I don't think you need to go that far. The justification for the second amendment is that it was validly adopted as an amendment to the US constitution, which includes provisions for making amendments which were themselves validly enacted by the ratification of the constitution, and the American people have not seen fit to repeal said amendment via that amendment practices. No further justification is needed. If you want to talk about if the second amendment would be appropriate for inclusion in a hypothetical new constitution, then justification is needed for why we should include it, but we are not required to justify its continued existence.
Well, we have an amendment process. Presumably, that process has to be started by a group of citizens who believe that the amendment is necessary and are prepared to advocate on its behalf.
If somebody wants to talk about the benefits and/or harm of the Second Amendment (or any other Constitutional right), they're not only free to do that, but I'd say that such discussion is a hallmark of a healthy functioning democracy.
I don't see any good reason that we shouldn't have such critical discussions from time to time.
I don't think you meant that we should blindly accept any laws just because they're in the Constitution, but that's kind of how your post read to me.
No, we should not blindly accept the law because it is the law. But we also do not need to justify why the law is the law. I get very uncomfortable when people start talking about natural rights and their ability to make a government which does not acknowledge or respect them invalid, because this idea really muddies the clarity in the law that is neccesary for the law to function as a set of rules which a rational actor can incorporate in planning his actions. If we don't even know what the law is, or we think that other people may not follow a law which followed the accepted process for becoming a law because they decide that it does not respect their natural rights, then we lose the law's normative power to guide actions. So yes, you can and should debate if the law should change, but any such discussion needs to start from the basis that the current law is the law, and provide reasons for a change, instead of starting from the assumption that there is no rule and that we want to decide what the rule should be.
Before you think that this is nothing but the echoes of long dead legal philosophers, I think that we also need to consider that any change from the status quo may involve substantial transition costs, and any debate which starts from the hypothetical "original" position instead of from the assumption that our current laws exist will tend to ignore of minimize these potentially serious costs. If, for example, we were to repeal the second amendment and ennact gun control laws like those in England, the resistance (possibly even armed resistance) would be great. I know I was saying I don't think violent revolution is possible in Americain the OWS thread, but if you try to take the people's guns away? Yeah, then we might see them fight to keep them. For the record, I am not even pro-guns, but I think the second amendment and the right to bear arms is too fundamental to our cultural fabric to change.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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:
The ERA is neccessary because the courts basically shut the door on creating new protected classes, so the strict scrutiny standard applied to racial discrimination and certain other forms of discrimination is not available for more recently recognized forms of discrimination like gender discrimination, discrimination based on sexual orientation, or discrimination again minor children.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
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.
I think that people who the constitution tend to think that it codified what were already natural rights; it seems plausible that this was also the view of many founders, influenced as they were by enlightenment philosophy. Of course, people elsewhere in the western world tend to think it is insane to think that we have a natural right to carry guns, but there you are.
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.
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.
I don't think you need to go that far. The justification for the second amendment is that it was validly adopted as an amendment to the US constitution, which includes provisions for making amendments which were themselves validly enacted by the ratification of the constitution, and the American people have not seen fit to repeal said amendment via that amendment practices. No further justification is needed. If you want to talk about if the second amendment would be appropriate for inclusion in a hypothetical new constitution, then justification is needed for why we should include it, but we are not required to justify its continued existence.
Well, we have an amendment process. Presumably, that process has to be started by a group of citizens who believe that the amendment is necessary and are prepared to advocate on its behalf.
If somebody wants to talk about the benefits and/or harm of the Second Amendment (or any other Constitutional right), they're not only free to do that, but I'd say that such discussion is a hallmark of a healthy functioning democracy.
I don't see any good reason that we shouldn't have such critical discussions from time to time.
I don't think you meant that we should blindly accept any laws just because they're in the Constitution, but that's kind of how your post read to me.
