Skip to main content

I maintain that the zeroth principle of Constitutional law, indeed all law, is Catch-22:

We have a right to do anything you can't prevent us from doing.
The zeroth question thus becomes, "How can we prevent them from violating our rights, or punish them for doing so?" In other words, what remedies do we have?

In conventional legal language, this is the Roman legal maxim

There is no right without a remedy. Ubi jus ibi remedium.
I go further: the substance of any supposed right consists of nothing other than its remedies.

There are many philosophical, even theological theories of human rights. They are bushwah. Rights are not things with independent existence. You do not have rights. God did not give you rights. Government did not give you rights by saying you had them. The law by itself does not give you rights. There are no inherent rights. There are only remedies or the lack of them. Again, the law does not give you self-working remedies. Remedies, and thus rights, are complex constructs based primarily on political will.

Those are strong claims needing strong evidence, and a counter-theory that actually makes sense of what rights are, what they are good for, and how to get some. Which requires a trip past the orange thingamawhatsis.

Furthermore, I contend that the only way we get rights is by taking the trouble to give them to each other—over and over and over…because political will from the Founding Fathers is bupkes. Even yesterday's political will is worthless if you won't turn out today to assert it yet again.

Never mind supposed Constitutional Originalism or the Intent of the Founders, or even the plain language of the law. It does not in fact matter what the Constitution or laws or treaties say on their faces when Supreme Court justices can just make up legal doctrines with impunity. What matters is what you can prevent them from doing, now or in the future, by sustained, organized action. Can you enforce any kind of legal or moral right when they pretend to apply their laws to you, or simply usurp power and don't even bother with pretense? What does that take, and how can you do it? What are the remedies?

My principle, that rights consist only of the remedies provided to prevent and punish violations, is an instance of the Feynman Thesis, propounded by physicist Richard Feynman's father. He taught his son that the name of a thing conveys no information. What counts is its behavior. This concept has been used in a variety of branches of mathematics since the 19th century, saying for example that points and lines in geometry are not defined by some metaphysical substance, but by the question whether they obey certain axioms for particular kinds of geometry.

Similarly, it does not matter what the law says on its face. What counts is how it functions in court and in society. Can you expect the police or other arms of government to respect your rights? (Some, for some people, some of the time, but certainly not all.) Can you get a court to tell them in a timely manner to respect your rights? (Maybe. It could take a while. They could decide to ignore the courts. Eisenhower had to send troops to enforce school desegregation.) Will violators of your rights be punished? (You're joking, aren't you?) Would a new Administration better respect your rights? (That can go either way.)

Let's try an example. The Soviet Constitution guaranteed Freedom of Speech. This clause could not be asserted in a Soviet court. Attempting to insist on it would have gotten a lawyer the Communist equivalent of contempt of court, which at some times could include a stretch in prison in Siberia alongside his client.

That's clear enough, isn't it? But you might think that that was just the lawless, evil Soviet Communists, not the good old US of A. Well, then, try this bit of Constitutional Originalism:

[Blacks] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.[Emphasis added] He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.

Fact-challenged Supreme Court Chief Justice Roger Taney, in Dred Scott v. Sandford, ignoring the plain words of obviously unimportant people like Founding Fathers and Presidents George Washington and Thomas Jefferson, themselves slaveowners who detested slavery, as well as every other early President.

Yes, yes, but that was then, and we fixed that with the Reconstruction amendments. What about now?

Not so fast. How much do you know about Jim Crow, Separate But Equal, and the Klan? It took nearly a hundred years after the Civil War before we could end lynching, allow interracial marriages, fully desegregate the military, mostly desegregate most of the South, and give Black citizens the actual ability to vote. Then we got the Republican Southern Strategy, so we are still fighting on desegregation, economic rights, and voting today. And Driving While Black, Stop and Frisk, and a multitude of other indignities and injustices. And the rights of other minorities, women, immigrants, and more recently LGBTs.

But all right. What about now? Allow me to introduce you to Justices Antonin Scalia and Clarence Thomas, who are hostile to every right of minorities, women, and so on, and only support rights of the rich and powerful, of their preferred sort of Christian, and of corporations, or at best rights that are neutral in application, such as the right not to have a drug-sniffing dog on your front porch without a warrant. These two were put on the court specifically in support of the Republican Southern Strategy of racism, bigotry, intolerance, misogyny, More Guns More!, and kleptocracy, and even more specifically in the hope of getting a majority for overturning Roe v. Wade and plunging us back into the horrors of back-alley abortions. (Roberts, Alito, and Kennedy are bad, but not as bad as those two.)

