• The rights of individuals do not originate with any government, but pre-exist its formation.
• The protection of these rights is both the purpose and first duty of government.
• Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition.
• At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.
४ जुलै, २०१५
"The political theory announced in the Declaration of Independence can be summed up... First come rights, and then comes government."
Lawprof Randy Barnett says adding 4 bullet points:
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६० टिप्पण्या:
Is this considered controversial? It is how it was taught to me, and how I teach it to my students.
At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.
So he liked Kennedy's vaporous reasoning?
Right wing optimist today, on the topic of rights.
It wards of the gay mafia.
Silly me, I thought rights came from the President for us to use to be on the right side of history.
Now why is this so hard for you proggs to understand?
Marriage is not an inalienable right.It wasn't even a Constitutional right until last week.
"Now why is this so hard for you proggs to understand?"
They hate God who gave us those rights, they think Marx knows better.
Seems to me that things are flipping and flopping around right about now. I now have no rights except those that the Government deigns to Let me have.
You're still free to say SSM isn't marriage if you pay the fine.
KYou know who ain't down with this?
All democrats/leftist whatever and most of the Republican Party.
Buncha fucking assholes
Wouldn't it be grand if the courts actually believed this and took the 10th amendment seriously.
Ask students on most college campuses to describe "inalienable rights" and I suspect most would mumble something about our southern border.
Frosting on the cake: The four points are self-evident.
And if you find that you don't think they are, you might be one of those who want to fundamentally change the country.
For the literate, It's Unalienable rights. Not inalienable rights.
The Declaration was written by a lawyer who did not know ahead of time whether rebellion against the British would succeed. He wanted to persuade people not already on one side or the other to support or tolerate his point of view.
Describing rights as unalienable anticipated arguments of a social contract flavor to the effect of: "You guys like it when the British protect you from the French & Indians,and provide you with forms of government, common law, etc., but as part of that bargain you have given away some rights."
Lucien said...
The Declaration was written by a lawyer who did not know . . . blah blah blah ...
Nice ad hominen!
Do you get away with those in your circles?
Where does the right to other people's money come from?
Where does the right to other people's money come from?
Marx
"Original Mike said...
Where does the right to other people's money come from?"
From the consent of the stupid, resentful self-defeating governed.
I guess Thomas Jefferson -- the man who wrote the Declaration -- was illiterate.
He used "inalienable." Then someone who could be an insufferable arrogant prig who at times thought he knew better than anyone (John Adams) came and told the printer to use "unalienable."
For the literate, It's Unalienable rights. Not inalienable rights.
Unalienable was a typo from the printing process. It was originally written as inalienable, and that was what they meant.
(If you had read the article, you would know this)
There are serious movements to resist the present leftward slant.
It could happen. Maybe not until the collapse of the present Marxist program, as is happening in Greece. The Greeks, however, have no tradition of freedom. All they had that stopped the communists in 1948 was religion and that is gone.
"Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured. His natural rights are the foundation of all his civil rights."
--T. Paine, The Rights of Man
Some "rights" do depend on government for their existence. Same-sex marriage for one.
And, according to Anthony Kennedy, a sense of dignity for those with a same-sex attraction. It is only from government's affirmation, according to him, that gays and lesbians get their dignity. Of course, Kennedy's full of crap.
Where does the right to other people's money come from?
That right is a consequence of there being 'positive' rights - which are claims that you can make against others. For example, if I am drowning, and you can help me, then I have a positive right to your assistance, and you have a duty to help me. These are distinct from 'negative' rights, which are limits to the claims that others may make against you or to the things that they may do to you, etc. For example, if I have picked a pear from an unowned tree, you don't have the right to take it from me.
The political theory of the Declaration of Independence is pretty much straight Lockean theory; and Locke defends it on the grounds that this is how God would organise things if He wanted us to flourish, and there IS a God, and He does want us to flourish. Those positive and negative rights are thus the consequences of that set of assumptions. Of course, that makes it tricky for those who don't believe in God to defend the particular rights that derive from those assumptions; and, on the other hand, even if that's what God wants, why should that matter to me?
This all get very non-self evident very quickly.
I like Randy Barnett. There are lots more "rights' than those that are enumerated...don't forget the 9th Amendment.
"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."
-- Thomas Jefferson
There's a heavy dose of Magna Carta in the Declaration of Independence. The basic thrust behind Magna Carta was that a political class with clout had had it up to the top of their helmets with King John throwing his weight around. And they got together and told him "this stuff has to stop"--or words to that effect.
Not so good King Obozo should heed the lesson.