No, we should not blindly accept the law because it is the law. But we also do not need to justify why the law is the law. I get very uncomfortable when people start talking about natural rights and their ability to make a government which does not acknowledge or respect them invalid, because this idea really muddies the clarity in the law that is neccesary for the law to function as a set of rules which a rational actor can incorporate in planning his actions. If we don't even know what the law is, or we think that other people may not follow a law which followed the accepted process for becoming a law because they decide that it does not respect their natural rights, then we lose the law's normative power to guide actions. So yes, you can and should debate if the law should change, but any such discussion needs to start from the basis that the current law is the law, and provide reasons for a change, instead of starting from the assumption that there is no rule and that we want to decide what the rule should be.
Before you think that this is nothing but the echoes of long dead legal philosophers, I think that we also need to consider that any change from the status quo may involve substantial transition costs, and any debate which starts from the hypothetical "original" position instead of from the assumption that our current laws exist will tend to ignore of minimize these potentially serious costs. If, for example, we were to repeal the second amendment and ennact gun control laws like those in England, the resistance (possibly even armed resistance) would be great. I know I was saying I don't think violent revolution is possible in Americain the OWS thread, but if you try to take the people's guns away? Yeah, then we might see them fight to keep them. For the record, I am not even pro-guns, but I think the second amendment and the right to bear arms is too fundamental to our cultural fabric to change.
This is an expansion of a standard conservative mindset. The big problem with it is the assumption that nothing bad is happening now, right now, under the system you have at the moment. So yes, change costs. But so does no change. The gun-related example is, of course, gun-crime and the affect the weapons industry has on public policy in the US. In that drug thread we had just recently, the cost of the status quo is innocent people going to jail for smoking weed.
There's that quote: The price of liberty is eternal vigilance. As soon as you refuse to think or debate a point because that's the status quo, I think you're refusing to commit to that vigilance. And if your law is immoral or unwise, then someone is going to be paying the price. I've been harsh to you many times on these boards, and perhaps this is part of the reason: you seem too willing to let others pay the price for your conservatism.
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I figure I could take a bear.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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.
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ElldrenIs a woman dammitceterum censeoRegistered Userregular
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.
I think that people who the constitution tend to think that it codified what were already natural rights; it seems plausible that this was also the view of many founders, influenced as they were by enlightenment philosophy. Of course, people elsewhere in the western world tend to think it is insane to think that we have a natural right to carry guns, but there you are.
or any natural rights whatsoever
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JuliusCaptain of Serenityon my shipRegistered Userregular
The right is inherent, not because it is written into the Constitution, or because limits on restricting the right are written into it, but because the ability to possess the tools needed to defend life, and liberty is one that all people hold by virtue of being people. We all have the right to secure ourselves, our freedom, and our society against those who wish to oppress us. To disagree with this is to believe there is no moral justification for resisting tyranny.
I hope you realize that this is a minority viewpoint worldwide. Most states do not constitutionally guarantee the right to bear arms, and no such right is explicitly included in any global or regional human rights treaty that I am aware of.
I wonder if that's the source of the international anger and disdain. Much like the really bizarre degree to which many non-united statesians get really unreasonably upset about gridiron football, and the lack of popularity of soccer here.
Because we don't amend our constitution based on what is popular in other countries it means we are awful?
It's not a minority viewpoint here. And that's far more pertinent.
Many people have a problem with American Exceptionalism, yes. The idea that the US is this super-special country always seems to be present in discussions, even when it's about something in which it is manifestly not special.
One of the weirdest things, and kinda relevant here, is the belief that people in other countries don't own guns. You get people stating without irony things like "take away our guns, what do you want us to be like Canada?" and I can do nothing but sit and blink at it.
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.
So there is no such thing as immoral government action? No such thing as government oppression?
This kind of argument is so trivially falsifiable that I still keep wondering about you.