In short, if the Constitution, a statute, or a treaty says you have a right, and the Supreme Court says, "Nuh-uh!" then you don't have that right until we can get a new Supreme Court majority or somehow amend the Constitution, which is much, much more difficult. (I'm holding out for replacing Scalia and Kennedy, the oldest on the conservative side, within the next ten or twelve years. Even if that means hold your nose and vote for Hillary.)

Worse yet, hyper-activist Conservative judges on the Supreme Court have held that the protections for ex-slaves and their descendants put into the Constitution in the wake of the Civil War really are meant to protect corporations and to make them More Equal than the rest of us. It goes back to Santa Clara County v. Southern Pacific Railroad, where the court reporter noted

One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.
Note that that was not even a decision of the court, merely an assumption, like Taney's assumptions about the treatment of slaves. This pernicious doctrine resurfaced in Citizens United, giving corporations the right to make unlimited political donations.

Rights in History

The earliest known governmental assertion of a right of freedom of conscience was in the reign of the Buddhist monarch Ashoka in India in the third century BCE. There was some talk of rights for women, children, the poor, and foreigners in the Hebrew Bible (Tanakh) and in Athenian philosophy and tragedy, notably The Trojan Women of Euripides (adding prisoners of war), but little came of it at the time. There were a few glimmers in the Roman Republic before it went all Imperial. The Qur'an asserts that there can be no compulsion in matters of religion, a doctrine occasionally taken seriously, but usually roundly ignored in Muslim societies ever since.

The modern era in human rights began after the printing press enabled Martin Luther's doctrine that every Christian had to read the Bible and come to his own understanding in dialogue with God, in opposition to the Catholic Church dogma on dogma. This had little practical effect in countries where the Lutheran church became established as the state religion, but took hold in the Netherlands during the Eighty Years War against Spain. Causes of the war included the Spanish Inquisition and the insanity of Spanish Imperial economic theory. Spain forbade spending any of the riches from South America outside the Empire, thus giving rise to the greatest inflation in history before the 20th century. The Lutheran teaching also took hold among Scottish Presbyterians, who made it the basis of their public school system, the first in the world. This became the foundation of the Scottish Enlightenment and thus of much of modern economic and political thought, including Adam Smith railing against subsidies and other economic favors demanded by the rich of their governments, and against income inequality.

Everything for ourselves, and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.
Notions of Natural Rights and God-given rights were of considerable rhetorical use in the 18th century (growing out of the declarations of Freedom of Conscience and Freedom to Trade in the Netherlands in the 16th century), when trying to convince people that human rights are prior to human law, and should be given force in the law. Thus Jefferson in the Declaration of Independence:
We hold these truths to be self-evident:

That all men[sic] are created equal.

That they are endowed by their Creator with certain unalienable rights.

That among these rights 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.

  • None of this was or is self-evident. If it had been, the Greeks, at the latest, would have figured it all out when they invented logic. It is true that for a substantial segment of European populations hearing this doctrine for the first time resulted in immediate agreement.
  • Jefferson clearly did not mean to include women, slaves, Native Americans, and a whole lot of other people in "all men". Those would have been abominations to most of his readers, as equality of Blacks was later to Taney.
  • The mythical notion of God-given rights has been perverted in our time to hold that rights can only come from God, and therefore supposed human rights that contradict some perverted view of the Bible are not human rights at all, but Human Wrongs.
  • The notions of God-given rights and Natural Rights imply that they should be self-enforcing without the intervention of laws, courts, and police powers. This is obviously not the case.
  • If life were an unalienable right, the death penalty would be self-evidently illegal, and we would have gotten rid of it long ago. Similarly for endless restrictions on an assortment of Liberties, and especially the Pursuit of Happiness. The best we can do is to make Life, Liberty, and the Pursuit of Happiness into rights, but they are obviously not in the US Bill of Rights, nor are they in the UN Declaration on Human Rights.
  • The history of government is the history of tyranny, with many variations, but only rare exceptions until quite recently. Governments continue to be instituted by elites who ignore most of the people, as in Egypt, or by conquering powers, as in Iraq.

