Straight Talk Express, Baby!

Quote of the day:

By the way, I think the fence is least effective. But I'll build the goddamned fence if they want it.

Sen. John McCain on the minor issue of whether to build a huge honking fence across the Mexican border. (Via the Hotline, in Vanity Fair.)

Comments

[JFP]

Fair enough.

[Evan!]

Yeah, there's nothing that impresses me more than giving me "straight talk" to the tune of "I disagree with doing this stupid thing, but I'll do it to appease my partisan base". But we should expect no less from the nutgobbler whose dirty name adorns the most egregious example of first-amendment-raping this country has ever witnessed.

[Brian]

The fence thing seems to neatly encapsulate our politics: it's stupid, not needed, doesn't work, will be just enough for a photo op, and will cost 600% more than it should.

[R C Dean]

Can anyone think of a single civil right that the fence would violate? Seriously.

Aside from the tax money, I'm wondering just what the libertarian objections to the fence qua fence actually are. I can think of one:

Historically, border fences have proven just as effective at keeping people in as out (think Berlin Wall). In the case of the US, I think that's pretty moot/remote, but there it is.

[MikeP]

Can anyone think of a single civil right that the fence would violate?

Combined with the dearth of open doors in the fence, it violates the rights of movement and association.

[Gilbert Martin]

"Combined with the dearth of open doors in the fence, it violates the rights of movement and association."

Sorry but there is no such thing as some global "right" of every person on the earth to travel to or reside anywhere on earth that they happen to want to regardless of the desires of the citizens of the nations they happen to want to emigrate to.

There is still such a thing as national sovereignty and if 51% of the citizens of the United States want to place restrictions on immigration, that is not violating any "rights" of foreign nationals who desire to come here.

[MikeP]

Gilbert Martin,

Does your reasoning apply to sex, race, or religion as well as to nationality? If not, why not?

[Gilbert Martin]

"Does your reasoning apply to sex, race, or religion as well as to nationality? If not, why not?"

You'll have to elaborate further as I don't understand the context of your question.

Generally, there is no such thing as global "rights" because the rights of citizens are defined by the governing constitutions and/ or laws of the nations they are officially a member of.

You cannot haul yourself over to England and proclaim you have a "First Amendment" right to say anything you want to over there. They don't have a First Amemdment and you don't have any such right over there.

[waiv]

Property rights, they'll use eminent domain to get the land for the fence.

[MikeP]

Generally, there is no such thing as global "rights" because the rights of citizens are defined by the governing constitutions and/ or laws of the nations they are officially a member of.

I seem to remember something along the lines of...

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...

Rights exist before and apart from government. Government merely secures rights: It does not define them.

[Gilbert Martin]

"I seem to remember something along the lines of..."

That is from the Declaration of Independence - not the Constitution. The text of the Constitition is the law of the land not the Declaration of Indepedence.

"Rights exist before and apart from government. Government merely secures rights: It does not define them."

The founding fathers had a theory of "natural rights" that shaped how they wrote the Constitution. And the did indeed see a need to define them (or some of them) via the Bill of Rights.

All that of course only applies to US citizens within the territorial control of the United States.

And if nations don't define rights, then who does? Every individual residing on the planet can't go around proclaiming anything they happen to want to do is a "right" and require everyone else to abide by it.

If someone forced his way into your house and proclaimed he had a "right" to live there, I doubt you would go along with it.

[MikeP]

And if nations don't define rights, then who does?

Natural rights are "defined" by nature. They are "discovered" by political philosophers or the like. And they are recognized -- or not recognized, as the case may be -- by governments.

Do you truly believe that a person in 1850 in England had a right not to be a slave, but the same person in the US had no such right?

If someone forced his way into your house and proclaimed he had a "right" to live there, I doubt you would go along with it.

Of course not. He does not have the right to violate my property.

What if someone forced his way into my house and proclaimed that my houseguest had no right to live there, and that I had no right to allow him to live there, because my houseguest happened to be born in another country? Whose rights are being violated and who is doing the violating in this case?

[Gilbert Martin]

"Natural rights are "defined" by nature. They are "discovered" by political philosophers or the like. And they are recognized -- or not recognized, as the case may be -- by governments."

"Nature" doesn't define anything. Nor do "political philosphers" have any particular insight or authority to define "rights".

"What if someone forced his way into my house and proclaimed that my houseguest had no right to live there, and that I had no right to allow him to live there, because my houseguest happened to be born in another country? Whose rights are being violated and who is doing the violating in this case?"

If your housegest was in the country illegally in violation of the immigration laws then you have no "right" to allow him to live there any more than you'd have a right to allow a bank robber to live there (i.e. harboring a fugitive). You don't have the "right" or authority to set your own "personal" immigration policy.

"Do you truly believe that a person in 1850 in England had a right not to be a slave, but the same person in the US had no such right?"

I do indeed. The US Constitution had not amended the Constitution to prohibit slavery in 1850.

