Natural Reluctance

Elena Kagan's disturbing refusal to acknowledge pre-existing rights

From last week's confirmation hearings, we learned that Supreme Court nominee Elena Kagan likes to eat in Chinese restaurants on Christmas. She did not say how she spends Independence Day, but evidently it does not involve reflecting on the meaning of our founding document.

According to the Declaration of Independence, people create government to protect their pre-existing, inalienable rights. Yet when Sen. Tom Coburn (R-Okla.) asked Kagan whether armed self-defense is one of those rights, she professed agnosticism.

 "I don't have a view of what are natural rights independent of the Constitution," Kagan said. In two days of testimony replete with the evasive maneuvers that she once complained had rendered Supreme Court confirmation hearings a "vapid and hollow charade," her silence on natural rights was one of the most disturbing things she didn't say.

In addition to eschewing statements that might "provide some kind of hints" about how she would vote on a case that could conceivably come before the Court, Kagan declined to offer opinions on subjects, such as natural rights, that she deemed irrelevant to the Court's work. In short, she was happy to answer any question, as long as it was neither related nor unrelated to the positions she would take as a justice.

But was Kagan right to say that natural rights should play no role in constitutional interpretation? "I'm not saying I do not believe that there are rights pre-existing the Constitution and the laws," she said, but "you should not want me to act in any way on the basis of such a belief, if I had one," because "my job as a justice is to enforce the Constitution and the laws."

Although justices should not read their own idiosyncratic notions of natural rights into the Constitution, the concept is essential to understanding what the Framers were trying to do. In addition to the Declaration of Independence, which reflects the Framers' philosophical premises but does not have the force of law, the Constitution itself repeatedly refers to pre-existing rights.

The First Amendment does not say, "The people shall have a right to freedom of speech." It says, "Congress shall make no law…abridging the freedom of speech." Likewise with "the right of the people to keep and bear arms" and "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures."

These are not rights the government creates; they are pre-existing rights the government is bound to respect. There is no other way to make sense of the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

By contrast, here is how Kagan summarized the Supreme Court's conclusion in the 2008 case D.C. v. Heller (emphasis added): "The Second Amendment confers…an individual right to keep and bear arms." What the decision actually said is that the Second Amendment acknowledges that right. "It has always been widely understood," the Court explained, "that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right" that was considered "one of the fundamental rights of Englishmen."

That point was crucial in deciding, as the Court did last week, that the Second Amendment applies to the states via the 14th Amendment. Some theory of pre-existing, fundamental rights is also necessary in applying neglected yet important constitutional provisions such as the Ninth Amendment and the 14th Amendment's Privileges or Immunities Clause.

Constitutional interpretation aside, Kagan's reluctance to endorse the concept of pre-existing rights was troubling because without it we cannot draw moral distinctions between legal regimes. How can we condemn a dictator for legally authorized oppression, or say that our own Constitution is better now that it bans slavery than it was when it tacitly approved the practice? The traditional American answer is that people have certain rights by virtue of being human, regardless of what the law says.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.

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  • ||

    The traditional American answer is that people have certain rights by virtue of being human, regardless of what the law says.

    I have a sneaking suspicion that many of Ms. Kagan's views would be at odds with those of a "traditional" American...

  • ||

    In a perfect world, the second she spoke the word "confer", the floor under her chair would have opened up; revealing a pool full of sharks with layzzurs attached to their heads.

  • TheOtherSomeGuy||

    Pray to whatever diety you believe in that Obama doesn't get the chance to turn the balance of the court from "conservative" to "liberal". Sonya Sotomayor lied under oath during her confirmation hearings (Said 2nd Amendment was an individual right, then voted against it), Kagan is refusing to answer questions so she isn't found to be lying under oath later.

    Obama was never going to nominate a "normal" liberal, just the most diehard, rigorous communists he could find. But the amount of damage that could done if that Marxist idiot gets to nominate a judge to replace a "conservative" on the court is too horrible to imagine.

  • Wegie||

    Obama was never going to nominate an intelligent human being.

  • ||

    Not to mention she and Jon Lovitz resemble each other. Oooh, did I say that out loud?

  • Jen||

    I thought she looked more like Alf.

  • Butts Wagner||

    It turns out that Elena Kagen is an anagram for Gordon Shumway, in an alien language.

  • Jon Lovitz||

    I'm OFFENDED!

  • Fist of Etiquette||

    In a perfect world, a senator's yea vote would be contingent on the nominee answering questions put forth.

  • TheOtherSomeGuy||

    Bureaucrats answering questions with definite responses? You've gotta be kidding.

    Kagan, working as Dean for a major University, probably has a degree in CYA by now.

  • ||

    A picture is worth a thousand words. She's flipping off the senate.

  • ||

    "She's flipping off the senate."

    She's got my vote, then.

  • ▲ ▲||

    Did you know your last name is an adverb?

  • ||

    Yes , yes I do. But I'm proud of it. I think it is much better than 2 orange triangles.

  • ||

    Actually, Johnny, triangle boy is wrong. It is still considered a noun, albeit a proper noun. Regardless of what a word's typical usage is, when used as a name for a person, place or thing to differentiate it singularly as an individual, then it is considered to be a proper noun.
    The word dangerously, in this context, is not being used to describe an action Johnny is involved in. Rather, it is used as an individual identifier of Johnny's person. Nobody thinks Hell's Kitchen, NY belongs to Hell. Actually, that may be a poor example.

  • ||

    Sloopy, I think I love you. If only my public schools had teachers like you. My name isn't really an adverb! Seriously, thank you.

  • Byron||

    Wow, you're a regular idiot savant.

  • Bureaucrat||

    Bureaucrats answering questions with definite responses?

    Let me answer that question by posing another. Why not?

  • Robert Gibbs||

    Unfortunately, Bureaucrat misspoke. He meant to say, "Why or why not?"
    I trust this clarification puts an end to the matter.

  • ||

    Uh, Jacob ... the Declaration of Independence ain't part of constitutional law.

  • ||

    You are correct. However, The Declaration of Independence supports The Constitution and vise versa on most points of law.

  • Jen||

    No to mention he cited the language of three or four Constitutional amendments that support exactly what he was saying. I don't think Miande read the article, or she wouldn't have missed that. I think she just looked at the title and rendered an opinion on it.

  • Mike the Grouch||

    Until 1925 the First Amendment only restricted *Congress* from passing laws respecting religion or restricting free speech. States were perfectly able to do so until some activist judges decided that the 14th Amendment somehow trumped the specific wording of the 1st Amendment. Sullum ignores this and undermines his argument as a consequence.

    Further, promoting the idea of Natural Rights is best accompanied by stronger foundations than what are provided in the Declaration. Arguing that we are "endowed by our Creator" is pretty flimsy evidence in favor of anything, since there is no consensus I'm aware of that we have a Creator or what exactly this Creator was on about when endowing us with whatever it is we're endowed with.

    Frankly, it's far more convincing to me to say that the Constitution is more important than any "pre-existing rights" when it comes to a system of law since relying on extra-legal sources of information about what should or should not be the interpretation of a given law is like giving Supreme Court Justices the American legal equivalent of Papal infallibility in terms of interpreting the meaning of Scripture. They don't get to make it up as they go along based on their feelings about natural rights or fundamental rights of an Englishman or whatever else. They probably ought to stick to what is written into the legal framework.

    For my money, the best solution at this point is to write a new constitution that clarifies all these points so that there is no need to rely on any doctrine like Natural Rights.

  • Thomas Jefferson||

    We produced a great document for United States law which does not need a revision by an idiot. There is a provision for ammendments. So you see, it is as perfect as possible in an imperfect world. Try again.

