New GOP Tactic: Encourage revolution via billboard.

[Yona]

I know I concentrated somewhat on the ease of alteration but the crux of my point was "a right that is hard to touch is a right that is all the more secure." This was meant as an argument against Samuel who (as I understood him) was arguing that if it's easy to "update" or alter a right, it is more secure than one that is difficult to alter.

Right, but I disagree with both of you. I think rights are more likely to be secure during times of national safety and prosperity, and less likely to be secure during depression and war, regardless of how "hard to touch" they are.

Look how easily Bush pushed through "Homeland Security", and the so called "Patriot Act". They did more to curb "freedoms" than any other legislation in history. All they had to do was label them "patriotic". This was easily done during times of "less security" . They are still in effect today. Which probably says these things are not as easy to get rid of once implemented.

[wolveraptor]

Well, then I'm sure we BOTH agree with that. However, without meaning to speak for Samuel, I think there was a reason we were confining the discussion to "are rights more or less secure when the government can alter them easily?"; the question sort of assumes that there isn't a national emergency that the government could take advantage of to ram through restrictions on rights. Of course, that a government can do so most easily when there is a crisis is so generally accepted that there was no need to restate it during our discussion.

But when else do governments attempt to abridge our rights? I don't see how you can remove external factors like national emergencies (real or imagined) from your discussion when they appear to be the most relevant factor to the security of our rights. The fact that you can't formally remove the first amendment without going through a strenuous political battle doesn't make it more or less secure, IMO, as governments have clearly shown in the past that they can simply ignore or re-interpret it if it interferes with a law they want to pass.

[Serafine666]

But when else do governments attempt to abridge our rights? I don't see how you can remove external factors like national emergencies (real or imagined) from your discussion when they appear to be the most relevant factor to the security of our rights. The fact that you can't formally remove the first amendment without going through a strenuous political battle doesn't make it more or less secure, IMO, as governments have clearly shown in the past that they can simply ignore or re-interpret it if it interferes with a law they want to pass.

It's easy to remove those factors from consideration because most often, at least in the United States, rights are created and modified in the absence of crisis or war or the modification has nothing to do with a war. Your own observation,

...as governments have clearly shown in the past that they can simply ignore or re-interpret it if it interferes with a law they want to pass.

actually goes to my point: governments can indeed do just that but the harder it is for them to do so, the more secure the right is.

[D.Turtle]

Except that also makes it harder to implement new rights (see gay rights, among others) or remove existing oppression.

Which is the problem with the American system: Everything is set up in order to make it hard to change stuff in order to protect against majority tyrannies, ignoring the fact that this enables minorities to oppress the majority, if oppression is the status quo.

See current Senate.

[wolveraptor]

It's easy to remove those factors from consideration because most often, at least in the United States, rights are created and modified in the absence of crisis or war or the modification has nothing to do with a war.

Do you have any evidence for this? My impression of US history has yielded just the opposite observation.

Your own observation, actually goes to my point: governments can indeed do just that but the harder it is for them to do so, the more secure the right is.

Again, any evidence for the idea that simply codifying a right in some supposedly immutable document has any bearing on whether or not it is actually tampered with in the real world? US rights ARE hard to alter through formal process, yet they still have been with disappointing regularity.

[Serafine666]

Except that also makes it harder to implement new rights (see gay rights, among others) or remove existing oppression.

True but inventing new rights out of thin air OUGHT to be hard. Especially when they're "rights" as opposed to rights.

Which is the problem with the American system: Everything is set up in order to make it hard to change stuff in order to protect against majority tyrannies, ignoring the fact that this enables minorities to oppress the majority, if oppression is the status quo.

See current Senate.

Awesome. I have no idea what you're talking about.

[Serafine666]

Do you have any evidence for this? My impression of US history has yielded just the opposite observation.

Let's see... both prohibition and its appeal had nothing to do with a war. Giving women the right to vote was disconnected from a war as was securing black voting rights. The "rights" to contraception, abortion, and the "Miranda warnings" didn't happen due to a war and nor did the establishment of the right to marriage. The establishment of "separation of church and state" didn't happen as a result of a war nor was it influenced by one. "Hate crimes" bills may coincide with a war going on but aren't influenced by it. As far as I know, those are the major additions and modifications of rights.

