The whole point of free speech is not to make ideas exempt from criticism but to expose them to it.

Friday, July 17, 2009

Rights schmites.

Interesting discussion on Blogmore.

Even as Kevin decides to scold a few people
for "highjacking" a thread (me included) the
ensuing conversation was much more interesting
to me than yet another discussion about whether
or not Sotomayer is has "outgrown" her racism
or whatever it was Kevin was trying to say.

The interesting sub-thesis for me
was the origin of rights.

It's hard to tell whether the Aldo character
thinks the Constitution creates rights or not
so I've invited him and "Poplicola" to come
clarify it here. Hopefully, they will.

I of course maintain that the Constitution doesn't
create rights at all. Rather it merely protects, limits or
eliminates existing a priori ones (the endowment
if you will.)

Liberty to me is fundamental. Axiomatic.

That's why I challenged Aldo's "wholecloth"
assertion regarding the fabrication of a "right
to privacy. What do you think, dear readers?

BTW, I notice Sotomayer is running ahead 43% to 26%
with the rest in various postures of disgust,
patience, and tear-down-the-walls obstructionism
in our ridiculously unscientific poll at right.

As should be, I suppose.

After all, this IS South Dakota.

Where seldom is heard a discouraging word.

C'mon. Talk ta me.



All participants in the Blogmore "hijack"

have fessed up. "Poplicola" leaves the argument

with the following question:


Since this is very hard for you, I’ll help break it down

into very understandable parts for you:

Do you think the following statement is true:

For every right, it can be said that right either

is or is not found in the US Constitution?


The floor is yours, people.


lexrex said...

bf, could you explain your comment: "the Constution doesn't
create rights at all. Rather it merely protects, limits or
eliminates existing a priori ones (the endowment
if you will.)"

how exactly are those rights "endowed?" who's to say that i had a right to liberty, for instance, even before or without a constitution?

Bob Newland said...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

So saith the foundin' fathers.

Bob Newland said...

Of course, at the time the assumption of the derivation of rights was written by the foundin' fathers, Indians not taxed were excluded from consideration as "men" and a "non-free person" was considered only 3/5 of a "man."

Bill Fleming said...

First, lexrex, thanks for showing me my typo on the word "Constitution." I've made the correction.

Next, see the post above this one. The answer is, as I understand it, axiomatic, ie. self -evident, much like Euclid's Postulates, which are the foundation for plane geometry, or the axioms of modern mathematics,

Call it the Creator, or Consciousness, or Reason or Cognition, or Nature, or Nature's God, or Higher Power. Whatever. That's part of what I want us to discuss.,post.html

Neal said...

The idea that the Constitution creates rights doesn't make a lot of sense, for it presumes that certain rights did not exist prior to the establishment of our government.

A piece of paper can't create a right.

Like Newland said (quoting the founders), rights are unalienable and are endowed by our creator.

But you have to consider the philosophy. The idea of the social compact says that man has surrendered his rights to the state, in exchage for security, which the state agrees to provide.

In that context, the Constitution does not create rights; rather, it elucidates the rights that the state has promised to respect and honor.

Bill Fleming said...

Note, that just as Euclid's postulates are subject to revision over time as human consciousness evolves, so perhaps must our notion of "Creator" be.

We see Euclid's axioms these days as applying mainly to two dimensional space, not the 4+dimensions (and counting) cosmos as described by contemporary theoretical physicists, mystics and modern mathematicians.

Above, Bob points out a few obvious ways our understanding of the Founders meaning and intent has likewise evolved over time.

lexrex said...

neal, do you think we surrender all of our rights to the state for security? or are the some that remain unalienable?

lexrex said...

bf, did you misspell "constitution?" i didn't notice, but thank you for pointing out my error.

lexrex said...

and thanks, bob, for pointing out that it our Creator, who endows our unalienable rights.

Neal said...

lex, that's a fascinating question, and one I don't have an answer for -- or at least an answer that could be accomplished in anything less than 20 pages or so. But it's something I've thought an awful lot about.

In theory, I'm not sure if it's possible to give rights away, and to an extent I think this whole social compact idea is a charade. Unalienable means unalienable. The most you can do is refuse to exercise your rights. You can't give them away.

In practice, it's precisely the opposite. Just ask Bob.

Neal said...

BTW, lex, what's up with the poster over at SDWC who is calling him/herself "xerxel" -- lexrex backwards. Whoever it is even copying your no-caps style, but the content makes it obvious that it's not you.

Anonymous said...

