The right to life and constitutional law.

[lord of the mark]

Originally posted by Imran Siddiqui


And we all know that Congressmen know what is constitutional or not .

Representative Lawrence is simply incorrect. Of course, he probably also believed, as Berz most likely does, that the minimum wage was against a shopowner's right to liberty.

You do wonder then whether executions before the 14th would have violated Representative Lawrence's absolute right to life.

I should have made clear, that Rep Lawrence was speaking as part of the debate on the 14th amendment. I would think that what a congressman says in a debate on a constitutional amendment has SOME bearing on the assumptions behind the framing of an amendment.

Executions would not violate the right, because they are done in accordance with due process of law - as neither state NOR private murder is.

Similarly you can take away a property right by due process, but thats different from either state or private theft.

[Mao]

Originally posted by Pekka
Mao, well a basic right would be something that can't be taken away, I mean not by definition, I'm sure basic right is defined somewhere and it is different. But what can't be legally taken is what I mean. When the means are illegal, by anyone, then that's your basic right according to me.

Yes, so what are examples of these rights? This has been in debate for a long time and in many circles, and I've yet to see a right that can't be taken away legally. At least, not a positive right anyway (that is, the right "to do" something, rather than a right to "not do something" or "not have something done to you."

One such document which one might expect to find this is the Universal Declaration of Human Rights, which we violate all the time. Just off the top of my head, there's this clause:

Article 23.

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

http://www.un.org/Overview/rights.html

There certainly aren't all legally guaranteed, especially article 2 in the US.

[lord of the mark]

"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 -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness"


Now the DOI is NOT law. But its certainly indicative of the beliefs of the men who framed and ratified the constitution (there being some overlap in the membership) and who framed the various state constitutions. The assumption was that govt was formed to protect those enumerated rights - from whom exactly - not from the state, obviously - but from private individuals who would deny these rights. It is on this basis that its right to overturn a govt when the GOVT interferes with said rights - because the PURPOSE of govt was to protect them, it would be absurd to tolerate their denial by govt itself. Logically the restriction on the state is rooted in the purpose of the state, which was to protect the rights. This being so basic, it was not seen as necessary to make it explicit.

[Imran Siddiqui]

Originally posted by lord of the mark
I should have made clear, that Rep Lawrence was speaking as part of the debate on the 14th amendment. I would think that what a congressman says in a debate on a constitutional amendment has SOME bearing on the assumptions behind the framing of an amendment.

Executions would not violate the right, because they are done in accordance with due process of law - as neither state NOR private murder is.

Similarly you can take away a property right by due process, but thats different from either state or private theft.

What Congressman say on a debate has no input with me. I've been a textualist for many years now and original intent goes no where in my book.

What you've managed to prove is that life and liberty can only be taken away with due process. That doesn't indicate a 'right' to me. The right to privacy cannot be dispelled by due process. The right to free speech cannot be taken away by due process. Only when the Supreme Court rules that certain instances do not fall within the right or it satisfies strict scrtiny (very very rare) can a law seemingly take down a right.

If we are saying that rights can simply be abrogated by Congressional law, what's the point in having them in the first place?

[Imran Siddiqui]

Originally posted by lord of the mark
Now the DOI is NOT law. But its certainly indicative of the beliefs of the men who framed and ratified the constitution (there being some overlap in the membership) and who framed the various state constitutions. The assumption was that govt was formed to protect those enumerated rights - from whom exactly - not from the state, obviously - but from private individuals who would deny these rights. It is on this basis that its right to overturn a govt when the GOVT interferes with said rights - because the PURPOSE of govt was to protect them, it would be absurd to tolerate their denial by govt itself. Logically the restriction on the state is rooted in the purpose of the state, which was to protect the rights. This being so basic, it was not seen as necessary to make it explicit.

The government has violated the 'right' to life by having the death penalty. We cannot tolerate this denial of our rights

[lord of the mark]

Originally posted by Imran Siddiqui


What Congressman say on a debate has no input with me. I've been a textualist for many years now and original intent goes no where in my book.

