality that breeds building bomb shelters and hoarding gold to protect against the risk of government collapse at any moment. It is unproductive, and actively damaging to our societies ability to exist as a society.

    Addressing the bold here, you asked me if I might consider the US Gov't illegitimate prior to the 13th Amendment and I said in a technical sense they might be. However since I live in today and not in the 1860s or earlier where I would've been a part of the people who constituted those involved in the social contract and thereby have no effect on what they thought about the legitimacy of the government... it doesn't matter what I think.

    The pre-13th Amendment government, despite what I think, was still legitimate because the people who were a part of it thought it was. And this has no bearing on the legitimacy of today's government since a post 13th Amendment government is the only one I have personally known and any claims of illegitimacy towards today's government must take the whole into account and not just what it was one-hundred and fifty years ago.

    As for the rest, you can reject what you will but the ability for the people to reject their government is the basis for our very country. We only have our government of today because we as a people rejected the rule of England and crafted a government of our own. Without the premise that we can overthrow government actually means our government is illegitimate, because that's exactly what we did near two-hundred and forty years ago.

    And yes, some people in response hoard gold and build bomb shelters. Have you not noticed that one of the Republican candidates wants to switch our currency to the gold standard because he doesn't trust the dollar to hold its value? Because the value of the dollar is dependent on the word of the Federal Government which in turn is dependent on whether or not the people decide it is legitimate. He probably doesn't think bomb shelters are a bad idea either.

    However it turns out to be far more stable than it looks, as the people as a group need to all decide together that the government is illegitimate. Which is a tall order, and even the one time that happened resulted in the people who did not decide this banding together, waging war, subjugating the secessionist faction and reducing them to the status of an occupied territory. So even though yes, in theory we as a people can just tell our government that they are no longer legitimate, there isn't actually a reasonable chance of that occurring.

    That's why in the OWS thread when people were talking about violent overthrow of the Federal Government, I basically scoffed at them. Even though we could do such a thing if we wanted, we're not going to because we as the people don't want to. Only a few of the people want that, but aren't suicidal enough to go about it on their own.

  • spool32spool32 Contrary Library Registered User regular
    _J_ wrote: »
    enc0re wrote: »
    _J_ wrote: »
    We tend to reify the document, but that doesn't seem helpful.

    But, but it is real.

    I meant treating what it says as something other than man-made legal abstractions, treating the 2nd ammendment as some all-powered holy thing rather than a rule made up by some now-dead white guys.

    We got 6 pages before somebody drug out "old dead white guys" and flogged it into something like a point! At least it wasn't "dead white males". I'd love to see that one retired forever, especially in the context of the 2nd.

    We really have already covered the arguments for defense of life and liberty as a natural right, and discussed how it's proper to restrict the 2nd in some ways, much as it is to restrict the other rights enumerated in the Bill of Rights. What it says is something other than a legal abstraction, and we've got maybe two dozen posts how and why, for and against, already.

    Respectfully, I'd ask you to read back through the thread because your very, very tired criticism has already been presented (more clearly and eloquently) and refuted... or at least challenged substantially.

  • spacekungfumanspacekungfuman Poor and minority-filled Registered User, __BANNED USERS regular
    Anid Maro wrote: »
    Unless and until the government is literally overthrown and a new government is put into place (this could be accomplished through violent revolution or through a new constitutional convention) I don't see how its status as a valid government could change. I don't understand your point about the past being the past, and therefore irrelevant. We have a history of peaceful changes in government composition stretching back to the first congress and president, and the validity of the government is derived from that unbroken chain. In modern times we have not "reaffirmed" that the government remains legitimate. We just accept that it is because it follows the form that it has followed since it first became the legitimate government of the US. I reject the idea that we decide the legitimacy of the government in the moment and that we may render it illegitimate at any time, because if this is the system we are living under, then we literally have no stability of government or laws, and should be factoring this risk of sudden illegitimacy into all of the decisions that we make. This is a mentality that breeds building bomb shelters and hoarding gold to protect against the risk of government collapse at any moment. It is unproductive, and actively damaging to our societies ability to exist as a society.