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.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
I don't think you need to go that far. The justification for the second amendment is that it was validly adopted as an amendment to the US constitution, which includes provisions for making amendments which were themselves validly enacted by the ratification of the constitution, and the American people have not seen fit to repeal said amendment via that amendment practices. No further justification is needed. If you want to talk about if the second amendment would be appropriate for inclusion in a hypothetical new constitution, then justification is needed for why we should include it, but we are not required to justify its continued existence.
Well, we have an amendment process. Presumably, that process has to be started by a group of citizens who believe that the amendment is necessary and are prepared to advocate on its behalf.
If somebody wants to talk about the benefits and/or harm of the Second Amendment (or any other Constitutional right), they're not only free to do that, but I'd say that such discussion is a hallmark of a healthy functioning democracy.
I don't see any good reason that we shouldn't have such critical discussions from time to time.
I don't think you meant that we should blindly accept any laws just because they're in the Constitution, but that's kind of how your post read to me.
No, we should not blindly accept the law because it is the law. But we also do not need to justify why the law is the law. I get very uncomfortable when people start talking about natural rights and their ability to make a government which does not acknowledge or respect them invalid, because this idea really muddies the clarity in the law that is neccesary for the law to function as a set of rules which a rational actor can incorporate in planning his actions. If we don't even know what the law is, or we think that other people may not follow a law which followed the accepted process for becoming a law because they decide that it does not respect their natural rights, then we lose the law's normative power to guide actions. So yes, you can and should debate if the law should change, but any such discussion needs to start from the basis that the current law is the law, and provide reasons for a change, instead of starting from the assumption that there is no rule and that we want to decide what the rule should be.
Before you think that this is nothing but the echoes of long dead legal philosophers, I think that we also need to consider that any change from the status quo may involve substantial transition costs, and any debate which starts from the hypothetical "original" position instead of from the assumption that our current laws exist will tend to ignore of minimize these potentially serious costs. If, for example, we were to repeal the second amendment and ennact gun control laws like those in England, the resistance (possibly even armed resistance) would be great. I know I was saying I don't think violent revolution is possible in Americain the OWS thread, but if you try to take the people's guns away? Yeah, then we might see them fight to keep them. For the record, I am not even pro-guns, but I think the second amendment and the right to bear arms is too fundamental to our cultural fabric to change.
This is an expansion of a standard conservative mindset. The big problem with it is the assumption that nothing bad is happening now, right now, under the system you have at the moment. So yes, change costs. But so does no change. The gun-related example is, of course, gun-crime and the affect the weapons industry has on public policy in the US. In that drug thread we had just recently, the cost of the status quo is innocent people going to jail for smoking weed.
There's that quote: The price of liberty is eternal vigilance. As soon as you refuse to think or debate a point because that's the status quo, I think you're refusing to commit to that vigilance. And if your law is immoral or unwise, then someone is going to be paying the price. I've been harsh to you many times on these boards, and perhaps this is part of the reason: you seem too willing to let others pay the price for your conservatism.
I am not saying that we should ignore the cost of the status quo. Slavery was a great example of a status quo that just became too costly to continue. But I believe that we have to be deferential to any valid act of congress that is signed by the PotUS because that action followed all of the rules to become a law, and is therefore entitled to recognition as such. You can argue to change the law, and that is fine, but if that change does not happen, then you have to accept that no matter how "right" you think you or your position are, it is the law that is "right" in terms of what our society demands. The law can and should change as new information comes to light, or in reaction to changing circumstances, but not all laws will change, and change will not normally be fast, and this is by design. If the law could change at the drop of a hat, then people would not be able to keep up with what the law does and does not require, so we would lose the normative power which comes from having a body of validly enacted laws which people are capable of understanding, reducing the law to nothing but a set of rules which allow the government to use force against its citizens for engaging in behavior which they did not and could not reasonably be expected to know was prohibited.