I absolutely agree with this, but the most important thing to consider here is that the largest body of people who believe in "natural law" are the people who believe in things like Sharia law (or some other "God given" law. So it doesn't really mean much that I believe natural law means leaving people alone when other people think it throwing homosexuals off of tall towers. Defacto, the law is what our neighbors will let us get away with before they kill us. Libertarians can make fur of the "social contract" all they want. They can laugh all the way to the ground.
Happy Independence Day. I wouldn't have made so many typos before all of that good American Zinfandel.
Frederick Douglass' 4th of July Speech:
"What, am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood, and stained with pollution, is wrong? No! I will not. I have better employment for my time and strength than such arguments would imply."
traditionalguy said...
For the literate, It's Unalienable rights. Not inalienable rights
***************
Thanks for the snot.
For the historical:
As Barnett himself says in the article,
"The most famous line of the Declaration, and for some the only line they know. The Committee of Five’s draft referred to these as “inalienable” rights, but for reasons unknown the word was changed to “unalienable” sometime in the process of printing it for the public."
But hey! Traditionalguy's on the case! HE knows why! Unknown **illiterate** Founding Fathers changed it.
Snork!
Follow up:
If Traditionalguy is so shit-hot on spelling, he ought to know that 18th spelling had all sorts of variants.
"In the early 18th century, English spelling was not standardized. Differences became noticeable after the publishing of influential dictionaries. Today's British English spellings mostly follow Johnson's A Dictionary of the English Language (1755), while many American English spellings follow Webster's An American Dictionary of the English Language ("ADEL", "Webster's Dictionary", 1828).[2]"
You think maybe during that time spelling variations in America existed in the interim? Ya think that if two Americans back then got together to draft/edit the Declaration they might disagree on spelling, while both were very very literate?
Ya think? YA THINK?
Right, this is why claims to, say, a "right to education" are nonsensical.
"Where does the right to other people's money come from?"
Idiot. Organized society requires expenditures of money, and taxes are the pool of funds contributed by all to help fund society's expenditures. It's not "other people's money," it's our money, collectively, to be used as we, collectively, determine. This does not mean every individual gets a say in every line item of the ledger book of how the money is to be apportioned. I could say, "Why are they stealing my money to pay for the world's largest organized murder syndicate (the military)?"
Well, they're not stealing my money, they're stealing our money.
Of course, as where there is any source of money (or power) in one place, the thieves and parasites will endeavor to take that money (and power) from its rightful owners, and this is where the parasitic bankers and Wall Street hoodlums and corporate predators come in.
...and right on cue, Bolshie Bob chimes in to defend spending other people's money and call capitalists parasites, hoodlums and predators.
The saddest thing about Bolshie Bob? He claims never to have read Das Kapital, which created the ideology he espouses.
traditionalguy said...
"For the literate, It's Unalienable rights. Not inalienable rights"
Literate, illiterate, semi-literate, quasi-literate, litter box ...... all sailed through spell check without so much as a whimper.
That right is a consequence of there being 'positive' rights - which are claims that you can make against others. For example, if I am drowning, and you can help me, then I have a positive right to your assistance, and you have a duty to help me.
Except I don't.
Where does the right to other people's money come from?"
It isn't a right. It is one of the "police poweres" of the state. Originally, in a representative government, the people would vote on how and how much they could be taxed for specific reasons. The constitution demands that the federal government protect us, adjudicate our differences, and regulate our currency. The government has the power to do these things. We have the right to regulate the government.
Those positive and negative rights are thus the consequences of that set of assumptions. Of course, that makes it tricky for those who don't believe in God to defend the particular rights that derive from those assumptions; and, on the other hand, even if that's what God wants, why should that matter to me?
Well. Not assumptions exactly. The empirical evidence has shown that people are't born to be slaves and others are not born to be their masters. Evidence has also shown, short of being married, you are at liberty to do whatever you want as long as what you want doesn't intrude on any body elses rights to life , liberty , and happiness. Unless my persuit of my rights to life, liberty, and happiness annoy you. In which case fuck off because you don't have the right not to be annoyed. Oh. and the god thing? Lucky you. Your conscience will allow to attempt to get away with as much as you can.
But, you know, Confederate flag!
"Idiot."
I love you too, Robert.
"The saddest thing about Bolshie Bob? He claims never to have read Das Kapital, which created the ideology he espouses."
Why sad? One doesn't need to read a book to see what is happening in front of one's eyes.
Robert Cook said...
"The saddest thing about Bolshie Bob? He claims never to have read Das Kapital, which created the ideology he espouses."
Why sad? One doesn't need to read a book to see what is happening in front of one's eyes.
You should get your eyes checked.
I see fine, thank you. You're the one with your eyes blocked by the bill of your cap.
"At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so."
let's apply this to marriage. Even if it's true that one has an inaliable right to marriage what does it mean? That you have an inaliable right to any marriage? Or marriage as defined? If marriage as defined, how were gays denied the right to marriage? They were able to marry as defined.