    Addressing the bold here, you asked me if I might consider the US Gov't illegitimate prior to the 13th Amendment and I said in a technical sense they might be. However since I live in today and not in the 1860s or earlier where I would've been a part of the people who constituted those involved in the social contract and thereby have no effect on what they thought about the legitimacy of the government... it doesn't matter what I think.

    The pre-13th Amendment government, despite what I think, was still legitimate because the people who were a part of it thought it was. And this has no bearing on the legitimacy of today's government since a post 13th Amendment government is the only one I have personally known and any claims of illegitimacy towards today's government must take the whole into account and not just what it was one-hundred and fifty years ago.

    As for the rest, you can reject what you will but the ability for the people to reject their government is the basis for our very country. We only have our government of today because we as a people rejected the rule of England and crafted a government of our own. Without the premise that we can overthrow government actually means our government is illegitimate, because that's exactly what we did near two-hundred and forty years ago.

    And yes, some people in response hoard gold and build bomb shelters. Have you not noticed that one of the Republican candidates wants to switch our currency to the gold standard because he doesn't trust the dollar to hold its value? Because the value of the dollar is dependent on the word of the Federal Government which in turn is dependent on whether or not the people decide it is legitimate. He probably doesn't think bomb shelters are a bad idea either.

    However it turns out to be far more stable than it looks, as the people as a group need to all decide together that the government is illegitimate. Which is a tall order, and even the one time that happened resulted in the people who did not decide this banding together, waging war, subjugating the secessionist faction and reducing them to the status of an occupied territory. So even though yes, in theory we as a people can just tell our government that they are no longer legitimate, there isn't actually a reasonable chance of that occurring.

    That's why in the OWS thread when people were talking about violent overthrow of the Federal Government, I basically scoffed at them. Even though we could do such a thing if we wanted, we're not going to because we as the people don't want to. Only a few of the people want that, but aren't suicidal enough to go about it on their own.

    I don't think we are actually saying anything different from each other. The government can be overthrown through revolution, but is legitimate until there are enough people rejecting it to overthrow it.

    FWIW, I really liked your post.

    7zh9uu9etcor.jpg
    Chanus wrote:
    It's been a butt come true! I get to work with the absolute best boobs in the business. What more could a money ask for? Kids, aim for the freeloaders !

    @chanus
  • BagginsesBagginses __BANNED USERS regular
    Anid Maro wrote: »
    Bagginses wrote: »
    Anid Maro wrote: »
    Bagginses wrote: »
    Anid Maro wrote: »
    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.

    I think that you're forgetting that most of the Constitution is just procedure. When you look at that, you realize that the word "constitution" was chosen because that's what the Constitution is: the makeup and essence of the US government.

    No, I just glossed over that because when people talk about the Constitution they don't mean they wish to talk about how the Supreme Court holds jurisdiction for cases involving ambassadors or how old you have to be to hold an office or some such.

    Although it's of note that Enlightenment thought contributes just as much to the boring procedural stuff as the rights stuff. It used to be somewhat radical to pledge allegiance to a paper that said anything other than "Do whatever the King says". The mere writing of procedure implies a right to a social contract between government and the people.

    Not really. Does a bunk at camp agreeing to shared rules constitute a social contract between them and the American people?

    Evidently. Especially when those shared rules hold consideration for the American people and required ratification by each state who themselves were derived from the people of said states.

    I dunno what you think you're going to get out of me. I'm not about to fall for the "not everybody personally agreed to it" tact when it's clear the USA is a Republic.

    As defined in the constitution. Your "social contract" between government and the people is the contract that says the government can sign a contract in the place of the people. Can I write up a document declaring myself king and, when somebody points out that nobody agreed to it, note that it's clear the USA a monarchy? It makes much more sense to consider the constitution as the ruling party's internal solution to the question "okay, we've just set up a nation with a unprecedented lack of absolutism, so how do we decide what a law is?"

