tag:blogger.com,1999:blog-1237087217187172116.post3646830900350073180..comments2024-03-27T18:18:11.525-06:00Comments on American Creation: Joe Farah Commits the Christian Nation ErrorBrad Harthttp://www.blogger.com/profile/17669677047039491864noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-1237087217187172116.post-89831705692686479772012-06-13T17:11:57.191-06:002012-06-13T17:11:57.191-06:00[Corrected for typos.]
I think the only tenable p...[Corrected for typos.]<br /><br /><i>I think the only tenable premise is that all our rights are unalienable, where there is no viable mechanism to determine what is and what is not a right.</i><br /><br />My own studies are directed at rights and "rightstalk." I do believe our modern confusion is in not being able to tell natural [unalienable] rights from political [positive] rights. <br /><br />For instance the right to trial be jury is not unalienable, it's a feature of Anglo-Saxon tradition. Many other countries use professional judges instead, and we do not call them violators of human rights.<br /><br />So to Franklin Roosevelt's reformulation of rights in the Four Freedoms, esp "freedom from want." This is the present dilemma. the right to food & shelter? Then the right to health care? The right to free Wi-Fi?<br /><br />And who pays?<br /><br />My purpose here is not to litigate the issues of our times, but to illustrate that "rights' can be inalienable or they can be conventional, i.e., the result of a convention, of politics.<br /><br />[As for Randy Barnett, his "presumption of liberty" in the Founding ignores their unspoken but understood self-limitation on it, the "natural law." The difference between liberty and license, as Locke says in another context. The "presumption of liberty" does not extend to "license." That it does is a modern---libertarian I suppose---POV and argument, not the Founders'.<br /><br />This isn't to say the Constitution prohibits such a view via legislation, only to say the Constitution does not demand Dr. Barnett's view a priori. The Constitution permits both natural law and libertarian regimes.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-43579745372361561632012-06-13T17:08:38.570-06:002012-06-13T17:08:38.570-06:00This comment has been removed by the author.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-4836136025862272902012-06-13T08:32:17.431-06:002012-06-13T08:32:17.431-06:00Michael,
It's true the DOI does say we have a...Michael,<br /><br />It's true the DOI does say we have an "unalienable" right to "liberty" in a general sense.Jonathan Rowehttps://www.blogger.com/profile/04079637406589278386noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-76366285675453562722012-06-12T21:09:39.707-06:002012-06-12T21:09:39.707-06:00Jon Rowe writes, "But certain rights are &quo...Jon Rowe writes, "<i>But certain rights are "unalienable" and hence you can't bargain with them. </i>"<br /><br />I think the only tenable premise is that all our rights are unalienable, where there is no viable mechanism to determine what is and what is not a right. One founder's argument illustrating the futility of inventorying all our rights was his right to wear his hat in his own home; how could anyone list all our rights? And then determine which is not a right worthy of government protection or a right which can be justly sacrificed by the exercise of government power? You can't.<br /><br />My argued premise* still demands that we concede a limitation and even prohibition on the exercise of our rights given the existence of government. So instead of determining what is and what is not a right, an impossible exercise, the more prudent course is to determine whether government has properly exercised constitutionally delegated powers which effectively suppresses the exercise of some people's rights. Both in terms of limiting or prohibiting the exercise of our rights in service of a government interest, e.g., raising revenue to fund the development of the common good such as roads, but also in protecting the exercise of one person's rights at the expense of another's competing right**. This approach is a far more workable model which is quite simple to execute with the exception of some competing rights debates where we ocassionally, though I think rarely, only have bad choices where in those rare cases someone's rights are unjustly sacrificed at the expense of another's - for which there is no better alternative solution.<br /><br /><br />*This idea is not original but instead heavily influenced by Randy Barnett's research on what the founders understood regarding the DofI and its relationship to the original meaning of the Constitution. This idea largely influenced the Privileges and Immunities clause, the 9th Amendment, and ultimately the 14th Amendment's equal protection clause.<br /><br />** David Souter wrote an essay recently, perhaps within the last year, about this being a very tough aspect of the job for him when he served on the SCOTUS. And yet we too infrequently frame our debates within the context the protection of one person's rights comes at the sacrifice of another's.Michael Heathhttps://www.blogger.com/profile/11378956588853976167noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-74141981493755531222012-06-12T16:33:37.257-06:002012-06-12T16:33:37.257-06:00The DOI certainly is a natural law/natural rights ...The DOI certainly is a natural law/natural rights document.<br /><br />How that works with the social contact can be complex and contentious. Man leaves the state of nature and enters into a social contract. Man gives up a portion of liberty he had in the state of nature as a trade off for a government that exists to remedy certain "inconveniences" in the state of nature. But certain rights are "unalienable" and hence you can't bargain with them. What man surrenders, what he retains, what the consequences of those unalienable rights are ... I think the Founders themselves disagreed on how it would exactly go down. Hamburger wrote a paper on it that is worth revisiting.<br /><br />But I think this is all still Locke as understood by America's Founders.Jonathan Rowehttps://www.blogger.com/profile/04079637406589278386noreply@blogger.comtag:blogger.com,1999:blog-1237087217187172116.post-86187127416483873622012-06-12T15:47:27.375-06:002012-06-12T15:47:27.375-06:00I always take "Judeo-Christian" as an ho...I always take "Judeo-Christian" as an honest acknowledgment that some Founders didn't accept the Trinity thing.<br /><br />Although "Judeo-Christian" is a neologism [invented in the 20th century], it works.<br /><br />Exc for Jefferson and Franklin [yet again], I see no evidence of other Founders believing that their own God was not the God described in the Bible. Farah has not completely screwed the pooch here, although he may be wrong on some details: <br /><br />In principle the Founders would have included Allah, I think, although they knew little of Islam. I do not recall any specific instance of a Founder denying that the God of the Muslims is not the God of Abraham and the Bible. <br /><br />And I do disagree that the D of I was a "covenant," a contract with God.<br /><br /><br />However, I also disagree that the D of I is a social contract. Unalienable rights are at odds with social contract theory---you cannot contract away a natural right, you do not bargain for your rights with the state.<br /><br />"Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone." <br /><br />---Founder James Wilson, Of The Natural Rights of Individuals<br /><br />The D of I is a natural law document.Tom Van Dykehttps://www.blogger.com/profile/07121072404143877596noreply@blogger.com