I think that any sane system of laws must have an easy way to judge the validity of any given law (a valid act of congress, signed by the president, in accordance with and not contrary to the constitution), and be relatively stable (the procedural rules of the Senate and the ability of the president to veto ensure this) so that people can make long term plans with confidence that those plans will not just be invalidated by a change in law. If you are playing chess and then halfway through the game the rules changed so that all of the pieces can only move like pawns, all of your play up until then would be rendered meaningless. If these rule changes could happen at any time, and were frequent, you could not play at all.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
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.
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?
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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.
So there is no such thing as immoral government action? No such thing as government oppression?
This kind of argument is so trivially falsifiable that I still keep wondering about you.
That is not what I am saying at all. What I am saying is that whether the government is acting in a "moral" fashion is a completely seperate inquiry from if the government or any of its actions are invalid. The law is the law, and morality is morality. If the law runs contrary to what morality requires, this is where civil disobedience comes in. But if you act in accordance with your moral beliefs and the people do not think the punishment for your actions is unjust, then I see that as an affirmation that the law is viewed as correct, regardless of what people may think about its "morality."
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.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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 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.
Anid Maro on
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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 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.
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.
If the law has no moral force, then no-one should pay the slightest attention to it.
What you are trying to argue is that the law has a special kind of moral force (you call it validity, though you could call it bunnyness if you wanted, for all the intellectual rigor you've brought to it), and so you ought to obey it, but that this moral force is not a real moral force so that if someone argues against the morality of a law you don't have to defend it.
It is quite astonishing.
I figure I could take a bear.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
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.
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.
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.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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.
If the law has no moral force, then no-one should pay the slightest attention to it.
What you are trying to argue is that the law has a special kind of moral force (you call it validity, though you could call it bunnyness if you wanted, for all the intellectual rigor you've brought to it), and so you ought to obey it, but that this moral force is not a real moral force so that if someone argues against the morality of a law you don't have to defend it.
It is quite astonishing.
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.
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).
Surely we recognize a difference between formal validity (all the rules were followed in creating this law) and substantive validity (this law doesn't run afoul of other, more paramount laws or rights)? Most laws are formally valid (although even this shouldn't be blindly assumed), and most laws which are struck down are done so on substantive grounds.
I mean, these are mostly contractual terms, but since we're extending the analogy of the social contract, I see no reason why we can't say that a law that is clearly against a higher law or right isn't valid - and thus the question hinges on whether it is void ab initio (it never has any legal effect) or only after it's declared so.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
Surely we recognize a difference between formal validity (all the rules were followed in creating this law) and substantive validity (this law doesn't run afoul of other, more paramount laws or rights)? Most laws are formally valid (although even this shouldn't be blindly assumed), and most laws which are struck down are done so on substantive grounds.
I mean, these are mostly contractual terms, but since we're extending the analogy of the social contract, I see no reason why we can't say that a law that is clearly against a higher law or right isn't valid - and thus the question hinges on whether it is void ab initio (it never has any legal effect) or only after it's declared so.
And what are these higher rights we are referring to? The entire idea of legal positivism arose because the prevailing natural rights theories of law were not able to provide a satisfactory answer to the question of how we can judge a law to be valid. If we view all laws that are procedurally valid as valid laws, then we can easily ascertain what our legal obligations are, and can plan accordingly. Under your model, we can never be confident in our plans, because (1) we don't know if the law we are relying on will be struck down and (2) we don't know if any given person will view the law as valid, or disregard it.
Of course, ordinary laws are subject to nullification by a higher authority (state laws can be declared invalid if they are preempted by federal law, and federal law can be declared invalid if it is contrary to the constitution) but we are literally talking about the "higher authority" that we appeal to in America in this thread. If the consitution is not the highest power, and any part of it may be struck down at any time because a "higher authority" demands it, then we are not able to rely on any laws. The beauty of the consitution is that it is the highest authority AND it imposes substantive constraints on the actions of law makers (this is the great innovation of a constitutional government) which are already set out and agreed on.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
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).
Quote of the year.