    Hell, you're not even right on a historical basis when you assert that the Constitution was unprecedented. The idea of a democratic governing body defined by a founding document is at least as old as the Massachusetts Colony (not to be confused with the Plymouth Colony), which was unique among its fellows for being a (corporate) charter colony for which the colonists brought the charter with them and (like the Green Bay Packers) named all citizens as shareholders with the voting rights associated (unlike the Green Bay Packers). We can even be fairly sure that the founders knew all about this because the Crown's dissolution of the Massachusetts charter and the associated with Plymouth and, for god knows what reason, Maine was what started up the independence movement in Boston, which had previously enjoyed more independence from the crown than other American cities.

  • shrykeshryke Member of the Beast Registered User regular
    PantsB wrote: »
    shryke wrote: »
    And I would easily point out that just because you have a piece of paper saying they can't do that doesn't mean they can't. It's no different.

    Prime Minister Cameron isn't going to declare himself Prime Minister For Life for the exact same reasons Obama isn't going to declare himself President for Life and you are kidding yourself if you think a 200+ year old piece of paper makes a huge difference in that matter.
    That "piece of paper" is the law. It defines what a government can legitimately do rather than the ambition and audacity of political figures or the sentiment of the masses or mob. This is the fundamental concept behind the rule of law. You can not have a legitimate government without that.

    Obama doesn't have the power to declare himself President for Life. Its explicitly not within his authority and doing so would have no legal weight. In order to enact such a declaration he would need to break the law.

    Cameron does have the power, given support from his party/coalition members, to declare himself Prime Minister for Life by extending the Parliamentary term indefinitely. He (and when I say "he" here I mean Parliament) could declare that Parliament is no longer elected but inherited. He could say "kill every first born son" within the law of the land because there is no check on the power of Parliament.

    I can't take you seriously ever again if you believe this.

    It's like you think because supposedly "the law" (must be bolded) doesn't stop a PM from declaring himself PM for Life it could just happen. Like, someone would not only actually do this but it would work.

    I mean, holy shit, it's like you don't understand how a government even functions in relation to the people it represents. Or like you actually believe the law is what's stopping someone from declaring themselves President for Life in the US.


    A dictator could follow the will of the people and respect their rights in all things and would still be a dictator. A government could largely act as if it were egalitarian and democratic and still not be because it depends on the rule of people, not law. If we think there should be limits on what a government can do - both in regards to how government officials gain that position and what its allowed to do in terms of individual rights and the enforcement of laws - then those limitation should be legal limits, not "well he's a good boy he'd never do something like that" limits.

    And that's why the UK is ruled by an iron-fisted dictator.
    /nods sagely

  • DetharinDetharin Registered User regular
    ronya wrote: »
    This is a late reply, so briefly: you cannot both assert that the Constitution is the be-all and end-all of rights in the United States, so that all sensible discussion collapses without it, and also assert that

    I never asserted the Bill of Rights to be the be all or end all of all rights in the United States. It was never designed to either confer rights, or be an exhaustive list of rights. It was an acknowledgement of natural rights that they wished to ensure could never be taken away. Codifying them at all was a compromise.
    which demands an answer to "well, why are these rights inalienable and these others are not". The reply of "because they are in the Constitution" is the epitome of begging the question.

    Are the rights embedded in the 14th just as inalienable? On what basis might we consider a nontrivial amendment to rights described in the constitution, as the 14th did? And are these rights inherently present in all people, including people in other countries vis a vis their governments, or just US citizens? Do realize it is you here who is carelessly asserting that other governments are illegitimately suppressing rights, which is I think partly what Nova_C was criticizing in the OP.

    Id be comfortable saying that the rights described in the Bill of Rights should apply to all people. Strip away the quibbling about wording of course, but the ideas are sound. Personally I find it a shame that other countries feel the need to control their populations in the way they do. From the UK's idiocy on gun control, to China's censorship, to North Korea (enough said), i would rather see the world work toward expanding human rights and freedoms. Unfortunately right now it does not seem to be the case.