But never mind that the doctrine of the Declaration is all political fantasy. It served its purpose, which was to gain support for the American Revolution in the colonies and abroad, and to create a new political reality when the Revolution succeeded. It was an important part of creating a presumption in favor of civil rights among much of the population, and of government protections for those rights. It led fairly directly to the inclusion of a number of somewhat vague rights later on in the body of the US Constitution, and more in the Bill of Rights. That led eventually to expansion of those notions in further Constitutional amendments, in laws, in treaties, in court decisions, and in the history of much of the world outside the US, a process still in the early stages of unfolding.

The point about instituting governments to protect rights had historical precedent in the Netherlands and in a number of philosophers, but as an official political theory was really invented in the Declaration. Attempts to do this became common practice, with massive, even monstrous failures in almost all cases from the late 18th century up to the fall of the Soviet Union, and a fair number even today. France, back then, for starters, with the Terror and then Napoleon. Then the Bolivaran revolutions in Latin America, for example, leading to corrupt oligarchies and then banana republics, and so on down to Iraq, Afghanistan, and Egypt today. But democracy and human rights have taken hold to a fair degree in much of Latin America and some parts of Asia and Africa in recent times, and there is reason to hope for more, as the example of Myanmar shows. Maybe even in North Korea, the worst of the holdouts, at some unknown and unknowable time in the future.

We are in a highly anomalous period when we look at it this way. Our current notions of democracy, of republican government, and of human rights are only a few hundred years old, and have evolved massively in that period. Mechanisms for enforcing those principles are mostly even younger, and we are nowhere near done codifying the rights needed and the remedies for keeping them.

Defining and Defending Our Rights

A full history of human rights would not be a book, nor even an encyclopedia. It would be a library, a substantial one. But the above is enough for us to begin examining our problem. At least we can start asking some of what I take to be the right questions.

  • What makes a right a right?
  • How are rights defined and recognized?
  • How are rights adopted?
  • How are rights enforced?
  • What are the basic human rights?
  • Are there more rights to come?

Let's start with the last one first: Yes, although not in this Diary. If you have a better idea, don't let me stop you working on it. Feel free to mention it in the Comments, and please write your own Diary. Certainly when we get to agreement on some of the existing rights, and can enforce them fairly widely, we will recognize that they are not enough. This will particularly be the case when we put an end to poverty and all of its miseries and associated ills. But there is more than enough for us to do without getting to that question.

So, back to the beginning of the list.

Rights are human social constructs with no material or metaphysical existence. Some of us decide that there should be a right, and how we want to go about making it a law with remedies for enforcing it. A right becomes a right when it enjoys majority, or (depending on the laws) supermajority support among a population that has the recognized right to set forth the new right and a set of remedies as such and require enforcement. The relevant population may be the voters in a state or country or the members of a state or national Supreme Court in a country that accepts the notion of the rule of law. The process typically takes about fifty years.

A leading example is citizens in US states under the Articles of Confederation making their views known in insisting on a Bill of Rights to be added to the Constitution as a condition of ratification, after something like fifty years taken up with agitation for rights under the Crown, rebellion, and the failure of the Articles of Confederation. Southern secession and rebellion in the Civil War cleared the way for the passage of the Thirteenth Amendment abolishing slavery after four score and seven years, and ratification of the Reconstruction Amendments was made a condition of re-entry to the Union for states that had tried to secede. The right to vote for Senators via the Seventeenth Amendment, instead of having Senators appointed by state legislatures, was far less controversial.

The Supreme Court struck down anti-miscegenation laws in Loving v. Virginia long before public opinion on the matter came around. Similarly, ending school desegregation in Brown v. Board of Education, and legalizing abortion and contraception (Roe v. Wade and Griswold v. Connecticut) got way out in front of public opinion in certain parts of the country. Gay marriage won in Iowa via its Supreme Court before it was ratified by legislatures or the public elsewhere.

Dissenters have the right to try to roll back new rights, and usually do try, sometimes for decades or longer. Sometimes dissenters win, as with the repeal of Prohibition, and the undoing of rights of slaveowners and slaveholding states in the original Constitution. Voters turned out several Iowa Supreme Court justices, but one has survived recall and others seem likely to, and their decision has not been overturned via proposed Constitutional amendments. Sometimes the bad guys attempt to repeal fundamental rights, like Habeas Corpus in the Bush Administration.