What you've managed to prove is that life and liberty can only be taken away with due process. That doesn't indicate a 'right' to me. The right to privacy cannot be dispelled by due process. The right to free speech cannot be taken away by due process. Only when the Supreme Court rules that certain instances do not fall within the right or it satisfies strict scrtiny (very very rare) can a law seemingly take down a right.

If we are saying that rights can simply be abrogated by Congressional law, what's the point in having them in the first place?

does a convicted prisoner have a right to privacy?
Does a prison guard need a warrant to search a convict in prison? To search a prisoners cell?

Mazel tov, on being a textualist, but I was discussing what WAS intended. Now maybe thats irrelevant (im not sure you have to be a hardline original intent person to think it has SOME bearing) but that is what we were discussing, i think.

[lord of the mark]

Originally posted by Imran Siddiqui


The government has violated the 'right' to life by having the death penalty. We cannot tolerate this denial of our rights

The framers (or most of them) accepted the DP as a way the govt protected their rights. A law abiding citizen (IE one who didnt disturb others rights to life, liberty, and propety) didnt have anything to fear from the DP, unless the govt abused it, in which case, yes, it was tyrannical and couldnt be tolerated.

Look I can see that as a textualist you dont think these rights are in the Const. Do you really deny that the framers believed in their existence? Do you think that Madison, for ex, a close friend of Jefferson, and a key framer, didnt think there were such rights?

[Imran Siddiqui]

Originally posted by lord of the mark
does a convicted prisoner have a right to privacy?
Does a prison guard need a warrant to search a convict in prison? To search a prisoners cell?

Were these issues decided by the Court system to be compelling or not covered by a right to privacy? Or were they just ordinary laws, and as long there was due process, ok, no matter what the reasoning?

Mazel tov, on being a textualist, but I was discussing what WAS intended. Now maybe thats irrelevant (im not sure you have to be a hardline original intent person to think it has SOME bearing) but that is what we were discussing, i think.

In that case:

DURING THE FIRST fifteen years following its adoption, then, the Declaration of Independence seems to have been all but forgotten, particularly within the United States, except as the means by which Americans announced their separation from Great Britain. The histories and political writings of the 1780s generally describe the document "primarily as the act of independence." Participants in the extensive debates over the creation and ratification of the federal constitution mentioned the Declaration, again, very infrequently and then generally cited its assertion of the people's right to "abolish or alter their governments" and to found new ones that "to them shall seem most likely to effect their safety and happiness."

American Scripture, Making the Declaration of Independence by Pauline Maier, pp 164-166

[Imran Siddiqui]

Originally posted by lord of the mark
The framers (or most of them) accepted the DP as a way the govt protected their rights. A law abiding citizen (IE one who didnt disturb others rights to life, liberty, and propety) didnt have anything to fear from the DP, unless the govt abused it, in which case, yes, it was tyrannical and couldnt be tolerated.

Look I can see that as a textualist you dont think these rights are in the Const. Do you really deny that the framers believed in their existence? Do you think that Madison, for ex, a close friend of Jefferson, and a key framer, didnt think there were such rights?

I think they believed in absolute rights (as in rights of nature), but that has absolutely no relevance today to whether there is a right to life, because our USSC jurisprudence has almost completely disavowed natural rights as a guide to anything (I believe Justice Thomas is a holdout).

However, I think that Jefferson & Madison also believed in an absolute right to free speech, but they specifically wrote that in there, where they didn't wright in the right to life.

[lord of the mark]

Originally posted by Imran Siddiqui


Were these issues decided by the Court system to be compelling or not covered by a right to privacy? Or were they just ordinary laws, and as long there was due process, ok, no matter what the reasoning?



In that case:

DURING THE FIRST fifteen years following its adoption, then, the Declaration of Independence seems to have been all but forgotten, particularly within the United States, except as the means by which Americans announced their separation from Great Britain. The histories and political writings of the 1780s generally describe the document "primarily as the act of independence." Participants in the extensive debates over the creation and ratification of the federal constitution mentioned the Declaration, again, very infrequently and then generally cited its assertion of the people's right to "abolish or alter their governments" and to found new ones that "to them shall seem most likely to effect their safety and happiness."