On what basis could you say they did not, without opening the door to the collapse of the entire legal system?
Surely we recognize a difference between formal validity (all the rules were followed in creating this law) and substantive validity (this law doesn't run afoul of other, more paramount laws or rights)? Most laws are formally valid (although even this shouldn't be blindly assumed), and most laws which are struck down are done so on substantive grounds.
I mean, these are mostly contractual terms, but since we're extending the analogy of the social contract, I see no reason why we can't say that a law that is clearly against a higher law or right isn't valid - and thus the question hinges on whether it is void ab initio (it never has any legal effect) or only after it's declared so.
Well whether a law is valid also hinges on the legitimacy of government. The legitimacy of a government, I would argue, hinges at the least on it being answerable to the society it governs. The American Revolution began because the British government was both unresponsive to the colonial will and because in a very real way American society was no longer a part of British society. The same could be said of slave populations in Antebellum America. They would have been justified in rising up because there was a "a long train of abuses and usurpations" that revealed "a design to reduce them under absolute Despotism" and the Government was "destructive to those ends" "that all men are created equal." The slaves had no more (indeed far less) legal obligation to follow the laws of the US government that sought to enforce their enslavement than the colonists had to British dictates from afar because insofar as they were concerned the government was clearly illegitimate. While in most cases you can make an argument about the relative legitimacy of a government, when it will not acknowledge you as a human that standard has been met.
And what are these higher rights we are referring to? The entire idea of legal positivism arose because the prevailing natural rights theories of law were not able to provide a satisfactory answer to the question of how we can judge a law to be valid. If we view all laws that are procedurally valid as valid laws, then we can easily ascertain what our legal obligations are, and can plan accordingly. Under your model, we can never be confident in our plans, because (1) we don't know if the law we are relying on will be struck down and (2) we don't know if any given person will view the law as valid, or disregard it.
Of course, ordinary laws are subject to nullification by a higher authority (state laws can be declared invalid if they are preempted by federal law, and federal law can be declared invalid if it is contrary to the constitution) but we are literally talking about the "higher authority" that we appeal to in America in this thread. If the consitution is not the highest power, and any part of it may be struck down at any time because a "higher authority" demands it, then we are not able to rely on any laws. The beauty of the consitution is that it is the highest authority AND it imposes substantive constraints on the actions of law makers (this is the great innovation of a constitutional government) which are already set out and agreed on.
The Constitution of the US specifically opens with who the ultimate authority in the United States is to determine rights and obligations (it's not the King or Queen, it isn't the government, and it most definitely is not the document itself). As long as that document remains in force, it is the highest law of the land, but it is not the source of our rights, and it specifically mentions several times that it is not exhaustive when it talks about them.
But that is besides my point - if the US Congress passed a formally valid law today that said "No more free speech", are we obliged to follow it even from a legal standpoint? It's prima facie unconstitutional, and just because a quorum happened to be present etc. doesn't mean it has any legal leg to stand on.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
Spacekungfuman, is there some reason, other than avoiding sanctions, that I should give a hoot about the legality of an activity?
You can care for any number of reasons that matter to you, but ultimately, I think that for a law to be effective we need to be able to enforce compliance by people regardless of their feelings about the law, or about following the law in general, and that means sanctions. Since we need to be able to convince the least compliant person in society to follow the law through sanctions, at base there is no reason that you must care about the law other than to avoid sanction.
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spacekungfumanPoor and minority-filledRegistered User, __BANNED USERSregular
And what are these higher rights we are referring to? The entire idea of legal positivism arose because the prevailing natural rights theories of law were not able to provide a satisfactory answer to the question of how we can judge a law to be valid. If we view all laws that are procedurally valid as valid laws, then we can easily ascertain what our legal obligations are, and can plan accordingly. Under your model, we can never be confident in our plans, because (1) we don't know if the law we are relying on will be struck down and (2) we don't know if any given person will view the law as valid, or disregard it.