We can discuss the meaning of the Second Amendment, and whether it is needed any more, or is an impediment to other more important rights, or whether we can get adequate gun safety laws while leaving it in place. (Yes, RKBAers, I am well aware that that is heresy. The Slippery Slope argument is Conspiracy Theory, pure and simple. Scalia says we can regulate guns without violating the Second Amendment. Deal with it.)

Rights have a variety of remedies, all based on the fundamental design of checks and balances in government. In the best case, they are simply accepted. I have not heard anybody suggest bringing back drawing and quartering. Next best is to have rights enforced through government police powers and others, where they are willing, even against other branches of government. Hence preclearance under the Voting Rights Act. In other cases, we must seek remedies in the courts (where administrations are not willing) with the aid of civil society organizations such as the ACLU, the NAACP Legal Defense Fund, the Southern Poverty Law Center, environmental organizations, women's rights organizations, LGBT rights organizations, and so on. All of that is enforced, or not, by popular will expressed through political and issue organization to undo unjust laws and pass better ones, and to get them enforced. It is a vitally important remedy that a minority of committed citizens can enforce many of the rights of all citizens in court, with only a minority of government bodies openly defying most court decisions.

It's complicated.

The ultimate check and balance is the authority of the voters to throw the rascals out and elect a better class of rascal, assuming that we can vote and that our votes count, which has historically been increasingly the case, mostly. Hence fixing voting systems in the Senate (the filibuster) and in elections (the gerrymanders, voter ID, denial of service attacks under cover of law, etc.). And thus Better and More Democrats, which is where we all came in.

Guns, health care, voting rights, union rights, Social Security, Medicare, disability, unemployment insurance, workers compensation, the VA, immigration, abortion, contraception, marriage equality, education, pollution, speech, religion, torture, habeas corpus, search warrants, enemy combatants, war powers, drone killings, profiling, subsidies and tax breaks for corporations and the rich, insider trading, regulatory capture, perverse incentives, Too Big to Fail/Jail. Among other things. You may remind me if I left your issue out. It wasn't for lack of regard. I did think my list had gone on long enough to make the point.

Any questions?

Originally posted to Mokurai on Mon Apr 29, 2013 at 09:00 AM PDT.

Also republished by Political Language and Messaging and Community Spotlight.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Mokuri - enough material for five good diaries (3+ / 0-)
    Recommended by:
    k9disc, Nattiq, Mayfly

    It was too long to keep my interest.

    "let's talk about that"

    by VClib on Mon Apr 29, 2013 at 09:48:59 AM PDT

    •  too long to NOT keep my interest (3+ / 0-)
      Recommended by:
      Mayfly, greenotron, 207wickedgood

      Great diary!

      Any sufficiently advanced technology is indistinguishable from magic. -- Arthur C. Clarke

      by mathGuyNTulsa on Mon Apr 29, 2013 at 01:05:35 PM PDT

      [ Parent ]

    •  I had to start somewhere and lay it all out (3+ / 0-)
      Recommended by:
      Mayfly, VClib, rktect

      I do intend to write about some of these points separately, with this as a basis to refer to.

      Perhaps you can read it in pieces?

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Mon Apr 29, 2013 at 03:38:39 PM PDT

      [ Parent ]

    •  TLDR? (0+ / 0-)

      YMMV, but I found it engrossing. I think it is important to understand the basis of the rights that we fight for, to better argue for and support them.  Others may have the ability to summon memorized arguments to help sway the undecided or counter ideological foes, but I have to really understand something before I can teach it.  This diary helps me in that regard and I'm going to hotlist it and refer to it often.

      Thank you for such a thought-provoking diary!

      -7.38, -5.38 (that's a surprise)

      Why must we struggle to protect the accomplishments of Democrats of the past from Democrats of the present? -- cal2010

      by 84thProblem on Tue Apr 30, 2013 at 05:17:53 AM PDT

      [ Parent ]

  •  Good post. (6+ / 0-)

    I too have argued that there is no such thing as natural rights. My argument always rested on the use of power to grant and protect rights. Without power, you have no rights. Whether power is vested in a system of laws, a court, a religion, a person or a group it matters not. The issue is tied to an emerging human consciousness that ebbs and flows through time giving and taking rights as power shifts over time. I buy most of your argument here. One of my favorite retorts to anyone who said our Creator gave us rights is the lack of evidence for these rights in any religious text. Jesus did not give a sermon on what God gave us in terms of rights and had he done so, it would not have been the BOR. Well done.

