malthaussen
malthaussen's JournalThe Declaration of Independence and the US Constitution
The Declaration of Independence is a nice little document (or at least its preamble is), but it is not a legal document and is thus little more than a curiosity in US State papers. The Constitution, however, is manifestly a legal document, and the ideas in the Preamble made it into the Constitution by way of the Bill of Rights.
Mr Jefferson established the foundational rights of Life, Liberty, and Property (well, he said "Pursuit of Happiness," but he was just kidding). A further right, floated by Francis Hutcheson a couple decades before the Declaration, also argued for a Right to one's own conscience. All four of these rights are legally secured by the Bill of Rights to the US Constitution.
The First Amendment secures the right to one's own conscience, which Hutcheson proposed but Jefferson didn't mention. Right to conscience involves more than freedom of worship, it also covers the right to think and express oneself free of government hindrance. Though the amendment does not explicitly secure one's right to think as his conscience directs, one might argue that the Founders, at least, expected people to think before they spoke (which is, perhaps, one reason why the Bill of Rights is out of date).
The Fourth and Fifth secure Life, Liberty, and Property (it's right there in the Fifth, honest), but none of the amendments say anything about the Pursuit of Happiness. One might argue that Pursuit of Happiness is really covered by the whole Bill of Rights (well, the first 8 amendments, anyway), or one could argue that the omnibus Amendments (the last two) secure PoH adequately. Maybe Mr Madison was not so enamored of Mr Jefferson's novelty to dignify it by addressing it in the Bill of Rights.
Bottom line: The Declaration of Independence (in the preamble) provides the theoretical grounding which was later worked out in the Constitution. It grants, and can grant, nothing. This is why people sue about unconstitutionality all the time, but no one (so far as I am aware) has brought suit against the Declaration of Independence.
-- Mal
Some musings on Natural Law
Natural Law is concerned with human rights, the "unalienable" rights Mr Jefferson wrote about in the preamble to the Declaration of Independence. (Yeah, he meant "inalienable," but I guess quills are as subject to typos and spell-checkers as keyboards) This means, in Natural Law terms, that one possesses these rights by virtue of being human, and that they cannot be taken away or given away.
Those rights are enumerated in the Declaration as "Life, Liberty and the Pursuit of Happiness." In the writings on Natural Law leading up to the Declaration, a trinity of rights had emerged as foundational: Life, Liberty, and Property. Mr Jefferson was squeamish about including the last-named, so he essentially came up with "Pursuit of Happiness" to stand in the place of Property. Francis Hutcheson, whom Mr Jefferson may have read, had added a few to the canon in his lengthy work A System of Moral Philosophy, among which is the "right to one's own conscience," which pertains to more than just freedom of worship. Popular blogger Jim Wright has boiled them all down to the right of self-determination, which arguably covers all the bases.
The unfortunate thing is that there really are no "inalienable rights" in society, as the State may freely deprive a member of the society, or a group of people, of their rights whenever it deems it expedient. Now, we can try some subtle sophistry to claim that taking away the exercise of a right is not the same thing as taking away the right, but when the State has chopped off your head, it is inane to argue that you still retain your right to life. Accordingly, it is often argued that in practice, rights are an agreement or compact among the members of a society, and may be "granted" or "withheld" by the State (and possibly enshrined in a written Constitution). Which leads me, at least, to a question: if Natural Rights are a pleasant fiction, on what grounds may an individual or group petition the State for enjoyment of rights they have hitherto been unable to enjoy?
Legally, there's no problem here: standing in court can be established if the petitioner can demonstrate actual harm is being done him. But the State has an out: they can claim that some overriding social utility justifies the denial of rights, in that either a) society benefits from such deprivation to greater value than the damage sustained, or b) that some harm will accrue to the State if the right is extended to the petitioner, greater than the advantage the petitioner will receive from free possession and exercise of the right. These are, essentially, utilitarian arguments: the greatest good of the greatest number directs the ruling. Now, if the petitioner can show that either a) or b) above is false, then he should win his case and be "granted" the right for which he has petitioned.
But utilitarianism can lead us down some very nasty rabbit holes indeed. It can tell us that unproductive members of the State, who are in fact a drain on resources and energy to the point that they cause net damage to the productive members of the State, should be liquidated; and it can be arbitrarily summoned to justify the denial of Life, Liberty, Property, Pursuit of Happiness, or anything the State damned well pleases. Further, it could be evoked to justify laws forbidding citizens to do anything to themselves that the State deems harmful, for example drinking, drugs, smoking etc -- which may not be "rights," but surely are a vital part of one's right to define himself, or go to hell in his own way.
So, if Natural Law is a fiction, and utilitarianism is not a reasonable grounds for "granting" a right to an oppressed individual or group, what are the grounds by which the rights enumerated in the Declaration can be assured to all members of the State?
Wish I had the answer to that.
-- Mal
Lyrics on the Internet
One of the nice things about the 'Net is you can find out wtf those lyrics in a song you've heard a million times really are.
Sometimes, the knowledge doesn't get you very far.
Viz: "Suite: Judy Blue Eyes" (Stepen Stills)
Que linda me la traiga Cuba
La reina de la Mar Caribe
Cielo sol no tiene sangreahi
Y que triste que no puedo vaya oh va, oh va
Okay, so basically, that means "Cuba is really pretty, the sky is nice, so sad I can't go there."
Whatinhell does that have to do with Judy Collins?
Confuzed, Mal
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