Idiot. Organized society requires expenditures of money, and taxes are the pool of funds contributed by all to help fund society's expenditures. It's not "other people's money," it's our money, collectively, to be used as we, collectively, determine.
Calling someone an idiot merely suggests that you don't have a rational argument. I frankly don't find it a stupid question, but rather in keeping with the subject, and the dispute so long ago between the Federalists and Antifederalists, which gave us a Constitution with a small number of enumerated government powers, and then the Bill of Rights enshrining substantial negative rights aimed at preventing the majority from oppressing a minority. And that is precisely what you are claiming to be unassailable, that a majority, no matter how corruptly assembled, should have the right to the wealth of the minority for whatever they wish, on the grounds of majority rule. And so we find ourselves with a record number of unemployed, underemployed, and otherwise not working being bribed with ever increasing handouts from the government to vote for those providing for such largess, to be taken from the pockets of the small minority who pay significant taxes. And why not? They are a majority now, and that appears to be what is important to you - majority rule. But I have to wonder if the Antifederalists, if they had known where greed would take politicians and the dependant classes today, would have enshrined protections against this in the Bill of Rights, as they did against the majority in regards to free speech, religion, guns, etc.
Huh, could one of those inalienable rights include the right to life? Perhaps progressive liberals should reconsider their choice to normalize indiscriminate killing of wholly innocent human lives.
That said, inalienable rights do not include the enjoyment of services (e.g. health care) performed with other people's labor. However, in a society that recognizes intrinsic value, that should be accepted as a part of the social contract. America is not such a society. Universal health care provision and welfare is tantamount to slavery.
Cook seems to ascribe to the political philosophy of "we won". He blythely skips over the question of how his majority was assembled. Romney got in trouble for suggesting the reality that 47% of the potential electorate had already been bought by the Dems with transfer payments and the like from the efforts of the productive members of society. But it is precisely this buying of votes with money from the pockets of a minority in this country, taken from those pockets at gunpoint (by the IRS) that makes Cook's argument suspect.
Hi Rusty.
In response to my example of a positive right to life, which I (or rather Locke) claimed creates a duty in you to save my life (in that situation), you replied
Except I don't [have any such duty.]
That's certainly possible. But in order to support that claim you have to do more than simply assert it: you have to give an argument for it. Given the nature of the Lockean argument for them, you would probably have to try to show that no such positive rights, however qualified and restricted, could ever contribute to the greater flourishing of mankind. I think that would be hard to do. If you wanted to say that it was out of bounds because of the danger of a slippery slope to socialism, that would be an argument against a misapplication of the justifying argument but not against the justifying argument itself. If you just want to say that a right is what you can assert and enforce for yourself, then it's simply a matter of power, and rights have no grounds for respect beyond the terror that you can inspire. And if you just want to say that you 'intuit' these moral truths, then you have nothing to say in response to someone who intuits opposing moral claims.
By the way, don't imagine I believe I have all the answers. It's hard enough just working out what the right questions are.
FIrst comes LOVE. Then comes MARRIAGE. Then comes an ideological BABY CARRIAGE!
"Universal health care provision and welfare is tantamount to slavery."
To state that you have a right to health care is to state that you have a right to the labor of others. Does kinda sound like slavery.
Funny, I thought the first purpose of gummint was to put "god" on all our bills and coins and in oaths, anthems, pledges and monuments. Gummint is far more efficient in denying rights than in promoting or protecting them.
"And that is precisely what you are claiming to be unassailable, that a majority, no matter how corruptly assembled, should have the right to the wealth of the minority for whatever they wish, on the grounds of majority rule. And so we find ourselves with a record number of unemployed, underemployed, and otherwise not working being bribed with ever increasing handouts from the government to vote for those providing for such largess, to be taken from the pockets of the small minority who pay significant taxes."
More idiocy. I don't often call names here, but when hear this refrain of "take my money to give to someone else" or "a majority have a right to the wealth of the minority," I feel that's an appropriate response. It is everybody's money, pooled for the use of all, as determined by collective decision-making. We don't all like what our taxes are used for, but...them's the breaks. (As I said, I don't appreciate "my" money--said rhetorically--used to bomb and kill people all over the world, but until a majority compels the government to cut the military budget, I must accept it.) If you or yours were in need, there are resources available to you, paid for by our common funds.