    Do facts matter anymore?

    by Sinan on Mon Apr 29, 2013 at 10:06:26 AM PDT

    •  I agree with your comment. (3+ / 0-)
      Recommended by:
      Wood Dragon, Mayfly, rktect

      This is a really good, thought-provoking diary.

      •  Rights aren't rights if someone can take them away (0+ / 0-)

        laws aren't laws if they can't be enforced

        Live Free or Die --- Investigate, Incarcerate

        by rktect on Tue Apr 30, 2013 at 03:19:09 AM PDT

        [ Parent ]

        •  Then, perhaps, there are no rights? I think (0+ / 0-)

          that was the point of this diary; to help understand what a right is. If they are indeed something that cannot be taken away, then there are no rights.  You may be thinking of those 'inalienable' rights that Jefferson tried to enumerate. The diarist showed that they are not inalienable at all, but can be denied like any other.  The only rights we have are those that we agree we have.

          -7.38, -5.38 (that's a surprise)

          Why must we struggle to protect the accomplishments of Democrats of the past from Democrats of the present? -- cal2010

          by 84thProblem on Tue Apr 30, 2013 at 05:26:14 AM PDT

          [ Parent ]

    •  Might makes right(s). n/t (1+ / 0-)
      Recommended by:
      rktect

      What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

      by happymisanthropy on Mon Apr 29, 2013 at 01:57:56 PM PDT

      [ Parent ]

      •  But not arbitrary might (3+ / 0-)
        Recommended by:
        84thProblem, Sinan, shaharazade

        We are talking about organized and limited remedies agreed on by the people and various organs of government, including in various degrees and modes legislatures, administrations, and courts. Thus the First Amendment limits both the power to establish a religion and to interfere with the practice of religion, and says that neither right overshadows the other. Then we have to work out in detail how to observe both rules at the same time, with remedies, and also how to observe many other rules that prevent one group's religion from infringing on other groups' rights, and provide appropriate remedies in such cases, too.

        Ceterem censeo, gerrymandra delenda est

        by Mokurai on Mon Apr 29, 2013 at 04:56:51 PM PDT

        [ Parent ]

        •  Why not arbitrary might? n/t (0+ / 0-)

          What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

          by happymisanthropy on Mon Apr 29, 2013 at 06:14:05 PM PDT

          [ Parent ]

      •  There is that right makes might thing (1+ / 0-)
        Recommended by:
        shaharazade

        where political power is the ability to persuade and laws and rights are what show who has the power

        Corporations have apparently always known that the laws that apply to us don't apply to them, and yet they have persuaded us to accept our subservient position.

        I think that may be changing as we perceive that we have more and more laws taking away our freedoms, and fewer and fewer rights and get pissed off about it to where we feel obligated to challenge the current state of affairs

        Once we are all persuaded that the government is powerless to stop us if we all act together to redefine what is right and proper, that they can't stop and ticket everybody driving faster than 55 MPH, drinking and driving, not wearing seat belts, texting or smoking pot we get to where we begin to self regulate according to our own sense of what is right and proper and ignore their input.

        When we are right we are right and that gives us might.

        Live Free or Die --- Investigate, Incarcerate

        by rktect on Tue Apr 30, 2013 at 03:35:52 AM PDT

        [ Parent ]

  •  Interesting discussion (5+ / 0-)

    I believe that "rights" come about because they are a reproducible result.   In other words, when you place separate people into certain situations, the majority of them will arrive, independently, at certain conclusions.    If people are locked up, and feel they have not done anything wrong, for instance, they will form the thought, "There should be a fair, objective and reproducible way to decide who has done something wrong and deserves to be locked up", which evolves into a "right to a fair trial".    

    I also believe that our ideas of "rights" come from our instinctive social nature, and a certain activity that occurs in our brain called "empathy" in which our brain seeks to emulate what it guesses that another person's brain is doing, when it perceives a person in a particular situation.  

    These forces, our social nature and our empathy, are in a tension with other forces, such our tendency to be dominant, and our tendency to be territorial, and certain instinctive tendencies to "cull the herd" and reject what is different.  And, so we get social issues like "slavery" derived from our nature to dominate and the rejection of what appears different, in tension with social issues like "civil rights" -- derived from our social nature and empathy.  