    As for the 14th it never really should have been necessary. Slavery itself being a rather dark institution, the fact that we had to go back and explain that yes "people" means everyone hurts my brain. Heck our current argument about gay marriage and the effects of equal protection really make me wonder about our civilization. The only conclusion I can gather is that people are dicks, but at least we seem to be oppressing smaller and smaller minorities with every subsequent generation. I hope I can live long enough to see us all living in harmony hating furries and arguing about whether imprisoning people named John Door counts as a bill of attainder.

    In the end we come back to theory and reality. In theory we can go round and round about rights, what rights should and should not be restricted, how, and what the effects would be. In the case of reality you are going to run into a brick wall that is the Bill of Rights if you seriously wish to discuss limiting certain things within the US.



    If I was kidnapped, woke up in a lab, told they were going to replace my vocal cords with those of Tony Jay, and lock me in a sound booth until the day I die I would look those bastards right in the eye and say "Alright you sons of bitches lets do this. This one is for the children."
  • Anid MaroAnid Maro Registered User regular
    edited February 2012
    I don't think we are actually saying anything different from each other. The government can be overthrown through revolution, but is legitimate until there are enough people rejecting it to overthrow it.

    FWIW, I really liked your post.

    Yeah, I think for a moment we were talking past each other as you just summed up my point nicely.

    And it is worth something that you liked my post, I know from previous posts of yours that you are a lawyer and I half expected my posts to get ripped apart. :)
    Bagginses wrote: »
    As defined in the constitution. Your "social contract" between government and the people is the contract that says the government can sign a contract in the place of the people. Can I write up a document declaring myself king and, when somebody points out that nobody agreed to it, note that it's clear the USA a monarchy? It makes much more sense to consider the constitution as the ruling party's internal solution to the question "okay, we've just set up a nation with a unprecedented lack of absolutism, so how do we decide what a law is?"

    Hell, you're not even right on a historical basis when you assert that the Constitution was unprecedented. The idea of a democratic governing body defined by a founding document is at least as old as the Massachusetts Colony (not to be confused with the Plymouth Colony), which was unique among its fellows for being a (corporate) charter colony for which the colonists brought the charter with them and (like the Green Bay Packers) named all citizens as shareholders with the voting rights associated (unlike the Green Bay Packers). We can even be fairly sure that the founders knew all about this because the Crown's dissolution of the Massachusetts charter and the associated with Plymouth and, for god knows what reason, Maine was what started up the independence movement in Boston, which had previously enjoyed more independence from the crown than other American cities.

    For one, they didn't sign a contract in place of the people. They presented this contract to the representatives of the people, namely each state, and it had to be ratified by all of them before it could be accepted. The US is not a direct democracy, it never was. If you think that a republican system of government is monarchy because each person wasn't personally bothered to review the Constitution, then I'll simply agree to disagree with you.

    Secondly, I never asserted the Constitution was unprecedented. I said it was a notable event, as in it is an uncommon occurrence but not necessarily unheard of. Scratch the Massachusetts charter, a great deal of the Constitution was based off of English legal and government traditions dating back to the Magna Carta from near six-hundred years earlier. Just because this kind of event wasn't completely unknown up until that point doesn't make it less radical.

    Anid Maro on
  • Fallout2manFallout2man Registered User regular
    edited March 2012
    This talk about "natural rights" and invalid governments terrifies me. Would you call the US government invalid prior to the abolition of slavery? If you would, then it seems to me that you are locked into believing that an invalid form of government was somehow replaced by a valid form of government the instant abolition occured, made up of the same people, following the same governing documents, and recognizing as valid all the acts of the "invalid" government that existed before abolition.

    I really don't think we can talk coherently about any rights you have which you cannot enforce against the government or your neighbors. If we lived in a country without free speech and spoke out against the government I don't see what value there would be in arguing that the government is not valid because it does not recognize your natural right to free speech. You can argue that there SHOULD be free speech there, but you have to recognize that this argument would be an act of civil disobedience, and when you are caught and punished, that punishment would be a valid action by a valid government. In fact, it is this recognition that gives civil disobedience its strength.