This is Poplicola from Blogmore. Thanks for the invitation to continue the discussion here, as Woster finds something a little different than he imagined to be terribly, terribly offensive to his blog moderator tastes.

Here is the crux of my argument:

Aldo says that a right to privacy does not exist in the Constitution. The privacy right, of course, was first enunciated in Griswold v. Connecticut, where the Court held that privacy rights, which were found in the penumbras of several Amendments, allowed people to make their own private decisions in reproductive health--i.e., that people have a Constitutional a right to privacy and therefore the state could not dictate the terms of their contraceptive or reproductive health decisions. This right to privacy is what Blackmun relied on in Roe v. Wade. (As a sidebar, in one of my Con Law courses in college, when debating Griswold, I asked what the state's interest in banning contraceptives was, and one student mentioned the state has a compelling interest in maintaining the link between intercourse and reproduction, and I replied, "I don't know about you, but I have never in my life wanted there to be a link between intercourse and reproduction and I'm pretty happy with that.")

Aldo, of course, does not like Roe, and is just slighltly smarter than saying "Abortion rights are not in the Constitution because I don't like them," so he needs something else to peg it on. He therefore says, in the strict constructionist that conservatives like to pretend themselves to be, that privacy is not found in the Constitution, and therefore Roe and Griswold are fundamentally flawed.

I have raised several arguments against this:

Anonymous said...

1.) As Sen Coburn from Oklahoma was questioning Sotomayor, he asked Sotomayor whether she thought the Constitution gave Americans the right to self-defense. The right to self-defense, of course, is what the conservatives on the court used to find, for the first time in American history, that the Second Amendment holds an individual right for each person to bear arms in 2007 (or thereabouts), and Coburn was trying to get Sotomayor to reveal how she would rule on future Second Amendment cases. This is an interesting argument for someone who portends and pretends to be a "strict constructuralist," because no place in the Constitution specifically says "Each person has a right to self-defense." But of course it exists. What good is the right to own guns to protect yourself if you can't use them in self-defense? Why would there be protections against illegal searches or seizures if you couldn't defend yourself against them, or why would there be protection from quartering soldiers in your home if you couldn't defend your home if it were attempted?

The same can be said of privacy. What good is the right to assemble if you can't do it privately? How could one engage freely in commerce without the right to do so in private? And isn't a prohibition against unreasonable searches specifically saying people have a reasonable expectation to privacy in their homes and in their personal lives?

This was my first exchange with Aldo on that issue. Essentially, I was arguing that a reasonable right to privacy does exist in the Constitution, and that if you are going to be a person who says the words of the Constitution mean what they mean plainly and absolutely nothing else, then you should at least be consistent.

Anonymous said...

2.) It clearly follows that if you don't believe privacy surrounding reproductive health can be found in the Constition's explicit guarantees of privacy, and you don't think the right to make personal decisions about reproductive health can be found anywhere else in the Constitution, then you are disagreeing with Griswold. If you disagree with Griswold, then you think the State of Connecticut had a right to ban condoms and birth control, and you think all states have that right under the Constitution. That's a pretty extreme reading of the Constitution, and I called Aldo out on it.

It's quite simple: either you think the holding in Griswold was correct, or you think private decisions about reproductive heatlh can be found elsewhere, or you think the state can ban contraceptives.

But no, Aldo says, he does not think the state has the right.

So wait. Now Aldo is saying he thinks the privacy found in Griswold does not exist, but he also does not think a state can ban contraceptives.

Essentially, Aldo's position is that privacy exists when he agrees with a policy and does not exist when he disagrees with that policy.

In this case, it is not Sotomayor with the absurd reading of the Constitution, but Aldo.

3.) This brings us to our current place, where I'm going to have to walk him through the absurdity of his argument. It will go like this

Is it the case that for every right, people either do have it or do not have it under our Constitution?

Can it be said that if people do have a right under the Constitution they can not simultaneously not have that right under the Constitution?

Do you think privacy is something that can be found as a right in the Constitution?

If his answer to that last question is 'yes,' then he's contradicting himself on his assertion that Griswold is judicial activism. If his answer is 'no,' then he clearly is saying the state has the ability to ban contraceptives, and his amazingly extreme position on the issue is exposed, and no one should really be listening to him in the first place.

Anonymous said...

Finally, if you're saying the Constitution does not protect privacy exept in cases of assembly or commerce or rights against searches or where specifically stated in the Constitution, your position is much more extreme than just wanting to go back to a time when states can ban condoms.