  • Mike the Grouch||

    Actually, you're probably right, Tom. Which is why I was promoting the idea of sticking to the document, rather than trying to rely on extra-legal sources for how to manage affairs.

  • Jen||

    Sticking to the document, including the 14th Amendment? Fail.

  • Tar Ball||

    The fewer words in a law or contract for that matter, the stronger it is legally. Ask a lawyer.

  • ||

    For my money, the best solution at this point is to write a new constitution that clarifies all these points so that there is no need to rely on any doctrine like Natural Rights.

    Something like the E.U. has?

  • Mike the Grouch||

    Hmmm. Maybe not so much. :)

  • ||

    The reason for not putting forth every right in the US constitution is that an omission may be taken as proof that a right is not a right. Either people will have integrity and protect natural rights, or they will be corrupt and violate them.

  • Fiscal Meth||

    That's why Hamilton(not George) argued against the bill of rights. He feared what enumerating the peoples' rights would imply.

  • Jason||

    Thus the Ninth Amendment, which I take to also mean that his argument about "pre-existing rights" is unconstitutional.

    (And I think Catholics would say his description of papal infallibility is heretical.)

  • ||

    Arguing that we are "endowed by our Creator" is pretty flimsy evidence in favor of anything, since there is no consensus I'm aware of that we have a Creator or what exactly this Creator was on about when endowing us with whatever it is we're endowed with.

    Whether you believe in a or many deities or not, the fact that we exist means we do have a creator, we have life, and with life comes the natural rights to say what we want, to practice or not practice a religion how we want, and defend ourselves and our property without obstructing the rights of others to do the same. I wouldn't describe this as flimsy at all.

  • ||

    Italics quote fail

  • Jen||

    It's very telling that you cherry-picked the First Amendment, when there are three others mentioned in the article (the Second, Fourth, and Ninth), not a single one of which is directed at Congress. Your point?

  • ||

    This is spot on! Any definition of "natural" rights implies some sort of mystical giver of those rights, and anything based on mysticism is based on a logical fallacy and given that False can imply False, means it can result in *anything*.

    The only sense in which "right" can be meanintful is *contractual* rights, as in "I contractually give you the 'right' to do X", which is basically just a shorthand for "I will *not* forcibly stop you from doing X." The semantics of "natural rights" are confused. It's sort of like saying "centrifugal force": there is actually no such force, though it kind of appears that way and its useful in casual conversation. It is not, however, semantically sound (in fact, there is *centripetal* force, which is in the opposite direction of what people think of as centrifugal force. Likewise, "rights" are really the *absence* of force, but it's really *force* that is the semantically meaningful concept, even though "rights" will do in a lot of casual conversations).

  • ||

    "..which reflects the Framers' philosophical premises but does not have the force of law..."

    So, you took exactly what he said and thew it back at him?

  • ||

    The ninth is, and therein all the rights (and those not mentioned) mentioned in the Declaration of Independence are covered and thus have the force of law. Unfortunately we discarded the US constitution a long time ago, so it's somewhat meaningless.

  • ||

    Oh, that must be what he meant by...

    the Declaration of Independence, which reflects the Framers' philosophical premises but does not have the force of law....

    I was wondering what that meant.

  • Geoff||

    I did my undergraduate philosophy thesis on natural rights and our legal system.

    Most controversial Supreme Court actions involve natural rights. Most people don't believe in them. And even if you do believe in them, how do you adjudicate differences?

    But the problem is that the 9th & 10th amendments, and the milieu of the time of our Founders, assumed them.

    So what ends up happening? Justices end up consulting foreign law (if enough countries believe something is a human, aka natural, right we'll consider it a right). Justices end up counting noses or states (death penalty for instance). If you get lucky, Scalia's method is "was this considered a natural right at the time the Constitution was written?"

    So what people really perceive as solely a legal problem is actually a philosophical problem.

  • ||

    So what people really perceive as solely a legal problem is actually a philosophical problem.

    Thus the whole basis for this line of questioning. The doucebaggery at play in avoiding it is astounding. And the vapidity on the Left is frightening.

  • ||

    Philosophy will get you a severe ass kicking in a court of law.

  • ||

    I wonder why the Supreme Court is still referred to as a "court" when plainly it is no such thing. Likewise those robed frauds are not "justices". The whole thing is just another political arena, and the "justices" are just another set of politicians. "Judicial philosophy"? Ha! What does that have to do with the Supreme "Court"?

  • Justice Scalia||

    Not true!

  • JoshINHB||

    This definition fits

    "a sovereign and councilors as the political rulers of a state."

    and this one

    "to have a formal assembly of a judicial tribunal or one held by a sovereign. "

  • kinnath||

    http://www.slate.com/id/2259495/

    Fourteen years ago, to protect President Clinton's position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists.
    .
    .
    .
    .
    All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation's highest judges. As one of them, she had better make sure they aren't fooled again.

  • Asshole||

    Once she is confirmed, it does not matter what you think. Go to court, face a judge and see what I mean. It's the American way!

  • Mark||

    The entire confirmation hearing process is, as Kagen herself pointed out, a complete waste of time. Her positions on all the issues that matter are clear from her work in academia and as the US Solicitor General.

    These hearing serve two purposes: 1) They allow Kagen to give weasel answers to weasel questions, thereby confirming the layman's distrust of those who practice the 'honorable' profession of law, and 2) They give career politicians free air time to share their learned, yet partisan, views on government, thereby further destroying the public's trust in politicians.

  • ||

    According to Kagan, your first statement is untrue. She claims that she was merely following instructions and is really a free-thinker. As SG, she merely toed the Clinton line. Ditto at Harvard. I even think she went so far as to distance herself from the anti-recruiter policy recently, stating the military had full access her entire time there. (Why nobody grilled her on that bit of perjury is beyond me.)

  • ||

    Kagan is a liberal. Liberals want to deprive us of rights for our own good. They advance whatever arguments they think will serve them. If the government gives rights, then the government can take them away when it sees fit. Certain rights liberals don’t like, such as the right to bear arms and the right to free speech.

    The liberal argument used to be that the people wanted this or that. When it became apparent that the people did not want some things that liberals wanted, the argument changed to the people don’t know any better. Marx called it false consciousness (I believe it was him). Thomas Frank called it acting against one’s own interest. He wrote an entire book bemoaning the fact that americans don’t think it is in our interest to be full of envy and jealousy and confiscate our neighbors’ property.

  • Alan Vanneman||

    Thomas Jefferson wrote the D of I. He was not a fan of the Constitution. He also owned slaves, which is a violation of all rights. The body of the Constitution and the first ten amendments were written by two differing political groups. It is not possible to say what "the Framers" meant, because they disagreed among themselves and they often took self-contradictory positions, just as people do today. Madison, the "father of the Constitution," argued for a strong central government because he took it for granted that the southern planters, working with northern merchants, would dominate the government. When that proved not to be the case, he switched to an extreme states' rights position.

    When the "Framers" referred to "rights" they were using terminology developed by the Brits over several hundred years of parliamentary struggle. Kagan was quite correct in taking the position that the Constitution itself is "the supreme law of the land." Natural rights, since they can be, and are, defined by anyone to mean anything, offer no objective standard

  • ||

    offer no objective standard

    So what? A great deal of SCOTUS jurisprudence relies on them. Which means one has to have their own fundamental understanding of rights.

  • Jeffersonian||

    So when a liberal sputters angrily about "a woman's fundamental right to an abortion," the proper response is...what, exactly?

  • ||

    Natural rights are the philosophical undergirding of the Declaration of Independence as well as most of the constitutions of the original 13. That is not open to debate; in fact, any suggestion to the contrary is nothing more than revisionist, made up nonsense offered to support legal positivism, or worse, statism.