[MikeP]

Fair enough. I'll simply note that reasoning that can justify the actions of Germany toward non-Aryans in 1938 and South Africa toward non-whites in 1980 is hardly convincing when used to justify the actions of the United States toward non-citizens in 2007...

[Jake Boone]

Gilbert:

Am I correct, then, in concluding the following:

If the US government lawfully voted to abolish the Constitution, then lawfully voted to allow Congressmen a special dispensation to engage in forcible sex with whomever catches their fancy...

...in your opinion, nobody's rights would be violated when this new dispensation was exercised?

[Crusader Rabbit]

If governments can "define" rights, then they can also legitimately take them away. Any of them, or all of them.

I don't think that's what the "political philosophers" who founded this country had in mind.

[Gilbert Martin]

"If the US government lawfully voted to abolish the Constitution, then lawfully voted to allow Congressmen a special dispensation to engage in forcible sex with whomever catches their fancy..."

The US government cannot "lawfully" vote to do anything. Only the citizens can do that. The only way the Constitution can be lawfully changed - or abolished - is via the amendment process which requires ratificitation by a three quarters of the states.

[Gilbert Martin]

"If governments can "define" rights, then they can also legitimately take them away. Any of them, or all of them."

It is the government that has the power to enforce the rights that have been defined and enacted by the people via legislation to begin with.

If there were no government and a gang of 30 guys armed to the teeth showed up at your house and told you to get out, that they were moving in and taking over, your "natural" property rights wouldn't mean much would it?

[MikeP]

If there were no government and a gang of 30 guys armed to the teeth showed up at your house and told you to get out, that they were moving in and taking over, your "natural" property rights wouldn't mean much would it?

If that happened, I would have the right to fight them off, perhaps killing some or all of them. Importantly, the great majority of a healthy society would view my action as legitimate.

If Susan Kelo had tried the same thing against the gang comprising the council and officials of New London, she would have been prosecuted and punished severely under any applicable Connecticut law. And she would have received little sympathy from anyone in society except those who recognize that individual rights really are more important than government powers, the latter being legitimate only when used to secure the former.

[Rick H.]

There's a big difference between moral rights and legal privileges. Someone is either stupid, confused or being purposefully obtuse by conflating the multiple English meanings of the word right.

[Dave]

Gilbert, you probably think that certain things are morally wrong, deeply and seriously morally wrong, that it is morally okay to use force to stop them, that the best legal systems would indeed use force to stop them, and that no government policy can change their moral status. You probably think this about rape and slavery.

If so, you are a normal person and you accept that human beings have rights not to be raped and enslaved. If not, you are a piece of shit and fuck you.

But probably you are a normal person. So I don't know why you baulk at this use of the term 'rights', at 'natural rights', at 'human rights'. Perhaps you have some uninformed pedantry at work. But probably you agree with everything but the terminology.

[Jake Boone]

The US government cannot "lawfully" vote to do anything. Only the citizens can do that.

You confuse me. So what's that fancy thing those Congressmen do when they want to pass a bill? Is there something else they call that other than "voting"? The Constitution uses the word "vote" more than once to refer to this sort of goings-on.

The only way the Constitution can be lawfully changed - or abolished - is via the amendment process which requires ratificitation by a three quarters of the states.

Well, this is why I used the word "lawfully" - so that reasonable people would understand that everyone involved in this scenario is hewing to the dictates of the Constitution, right up until it's abolished. Was I unclear on that?

I ask again: in such a situation, Gilbert, do you indeed believe that nobody's rights are being violated?

[BrianTerrel]

You cannot haul yourself over to England and proclaim you have a "First Amendment" right to say anything you want to over there. They don't have a First Amemdment and you don't have any such right over there.

I think this comment gets right to the heart of why the parties to this discussion are largely talking past eachother, rather than to eachother.

Gilbert, the reason why you have trouble seeing the libertarian objection on this issue (and apparently on many issues) is that your conception of rights is a legal construct, whereas libertarians, like their idealogical fore-fathers the classical liberals, view rights as a moral issue.

Simply put, classical liberals recognized a strict divide between the issues which were political -- subject to government action via a democratic process -- and issues which are moral and therefore outside of the scope of democratic decision making. From a classical liberal or libertarian perspective, one would not say "I have a first amendment right to free speech", but rather "I have a right to free speech, which in the United States happens to be explicity protected by the first amendment."

I think this division of legal and moral issues recommends itself for a number of reasons, but I'd like to consider the slavery example, as it cuts right to the core of the matter.

I think we can all agree that slaves were human beings. I also don't think it is too controversial to say that human beings have a right to life; that is to say that we all are obligated not to kill our fellow human beings without powerful provocation. The obvious question is, did slaves have a right to life?