    Put another way, you can hold whatever views you want about your rights as a person, but this is a completely distinct discussion from your rights as a member of American society, and one does not neccessarily have any bearing on the other

    Quite honestly? Yes, yes I would and I would do my utmost to either end slavery or try to find a way to leave for a country that did not practice that. By merely being a citizen within a system that consents to slavery I, by my own silence am also giving my own consent to a system of slavery. Like I said before in the copyright thread I feel like I've been pressed into the service of American society just for the reason of being born and find that condition to be immensely unfair to me and my person. So I'm most certainly going to make a lot of noise about anything I see as illegitimate or monstrously immoral. I wasn't given a choice about whether or not I would be forced to live this way, so I see no qualms about working to change the world around me when it didn't give me a fair choice about going anywhere else.

    I can see where there might be some disconnect but even if you view the law as a rational and utilitarian instrument. It is still an instrument TO DO SOMETHING so that means that laws cannot come into existence without purpose. It's easy to say that we have a system of law that allows society to function by resolving disputes but that's kinds of like me saying I have a car engine that lets my car function by powering it. It sure does, and it's an entirely true statement, yet without understanding how the engine achieves this I lack the ability to fix it or even know if something's wrong and suddenly I am at the behest of those who do (mechanics) if I want anything done. Your profession though would, I'm sure train you to view the law that way since it allows you to be very effective at arguing cases. But for someone who doesn't need to be able to take a steadfastly neutral stance to represent the facts at hand (in the most persuasive way possible.) I look at laws as more than just procedure. They're means to achieve an end, the end being the purpose (Whether spoken or not) held in mind by those in congress who passed the law.

    Legal validity matters only in terms of procedure, but in terms of purpose I believe laws must draw from a source of moral validity to be laws I would follow. Generally most laws pass this test, but for instance copyright? I'll willingly admit I have no respect for IP law and will continue to flout it (I do pay for things, actually, but I reserve my money for artists/people I legitimately want to support.) Similarly if we passed laws like TN did to outlaw Occupy I'd say those are illegitimate and should be flouted as well. If the law does not attempt to justify itself morally then there are very few checks on what it can and cannot do. Similarly you can't really view the constitution as a valid fallback either because from such a standpoint the constitution is merely a matter of procedure, and therefore there can be no successful counter-argument against any amendment because moral validity is removed from being a source of reasoned dissent.

    Such a society would quickly become unrecognizable to us, and would quickly come to be a system indistinguishable from the former English society we left. Simply that we adopted a more elaborate system of procedure for our system of two-tiered justice. Instead of Nobles/Aristocrats and Monarchs we'd have merely replaced it with Plutocrats and generational wealth (in many cases still owned by former monarchs.)

    edit:
    I am not attributing a moral force to it at all. Validity is nothing more than the result of following the proper, agreed on procedures, so that we don't get bogged down in endless disputes over what is or is not law. We follow the law because there are problems which people face when they want to live in a society, ranging from which side of the street to drive on to how high someone can build a house next to your house, to when you can and cannot hurt or kill another person, and we need these issues to be resolved in a manner which is understandable, and which everyone can assume that others will follow. You can argue to change something, and if we agree and change it through the process, that is fine. But what is important to a system of law is that a choice is made and followed, not what that choice is. You can argue that we should make certain of those choices on a moral basis, and again, that is fine if you can get people to agree, but ultimately, we are talking about coordination problems, and whatever the answer is, there just needs to be one, so that people know how to act.