    Natural rights are deeply rooted in our heritage. Look at the Massachusetts Body of Liberties, which were promulgated in 1641. Or take a look at the essay penned by John Adams, "A Dissertation on the Canon and the Feudal Law" which was published by the Boston Gazette.

    Sure, many of the framers could be branded as hypocrites; however, the hypocrisy manifested itself more in their failure to square some of their actions with their aspirational pronouncements. But most understood that natural rights are not cloudy and ill defined and that arguments suggesting the same would be advanced by those seeking to assume power for themselves or their intellectual factotums.

  • Geoff||

    See my above post.

    Let me grant you that natural rights/human rights offer no objective standard.

    The Constitution still assumes they exist.

  • -1||

    Your obvious superior intellect can not be disproven. Now that you are right, would you fuck off and go away? And I won't even get into your dicklet size. Just go away.

  • ||

    When that proved not to be the case, he switched to an extreme states' rights position.

    Interesting you don't claim he had an *extreme* support for central government. It's just support for states' rights that's extreme. I would guess support for individuals' rights would be even more extreme,then.

  • ||

    Then the US constitution is meaningless as the 9th clearly says that the lack of enumeration is not to be taken as saying a right does not exist. It's clear that in adding the ninth there was an original understanding of those rights, and that if one cannot come to the bench with that understanding then one cannot uphold the US constitution and is not fit to sit on SCOTUS.

    BTW, you're assertion that those writing the main body of the US constitution and those writing the amendments is bs, and really irrelevant. What matters more is the understanding of those ratifying the US constitution and the first 10 amendments. The debates concerning the framing of the US constitution were withheld for 30 years, and some never published, so those ratifying relied on the common understanding the terms as used in their day, AND the words of those who had been present at the federal convention in arguing for the US constitution's ratification.

  • ||

    Instead of arguing about whether "natural rights" exist or not, why don't we concentrate on what the founders believed? That is, when the founders used language indicating a belief in natural rights, what did *they* mean. I agree that you won't find any definition of "natural rights" in nature.

  • Tony||

    I think humans have a natural right to eat babies. Who's gonna contradict me? Some douchebag with a different opinion?

    This is silly.

  • Some douchebag||

    I have a different opinion, and I therefore contradict you.

    Dick.

  • Wegie||

    No, problem as long as they are liberal babies!

  • Llama Face||

    I contradict you. I think humans only have a right to eat fetuses less than 24 weeks old that are not viable outside the womb.

  • ||

    ...not viable outside the womb.

    At least not with current technology. In the mean time, eat up while you can. Cannabalistic urges will eventually need to find some other outlet eventually.

  • DNA||

    Tony proves that sometimes abnormal sperm is deposited.

  • ||

    But not within thirty minutes of swimming.

  • ||

    Well, since humans don't have a natural 'right' to eat, this is foolishness. Humans have a natural 'need' to eat. There's a difference.

    Natural Rights are things you will do regardless of government because they are part of you. The 'natural right' that underlies the 2nd Amendment is the basic human instinct for self preservation. You WILL defend yourself, you're designed to do so, and a government can make it hard for you to do so, but you will do it regardless.

  • pmains||

    This is the philosophical chasm between relativists and those with brains. The relativist can't accept that there are truths and that they are knowable.

    Those with brains can state, "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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

    Oh, but that's just Jefferson's opinion, right? I mean, if we wanted to re-institute slavery or abolish freedom of speech, there's no objective standard to appeal to in Tony's world -- just inarguable opinions and those infinitely mutable truths that we arbitrarily choose to create.

    Tony, your philosophy is a trip down the rabbit hole.

  • shrike||

    Bullshit. You can't provide a list of natural rights nor can you name a "natural" right that cannot be overturned by amendment.

    Give me FoxNews spewing propaganda 24/7 and a dumbed down electorate with Scalito/Thomas and I could overturn our Right to Blaspheme and make it a crime punishable by death.

  • pmains||

    Are you saying that Scalia, Alito and Thomas favor executing blasphemers? Your anti-Catholic bigotry is the only thing animating your persona at this point. Nothing else gets your dander up.

  • shrike||

    btw - is our Right to Blaspheme a natural right?

    Or is it a First Amendment right?

    I don't expect an answer.

  • ||

    Wow, my smarm-o-meter was pegged with your last comment, but there actually is a simple answer:

    The First Amendment affirms it as a natural right?

    Were you not looking foa an answer because you don't want to have a reasonable discussion or because you are a jackass troll?

  • pmains||

    Of course your right to blaspheme is a Natural Right. To discern what are Natural Rights and what are not takes a little brainpower, but it's not impossible. They can be inferred from the concept of self-ownership and the non-agression principle. Of course, because they are literally infinite, demanding a list is absurd.

  • Tony||

    It may be, but it's also true. As a pragmatist I have to accept the possibility that some noble fictions are necessary for a society to function. But you can't seriously claim that there are concrete things called rights that exist prior to humans out in the ether somewhere, and there is really no point to rights that aren't codified and protected.

  • Fiscal Meth||

    "But you can't seriously claim that there are concrete things called rights that exist prior to humans out in the ether somewhere"

    Correct! They exist only because rational animals, humans, exist. If humans had no capacity for reason they would have no rights. That's why religions and dictators always villify human reason as impotent or evil and tell men to relinquish reason and their rights lest they become selfish egotists and be dealt an egotist's punishment.

    "there is really no point to rights that aren't codified and protected."

    Also correct. That is why the history of society has been a struggle between those who wish to devise the best system for protecting those rights and those who wish to rule such men before they succeed.

    I'm so excited that you finally want individual rights to be protected! Come on Tony let's go to a tea party!

  • Tony||

    I'm for too many individual rights to be welcome at a tea party.

  • ||

    You haven't been to one then.

    First one I went to I told people 'I'm pro-choice, and pro gay marriage, am I in the wrong place?'

    I was surprised, pleasantly, when I was asked in turn 'Do you believe in Constitutional government?' to which I replied emphatically yes.

    The rather nuanced position of the TP (although speaking for the TP always carries risk, as it's not monolithic) is generally that the federal government should limit itself to it's Constitutional mandate.

    Other issues, (and most issues) like abortion, and gay marriage, should by the Constitution, be left up to the states.

    In a word, the TP is pretty much federalist.

  • pmains||

    It depends on what you mean by "concrete." If you accept that truth is real and not just a human construct, then I suppose that it is "concrete." Perhaps by "concrete," you mean material. If so, then truth is not concrete, and neither is morality. But not being something that you can pick up and physically examine is not the same as being a fiction.

  • ||

    Human's do not have a natural right to eat babies because that right contradicts itself. Natural rights are, among other things, rights that all people may retain.

    One criteria of the right to self defense it that it is a right everyone may retain.

    You have a right to free speech, for one reason, because it is a right everyone may retain.

    You have a right not to protect your property, for one reason, this is a right everyone may have simultaneously.

    You do not have a natural right to health care because this requires you to take someone elses life or property to secure it. This is not a right all people may retain without abridging the rights of others.

    You may have a 'legal' right to health care, but in so doing you've negated natural rights and basically made the word 'right' mean 'i have more guns that you'

  • Tony||

    I don't see a fundamental difference in the level of arbitrariness between a right to property and a right to health care.

  • Fiscal Meth||

    Your property is the fruit of your labor. Health care is the labor of others. You don't have a right to have others serve you.

  • Tony||

    Actually your property is made up of a finite amount of the planet, and you only have a claim to it because society gave you that claim.

  • Fiscal Meth||

    Did society create man or did man create society? Backwards again!

    Did society rest on the the seventh day like the Christian God?