Of course, ordinary laws are subject to nullification by a higher authority (state laws can be declared invalid if they are preempted by federal law, and federal law can be declared invalid if it is contrary to the constitution) but we are literally talking about the "higher authority" that we appeal to in America in this thread. If the consitution is not the highest power, and any part of it may be struck down at any time because a "higher authority" demands it, then we are not able to rely on any laws. The beauty of the consitution is that it is the highest authority AND it imposes substantive constraints on the actions of law makers (this is the great innovation of a constitutional government) which are already set out and agreed on.
The Constitution of the US specifically opens with who the ultimate authority in the United States is to determine rights and obligations (it's not the King or Queen, it isn't the government, and it most definitely is not the document itself). As long as that document remains in force, it is the highest law of the land, but it is not the source of our rights, and it specifically mentions several times that it is not exhaustive when it talks about them.
But that is besides my point - if the US Congress passed a formally valid law today that said "No more free speech", are we obliged to follow it even from a legal standpoint? It's prima facie unconstitutional, and just because a quorum happened to be present etc. doesn't mean it has any legal leg to stand on.
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.
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 am by no means an expert on the constitution, but I can definitely empathize with Nova_C's original point. Additionally, I kind of find myself leaning towards an interpretation of our Constitution that mirrors what is laid out here.
I also agree with Poshniallio's breakdown of the emotional response the Constitution evokes in some individuals. I think that mindset is what Nova_C was originally upset about, and I further posit that a religious-like devotion to the Document is unhelpful and potentially dangerous.
That all being said, I pretty much am happy with our Constitution, and I think it is definitely Locke-Liberal and for that I enjoy it.
In short, the Constitution is just a piece of paper that is not it's own justification, but it is an important piece of paper, and it can be used as a very effective check on what our Government should and shouldn't do.
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.
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:
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.
Spacekungfuman, is there some reason, other than avoiding sanctions, that I should give a hoot about the legality of an activity?
Well, orderly society is probably a good thing, and the rule of law helps to make that happen. The more people that care little for the legal system, the harder it is to maintain the order that law provides.
So that could be a good reason.
"The only way to get rid of a temptation is to give into it." - Oscar Wilde
"We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Nietzsche
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?
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No, we should not blindly accept the law because it is the law. But we also do not need to justify why the law is the law. I get very uncomfortable when people start talking about natural rights and their ability to make a government which does not acknowledge or respect them invalid, because this idea really muddies the clarity in the law that is neccesary for the law to function as a set of rules which a rational actor can incorporate in planning his actions. If we don't even know what the law is, or we think that other people may not follow a law which followed the accepted process for becoming a law because they decide that it does not respect their natural rights, then we lose the law's normative power to guide actions. So yes, you can and should debate if the law should change, but any such discussion needs to start from the basis that the current law is the law, and provide reasons for a change, instead of starting from the assumption that there is no rule and that we want to decide what the rule should be.
Before you think that this is nothing but the echoes of long dead legal philosophers, I think that we also need to consider that any change from the status quo may involve substantial transition costs, and any debate which starts from the hypothetical "original" position instead of from the assumption that our current laws exist will tend to ignore of minimize these potentially serious costs. If, for example, we were to repeal the second amendment and ennact gun control laws like those in England, the resistance (possibly even armed resistance) would be great. I know I was saying I don't think violent revolution is possible in Americain the OWS thread, but if you try to take the people's guns away? Yeah, then we might see them fight to keep them. For the record, I am not even pro-guns, but I think the second amendment and the right to bear arms is too fundamental to our cultural fabric to change.
The ERA is neccessary because the courts basically shut the door on creating new protected classes, so the strict scrutiny standard applied to racial discrimination and certain other forms of discrimination is not available for more recently recognized forms of discrimination like gender discrimination, discrimination based on sexual orientation, or discrimination again minor children.
I think that people who
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.