Again, any evidence for the idea that simply codifying a right in some supposedly immutable document has any bearing on whether or not it is actually tampered with in the real world? US rights ARE hard to alter through formal process, yet they still have been with disappointing regularity.

This is true but it would be easier to fiddle around with them if they weren't constitutional amendments or derived from them. It would also be easier to make them up or be rid of them if more entities than just the courts had the ability to invent or modify rights without Constitutional amendment. The only way to make rights more secure than the US does, in fact, would be to bar the Supreme Court from interpreting the Constitution.

[wolveraptor]

Let's see... both prohibition and its appeal had nothing to do with a war. Giving women the right to vote was disconnected from a war as was securing black voting rights. The "rights" to contraception, abortion, and the "Miranda warnings" didn't happen due to a war and nor did the establishment of the right to marriage. The establishment of "separation of church and state" didn't happen as a result of a war nor was it influenced by one. "Hate crimes" bills may coincide with a war going on but aren't influenced by it. As far as I know, those are the major additions and modifications of rights.

I was being too broad, then. I guess I was more referring to the government's ability to abridge rights. Rights are earned by minority populations due to gradual cultural shift and persistent campaigning, which needn't be related to national crises (although it's worth pointing out that WWI was being advertisd as a fight for democracy, which did provide ammo for the suffragist movement).

This is true but it would be easier to fiddle around with them if they weren't constitutional amendments or derived from them. It would also be easier to make them up or be rid of them if more entities than just the courts had the ability to invent or modify rights without Constitutional amendment.

You keep saying, "Yes they've been tampered with, but it COULD be worse!" but have thus far failed to provide any evidence for this. You assume that when governments try to abridge rights, they will seek to do so through formal legal processes. Don't you think that's a rather silly idea?

[D.Turtle]

True but inventing new rights out of thin air OUGHT to be hard. Especially when they're "rights" as opposed to rights.

Getting rid of slavery (an example of new rights) required a civil war. Is that hard enough for you?

And how exactly do you distinguish between rights and "rights"?

Awesome. I have no idea what you're talking about.

Currently, 40 Republican Senators with the help of 2-3 centrist Democrats are holding up the other 55-57 Democrats from implementing anything important - even stuff like a universal health system that has been consistently supported by a large majority of Americans:
In 2003:

In an extensive ABCNEWS/Washington Post poll, Americans by a 2-1 margin, 62-32 percent, prefer a universal health insurance program over the current employer-based system.

In 2007:

SHOULD GOVERNMENT GUARANTEE HEALTH INSURANCE FOR ALL?
Yes 64%
No 27%

In 2009 (Here it is EXTREMELY important to look at the question. Wording has a significant effect.):

Quinnipiac University Poll
"Do you support or oppose giving people the option of being covered by a government health insurance plan that would compete with private plans?"
Support Oppose Unsure
% % %
9/29 - 10/5/09 61 34 6
7/27 - 8/3/09 62 32 6
6/23-29/09 69 26 5

Pew Research Center Poll
"Now I'd like to ask you about some of the specific proposals being considered to address health care. Would you favor or oppose [see below]?"
"Requiring that all Americans have health insurance, with the government providing financial help for those who can't afford it"
Favor Oppose Unsure
% % %

9/30 - 10/4/09 66 30 4
7/22-26/09 65 29 6

ABC News/Washington Post Poll.
"Would you support or oppose having the government create a new health insurance plan to compete with private health insurance plans?" If oppose/unsure: "What if this government-sponsored plan was available only to people who cannot get health insurance from a private insurer? In that case, would you support or oppose it?"
Combined responses to both questions:

Support at First, Support if Only for Those Who Cannot Get Private Insurance, Oppose
% % %
9/10-12/09 55 21 24

I think thats enough to support my claim.
A clear cut case of a right that a majority of the legislature AND the public wants, being blocked by a minority of the same.

So again, the problem is that you focus completely on REMOVING rights, while ignoring the ADDITION of rights. Something that is becoming increasingly important in a rapidly changing world.

[Serafine666]

I was being too broad, then. I guess I was more referring to the government's ability to abridge rights. Rights are earned by minority populations due to gradual cultural shift and persistent campaigning, which needn't be related to national crises (although it's worth pointing out that WWI was being advertisd as a fight for democracy, which did provide ammo for the suffragist movement).