  • Tony||

    Humans created society and therein the rules for property ownership. Your claim to anything you own is premised on rules that allow you to make that claim, not on some universal truth.

  • ||

    Property (including self-ownership) pre-exists society. Self defense pre-exists society. Etc.

    Society can't create these rights, because they existed before society.

    All society can do is protect these or take them. Society doesn't own you. Society doesn't own your actions. Society doesn't own your life.

    It may take these things, and history is replete with this, and this still happens to all of us today.

    But that doesn't create a right to steal, murder, or enslave.

    If society did create rights all you are left with is nihilism. If power creates rights, you can hardly complain about Bush/Obama corporofascist state.

    They have the power and you do not. They control society and you do not. Therefore they have the right to do as they wish.

    You lack a philosophy which natural rights could provide. It's objective and coherent. But you reject it because it won't justify your theft, murder, and slavery.

    So you adopt moral relativism and similar sophistry. Just another religion.

    Lacking this however you may not really explain why you should not in turn be murdered, stolen from, or enslaved by 'society' because after all, society gives you the right not to have these things done to you, and 'society' may take them away.

  • Society||

    Don't listen to him Tony. I would never do that to you. We're in this together. C'mon who loves ya Baby!

  • ||

    "Rights" are an intellectual and rational dead-end, but it doesn't follow that the the only resulting possibility is "moral relativism".

    Again, you can get the exact same effect as "rights" simply by adopting a contractual framework: what you call your right to X is just a contractual clause in which everyone else agrees to not forcibly prevent you from X.

    The "right" to be from murder is not an etherial philosophical construct that must be explained with at least a wink to mysticism; it is simply a win/win contractual trade, in which I agree to not murder you in return for your agreement to not murder me. Assuming I really didn't want to murder you anyway, and that I get a big benefit from not having to defend myself from murder, it's a big win/win for both of us.

    Appealing to a semi-mystical basis for "rights" just invites everyone else with their own semi-mystical basis for their own rights to push their agenda with equal validity to yours. Appealing instead to self-interest is a much easier way to approach something that most people can agree on (the people that won't? The looters, the thugs, the insane, etc. I claim that unless the people not in those sets greatly outnumber those in those sets, we're all fucked no matter what we do, so we might as well assume that they are a minority and pool our resources to defend ourselves from them. And our resources will be a lot better spent defending from *them* than from each other... which is what a contract that says "I will not forcibly murder you, or steal from you, or keep you from speaking, or keep you from joining any organization you want to join, or owning weapons, etc" will do).

    If you derive "rights" contractually, you're on philosophically solid ground; any other derivation is problematic.

  • ||

    You are confused my friend. Why then under your construction do you have a right to contract? You have no right to yourself, so you can have no right to commit the use of your labor, talent, or resources. In fact you have none of those either.

    Appealing to a semi-mystical basis for "rights" just invites

    The problem is that you are opining about something that you are ignorant of.

    It is true that some people equate natural rights with 'god given rights'. I think that is unfortunate, because it opens up the very critique you just raised.. albeit a flawed critique. If you'd stop at 'well how does a religious basis for morality work for the non religious or for religions that haven't developed an individualist ethical system?' you would have had a reasonable case against what you thought was being argued.

    But that wasn't being argued. Natural rights may be considered to be 'god-given' by a religionist in the sense the sky or the ocean. If you think the universe was created by god then everything in it is god-given. But that attribution doesn't explain the properties of the ocean, or why the sky is blue.

    Natural rights are not mystical, they are not arbitrary. They have criteria and properties. Or did you think everyone pointing out what natural rights can be and can't be are just making it up.. altogether.. and all at the same time?

    Maybe they read something you didn't;) Maybe you should too. (and don't read anyone that says 'god-given' and stops)

    Just like the set of prime numbers is real and don't require god to exist, you can never touch them.

  • Jason||

    I have a right to travel, therefore you must buy me a car and a jet so that I may exercise that right.

  • ||

    You have a right to use your property to exchange for health care. You do not have a right to use someone else's property to purchase health case.

    You may acquire the power to use someone else's property but that does not create a right.

  • Fiscal Meth||

    Quiet down Tony! All the people who would be eating babies if not for their lack of a natural right to do so might hear you.

  • ||

    These are not rights the government creates; they are pre-existing rights the government is bound to respect.

    The idea of "natural" rights is fatuous nonsense, unless you are deeply religious. If rights are "natural" then every human society would have those rights at its core, which is patently not the case. Isn't it better to say that our rights are created by our social contract with each other - our government is then the tool for enforcing that social contract and adjudicating disputes within that contract. But if government oversteps its bounds and encroaches on that social contract it is no longer acting as a legitimate representative of the people.

  • ||

    Do you own yourself?

  • dhex||

    natural rights are more interesting viewed as a kind of "noble lie". it's the sort of thing i want others to believe, but can't myself because as you point out, it is fatuous nonsense.

  • Mohandas||

    They cannot take from us that which we do not freely give them.

  • Ian Moore||

    And it's hard to convince yourself
    When your life's been gauged by power and wealth
    Spend your whole life trying to break free
    From this society

    So I climb up to a higher place
    Where I am not binded by tradition
    Or ruled by any race

    The system always pulls me down
    Can't stand to set me free
    Throw me right back in the masses
    Say that's where you're gonna be

    And it's hard to convince yourself
    When your life's been gauged by power and wealth
    Spend your whole life trying to break free
    From this society

  • Soonerliberty||

    See Lysander Spooner. Social contracts are myth perpetuated by statists to justify whatever the status quo is. One could say that mafias enjoy a social contract with those they "protect." Same with gov't.

  • Llama Face||

    Your social contract is bullshit. It allows for things like slavery, institutional racism and sexism, the stripping of rights from segments of the population who are socially "undesireable" (ie- gun owners, smokers, blacks, fat people, Catholics, etc) because, hey! as a society, we have agreed together that this is how we want to live.

    Social contract allows communities to decide that consenting adults cannot marry whome they choose, because hey! that's what we as a society want.

    The idea of natural rights, enshrined in the Constitution, allow those groups of socially undesireable people and groups to assert themselves as equally worthy human beings, and have their rights enforced and safe guarded against social contracts that marginalize and degrade them.

    How will you feel about your social contract when it decides to exclude you?

  • Tony||

    While natural rights came about as a contrast to the divine right of kings, both are equally arbitrary. Both appeal to a power higher than law. Without law, how is your claim to your rights any less arbitrary than someone else's claim to be your king and master?

  • pmains||

    Without some objective morality to guide that law, how can we know if the law is good or evil? If morality is completely subjective, then why is it not moral to mandate that babies will be eaten every morning? If I feel that it's okay, then it's okay, right?

  • Tony||

    Morality is a social construct. Only in libertopia, where every man is an island, would there be no means of agreeing on right and wrong.

  • Fiscal Meth||

    How do you figure? Ojective means is different than "no means".

  • pmains||

    So you concede the point, then. If society says that eating babies is ok, then it is, right?

  • ||

    Whos is this "society" you speak of? Does he appear in plays, or hang out in coffee shops?

    *Society* can't say anything and can't sign a contract. *People* can. If you adopt an *explicit* contractual framework - not some implicit bullshit "social contract", but an actual contract that people sign and that only applies to the people that sign it - these objections go away. In particular, it is only ok to eat babies if said babies sign a contract saying it is ok if they do, which I think you'll give me it is unlikely they will do (or that their parents will do for them).

    An "implicit" social contract is a unilateral contract decided by one group of people but forced on others; by definition, it can't really be a "contract" if it is unilateral. So the whole concept is flawed from the beginning.