This is an expansion of a standard conservative mindset. The big problem with it is the assumption that nothing bad is happening now, right now, under the system you have at the moment. So yes, change costs. But so does no change. The gun-related example is, of course, gun-crime and the affect the weapons industry has on public policy in the US. In that drug thread we had just recently, the cost of the status quo is innocent people going to jail for smoking weed.
There's that quote: The price of liberty is eternal vigilance. As soon as you refuse to think or debate a point because that's the status quo, I think you're refusing to commit to that vigilance. And if your law is immoral or unwise, then someone is going to be paying the price. I've been harsh to you many times on these boards, and perhaps this is part of the reason: you seem too willing to let others pay the price for your conservatism.
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.
or any natural rights whatsoever
Many people have a problem with American Exceptionalism, yes. The idea that the US is this super-special country always seems to be present in discussions, even when it's about something in which it is manifestly not special.
One of the weirdest things, and kinda relevant here, is the belief that people in other countries don't own guns. You get people stating without irony things like "take away our guns, what do you want us to be like Canada?" and I can do nothing but sit and blink at it.
So there is no such thing as immoral government action? No such thing as government oppression?
This kind of argument is so trivially falsifiable that I still keep wondering about you.
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.
I am not saying that we should ignore the cost of the status quo. Slavery was a great example of a status quo that just became too costly to continue. But I believe that we have to be deferential to any valid act of congress that is signed by the PotUS because that action followed all of the rules to become a law, and is therefore entitled to recognition as such. You can argue to change the law, and that is fine, but if that change does not happen, then you have to accept that no matter how "right" you think you or your position are, it is the law that is "right" in terms of what our society demands. The law can and should change as new information comes to light, or in reaction to changing circumstances, but not all laws will change, and change will not normally be fast, and this is by design. If the law could change at the drop of a hat, then people would not be able to keep up with what the law does and does not require, so we would lose the normative power which comes from having a body of validly enacted laws which people are capable of understanding, reducing the law to nothing but a set of rules which allow the government to use force against its citizens for engaging in behavior which they did not and could not reasonably be expected to know was prohibited.
I think that any sane system of laws must have an easy way to judge the validity of any given law (a valid act of congress, signed by the president, in accordance with and not contrary to the constitution), and be relatively stable (the procedural rules of the Senate and the ability of the president to veto ensure this) so that people can make long term plans with confidence that those plans will not just be invalidated by a change in law. If you are playing chess and then halfway through the game the rules changed so that all of the pieces can only move like pawns, all of your play up until then would be rendered meaningless. If these rule changes could happen at any time, and were frequent, you could not play at all.
Not really. Does a bunk at camp agreeing to shared rules constitute a social contract between them and the American people?
That is not what I am saying at all. What I am saying is that whether the government is acting in a "moral" fashion is a completely seperate inquiry from if the government or any of its actions are invalid. The law is the law, and morality is morality. If the law runs contrary to what morality requires, this is where civil disobedience comes in. But if you act in accordance with your moral beliefs and the people do not think the punishment for your actions is unjust, then I see that as an affirmation that the law is viewed as correct, regardless of what people may think about its "morality."
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.
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.
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.
If the law has no moral force, then no-one should pay the slightest attention to it.
What you are trying to argue is that the law has a special kind of moral force (you call it validity, though you could call it bunnyness if you wanted, for all the intellectual rigor you've brought to it), and so you ought to obey it, but that this moral force is not a real moral force so that if someone argues against the morality of a law you don't have to defend it.
It is quite astonishing.
One of the typical things people mean when they say a government or law is invalid is that there is no moral obligation to follow its dictates.
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.
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.
QEDMF xbl: PantsB G+
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.
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.
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.
Quote of the year.
I mean, these are mostly contractual terms, but since we're extending the analogy of the social contract, I see no reason why we can't say that a law that is clearly against a higher law or right isn't valid - and thus the question hinges on whether it is void ab initio (it never has any legal effect) or only after it's declared so.