American Scripture, Making the Declaration of Independence by Pauline Maier, pp 164-166

well of course. Because the ideas i referred to (that govts were established to protect rights to life liberty and property) werent novel when TJ put them in the declaration. They were found in many expressions of the time, including George Mason, the writings of John Adams (IIRC) and indeed were part of whiggish political thought generally, from John Locke forward. Thered be no point in referring to the DOI in particular - they were the common currency of political thought.

[Imran Siddiqui]

Originally posted by lord of the mark
well of course. Because the ideas i referred to (that govts were established to protect rights to life liberty and property) werent novel when TJ put them in the declaration. They were found in many expressions of the time, including George Mason, the writings of John Adams (IIRC) and indeed were part of whiggish political thought generally, from John Locke forward. Thered be no point in referring to the DOI in particular - they were the common currency of political thought.

I'd think they were fairly novel when Jefferson put them in the Declaration. After all, he DID put them in the Declaration, instead of saying the King violated our rights. The idea that life, liberty, and property/persuit of happiness were absolute rights was a fairly new idea, first stated by John Locke. Jefferson didn't come much after Locke and no country in Europe believed in such rights, as they were led by absolute monarchy. There was no such 'common currency' of political thought.

There is a reason that language is taken by most people form the Declaration. Because it WAS new.

Of course the one thing that people don't refer to in that statement is the part about being 'endowed by our Creator'. If anything that seems to speak to being pro-establishment of religion.

Note: Mason's language was included in the Virginia Declaration of Rights, which became part of the Virginia Constitution. Apparently it wasn't so common that it was seen to be automatically part of Virginia law. Virginia had to approve it as part of the law.

[lord of the mark]

Originally posted by Imran Siddiqui


Were these issues decided by the Court system to be compelling or not covered by a right to privacy? Or were they just ordinary laws, and as long there was due process, ok, no matter what the reasoning?

Youre da lawyer, you tell me. But my assumption is that the right to privacy is effectively tied up with the right to liberty - someone who loses their right to liberty by due process no longer has an effective right to privacy. The right to privacy is not made subject to restriction by due process, because the assumption is that the right to privacy is accorded to those who are not imprisoned - ie those who have not lost their liberty through due process.

[Imran Siddiqui]

Originally posted by lord of the mark
Youre da lawyer, you tell me. But my assumption is that the right to privacy is effectively tied up with the right to liberty - someone who loses their right to liberty by due process no longer has an effective right to privacy. The right to privacy is not made subject to restriction by due process, because the assumption is that the right to privacy is accorded to those who are not imprisoned - ie those who have not lost their liberty through due process.

So the Congress could not simply write law (without compelling justification) that could abrogate that right? The right simply did not apply to them at that time, according to the Supreme Court.

That's quite different than saying due process can take away X.

[lord of the mark]

Originally posted by Imran Siddiqui


I'd think they were fairly novel when Jefferson put them in the Declaration. After all, he DID put them in the Declaration, instead of saying the King violated our rights. The idea that life, liberty, and property/persuit of happiness were absolute rights was a fairly new idea, first stated by John Locke. Jefferson didn't come much after Locke

Pawned, my friend, pwned you are.

"John Locke (August 29, 1632 – October 28, 1704)"

John Locke DIED 72 years before the Declaration was written. They had long since become the basis of whiggish political thought, and were generally accepted in the colonies - though of course anti-whig elements in Britain didnt accept them, and of course the continental monarchies didnt.

Jefferson didnt put them in cause they were novel but cause they werent, and they were the basis of a logical proof of the right to revolt. Notice he spends very little time defending his assertion of rights - he spends most of the document defending the assertion that the king HAD violated those rights, and in ways serious enough to justify revolution. That was what was at issue.

[lord of the mark]

Originally posted by Imran Siddiqui


So the Congress could not simply write law (without compelling justification) that could abrogate that right? The right simply did not apply to them at that time, according to the Supreme Court.

How could the right not apply to them at the time?