    It is unlikely that in an *explicit* contract setting, people would contractually agree to be slaves, for example. Requiring interaction to be bilateral, that is, explicitly contract-based, is the ultimate protection. It's really just the "libertarian principle" but in a more coherent and self-consistent derivation.

  • Peon||

    Only because I just invented a weapon that can kill your stupid ass before you type another symbol if I so choose. Kneel before me Tony and learn to like it.

  • ||

    I'm an atheist and yet I know natural rights exist. It's not a religious belief. It's a philosophical understanding.

    There is a difference between objective and tangible.

    Natural rights have certain criteria and definition. They aren't arbitrary. If you understand the philosophy of natural rights you will be able to tell what can be natural rights and what cannot be.

    Isn't it better to say that our rights are created by our social contract with each other

    That's the worst reason possible. One reason is that there is no contract. You've never agreed to anything, much less committed to anything.

  • ||

    Exactly: that's exactly why we should rework our entire concept of how we interact with each other in terms of explicit contracts that we *do* agree to.

    P.s. I'm not a philosopher, but while there's surely a difference between "objecting" and "tangible", these are still just *assumptions*, they are not derived through a means that would be universally accepted. Ultimately, if we want to improve society along a "libertarian" line, it is going to take explicit buyin from most people. You will never get a majority agreeing to any particular set of assumptions. You are much more likely to get a majority to agree to *self interest*. For most people, agreeing to give up the initiation of force amongst each other is well worth the return agreement that other contract signers will give up initiation of force against them. It's simple math of self-interest: the average Joe rarely if ever chooses to interact with the people they normally interact with via initiation of force. It's really quite rare. If it's quite rare, then it follows that it isn't all that much to give it up; and there's a tremendous benefit that you get in return.

    *: the exception to the statement that most people don't initiate force in their everyday lives is government: everyone of us initiates force regularly, if indirectly, through government. The institutions and indirectness hide the initiation of force, and they don't really internalize that that is what they are doing. The fact that they almost never do this in their regular lives opens the door to the possibility that they really don't generally want to, and would be willing to give it up.

  • ||

    Thank you very much for that correction. You are correct, government creates the safe initiation of force against our neighbors, and alas, being safe, we all too often use it:(

    Voting is Violence.

  • dhex||

    you "own yourself" until someone else takes that "right" away with sufficient force. it's a beautiful fiction, and probably socially important - and definitely rhetorically important, if not quite as resonant as we'd like - but absolutely one of the silliest useful ideas ever created.

  • ||

    Rights aren't self-enforcing. The reality of theft doesn't make property a silly idea.

  • dhex||

    rights are a very useful social fiction - like (good) rules about property, it's one i definitely want my neighbors to hold - but they're entirely imaginary. it's great for setting up game rules, but treating the rules of chess as anything other than game rules is a serious error.

  • ||

    What are were talking about except the rules of civilization? The argument about rights has always been a pragmatic argument. Right and wrong are human constructs, susceptible to human judgment.

  • dhex||

    much as in the gourmet foods industry, the use of the term "natural" is meant to invoke airy rhetorical magic. it's a way of trying to express the importance of the right in question, and to stave off opposition. after all, who can oppose natural rights? we don't want government made pesticides in our childrens' rights!

    but it's also a form of self-hypnosis, particularly in reaching back to these magical framers who decided these rights, naturally, didn't apply to most of the people living in the country they wanted to form.

    mr. sullum's article is basically an argument against greater state incursion by invoking some kind of magical "pre-existing" barrier against evil. again, i hope more people actually have this belief than probably do, especially in the general glenn beckian/daily show axis of stupid, but it seems hells of dumb to pretend it's anything other than a con game for greater justice and peace.

    kagan seems fucking awful, but that's neither here nor there.

  • ||

    Then call it The Right of Self-Ownership if the religious trappings bother you. Do you really think I'm making a mystical appeal here?

    I don't own you, you don't own me. If that's not a place to start, then what is?

  • dhex||

    it's a pretty good place to start, all told, but it's not really where we started. i think it was something more like "i will fucking fuck you up if you fuck with me, so don't fuck with me" with lipstick provided by civilization's veil of maya. (or at least far more hobbesian than either of us likely would care for)

    at this point we're so far removed from that position that it's like bringing a tennis ball to

    i think the danger, marginal though it may be, lies in pretending that a) these things exist separately of social, economic and governmental rulemaking i.e. the exertion of actual power or b) actually means anything when powers (governmental, corporate, social) greater than ourselves wish it so.

    it's good for the rubes, though.

  • dhex||

    pardon, that should be "...bringing a tennis ball to a soccer game and asking to play jai lai".

  • ||

    No. The use of the term 'natural' refers to behaviours that all men seem to exhibit. Behaviours that are built in--outgrowths of instinct. There are quite a few.

    It is sad that a scant two centuries ago these things could be referred to as 'self-evident' and today they are the subject of fierce debate.

    That one can lose one's rights does not negate their existence--nor does it make them a 'social construct'.

  • ||

    By your definition we should have a "natural" right to own slaves and to practice polygamy. Slavery has existed in most human societies. It is clearly biologically normal and "natural" for stronger males to dominate weaker males and females. Nothing is more natural, as demonstrated by thousands of years of human history, than for a group of stronger humans to take the women and land from a weaker group, and kill or enslave those weaker humans. Yes, noble behavior like cooperation and self-sacrifice are natural instincts - but only within the group, not with humans outside the group - sharing with or helping strangers is unnatural. We apparently need society to protect us from our natural habits and inclinations.

  • ||

    We have rights by virtue of our unique nature as rational, volitional creatures.

  • dhex||

    pass the bong and praise the lord.

  • ||

    "rights are...entirely imaginary"

    If man is no different than monkeys or amoebas, yes. Are you arguing that concept-formation is illusory and arbitrary? Good luck proving that when you have yourself destroyed the tools of debate.

  • Fiscal Meth||

    There are no absolutes! Shit! I think I may have just claimed an absolute.

  • ||

    You can't prove that! Wait, if that's true, how can I prove that you can't prove that?

  • Fiscal Meth||

    HA! You can't! And the fact that you can't, proves that there is no such thing as proof and that I am right in claiming that there are no absolut...um...Fuck, why does this keep happening to us dude?

    Let's just go bow to someone who claims to have a higher source of knowledge that our shackled minds could never understand.

  • pmains||

    I taker it from your name that you are Ra, the sun god. Thank you for enlightening us.

  • ||

    That's my job, ma'am.

  • Fiscal Meth||

    Rights are the product of a rational consciousness. A free society, set up to protect individual rights, is a human innovation, not an accident and definitely not a gift from God.

  • ||

    but treating the rules of chess as anything other than game rules is a serious error.

    Natural rights are no more fiction than math. You can ignore math because you have a hunch your next blackjack hand is going to hit, but that doesn't make math imaginary.

  • Butts Wagner||

    There are a lot of what ifs(like The Matrix......), but does one not have the right to prevent themselves from being "owned" by another by means such as suicide?

  • ||

    That's not an interesting case. Of course you have the natural right to suicide.

    What's an interesting singularity in natural rights theory is can you voluntarily sell yourself into slavery. Another problem is who can have rights? If animals are intelligent enough do they have rights? When and how do children acquire natural rights?

  • ||

    If rights are "natural" then every human society would have those rights at its core, which is patently not the case.

    Just because a right is a natural right doesn't mean it can't be abrogated by government. Or a dysfunctional society.

    Isn't it better to say that our rights are created by our social contract with each other

    Speaking of fatuous nonsense. . . .

    our government is then the tool for enforcing that social contract and adjudicating disputes within that contract.

    Do please let us know how the method for determining the content of the social contract is more reliable than the method for determining natural rights.