For example, in Loving v. Virginia,, the Court said states cannot ban people from different races from marrying each other. In Lawrence v. Texas, the Court decided the state cannot stop a man and his wife from engaging in oral sex in his home. In each of these cases, the Court relied, to varying degrees, of course, on the right to privacy inherently found in the Constitution.

I could go on, but you get where I'm going: If privacy does not exist except where explicitly stated in the Constituion, then a state can ban white people from marrying black people, and can ban married couples from engaging in consentual oral intercourse.

That is quite extreme indeed, and certainly would argue that a Sotomayor is far more in line with the mainstream than the person who held such a position.

Bill Fleming said...

Good posts, "Poplicola," as usual.

Thank you for bringing your arguments here. I'm guessing Forum readers will find them both interesting and substantial.

I'm especially wondering if and/or how lexrex and Troy Jones would respond.

And Aldo, of course, if he cares to join us under whatever name he cares to use.

Anonymous is fine. Whatever.

But thank you "Pop" for the courtesy of providing us with a little continuity and transparency as you move your end of the discussion from one forum to another.

Don't be a stranger, man.

lexrex said...

poplicola, way to suck the air out of the room. who has time to read all that?

neal, not sure who that xerxel guy is, but i assume by his name -- the opposite of mine -- that he is not nearly as cool and handsome as i am.

Bill Fleming said...

Really, lr? I'm sure you can do better than that, man. I've seen you do it. I thought you liked discussing Constitutional Law, no?

Bob Newland said...

That's what I do, lexrex. When the stove gets warm, I leave the kitchen. That's why my soup never has any liquid left.

Bill Fleming said...

By the way, lr, I really did make a typo on the word "Constitution" in my first draft, and I really did correct it, thinking that you had just cut and pasted my typing and maybe didn't even notice it yourself.

But if not, maybe we both just made the same typo? It's possible. You know what they say...
great minds think alike."

Anyway, I really WOULD like to hear what you think of Pop's reasoning re: our right to privacy, etc.


Anonymous said...

It's obvious the goal of the participants here is not to further a reciprocal discussion with Aldo, but rather to display an an air of disingenuous superiority while vainly attempting to convince us poor souls who were foolish enough to link over from Blogmore how intelligent they think they are. Moral absolutists is what they are. "Never Again Notsob."

Bill Fleming said...

So, Mr/Mrs/Ms Anonymous, did you have something in defense of Aldo's legal position or a rebuttal of Pop's arguments or what?

If so, we're all ears.

Seems, unlike you, Aldo is a no show.

No worries. I'm patient. Meanwhile, have at it.

And take as much time and space as you please.

Paper and ink cost next to nothing here.

Troy Jones said...

Bill, I hope I'm not to late to the thread to be relevant even if my comments are not relevant.

First, the concept of "inalienable rights" is rights that, if denied, is an affront to our humanity (whether endowed by a Creator or not). A government that denies "inalienable rights" ceases to be legitimate because it is an affront to humanity.

Second, when two or more people come together and agree to define the application of these rights as well as a system of reconciling conflicts in "inalienable rights" as well as provide for certain other "rights" (I don't remember the term used to describe secondary rights). I for one ascribe to the concept that "right to privacy" is an inalienable right but disagree that its application extends to abortion rights because of the impact on another human being's inalienable right. Inalienable rights are not always unlimited.

Third, the "wholecloth" is an articulation of the reality that no single inalienable right is unlimited but requires reconciliation wiht other "inalienable rights" and that some rights supercede other rights, ala the right to life and right to privacy.

Fourth, a social contract is not ever perfect as it is formed by imperfect humans. The failings of the Constitution to protect the rights of Black Americans.

Fifth, I don't buy the argument of "evolving rights." They are fundamental and unchanging. However, because of imperfect understanding or knowledge or the imperfection of those who author the "social contract", there needs to be a means for making adjustments that improve the application and protection of inalienable rights.

Finally, I want to stress that no piece of paper creates rights. It only defines the rights to be protected under the social contract and how they are to be reconciled. The piece of paper should never be expected to include everything but requires discernment and discretion of "inalienable rights" in light of the "whole cloth."

This said, it doesn't mean that we all shouldn't be "strict constructionists" of the document as defined. The introduction of the idea that certain components of the document is "archaic" or not relevant destroys the social contract and leads to mob rule.

Liberals have as much to fear as conservatives when the documents enumerating the social contract are not relevant. I really think they are opening a can of worms that are as threatening to their views as conservatives.

Bill Fleming said...

Thanks Troy! Would you mind if I elevated your reply here to a topic?