    What's more important, providing step by step instructions so a "rational but evil" actor can cheat the system, or providing a system which will prevent people from cheating it? That doesn't mean that there aren't good reasons to have a stable and predictable set of laws but I disagree firmly on why that should be the case. We don't want people writing or enforcing the laws to exploit the system either to prey on the innocent. Sadly Occupy has shown this is already happening. Yes we use laws to help resolve disputes but without actually understanding the source of the disputes you neuter its ability to be effective. The Rule of Law is something more fundamental than "I write shit down on paper, and you do what it says or I can throw you in jail forever, maybe execute you." It was always, in my eyes, about creating a procedure to establish a fundamental fairness in all interpersonal dealings and disputes.

    If I scream that I feel oppressed because I cannot wear the color purple on Mondays, then no matter how much I scream that my flesh feels like it's being rotted away at my lack of purple attire the law should pay me no mind because I'm just some crazy kid screaming about his wardrobe. By acting as a 100% neutral party in that circumstance though? You are now forced to accede to some of my demands regardless of how reasonable they are or not. If everything is treated merely as procedure? Then my screams matter exactly as much as I have the wallet to buy legislation to force the nation to wear purple on Mondays. Now see what I just did? I got upset at something I could've fixed myself, and in retribution for not being given something made a law to force the nation to do as I want because I was a broken person.

    Without assigning moral force to the purpose behind laws then you are enabling this sort of thing to occur. Only now, replace wearing purple on Mondays with Birth Control/Abortion and you have what Republicans are arguing for right now in the Presidential races and with the House's "Religious Liberty hearings." Don't you see how that sort of thing can quickly become dangerous? It removes our ability to decide the society we live in because we become hopelessly bound to procedure which is already quite stacked in favor of protecting the Wealthy and wealthy interests amongst all others. Yes you can say we vote for Politicians to change that but by removing moral agency from considerations as to whether or not we should abide by the system you immediately give those in power the ability to kill any change with death by a million paper cuts. Every system has flaws and if we're not allowed to step in and modify one that has gone too far, the only choice left is to destroy and rebuild it. Which, would cost far more I think. ;p

    So in the end, by exercising our capability as moral agents in whether or not we follow laws it enables the system to be corrected against the wishes of a power structure that might fight change for immoral reasons. If laws cannot establish a consensus? Like if the South say, wanted to bring back Slavery and they decided to ignore any laws prohibiting it? Well at that point I think we as a society need to really ask the question of whether or not keeping the south is worth it. By trying to make them swallow a bitter pill we give them the same power to do that to us. It makes both parties equally unhappy and does little to actually fix the problems that originally caused the disagreement. After seeing what happened and is still happening in the Eurozone I'm convinced that governments should never get so big they are unable to establish a clear consensus among all of their governed. Otherwise you're just going to make more problems than you can fix. People will become bad actors and try their hardest to warp the government they don't want into the one they do want and governing then turns into a perpetual power struggle. Whoever wins? We The People, lose.
    _J_ wrote: »
    Why can't we say that the society's belief in the document justifies it? Similar to how money has value because we act as if money has value.

    For the same reason we don't let society's reverence for Albert Einstein justify the constant speed of light. They're meant to reflect something actually true about the world around us and if we stop short and allow reverence itself to become truth then we're no different than we were before accepting whatever was handed to us from the top down. If someone can't even justify to themselves a sound reason why things are done a certain way they aren't really thinking for themselves.

    Fallout2man on
    On Ignorance:
    Kana wrote:
    If the best you can come up with against someone who's patently ignorant is to yell back at him, "Yeah? Well there's BOOKS, and they say you're WRONG!"

    Then honestly you're not coming out of this looking great either.
  • PantsBPantsB Registered User regular
    edited February 2012
    Phyphor wrote: »
    PantsB wrote: »
    Obama doesn't have the power to declare himself President for Life. Its explicitly not within his authority and doing so would have no legal weight. In order to enact such a declaration he would need to break the law.

    Cameron does have the power, given support from his party/coalition members, to declare himself Prime Minister for Life by extending the Parliamentary term indefinitely. He (and when I say "he" here I mean Parliament) could declare that Parliament is no longer elected but inherited. He could say "kill every first born son" within the law of the land because there is no check on the power of Parliament.