    From another perspective, there is an interesting free online essay called The Myth of the Right To Life that looks at rights from a slightly different perspective, by asserting that a "right" is actually an obligation on another person.    For instance, in order for you to have a "right" to shelter or health care, that places an obligation on others to provide you with shelter or healthcare.   Other people have to gather resources and then give them to you.    For that reason, I observe that our rights tend to be delineated more in terms of a more passive granting of rights, such as a right to "free speech" or to "bear arms".  These rights only demand of others that they do not interfere in your actions, but does not place an obligation on others to give you anything.

    We are not so entirely comfortable with the type of right that requires one individual to transfer wealth to another, that we would often delineate such rights in our Constitution.  

    It is an interesting subject.   Thank you for the diary.

  •  So if we have no rights (1+ / 0-)
    Recommended by:
    Mokurai

    How can they be protected? Does the Constitution protect nothing? Is it just 1 preamble, 3 articles, and 27 amendments of professionally written words?

    •  No, we're going to conserve (0+ / 0-)

      the core constitutional precept of government continuing to serve and protect the rich.  Everything else is negotiable.

      What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

      by happymisanthropy on Mon Apr 29, 2013 at 02:00:03 PM PDT

      [ Parent ]

    •  Constitutional rights do not exist solely (1+ / 0-)
      Recommended by:
      84thProblem

      because the Constitution says they do, but they exist when remedies exist. Society, or a Supreme Court, can deny the plainest statement of rights, as in slavery going back centuries, followed by Jim Crow for a century, and other injustices against Blacks since. But we can enforce our rights when we have a voting majority, in the simplest case; or sufficient organization and willing courts and administrations willing to send troops, if necessary, to back up Court decisions.

      I laid out the barest facts in several such cases, and there and multitudes of others. I also listed a number of rights that are still contested, where the basic remedy is Better and More Democrats to elect Administrations and Legislatures willing to appoint better judges (and a lot more of them that Republicans have let past the filibuster).

      Because Democrats are now the party of Human Rights, and Republicans, having thrown Lincoln under the bus, are the party of racism, bigotry, misogyny, More Guns More!, and kleptocracy.

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Mon Apr 29, 2013 at 04:06:37 PM PDT

      [ Parent ]

    •  No way. The constitution has (0+ / 0-)

      SEVEN articles.  ;-)

  •  Somehow, "rights" are tied to needs. (1+ / 0-)
    Recommended by:
    Mayfly

    Since people need resources to live and grow and develop as an individual, they have needs for air, water, foot, shelter, a community where they can learn, grow, and reproduce.   What they struggle to obtain for survival and growth, and what can be used to motivate them.

    A nation state seems to bestow what is needed, or 'rights' to the individuals according to what that nation state needs to grow, expand and develop its powers.

    When a nation state needs a strong army, it seems to bestow the best food, the most space, the greater personal freedoms to men who will be, and are, soldiers.  When that state needs a population, it bestows more 'rights' to babies, a lesser population it bestows rights to mothers to have jobs outside the home.  

    I'm thinking that rights depend upon the will of the larger human 'organisms' of community and nation state, not on the right of individuals or smaller seqments of the society.

  •  A very thought provoking diary. (2+ / 0-)
    Recommended by:
    Mayfly, Mokurai

    I see this all the time. People supposedly "have rights." But there are neither remedies or penalties. And without a system of remedies or penalties, then the rights have no meaning, and possibly no ability to be utilized.

    Examples: here in California, felonious activity  committed by paid employee of the Marin County Calif Voter of Registrar Office, Election Day 2004. A whole lot of witnesses saw the activity that occurred.

    The D.A. of Marin wanted to prosecute said employee. But only the FBI can institute the crime report, regarding this aspect of voting law. And since they had no interest in hurting the Republicans, (this woman was a Republican,) the report was never taken, and the case never even began.

    And regarding many voting matters,there are no penalties - or else very minor ones. Steal an election; get a dirty look!

    Currently people in California who apply for Food Stamps must have  a decision in 30 days, or 45 days at the most. Yet some cases drag on for over 70 days. And the offended party can initiate an action called a Hearing, but there is NO penalty to any County that drags its heels.