    I would also point out that many of the people who deride "natural" rights as airy theology show no hesitation in embracing "human" rights that have, as far as I can tell, exactly the same empirical basis.

  • Tony||

    Speaking of fatuous nonsense. . . .

    You're awfully quick to dismiss that other foundational constitutional principle. The founders, and Madison in particular, were pretty fond of the concept of a social contract.

  • ||

    The point is that the foundation for deriving the terms of the "Social Contract" is what, exactly?

  • Tony||

    The constitution and laws make up the social contract.

  • JoshINHB||

    Did slaves prior to 1865 endorse the social contract?

  • Tony||

    Did slaves prior to 1865 have "natural rights"?

  • Fiscal Meth||

    Yes, they did. That's why the institution of slavery was an attrocious evil.

  • pmains||

    Zing.

  • ||

    Jefferson wrote that all men are created equal. He was right. It took the pernicious institution of slavery to make some men unequal and unfree. The concept itself is not made invalid and false because men continue to create corrupt political systems.

  • ||

    Did slaves prior to 1865 have "natural rights"?

    Of course they did. They had no legal rights however.

    Law sans natural rights is simply puffed up nihilism.

    I don't think you understand what natural rights are. They are not defined by popular opinion, nor are they arbitrary.

  • Tony||

    Bullshit. There are only legal rights. You are trying to tell me that people for thousands of generations, long before Hobbes and Locke, possessed rights they never actually enjoyed? Some consolation.

  • CJ||

    Should people who wanted to live longer have washed their hands frequently before Pasteur?

    What individuals and societies can't, don't, or won't observe because of the limitations of their technology or their systems of thought has no bearing on what's real and true.

  • ||

    Bullshit. There are only legal rights.

    Are there then no immoral laws?

    You are trying to tell me that people for thousands of generations, long before Hobbes and Locke, possessed rights they never actually enjoyed? Some consolation.

    Yes they did. And people secured those rights as best they could. Sometimes better and sometimes poorly.

    Occasionally they were able to secure them from a monarch, eg Magna Charta.

    The innovation was the US Constitution which attempted to create a government which was limited to protecting natural rights and constrained from infringing them.

    This experiment is about over.

    But people do intuitively mostly understand natural rights, even if they can't explain them. Mostly people don't steal when they could. Mostly people don't kill when they can. Mostly people don't enslave when they can. (that's always been a vocation of the rich)

    Why do you think, all the time and everywhere, when people could get away with infringing someone else's rights.. they generally don't?

    Ultimately you either believe in force as it's own end, or you must have a basis for believing there are occasions that use of force is wrong.

    You do not have that basis.

    Therefore to you, the government may rightly do whatever they have the power to do. Except somehow this consolidated government power so acting is superior to individuals acting similarly immorally.

  • Fiscal Meth||

    Thanks faithkills. Well said.

  • pmains||

    Tony, if people did not enjoy the exercise of their natural rights before Hobbes and Locke, that was unjust. Our rights are those things which are rightly ours by virtue of our humanity. So, when blacks were denied the right to vote, they still were owed that. They are equally human, and deserving of equal treatment under the law. Very simple.

    Or are you agnostic as to whether blacks should vote? If society decided tomorrow that blacks do not have that right, would it be just?

    Based on your previous answers, you have to pragmatically state that it doesn't matter. Our rights are whatever society chooses to grant us. If blacks are denied certain rights, then your philosophy doesn't have the tools to explain why that's wrong. You can pragmatically insist that you subjectively feel that it is wrong, but who cares? That's your opinion, which in a sea of 300 million citizens means basically nothing.

    On the other hand, if you can appeal to principle rather than emotion or whatever you wish to call it, you might have a case.

  • ||

    Libertarians understand more, and hew more closely to the social contract than grubby little leftists like you will ever be able to grasp.

    The social contract is about leaving other people alone so they will, in exchange, leave you alone. Everything else is socialist nonsense.

  • Tony||

    Um, that's pretty much the opposite of what it means according to social contract philosophers. Social contracts are necessary because people form and interact in societies.

  • ||

    Government is a mechanism for enforcing negative rights. Once it does anything beyond that, it becomes tyranny. You are a big fan of tyranny, so I can understand your inability to grasp the notion. Understand, but not forgive.

  • dhex||

    coercion we like is good!

    coercion we don't like is tyranny!

    natural rights are a hell of a drug.

  • ||

    Have you always been a dumbass or is this some new position for you? Either way, like Tony, you've become not worth arguing with.

  • dhex||

    i have always been a dumbass.

    but it's ok to be wrong, sirrah.

  • ||

    The only coercion needed is when people infringe on other people's rights, otherwise coercion is wrong. AN example is someone steals from me, then certainly I or the agency acting on my behalf have the right to regain what was stolen.

  • Cyto||


    coercion we like is good!

    coercion we don't like is tyranny!

    natural rights are a hell of a drug.

    Huh? I can understand how "Unless you give me half of your money so I can do with it as I please I'll lock you in a cage." is coercion.

    How the heck is "leave me alone and don't try to steal my stuff." coercion?

  • Tony||

    "enforcing negative rights"

    And how does it enforce them without positive action?

  • Fiscal Meth||

    You need to drink some coffee or something, Tony. You could have said...

    "Negative rights? More like positive wrongs"

    That way you change both words into different words.

  • ||

    And how does it enforce them without positive action?

    Are we to assume you think incoherence equals pith?

  • Tony||

    I'm not being incoherent. How do you "enforce negative rights" without granting a positive right to, say, police?

  • Fiscal Meth||

    Oh I see. Yes, You do grant the police a positive right to enforce negative rights but you don't grant them a positive right to enforce positive rights.

  • ||

    You don't have a positive right to police. Who claimed you did?

    However police, when they enforce laws based on natural rights, are consistent with natural rights.

    But of course you don't have a natural (or negative) right to police. Natural rights existed before police. How could this be a natural right?

  • pmains||

    Yes. That's why we generally call those "positive rights" of the government powers. They are not rights in the same sense that individual have rights.

  • Fatty Bolger||

    Social contracts are necessary because there are always people who want nothing more in life than to tell everybody else what to do, and take what others have. Like you, for instance.

  • ||

    Contracts may only be binding against voluntary parties to contracts.

    I can write something down and say it's a contract that binds you but that doesn't make it so.

    Social contract theory, if it can be so ennobled, is merely an excuse to justify use of force on the unwilling.

    Divine right is a more honest justification.

  • Tony||

    So you don't feel bound by the constitution and the laws of your society? Do you feel you would be wronged if you were arrested for murdering someone?

    Would you be happy if upon reaching the age of majority you were given a choice to sign a contract or get out of the country?

  • CJ||

    I wouldn't exactly be happy since I still wouldn't know of anywhere better to go, but at least I'd be slightly less disgruntled.

    A better ideal would be a contract allowing me to waive "rights" to medical care, police responses, public schooling for my kids (I don't intend to ever have any), the ability to sue private citizens, and as many other government services as I'd like to waive in exchange for paying fewer taxes accordingly.

    (Referring to services that affect only me, anyway--much as I'd like to, I realize I wouldn't be able to waive something like fire department responses or military protection.)

  • ||

    So you don't feel bound by the constitution and the laws of your society?

    Do you? You think you should obey an immoral law? If the law says you must turn in unregistered jews or escaped slaves then you would do it? 'Society' has created such laws. If rights are created by society then surely you would obey these laws.

    If you do not feel so bound, on what basis do you not?

    Do you feel you would be wronged if you were arrested for murdering someone?

    Not at all. Would you? A government punishing wrongful death is consistent with natural rights. This protection may be offered to everyone equally without abrogating the rights of anyone.

