The right to life and constitutional law.

[Kidlicious]

Originally posted by Imran Siddiqui
A legal duty means you can enforce the 'right' through the legal system. Aside from what is stated in the Constitution and Bill of Rights (and the USSC's interpretation of those), can you enforce a personal liberty right?

I think the question is can the govt take away a personal liberty if it's not stated in the Constitution that they can. It's the same with the right to life.

[Imran Siddiqui]

Originally posted by Kidicious
I think the question is can the govt take away a personal liberty if it's not stated in the Constitution that they can. It's the same with the right to life.

Well they can take it away using something like the commerce clause . Or are you saying if it doesn't fit in that?

Well, you must consider the states as well. They can take away any personal liberty they want, aside from being prevented by specific liberty rights stated in the Constitution (and/or articulated by USSC) or their own state constitutions.

Originally posted by Zkribbler
It a flop-sde thing....you infringed on my common law right of liberty by falsely imprisoning me!

There is no such thing as a common law right of liberty, however.

[Zkribbler]

Originally posted by Kidicious
I think the question is can the govt take away a personal liberty if it's not stated in the Constitution that they can. It's the same with the right to life.

The "necessary and proper" clause swings broad and wide.

Slip troopship movements to the enemy, you die.
Shoot the President. Ditto.

[Kidlicious]

Originally posted by Imran Siddiqui
Well they can take it away using something like the commerce clause . Or are you saying if it doesn't fit in that?

Well, you must consider the states as well. They can take away any personal liberty they want, aside from being prevented by specific liberty rights stated in the Constitution (and/or articulated by USSC) or their own state constitutions.

My point is that there has to be proper justification for it. They don't need as much justification to take away liberty, but they damn sure do to take away life. That's up to people's judgement. Generally speaking we all have personal liberties because of the way this country was founded. It's a social norm.

[Imran Siddiqui]

Originally posted by Kidicious
My point is that there has to be proper justification for it. They don't need as much justification to take away liberty, but they damn sure do to take away life. That's up to people's judgement. Generally speaking we all have personal liberties because of the way this country was founded. It's a social norm.

Ok, that I agree with. But it's a far different thing than saying it's law.

[MrFun]

Wow . . . . . .

I'm not sure I can completely catch up with my own thread now but I have read most of LoTM's arguments and Imran's arguments. LoTM has done an excellent job in articulating a similar opinion I hold in regards to natural rights tied with organic laws.

We could probably find and point out lawyers who would disagree with Imran's textualist viewpoint, and thus, who would agree with myself and LoTM?

[lord of the mark]

Originally posted by Imran Siddiqui


There is no such thing as a common law right of liberty, however.

How does Blackstone, chapter 1, relate to this statement?

[Odin]

I've allways found funny that people whine about other people or the government messing with they're "God given rights" even though the law isn't a holy thing and that that right doesn't even exist. Probably comes from our country's obsessive libertarian streak.

[Kidlicious]

Originally posted by Imran Siddiqui


Ok, that I agree with. But it's a far different thing than saying it's law.

The law is more than written rules. As long as it is understood what the rule is and that there will be punishment then a social norm is law.

[Ben Kenobi]

Pekka:

Yes, so right to life is not basic right. By basic right I mean rights that can't be taken away, like humane treatment etc.

In theory, and practice, it's a right that can be taken away. It's a matter of principle, the state has been givent he right to take a life of a citizen away. IT doesn't matter if you think it's right or wrong, that's the way it is.

If we accept your definition Pekka, that means there are no rights which are basic. The state can take away humane treatment just by treating people cruelly.

I think a better definition, is that even if a person loses his life, he has not lost his right to life. This is why they punish people who have killed someone, because they have violated the rights of another. The same with liberty, the state can abrogate liberty, but I can't say that it means there is no longer any right to liberty.

Besides, killing is illegal anyway, no one (oops, except state) has the right to kill you. Unless in self defense. Paper doesn't protect life anyway and makes no changes to practice, so why make that paper, I see no reason for it at all.

Why does the state have the right to kill you? If the state has this right to kill, then why shouldn't the citizens?

[Ben Kenobi]

You do realize that 1/3rd of the population were loyalists and were not swayed by this unalienable rights idea, for instance. Because a few intellectuals believed a certain ideal was obvious, does not indicate any general acceptance. I'd say the greatest beef of most people was the fact they didn't get their own say in governance, not that they didn't have a right to life, liberty, and property.