    Offer your heart some Joy every day of your life, and spread it along to others.

    by Truedelphi on Mon Apr 29, 2013 at 01:54:16 PM PDT

  •  But (2+ / 0-)
    Recommended by:
    Mayfly, shaharazade

    if rights are defined by the ability to enforce them, then the authority of a democratic society to create and enforce rights democratically is no more legitimate than the authority of a military dictator to create and enforce rights by fiat.

    If you start by denying any metaphysical legitimacy of rights, why do you get to assert metaphysical legitimacy for democracy?

    What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

    by happymisanthropy on Mon Apr 29, 2013 at 01:57:19 PM PDT

    •  Who says that democracy needs metaphysical (1+ / 0-)
      Recommended by:
      84thProblem

      legitimacy? Democracy works.

      Well, all right, as Churchill repeated from some earlier wise person, Democracy is known to be the worst system of government known to man, excepting all of the others that have been tried from time to time.

      My mother taught high-school civics, and she would sometimes begin with the statement, "Everybody knows that aristocracy is the best possible form of government, as long as you and your friends get to be the aristocrats." Tyranny, oligarchy, aristocracy, and so on seem delightful to the utterly selfish when they are the tyrants, oligarchs, aristocrats, etc., but are highly objectionable to everybody else. Democracy is far less objectionable, even if nobody is satisfied with it. In fact, the principal objections to democracy and human rights come from the minority of the utterly selfish.

      Every tyranny claims metaphysical legitimacy. Read Plato (The Laws and The Republic) and Hegel (The Phenomenology of the Spirit), in particular. Fichte, too (Lectures to the German People), although he is not so well known today. Here is his take on the Prussian education system.

      You must fashion [the person], and fashion him in such a way that he simply cannot will otherwise than what you wish him to will.
      And Dominionists and Theonomists like R. J. Rushdoony (The Institutes of Biblical Law), a leading proponent of Christian homeschooling.

      We are much better off without faith-based politics.

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Mon Apr 29, 2013 at 04:40:11 PM PDT

      [ Parent ]

      •  If "working" is sufficient justification (1+ / 0-)
        Recommended by:
        shaharazade

        then if a democracy falls to fascism, there's no cause to mourn it, it simply "didn't work," and fascism is working better.

        What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

        by happymisanthropy on Mon Apr 29, 2013 at 06:18:47 PM PDT

        [ Parent ]

      •  Adding this to my little collection of quotes - (0+ / 0-)
        In fact, the principal objections to democracy and human rights come from the minority of the utterly selfish.

        -7.38, -5.38 (that's a surprise)

        Why must we struggle to protect the accomplishments of Democrats of the past from Democrats of the present? -- cal2010

        by 84thProblem on Tue Apr 30, 2013 at 05:36:24 AM PDT

        [ Parent ]

  •  Maybe "human rights" are better understood through (0+ / 0-)

    anthropology rather than philosophy.  

    Fiscal conservative: a Republican ready to spend $5 to save a dime--especially if that dime is helping a non-donor.

    by Mayfly on Mon Apr 29, 2013 at 03:37:24 PM PDT

    •  You have said either too much or too little (0+ / 0-)

      Please amplify. Certainly I agree with your sig on the Republican approach to human rights, where they particularly favor the "Liberty" to deny others their rights.

      Ceterem censeo, gerrymandra delenda est

      by Mokurai on Mon Apr 29, 2013 at 05:02:59 PM PDT

      [ Parent ]

  •  Public opinion is whimsical. Sedition Act,Japanese (0+ / 0-)

    internment, to name a few, we're widely popular. I would prefer my rights not be defined by a plurality of the moment. Even the affordable health care act was widely disapproved by a majority, yet it established a framework for the right to universal health care.

    "If the past sits in judgment on the present, the future will be lost." Winston Churchill

    by Kvetchnrelease on Tue Apr 30, 2013 at 06:07:41 AM PDT

  •  You remind me of my Federal Jurisdiction (0+ / 0-)

    professor from law school.  I thought I escaped "ubi jus ibi remedium" when I graduated.  

    Definitely a lot to think about here, but also some stuff to clarify...

    "In short, if the Constitution, a statute, or a treaty says you have a right, and the Supreme Court says, "Nuh-uh!" then you don't have that right."  Under what circumstances does this happen?  The Supreme Court isn't in the business of striking down laws unless the law violates some provision of the Constitution.  If federal law say, says you have the right to a preliminary hearing in a criminal case within 14 days of your arrest, the Supreme Court can't just swoop in and say that you don't.  

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site