Essentially what I was saying. A majority of the permanent alterations of rights (as well as the addition of rights) in the United States do not take place while the government is utilizing a war to justify the changes. The exception to this is slavery which spawned 3 constitutional amendments essentially as a result of the Union victory.

You keep saying, "Yes they've been tampered with, but it COULD be worse!" but have thus far failed to provide any evidence for this. You assume that when governments try to abridge rights, they will seek to do so through formal legal processes. Don't you think that's a rather silly idea?

What we seem to have is a massive failure to communicate. I repeatedly state that for the purposes of my point, I am conceding that governments use illegal means to change or eliminate rights, and focusing on the ease (or lack thereof) of legal change but I seem to be making no sense to you. Is there anything I can do that would help you see what I'm saying?

[Serafine666]

And how exactly do you distinguish between rights and "rights"?

For my purpose, rights are things specifically laid out in the Constitution and "rights" are things that are neither specifically stated nor implied by the Constitution (which includes the 9th Amendment specifically allowing for the addition of unstated rights; this has only been used once to add the right of heterosexual marriage).

Currently, 40 Republican Senators with the help of 2-3 centrist Democrats are holding up the other 55-57 Democrats from implementing anything important - even stuff like a universal health system that has been consistently supported by a large majority of Americans:
-snip-
So again, the problem is that you focus completely on REMOVING rights, while ignoring the ADDITION of rights. Something that is becoming increasingly important in a rapidly changing world.

Assuming that the poll numbers you cite aren't weakened by other questions (some polls have asked "do you support the government option under scenario A/B/C/D/E" and found that support drops under certain situations), then what you're talking about is a grievous problem where the representatives of the people are ignoring them for whatever reason.
As to adding rights... there are no more rights that need to be added. Only whimsical inventions.

[D.Turtle]

So in your view the Bill of Rights only added "rights", after all those "rights" were not in the Constitution, but were added later?

Or do "rights" become rights once they have been added long enough?

[Serafine666]

So in your view the Bill of Rights only added "rights", after all those "rights" were not in the Constitution, but were added later?

Or do "rights" become rights once they have been added long enough?

I'm referring to those things that were not added by Constitutional amendment; there's a difference between adding a right and adding an amendment, generally in that the second one is much more difficult and involves more than 5 judges on a court. But you're right, I wasn't very clear in my meaning.

[Simon_Jester]

Thing is, the 9th Amendment is fairly explicit in establishing "rights" as rights. We don't have to pass a constitutional amendment establishing a right to privacy for you to have one.

It would be absurd to maintain that you have no right to privacy, in the abstract sense.
Yet in the US you do not have an explicitly defined right to privacy, only a "right" established by the same sort of Supreme Court decisions you deride. And were it not for the Supreme Court decisions that protect the "right" to privacy to at least some extent, you can be damn sure that most Americans would support a Constitutional amendment to do the same thing. Assuming a noncorrupt American political system, the amendment would probably pass, too.

Do you consider the right to privacy a frivolous addition to the real rights? If so, why?

[Serafine666]

Thing is, the 9th Amendment is fairly explicit in establishing "rights" as rights. We don't have to pass a constitutional amendment establishing a right to privacy for you to have one.

It would be absurd to maintain that you have no right to privacy, in the abstract sense.
Yet in the US you do not have an explicitly defined right to privacy, only a "right" established by the same sort of Supreme Court decisions you deride. And were it not for the Supreme Court decisions that protect the "right" to privacy to at least some extent, you can be damn sure that most Americans would support a Constitutional amendment to do the same thing. Assuming a noncorrupt American political system, the amendment would probably pass, too.

Do you consider the right to privacy a frivolous addition to the real rights? If so, why?