You compound the idiocy with your comments about "handouts from the government" being bribes to to (as you admit) the "record number of unemployed, underemployed, and otherwise not working." Have you ever received public assistance of any kind? Do you know any who have? If so, you must know the assistance is meager, and most of those record numbers of un- and underemployed would certainly prefer to have good jobs that paid them fairly for their labors. But the jobs aren't there. They're not there on purpose. The corporations who provide masses of people with jobs discovered years ago how much cheaper--i.e., more profitable--it was to export jobs abroad, (or import foreign workers here), where they can pay a pittance of what is necessary to live on in America. Many American jobs have been lost to virtual slave laborers, (and this is happening domestically, as well, as more companies are making use of slave labor in American prisons. No wonder our prison population is booming--it's the biggest in the world!--more slave labor is needed!
What do you propose? That these un- and underemployed just go out and get jobs? Heheheheh! Can you buy them tickets to China and the other booming markets for cheap labor?
"Cook seems to ascribe to the political philosophy of 'we won'. He blythely (sic) skips over the question of how his majority was assembled."
Heh! Don't call it my majority. And who won? Not we, the people. It's a "majority" paid for by the wealthy, by the corporate parasites who are taking your money and mine and using some of it to bribe the people "we" sent to Washington to work for and represent them and not us. It doesn't matter whether it is Democrats or Republicans, they're all part of the same pool of minions to the plutocrats.
Cook's argument flounders on the smallest word in his sentence "It is everybody's money"
What is this "It" he so blithely tosses around? Does "It" exist as a free natural resource, much as we used to regard clean air, burdening no one to supply?
No.
"It" originates in the world via a process I will leave to the astute reader to deduce.
No it don't , Steve. You seem to think I'm obligated to save you by right. My first obligation, as Locke woud see it, is to myself. Do I have a moral obligation to save Steve? In as much as it is in my power to so I do. But does steve have a right to expect me to put my life in danger to save his? No.
Now. What is my obligation to the State? In as much as the State endeavors to secure me my natural rights I am obligated to expend my efforts and treasure to see that the State is secure. The state has no rights except those which I and my neighbors deign to award the State. See the Constitution.
Blogger Robert Cook said...
I see fine, thank you. You're the one with your eyes blocked by the bill of your cap.
It's only because I'm so uncommonly ugly.
I see Comrade Bob is in rare form today. He rails about the meagerness of welfare programs but overlooks the fact that the majority of able bodied adults getting these benefits are people who consistently make stupid choices. Their choices are not my obligation. If they were then one of us isn't equal and that one would be me by virtue of involuntary servitude. He confuses charity with taxation. One is a choice the other compulsion. Income redistribution isn't the fundamental reason for the existence of the State. National defense, law enforcement and just punishment and the mechanism for resolving disputes are. That is all that is fundamentally necessary for the State to do and if it can't do that at all or poorly then it has no reason to exist.
Original Mike:
America was such a country on principle, notwithstanding the original compromise (i.e. "slavery"). However, that changed with the adoption of pro-choice doctrine that rationalizes selective-child as a constitutional right. Since then, there are only ulterior motives to color the intentions of people who claim an interest in securing human and civil rights. It's especially damning when they attempt to not only normalize but prevent discussion of their beliefs and actions.
I suspect that your definition of meager is a bit dated. Not that those on welfare can be really that comfortable, but you can now get food, housing, health care, phone, utilities, etc., without working. Transfer payments, including such welfare, are now more than half the federal budget, and quickly eating up the budgets in a lot of states (esp. for the states stupid enough to buy into the ObamaCare Medicaid expansion). And, I would suggest that you must have slept through the 2008 and 2012 elections if you are unaware of politicians, and esp. Dem politicians, buying votes with increases in welfare, etc. payments.
And, why shouldn't welfare be meager? Why should there be an incentive to not work, when you are physically able to? The moral hazard? One of the reasons that we are in the eighth year of the Obama Recession is that not working is incentivized, and all those transfer payments not only did not increase GDP, but effectively reduced it via bureaucratic friction. Why should the person not working but receiving welfare, and the like, have a greater moral call on the wealth of those who work, than the people working hard for their money? You seem to be assuming some sort of moral duty of those who can work to support those who cannot, or who will not work. And, that is sorely missing from our Constitution.
Since British colonies didn't have a right to independence under British law, Jefferson couldn't very well have argued from a legalistic basis, could he?
Perhaps the real question is, what is (or should be) the place of antinomianism in American Jurisprudence. Supreme Court justices take an oath of office to uphold the federal constitution; thus, Dred Scott was probably the correct decision based on that oath, even though it was morally repugnant, and justices who viewed slavery as a violation of natural rights might have used that as a basis instead.
Yet most matters before the Court are not Dred Scott, and arguably the Republic is far more threatened by antinomianism on the high court than by excessive legalism.
Perhaps one can find a "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" in the Declaration, but the Declaration is not and never has been law, and the actual U.S. Constitution remains silent on natural rights, and does not grant judges a right to discover and assert them.
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