And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.
And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.
My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions.
The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime.
Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up.
In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.
"Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets?
Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.
And there are plenty of folks who believe that. If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
It comes heavily from what you've been taught is important, which, funnily enough, is culture-dependent. A good many people would, for example, argue that a person has a right to shelter and sustenance, and to demand that from others when they can't access it - but other people will argue that people have a right to refuse to give resources to others, even up to the point of refusing taxation. One might argue that one has a right to work without discrimination or harassment - others might argue in favour of freedom of association and free speech, "if you don't like it you don't have to work for them".
To move even further away from currently implemented systems, one might argue that private property is not a right, which is actually entirely reasonable - property is solely a "right" to abridge others' rights, if we're going by the "what's a right is whatever you're allowed to do if nobody stopped you" definition. We could even argue that the ability to break a contract without retribution must be protected as a right, in some schools of thought. What rights "should" be protected - and in what circumstances - winds up being a matter of the opinion of the people who decide which rights to protect. There is no formal system of logic which starts off with no assumptions, and many of the ones which back politics start off with the goal - to protect people's rights, we must... protect people's rights.
Even the idea that a founding document should primarily enumerate rights is because of what you've been taught - why not enumerate duties as well, or instead? Why not write a manifesto with a general goal and proposed method of getting there and call that your founding document? What even is the goal of a founding document?
Why is abridging your ability to do whatever you want to any degree abhorrent - and why is abridging that ability in certain circumstances not so? Is it impossible to come up with a stable system which holds up a different ideal?
I don't really expect all these questions to be answered, as the exact answers are nearly entirely pointless - the point is that these questions can all be asked and different answers can be reached, many of which make sense.
For example, an argument that nobody has a duty to feed and shelter somebody on the edge of starvation, as that harms the person doing so, entirely ignores the harm that this protected right has on the person about to die of starvation - although of course to bring that up requires that the goal of your system of protected rights is to reduce harm, which may not be the case. However, the only way "we must protect all these listed rights at all costs, ignoring all other input" makes sense is if the goal of your system is solely to protect those rights. I don't personally feel that's a very useful thing to do, as it's tautological. A good many people will disagree.
If 'right' is to mean anything, it has to basically be seen as a natural-law restatement of "If you infringe these freedoms (restrict food, etc) then the victim will try to kill you and we'll be on his side."
In that case, a right is anything you'll fight to provide to others. (That being the only long-term effective way to guarantee it for yourself as well.)
What documents? The Constitution says nothing of the sort.
> If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
To the extent that people would share common preferences as to what rights should be protected, its a matter of shared cultural norms shaped by our political/legal history; there'd also be considerable disagreement, too.
Sure you can.
> The most basic question in any government is "who has the right to rule"?
I don't think that's true. I think that you are assuming a framework of natural rights to make this statement, which is a circular argument.
> The very first line of the Constitution establishes that it is the people who hold that right in the U.S., which means they have some sort of natural rights.
Alternatively, the first line of the Constitution acknowledges the empirical fact that government is simply that which people treat as legitimate authority, and therefore, independent of any notion of right, the people have an inherent power to govern and choose their government, as any government that the people do not choose to treat as such cannot government, and anything that the people choose to treat as a government can govern, whether or not one assumes any mystical notion of pre-legal "rights".
Now, I suppose you could call this inherent, immutable power a "natural right" -- it is a real thing that really exists -- but, if so, its fundamentally different than all the other things that people hold out as "natural rights", which are not inherent, immutable powers, but instead are simply preferences for the conduct of relations between persons (including persons acting through or on behalf of "governments"), rendering the whole field a morass of equivocation.
Not true! For thousands of years, in hundreds of nations, the right to rule was divinely conferred and hereditary. The concept of natural rights was the legal invention that conferred similar rights upon everyday regular folks, so that they could self-organize to form their own sovereign government.
Sure people had done that before, but the concept of "natural rights" formalized an existing cultural convention--which is what all law does.
> independent of any notion of right, the people have an inherent power to govern
I mean, how can you have power without rights? Slaves in the American south are examples of people who did not have rights. Not coincidentally, they also had no power.
Quite easily. "Rights" are the moral (in the case of idealized views of rights, including natural rights) or legal (in the case of legal rights) authority to make a decision and expect it to be respected by others. "Power" is the practical ability to make a decision and have it take effect (whether or not others respect it, though others respecting it may be part of why you have that ability.)
Power can be a result of legal rights which may be the result of a cultural agreement on moral views of rights, but its possible for any or all of those three to vary from the others rather than reflecting them.