If we treat rights as legal issue, the answer is clearly that slaves did not have a right to life. Under the law at the time slaves were considered chattel, and thus were afforded little more protection than chickens and cows. If rights are a legal matter, then no slave circa 1850 could make a legitimate complaint regarding his or her treatment, even if he or she was being tortured or murdered.

If we treat rights as a moral issue, then things shape up a bit different. As we recognize the slave as a human being, and we acknowledge that human beings have a moral right to life independent of the legal system they happen to live under, we can say that the slave most definitely has a right to his life, among other things.

Now, as you seem concerned with the practical side of things, lets us consider how these abstract concepts play out in the real world:

As you point out, if individuals are intent on violating your rights, then asserting the existence of your rights is not likely to deter them. What a moral concept of rights does allow you to do is to condemn the actions of those who violate your rights or the rights of others.

An individual who subscribes to a legal conception of rights has no ground to condemn the slave holder who kills his slave; he has followed the law to the letter and thus no rights have been violated. He also has no ground to condemn the institution of slavery or the government which upholds it. Both have been duely chosen by the majority of the population, and are thus perfectly legitimate.

An individual who subscribes to a moral conception of rights has plenty of ground to condemn the slaveholder who kills his slave, the institution that allows it, and the government which upholds that institution. He has the grounds to argue the immorality of all three to his fellow men, and to ultimately effect a change for the better.

To put it plainly, the legalist is stuck with the government and society he is given, while the moralist is at liberty to work to change them. This, I believe, is a powerful reason to prefer viewing rights as a moral issue, rather than a legal issue.

A quick comment about democracy:

I've noticed that many Americans tend to see democracy as an end rather than as a means. For our founding fathers, democracy was adopted as a method of spreading power among as large a group as possible in the hopes of keeping the government from becoming oppressive and tyrannical. The goal of the American republic was not to establish democratic institutions; democratic institutions were chosen because they were believed to be the best hope for safe guarding the rights of the American people.

To get down to the nature of democracy, it is important to note that a lynch mob is a highly democratic institution: There are a whole slew of votes in favor of a hanging, and one stridently against. Anyone with an interest in preventing wanton murder by any large group of people must recognize that there are limits to the proper scope of democratic decision making. Some things just can't be decided by a vote.

Regarding the Constitution:

You mention that the founding fathers saw fit to include the bill of rights. It is important to realize that the constitution itself is a product of classical liberalism, and thus recognizes the divide between political and moral issues. If you read the federalist papers and read about the convention, you'll note that a bill of rights was discussed during the initial convention and ultimately rejected out of concern that future generations would regard it exactly as you do. Madison was particularly concerned that any bill of rights would be regarded as an exhaustive list of the rights of American citizens, which today is largely the case. Smart guy that Madison!

When the bill of rights was added through the amendment process, care was taken to make sure that such an interpretation would be avoided. The largely ignored 9th amendment reads:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

which says flat out that the list of rights presented does not represent the whole scope of the rights of the American people.

[MJ]

"Combined with the dearth of open doors in the fence, it violates the rights of movement and association."

The US government does not recognize any right to cross it's borders unimpeded, and has not for at least a very long time. A fence does not violate any rights that the sovereign people of the USA believes exists. For that matter, I cannot think of any country in the world which recognizes such a right.

Maybe the world is wrong on this, but if you want to change opinion on this, you are going to have to do better than merely asserting such a right should be recognized and accepted. You need to justify it.

[Gilbert Martin]

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

"which says flat out that the list of rights presented does not represent the whole scope of the rights of the American people."

That's true but the salient part of that comment is "the American people".

Freedom of movement and residence applies to American citizens within America. As I said before, there is such a thing as national sovereignty. There is no whole-planet government that conferred any "global" right of every person taking up space on the planet to travel to or be anywhere they want to on earth.

The United States Constitution does not confer any inherent "right" on a citizen of Guatemala or Venezuala, etc. to come and live in the United States.

Nor is there any "moral" right to such a concept either, since that would be inherently contradictory to the concept of the existence of sovereign nation states at all to begin with.

[Gilbert Martin]

"I ask again: in such a situation, Gilbert, do you indeed believe that nobody's rights are being violated?"

All "rights" are ultimately determined by mutual agreement of the population. Regardless of whether they were motived by some theory of "natural" rights or some other, that is the bottom line. If by some wild chance 75% of the population voted to do away with the Constitution (and by definition all government) that would mean there would no longer be any "rights" at all and it would be a law of the jungle free for all with anyone being entirely free to do whatever they pleased to the extent they were able to muster sufficient physical force to accomplish it.

[Jake Boone]

I'll take that as a "yes," then.

In that case, do you see any distinction whatsoever between "rights" and "privileges?"

[Dave]

Gilbert, I'll ask it straight-out this time. Do you think, with respect to slavery and rape, that they are morally wrong, deeply and seriously morally wrong, that it is morally okay to use force to stop them, that the best legal systems would indeed use force to stop them, and that no government policy can change their moral status? Or do you deny this?