Because it is an ill-defined omni-right, applying to anything that is even nominally in the realm of "private" behavior. The concept that legal search and seizure must be accompanied by an order subject to the review of a judge was turned into "you have a right to engage in any private behavior without the law being able to touch you." It was first invented to give access to birth control under the bizarre reasoning that a state may not limit or refuse access to certain medicines (which would have been a really nice guarantee when Oregon was doing their dimwitted banning of Sudafed because it could be used to manufacture methamphetamine). In a way that has puzzled even liberal Constitutional scholar since, this was turned into the right to have an abortion performed (which, like birth control, is a medical service, device, or drug). It was then expanded to protect certain forms of sexual intercourse from state intervention. Unlike other rights, there is no textual or implied limit to the "right" to privacy such that it would be completely legitimate, within the ill-defined boundaries, to declare that hiding money from the IRS under your mattress is a "privacy" issue. Smacking a law down for being utterly absurd (outlawing anal sex when it's all but impossible to enforce) is one thing but parlaying a commonsense attitude towards laws into a right is comical and such comedy is an ill fit for a document designed to protect people from the state.
If people would support privacy as a Constitutional right, let them amend. If it's so vital and popular, such an amendment should pass without breaking a sweat. If the amendment passed, all questions about the whimsical invention go away. Until then, however, there is a certain black comedy around the idea that the government having to have a legitimate judicially-reviewed reason to enter a private space (already guaranteed as a right) transforms into a "right to privacy."

[Andrew J.]

Actually, modern (ie, post-Griswold) right to privacy jurisprudence is based mostly on the due process clause of the Fourteenth Amendment, not the search and seizure clause of the Fourth.

And if you think the term "right to privacy" is overly vague, then trust me when I say that it has nothing on "due process of law."

[Serafine666]

Actually, modern (ie, post-Griswold) right to privacy jurisprudence is based mostly on the due process clause of the Fourteenth Amendment, not the search and seizure clause of the Fourth.

And if you think the term "right to privacy" is overly vague, then trust me when I say that it has nothing on "due process of law."

Oh, Andrew... why ya gotta make me despair even more than I already did? I was still clinging desperately to one last hope that perhaps the jurisprudence in this particular absurd instance was based on fiddling around with one obscure right but now, I know that the infernal 14th has come back to haunt me again. The killer part is... the 14th was such an awesome amendment before "modern" thought got its grimy paws on it...

[Simon_Jester]

Could you explain how "the 14th Amendment was so awesome before "modern" thought got its grimy paws on it" is distinct from "the 14th Amendment was so awesome before it started being used to justify things I don't like?" Because while the former argument can make sense in constitutional terms (you can argue that the 14th is being abused in a coherent manner)... the latter does not (the Constitution does not contain any guarantee that it protects only behaviors you like, or preserves only that which you think ought to be preserved).

[Andrew J.]

Actually, modern (ie, post-Griswold) right to privacy jurisprudence is based mostly on the due process clause of the Fourteenth Amendment, not the search and seizure clause of the Fourth.

And if you think the term "right to privacy" is overly vague, then trust me when I say that it has nothing on "due process of law."

Oh, Andrew... why ya gotta make me despair even more than I already did?

Your suffering brings me joy.

I was still clinging desperately to one last hope that perhaps the jurisprudence in this particular absurd instance was based on fiddling around with one obscure right but now, I know that the infernal 14th has come back to haunt me again. The killer part is... the 14th was such an awesome amendment before "modern" thought got its grimy paws on it...

And when was that, exactly? Because it didn't even begin to be enforced properly until the Civil Rights Era.

[Serafine666]

Could you explain how "the 14th Amendment was so awesome before "modern" thought got its grimy paws on it" is distinct from "the 14th Amendment was so awesome before it started being used to justify things I don't like?" Because while the former argument can make sense in constitutional terms (you can argue that the 14th is being abused in a coherent manner)... the latter does not (the Constitution does not contain any guarantee that it protects only behaviors you like, or preserves only that which you think ought to be preserved).

Well, the first was an extremely flippant way of agreeing with Andrew's point while lamenting the truth of what he was saying; the second is the unintentional message I seem to have conveyed with the silliness. However it being abused would be an extremely good reason to be upset about the way it's being used.

[Serafine666]

And when was that, exactly? Because it didn't even begin to be enforced properly until the Civil Rights Era.

I disagree with the way it was used in the Civil Rights Era only in that the importance of the issues being ruled upon should have inspired the justices to build a much more airtight judgement than one significantly influenced by a sociological study. The first definitive example I can think of in which it was used badly was the case of Roe v. Wade which, I'll admit, I disagree with on a conceptual level but even those that agree with what was being done regard Roe as a very bad judgement. In a 1973 issue of the Yale Law Journal, the late John Hart Ely said that it "is not constitutional law and gives almost no sense of an obligation to try to be." and considering that "equal protection" was invoked to justify Roe, I'd peg it as the first definitive abuse I can think of.