Why do you attribute 'loyalists' to the rejection of unalienable rights? Loyalists are those who rejected the Republican government, and the authority of the Republic over that of the monarchy.

And to this day, there is no right to life for American citizens. There are laws against murder. If a state decided to abolish all its laws against murder, it wouldn't be struck down by any court as being against some "right to life".

Again, this depends on how you read into the part saying due process of law. People can lose their right to life only by violating the rights of another, much the same that people who violate the liberty of someone else, lose their own liberty.

Yet would you say Imran, that there is no inalienable right to liberty?

[Ben Kenobi]

"God given rights" even though the law isn't a holy thing and that that right doesn't even exist. Probably comes from our country's obsessive libertarian streak.

Um, Odin you might want to read up in the thread. The whole concept of 'organic' rights is that there are rights that are given to us by God, and not society. You are free to deny the existence of such right, but that doesn't preclude you from understanding that it is not the law itself that would grant 'organic' rights.

[lord of the mark]

[QUOTE] Originally posted by Imran Siddiqui

And of course it wasnt adopted by any european country. It was a revolutionary doctrine.

Is not revolutionary a similar thing to novel?

No. A revolutionary doctrine is one which will overturn the established order. A novel doctrine is one which is new.

Im getting the impression you dont read alot of history of this period, or have a very good idea of what the intellectual climate was.

You do realize that 1/3rd of the population were loyalists and were not swayed by this unalienable rights idea, for instance. Because a few intellectuals believed a certain ideal was obvious, does not indicate any general acceptance. I'd say the greatest beef of most people was the fact they didn't get their own say in governance, not that they didn't have a right to life, liberty, and property.

First not all loyalists would have rejected the natural rights doctrine. Some, like John Dickinson, accepted the doctrine, but didnt feel the denials of rights were strong enough to justify the consequences and costs of war.

In any case we were talking about whether the doctrine was taken for granted by the framers. You pointed out that between 1776 and 1789 the words of the DOI were not used much in discourse. Since the political discourse of the country in this period that Maier is referring to is non-loyalists, and since the framers are non-loyalists (or in the case of Dickinson, a pro-natural rights loyalist) i dont see how the denial of natural rigths by say, Thomas Hutchinson, matters.

BTW, the 1/3 number is wrong. Its a misunderstanding of a quote in a John Adams letter.

And to this day, there is no right to life for American citizens. There are laws against murder. If a state decided to abolish all its laws against murder, it wouldn't be struck down by any court as being against some "right to life".

Thats the crux of the argument, and an assertion i have difficulty with.

[lord of the mark]

Originally posted by Imran Siddiqui


What prevents a private citizen from restraining speech peacefully (through media boycotts or whatnot)? NOTHING.

Rights are only things you can claim against a government. You can't claim a right to life violation against a murderer. It doesn't work that way.

1. Common law would, IIUC, see a boycott not as restraint on liberty, but as an expression of the right to property. The question is what prevents a private citizen from restraining speech by violence.

2. Yes. The question is if the govt refuse to protect you against murder, do you have a claim against the govt for that failure.

You are aware that in medieval England, one of the ways of punishing someone was for the govt to declare someone "hors de loi" outside the law - someone in that position could be attacked with impunity - the attacker would not be subject to punishment. IIUC this had to be done with due process, at least according to the common law courts.

less relevant, as not directly pertaining to the common law tradition, but worth mentioning, you know also that one of the shocking things about Kristalnacht was that the govt of Germany did not prosecute acts of violence against Jews. Jews were outside the law. This triggered a significant emigration. Similarly in pre civil rights era south, lynching was accomplished by private citizens. This was widely condemned by enlightened opinion in the north as a violation of civil rights.

[lord of the mark]

"Laws
For most of the history of the United States, lynching was rarely prosecuted, and when it was, it was under state murder statutes. In one extraordinary example in 1907-1909, the Supreme Court tried its only criminal case in history, 203 U.S. 563 (U.S. v. Sheriff Shipp). Shipp was found guilty of criminal contempt for lynching Ed Johnson in Chattanooga.

Starting in 1909, over 200 bills were introduced to make lynching a federal crime, but they failed to pass. During the Roosevelt administration, the Civil Rights Section of the Justice Department tried, but failed, to prosecute lynchers under Reconstruction-era civil rights laws. The first successful federal prosecution of a lyncher for a civil rights violation was in 1946, and by that time, the era of lynchings as a common occurrence was over."