    No, but if the entire US legislature + state governments decided it wanted to do so it could too, via amendments. What you're proposing would require ridiculous support in both houses, and of the monarch, and the public, pretty much equivalent to the support needed to amend your constitution. The PM can't just declare things to be so, he would have to pass a bill extending the term of Parliament indefinitely. Which the lords would block, if his own party didn't dissolve the government before the monarch did.

    The funny thing is you just made an argument that the safeguard for democracy in the United Kingdom is
    1- The House of Lords, an unelected body of hereditary aristocrats and elites appointed by a hereditary monarch
    2- A hereditary monarch
    3- The officials who would seek that power themselves.

    I do not see how you could argue this is equivalent to a system that explicitly limits the power of government unless a rather onerous process to change those limits is undertaken. Its like saying "democracy is protected by the oligarchs" or "aristocracy is the bastion of egalitarianism."

    But let us rephrase slightly.

    Given: If a monarch has actual non-trivial powers in a government, it is not truly democratic or egalitarian.
    Suppose:
    -The monarch of the UK is unwilling to exercise these powers or legally lacks these powers. (S)He will grant assent to any law and would not unilaterally dissolve Parliament.
    -Prime Minister Cameron (or Prime Minister SexyMcAwesome) has very strong support among his party members who hold a solid majority of the House of Commons
    -The ruling party upon election forms a government.
    -The ruling party modifies the Parliament Act of 1911 and 1949 so it goes from
    If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill..
    The basis of this limitation of power is Parliament itself. If I say "New Rule: I'm not allowed to make a rule about turnips", I am not really bound. I can say "New Rule: I can totally make rules about turnips." and then "Turnips are banished!"

    -The ruling party extends the term of Parliament to lets say 100 years and succession is passed hereditarily.

    Hey look, through entirely legal means we have an oligarchy. The only real check on this power are extra-legal (revolution) or even less democratic (monarchy/aristocracy).

    PantsB on
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    QEDMF xbl: PantsB G+
  • PhyphorPhyphor Building Planet Busters Tasting FruitRegistered User regular
    edited March 2012
    I reject your given. The point of the monarch's reserve powers is specifically for the case where Parliament isn't working properly, so they dissolve it and get the people to re-elect them. The monarch can't actually govern in any case. The point of monarch as head of state is that they serve the country, not the party and they're supposed to act in the interest of the whole. In any case, I see no reason why the monarch would be unwilling to veto a term increase.

    Your point seems to be "if everyone goes crazy then bad things can happen!"

    edit: of course, after the passage of said term increase, parliament can still be dissolved by all the usual means, including reserve powers, so they'd have to get re-elected after having appointed themselves rulers for life. That would go over well I'm sure

    Phyphor on
    Magic Box
    Academician Prokhor "Phyphor" Zakharov, Chief Scientist of China, Provost of the University of Planet - SE++ Megagame
  • spool32spool32 Contrary Library Registered User regular
    I think his point is that for the same thing to happen here, the President, supermajorities in both legislative houses, and 3/5ths of the entire country would have to go crazy, before anything happened at all.

    In the UK, the monarch is st the top, and then the parliament, and then the law. Here, the constitution is at the top, and every branch is subject to its restrictions.

  • Phoenix-DPhoenix-D Registered User regular
    Until the President pulls a Jackson, that is.

  • electricitylikesmeelectricitylikesme Registered User regular
    spool32 wrote: »
    I think his point is that for the same thing to happen here, the President, supermajorities in both legislative houses, and 3/5ths of the entire country would have to go crazy, before anything happened at all.

    In the UK, the monarch is st the top, and then the parliament, and then the law. Here, the constitution is at the top, and every branch is subject to its restrictions.

    Pretending the real restriction is the somewhat arbitrary government branch divisions is to have blinkers on.

    The Constitution doesn't enforce itself, it depends on people to do that, while interpeting it in the process. If the situation exists that the government can start outright ignoring provisions of it, then it's going to be through either fear or ignorance a decent enough majority wants that or won't speak against it.

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