And what are these higher rights we are referring to? The entire idea of legal positivism arose because the prevailing natural rights theories of law were not able to provide a satisfactory answer to the question of how we can judge a law to be valid. If we view all laws that are procedurally valid as valid laws, then we can easily ascertain what our legal obligations are, and can plan accordingly. Under your model, we can never be confident in our plans, because (1) we don't know if the law we are relying on will be struck down and (2) we don't know if any given person will view the law as valid, or disregard it.
Of course, ordinary laws are subject to nullification by a higher authority (state laws can be declared invalid if they are preempted by federal law, and federal law can be declared invalid if it is contrary to the constitution) but we are literally talking about the "higher authority" that we appeal to in America in this thread. If the consitution is not the highest power, and any part of it may be struck down at any time because a "higher authority" demands it, then we are not able to rely on any laws. The beauty of the consitution is that it is the highest authority AND it imposes substantive constraints on the actions of law makers (this is the great innovation of a constitutional government) which are already set out and agreed on.
On what basis could you say they did not, without opening the door to the collapse of the entire legal system?
Well whether a law is valid also hinges on the legitimacy of government. The legitimacy of a government, I would argue, hinges at the least on it being answerable to the society it governs. The American Revolution began because the British government was both unresponsive to the colonial will and because in a very real way American society was no longer a part of British society. The same could be said of slave populations in Antebellum America. They would have been justified in rising up because there was a "a long train of abuses and usurpations" that revealed "a design to reduce them under absolute Despotism" and the Government was "destructive to those ends" "that all men are created equal." The slaves had no more (indeed far less) legal obligation to follow the laws of the US government that sought to enforce their enslavement than the colonists had to British dictates from afar because insofar as they were concerned the government was clearly illegitimate. While in most cases you can make an argument about the relative legitimacy of a government, when it will not acknowledge you as a human that standard has been met.
QEDMF xbl: PantsB G+
The Constitution of the US specifically opens with who the ultimate authority in the United States is to determine rights and obligations (it's not the King or Queen, it isn't the government, and it most definitely is not the document itself). As long as that document remains in force, it is the highest law of the land, but it is not the source of our rights, and it specifically mentions several times that it is not exhaustive when it talks about them.
But that is besides my point - if the US Congress passed a formally valid law today that said "No more free speech", are we obliged to follow it even from a legal standpoint? It's prima facie unconstitutional, and just because a quorum happened to be present etc. doesn't mean it has any legal leg to stand on.
You can care for any number of reasons that matter to you, but ultimately, I think that for a law to be effective we need to be able to enforce compliance by people regardless of their feelings about the law, or about following the law in general, and that means sanctions. Since we need to be able to convince the least compliant person in society to follow the law through sanctions, at base there is no reason that you must care about the law other than to avoid sanction.
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.
I am by no means an expert on the constitution, but I can definitely empathize with Nova_C's original point. Additionally, I kind of find myself leaning towards an interpretation of our Constitution that mirrors what is laid out here.
I also agree with Poshniallio's breakdown of the emotional response the Constitution evokes in some individuals. I think that mindset is what Nova_C was originally upset about, and I further posit that a religious-like devotion to the Document is unhelpful and potentially dangerous.
That all being said, I pretty much am happy with our Constitution, and I think it is definitely Locke-Liberal and for that I enjoy it.
In short, the Constitution is just a piece of paper that is not it's own justification, but it is an important piece of paper, and it can be used as a very effective check on what our Government should and shouldn't do.
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.
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:
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, orderly society is probably a good thing, and the rule of law helps to make that happen. The more people that care little for the legal system, the harder it is to maintain the order that law provides.
So that could be a good reason.
"We believe in the people and their 'wisdom' as if there was some special secret entrance to knowledge that barred to anyone who had ever learned anything." - Friedrich Nietzsche
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?