    Would you be happy if upon reaching the age of majority you were given a choice to sign a contract or get out of the country?

    False option. They offered ex-slaves the choice of accepting being sharecropper wage slaves after the civil war. Many accepted it.

    Now if you allowed my parents to similarly opt out and the freedom pass the fruits of their labors to me, and I got to keep any I had acquired, and there was someplace to actually go to be free, then sure.

  • ||

    Well, absolutely! Only we need to be clear what is meant by "country"... If we are going to base things on explicit contracts - and it what I advocate - then contracts only apply to *people*, not to "contiguous land". Which is to say: if someone chooses not to sign your contract, then they are not in your organization - whether you call it "country" or anything else - but in no way does that somehow require them to give up the property that they own.

    Which means: to not sign your contract wouldn't require *moving*, any more than dumping Verizon for ATT requires moving.

    The conflation of an organization of people ("nation") with geographical continuity is a huge mistake, and responsible for many of the ills we see in this world. The "geography" of a group of people should be based on "ownership", not its current force-based definition. If you are in nation X, then nation X's land is exactly equal to the land owned by individual members of nation X, no more, no less... and in general, should not be contiguous (though market forces would probably result in its having some correlation with each other).

  • ||

    SugarFree, you seem to be confusing "libertarianism" with "anarchy." Without a social contract a free market cannot function. There was no social contract in the USSR. The founding fathers certainly did believe in one.

  • ||

    Can you list any rights that are "natural" and then demonstrate what objective rationale makes those rights "natural"?

  • pmains||

    Freedom of Speech is a natural right. The non-aggression principle and self-ownership are the objective criteria.

  • ||

    our rights are created by our social contract with each other - our government is then the tool for enforcing that social contract and adjudicating disputes within that contract. But if government oversteps its bounds and encroaches on that social contract it is no longer acting as a legitimate representative of the people.

    I was going to deride this statement as fatuous nonsense, but R C beat me to it.

  • ||

    The founders, and Madison in particular, were pretty fond of the concept of a social contract.

    Perhaps, but they at least went to the trouble of reducing their social contract to a writing subject to supermajority approval.

    The concept of the "social contract" has since become a pretext for abrogating the terms of the Constitution without going to the trouble of amending it.

  • Fatty Bolger||

    That picture of Kagan on the front page is SO going to end up on Lie To Me.

    We can argue over "original rights" all we want, but the fact is, the best hope for retaining rights lies in making them explicit in the Constition. This article points out that the right to bear arms was "one of the fundamental rights of Englishmen." Fat lot of good that has done the modern Englishman, who no longer has that right. The same would be true here if not for the Second Amendment.

    I really don't have a huge problem with what Kagan actually said about focusing on the Constition as the supreme law of the land rather than original rights. If we want additional rights explicitly protected we have a method for doing so - change the Constitution. So yeah, I don't have a problem with what she said - I just think she was full of shit when she said it. I don't believe her.

  • Fatty Bolger||

    "Constitution," Fatty. It's spelled "Constitution." Every time. grrr.

  • Fatty||

    Not in my dictonary. grrrr

  • ||

    I really don't have a huge problem with what Kagan actually said about focusing on the Constition as the supreme law of the land rather than original rights.

    She'll fall back on the 'living document' construct as soon as it's convenient. Good point about 'modern Englishmen' and gun rights.

  • Eleven words or less||

    Except that modern Englishmen still have gun rights. That their government ignores those rights is another matter.

  • Cyto||

    the best hope for retaining rights lies in making them explicit in the Constition.

    It didn't help us on free speech - for a while anyway. The supremes have a way of redefining the meaning of the word is. Until Citizens United (and by a bare majority) "Congress shall make no law" abridging freedom of speech didn't mean all political speech. It still doesn't mean "obscene" speech. And lots of other exceptions - for good and for ill. I guess they shouldn't issue blanket prohibitions unless they want the entire text to be mitigated by expedience.

  • Fatty Bolger||

    Oh it helps, a lot. It's not a panacea, but it's the best tool we have.

  • Cyto||

    Agreed. It is sort of the difference between "We'll only usurp your rights when we think we have a good reason" and "we'll usurp your rights as a matter of course."

  • ||

    Kagan may have criticized circus that is the confirmation procedure in the past, but that does not preclude her waffling now that *she* has to participate in it.

  • ||

    I don't think there is anything contradictory or hypocritical in it.

  • Tony||

    Essentially she proved herself right.

  • Fiscal Meth||

    True

  • ||

    Social contracts are necessary because people form and interact in societies.

    You're a big believer in Original Sin, aren't you?

    Peoples is EEEEEEEVILLLL!

    I'm skeered of them, so we gotta keep them on a short leash.

  • Tony||

    No but I do like having a legitimate claim to my rights and property so that if someone does try to trespass against them I'll have a means of redress.

  • ||

    Peoples is EEEEEEEVILLLL!

    It's obvious you don't even know what 'Evil' is in the context of Original Sin. Admittedly, it takes some reading and thought, and a great many people are too lazy to engage in either activity.

  • ||

    "According to the Declaration of Independence, people create government to protect their pre-existing, inalienable rights..."

    good article, but its "unalienable", not "inalienable", sir. The two words are mistakenly used interchangeably today, but they meant two different things in 1776. Unalienable depicts rights which cannot be transferred away; they are inherent in man. This is what the declaration refers to. Inalienable rights are not necessarily an inherent right, and therefore are possible to delegate or take away. See http://adask.wordpress.com/200.....alienable/

    It is important for our people to understand what this means.

  • ||

    If we want additional rights explicitly protected we have a method for doing so - change the Constitution.

    Why do we need to amend the Constitution to repeat what's already right there in the 9th Amendment?

  • Comrade Zero||

    Let's try it this way: What, exactly, do we have "natural rights" to? Is it a catch-all for "whatever the hell I want right now"? I'll accept the negative/positive rights dichotomy here and assume that they only apply to each individual.

  • Someonewithaclue||

    The columnist is guilty of a common but pernicious misunderstanding.

    When the constitution says that a right shall not be abridged, it is referring to a right at english common law, not some sort of right inherently vested in all human beings by virtue of their humanity.

    Contrary to what the not-so-learned columnist argues, the constitution would be incomprehensible if you read it as referring to rights inherently vested by right of humanity - the Constitution tolerated and enshrined slavery, for example. Although we have more or less come around to the view that certain rights are inherently vested in all humans by virtue of their humanity, it is certainly not an idea enshrined in our constitution as it existed in 1789.

  • ||

    Common law was only acknowledging natural rights, and regardless not the understanding of the ratifiers of the amendments. Further common law was not part of the US constitution, is was never incorporated, nor could be as various states already had established differing positions under their practice of common law. Also, it was left to the states to make laws for the people, and the federal government laws for the states.

  • Someonewithaclue||

    The entire reason the bill of rights exists is because people were uncomfortable with a constitution that didn't prevent the federal government from abridging rights held at common law...at least if you accept an originalist position, which the author of this piece seems to do.

    The originalist position is that the constitution froze certain parts of the common law in place as they existed in 1789. To the extent that the constitution refers to rights that predate it, it is referring to rights at english common law, not some unanchored idea of rights vested by virtue of humanity. If there is anything that is clear about the constitution it is that the ratifiers did NOT believe in equal rights vested in all human beings by virtue of their humanity.

  • ||

    Not possible, as I stated above the states as colonies had already been
    practicing common law for years and had already diverged from the English common law. This being the case what common law was frozen? The common law of Massachusetts? The common law of North Carolina? Where is that clause that incorporates a common law into the US constitution, as the states in their constitutions did?