Sure, a slave can physically harm his master even though the slave has no legal rights. But the legal authority of his society will then fall upon him, and he will have no redress to process--like a presumption of innocence or evidentiary rules. He is property, and property can be destroyed by its owner.
Likewise, in a society in which the right to rule is conferred divinely, a king's subjects do not have the legal right to challenge the king's rulings. From a practical perspective, a populace can depose a king, but then what? If they install a new king, then that king assumes the same right to rule. If they choose to set up a republic, then they need a new basis for right to rule.
Natural rights are like the legal equivalent of a logical axiom. Legal reasoning must have a place from which to start; by asserting a small set of permanent, self-evident rights, the law has a foundation upon which to build a government of equals. Then the conversation can shift from "how does a government of equals grant the right to live" to "what are the few circumstances in which the law can impinge the right to live?"
The handy thing about the latter architecture is that the law becomes self-referential--the Constitution describes the powers and limits of the government rather than trying to comprehensively list all powers and rights of the people in all situations--which would be a much longer and more complicated list.
That's not a "right to rule" - that's being able to avoid being assassinated.
> The concept of natural rights was the legal invention that conferred similar rights upon everyday regular folks [...]
No, natural rights are more closely coupled with the invention of the crossbow.
When you exercise your equality with your rulers and choose your government you can then codify what you consider rights.
What we have now in the US is basically a guess from circa 1783, based on the prior centuries of British-American Common Law, plus a few hotfixes in the form of subsequent amendments.
This iteration has only run for 2.33 centuries, and hasn't entirely collapsed yet, but a preliminary analysis seems to indicate that the interstate commerce clause, self-reinforcing redistricting procedures, and the currency clause should have undergone a bit more scrutiny the first time around.
As for "natural rights", so long as "might makes right" is the dominant political paradigm on Earth, the natural rights are pretty much everything that people might threaten some form of rebellion over, if they were to be infringed. So there is no universal set. Different people would go to war over different principles.
If you love Taco Tuesday, and enough people share that sentiment that you would collectively present a legitimate threat to your current government if you were to actively oppose it, then you have a natural right to eat tacos on Tuesdays. Any government infringes upon that right at its own peril. That natural right is "secured" by the government only in the sense that its officers don't want to be fired (or guillotined) over a handful of cilantro. It does not secure and defend natural rights on behalf of the people, but avoids attacking them--actually just avoids presenting the appearance of attacking them--because the people will defend them if they are threatened.
So your rights did not exist before you were born. They didn't even exist as you were a baby. What you may have thought in retrospect was your right to live was actually your parents' right to not have their children killed. You didn't get any of your own natural rights until you acquired the ability to inflict some form of pain--or at least inconvenience--upon potential adversaries. Your right to yummy dessert after yucky vegetables was not defended by any government, but by the threat of the wailing, flailing temper-tantrum.
You decide what your "natural" rights are. If the government can't find some way to slot them into its existing laws, then you will eventually have a problem with each other.
Going back to the declaration of independence, the US had no more right to be independent than the Confederate States did. "After the Americans declared their independence, they had to win it by force." Similarly, the Confederate States had to do the same.
I think most of us have a strangely complacent thought process when it comes to individual rights. We think that rights are eternal and they will just exist forever. However, it seems that if we don't defend the rights they will morph or even go away if they are inconvenient to someone in power.
"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...."
This is my whole point! It's dissonant. There is no point in holding to the purist ideals of a document, if the authors themselves wrote it to ignore the invconvenient facts of life. Some people talk of the authors like they're some sort of demigods, and therefore any of their utterances are uncontestable. Highlighting dissonance like this is important it countering this trend.
The second does, the first does not.
They proposed and created a government that helped to protect the rights they had already decided to die protecting.
What are you, Locke? It's poetic, but it also doesn't have much meaning without society and governments that recognize your rights.
But it's very hard to argue that they control, because "natural rights" mean different things to different people.
(It is also the case that purported natural rights are frequently in tension with each other; there's no "natural tiebreaker" between "natural rights", which makes it hard to rely on them to resolve controversies.)
If you want to make an argument that the Constitution must implicitly protect some particular natural right not expressed in the text, it's helpful to be specific. Often, it's straightforward to infer the intent of the framers from their actions immediately after ratification.
They had some pretty specific thoughts about what 'natural' meant.
Damn whoever put this simplistic "the framers were slavers so the lessons they taught can be ignored" notion in your head. Individual freedom is not an outdated concept!
You and others here just add ignorant poison to a good debate.
> the Commerce Clause
was certainly, definitely, absolutely not understood by any notable thinker at the time of the drafting of the constitution to mean what it has been interpreted to mean today (ie, Raich v. Ashcroft etc).
I think there is basically unanimity among legal scholars on this point.