  • ||

    Preamble to the Bill of Rights...THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

    Sorry, nothing in there about preserving rights under common law, but insuring that the federal government would not overstep it's bounds.

    You also ignore the fact that many states incorporated the Declaration of Independence into their state constitutions, thus showing that they considered rights to be inherent in man and not something arrived at through a process of law.

    Bye

  • ||

    Your "natural rights" are to do what thou wilt, provided that you do not infringe on anyone else's natural right to do the same.

    Say what you want, eat what you want, screw who/what you want, go where you want, as long as you don't infringe on the "mirror image" rights of others.

    Property rights require a bit more elaboration, but come from the same root. Own what you can, perhaps, so long as you come by that ownership voluntarily and consensually.

  • ||

    Your "natural rights" are to do what thou wilt, provided that you do not infringe on anyone else's natural right to do the same.

    But what about the Progressives' Hobbesian nightmares? The strong will eat the weak (or something).

  • ||

    The strong will eat the weak (or something).

    You're thinking of progressive taxation in a democracy where less than half the people pay taxes.

  • ||

    I bet Kagan regrets disparaging the confirmation process. I assume she never expected a president to nominate someone with zero judicial experience who spent her entire career in partisan politics and ivory tower academic institutions. Hey, maybe she's more like the average American than we're giving her credit for then.

  • JRD||

    What exactly is the difference between "natural rights" and "judicial activism"? The DoI was a piece of political propaganda aimed at justifying an act of treason. The Constitution may make vague reference to some presupposed rights, but the fact of the matter is that even the concept of a "right" presupposes the existence of a state structure within which the right is recognized, so it's nonsense to suggest that any such things can exist in a state of nature-- where individuals manifestly do *not* have any enforceable rights beyond what they can impose on others through their own physical strength.

  • ||

    No, the concept of a right does not presuppose the existence of a state structure within which the right is recognized. That is statist claptrap.

  • JRD||

    libertmike and Len: If the concept of rights mean anything, they entail the concept of enforceability. And you're deluded if you think any of our so-called rights could exist outside the context of a social structure that recognizes them as such. Len, my point is that your "right" to worship as you please is non-existent in the absence of some social restraint that prevents others from preventing you from doing so-- as evidenced by the fact that the vast majority of humans to have ever lived, and probably the majority of those alive today, enjoy no such right. If you want to argue that all those people actually possessed an abundance of unenumerated, unenforceable, and unrecognized "rights" that they never enjoyed (or were even aware of), that's just semantic nonsense.

  • Eric||

    Oh, I'm pretty sure that a girl getting raped or a guy getting his land taken from him knows that his rights are getting violated, even if they wouldn't frame it quite that way.

  • ||

    So tell me how I am forcing myself on others when I am exercising my right to privacy? To eat or consume what I want? To worship or not to worship God? To keep the fruit of my labor? To move about? To talk or meet with someone else? To trade with someone else?
    A whole lot of force being used there huh genius?

  • Progressive Activist||

    Keep the fruit of your labor?!? Don't you know that private property is EEEVIL! There are others who are less fortunate! You are EVIL! Capitalism is Murder!

  • ||

    -
    -Regarding: "Natural Reluctance: Elena Kagan's disturbing refusal to acknowledge pre-existing rights"
    -
    -
    "Editor Jacob Sullum" does not appear to be cognizant of the requirements for Supreme Court Justices demanded by Republicans: that of "'Strict Constructionist's" (Of the Constitution!)
    -
    Elena Kagan gave the PERFECT reply to the question!
    Republicans 'parrot' the statement that "Justices are no supposed to allow their PERSONAL views effect their Court decisions"!
    -
    That guy "Editor Jacob Sullum"---- NEEDS AN EITOR!
    -
    -

  • ||

    -
    -
    ------------------------------I say:
    -
    -------------------Our U S Supreme Court is Corrupt!
    -
    Most of the present Justices of our U S Supreme Court are addicted to 'religion'!
    Thus, they are under the influence of a "mythological entity"; and totally unable to rule fairly in any case that involves conflict with the tenets, teachings, edicts or prejudices associated with their "religious-dogma"!
    Further; their renunciation of rational, and critical thinking, in favor of reliance on a "Ghostly-Apparition" for guidance; deprives them of the the necessary reasoning powers required for fair and impartial judgement of all issues that are antithetical to theirs.
    Our U S Constitution's First Amendment's "no law respecting---religion" dictates or, implies a 'total' separation of "Church & State"!
    Therefore, rightfully; no Case before the "U S Supreme Court" should be tainted' by influences of people who live in a 'fairytale world' governed by a "Religion"!
    ==============
    Most everyone "interprets" the U S Constitution!
    But; U S Supreme Court Justices are 'exactly' 'selected' because of their 'known' personal views that coincide with those who want 'their' personal 'interpretation' of the 'Constitution'
    adhered to like a 'leech' on a bloody body part!
    Literate 'rational' people use their minds to understand every word and it's meaning to them personally; and, that includes all parts of the U S Constitution!
    It is about constraints and influences and 'degrees' of freedom, and the inalienable 'rights' of all, including many who had few or no 'rights' when that Great Document was enacted!
    So! Despite what many believe; our U S Constitution has 'proved' to be a "Living Document", the meaning of which is subject to contemporary "interpretation"!
    Unfortunately, the "religious right" represents the majority's 'bent' of the present Justices of the U S Supreme Court!
    And, their collective 'biased' points of view determine the outcome of 99% of all cases before the U S Supreme court!
    -
    -------------------An American tragedy!
    -
    -

  • ||

    Robert Bork is no Elena Kagan.

  • ||

    Hey jocta, Why so angry over someONE you don't believe exists? I would be offended by your comments but I've applied your extensive logic and just determined you don't exist. Boy, that solves the problem everytime - but what if you do exist?

  • Byron||

    Do you not read and comprehend well, dan? It is pretty clear why jocta is 'angry'.

  • ||

    -
    -
    "dan"?
    -
    Your idiotic verbiage exemplifies an illiterate evader of an obvious subject in favor of attempting a 'pedantic' incongruous assertion that denies the facts presented, in both the subject, and the point for ones disillusionment with the criminal influences that sway the 'Halls of Justice" away from reasonable 'adjudication' and in favor of maintaining a 'Gordian-knot' grip on the 'flattened' wheels of Justice' in America!
    -
    I show no anger at nonentities!
    -
    Have a LITERATE person read those words to you slooooowwly!
    -
    -

  • ||

    Does natural rights theory give you the right to carry satchel nukes, fertilizer bombs, or an ak47 into a 7-11... while most libertarians understand the concept of limits far too many lack any concept of commonsense

  • ||

    To Eric - rape is wrong because societies have near universally recognized it to be so, not because there is or isn't a God or a theory of law called natural rights. Rights exist for humans because they are confirmed and recognized by humans... otherwise we are believing in ghosts

  • ||

    Laws usually exist because of a consensus on a legal/moral premise... that's why laws concerning rape have a near certainty of never changing while laws concerning abortion will remain much more fluid.

  • ||

    As an individual I am just as "free" in the EU as in the US... one dominated by positive law and the other by natural rights theory.

  • ||

    -
    -
    Helpless DAN:
    Your idiotic verbiage exemplifies an illiterate evader of an obvious subject in favor of attempting a 'pedantic' incongruous assertion that denies the facts presented, in both the subject, and the point for ones disillusionment with the criminal influences that sway the 'Halls of Justice" away from reasonable 'adjudication' and in favor of maintaining a 'Gordian-knot' grip on the 'flattened' wheels of Justice' in America!
    -
    I show no anger at nonentities!
    -
    Have a LITERATE person read those words to you slooooowwly!
    -
    -

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