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FW: Re: Civil liberties v human rights

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  • Frog Farmer
    I posted this because I think it is important information that people have to be mindful of at all times. It s so basic most do not ever consider it. If one
    Message 1 of 1 , Feb 19, 2009
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      I posted this because I think it is important information that people
      have to be mindful of at all times. It's so basic most do not ever
      consider it. If one is out to disqualify usurpers, one begins early on
      in the process, the earlier the better. It's nice to know before the
      event occurs what one's rights are, and what is impossible of
      performance and what is not.

      -----Original Message-----
      From: Jon Roland
      To: H-Net List on Human Rights
      Subject: Re: Civil liberties v human rights

      This discussion is suffering from the use of fuzzy terms. It is not
      going to be productive unless or until some precision is adopted.

      As I discuss in *Social Contract and Constitutional Republics*
      <http://www.constitution.org/soclcont.htm>, the "rights" recognized in
      the U.S. Constitution form a hierarchy, deriving from four
      "constitutions":

      1. The constitution of /nature/ -- comprised of all those principles
      called the laws of nature, including the ways living beings, by
      their nature, tend to behave, usually as a survival strategy for
      their genes;
      2. The constitution of /society/ -- comprised of the natural rules
      according to which social groups tend to make decisions, before
      they establish formal structures of government. These include such
      principles as decision by conventions called by public notice and
      conducted according to customary rules of parliamentary procedure,
      perhaps combined with public referendum;
      3. The constitution of the /state/ -- the society in exclusive
      possession of a territory, which defines things like fair
      representation based on location.
      4. The constitution of /government/ -- probably written, as a
      fundamental law adopted as a legislative act under the
      constitution of the state.

      Each of these constitutions is subject to the ones before it. So a
      statute is unconstitutional if it violates any of the above
      constitutions, of government, state, society, or nature. A provision of
      a written constitution of government is unconstitutional if if violates
      the natural, social, or state constitutions, and a practice under the
      social or state constitution is unconstitutional if it violates the
      natural constitution.

      Different rights originate from different levels of constitution, as
      discussed above. Some of the main ones are:

      Nature
      Life
      Limb (right not be be physically injured or tortured, or have one's
      health or comfort threatened)
      Liberty
      Acquisition, retention, and use of means to secure above rights
      (part of property right)
      Right not to be required to do the impossible or scientifically
      irrational
      Society
      Property equity (right to reclaim property to which one has title,
      or the value thereof, beyond mere possession)
      Due process (includes due notice and fair hearing, both substantive
      and procedural, and all rights associated with juries)
      Common law trust rights
      Public decision by convention called by public notice and conducted
      by established rules of procedure
      State
      Denizenship (right to remain on or return to one's domicile)
      Fair representation of different parts of the territory
      Government
      Citizenship (privilege to vote and hold office, access to voting and
      fair counts)
      Presumption of nonauthority
      Means to remove misbehaving officials or suspend their actions, such
      as /quo warranto/ and other prerogative writs
      Getting reports on the activities and expenditures of officials
      Compensation for taking of property (part of property right)

      Thus, the property right is actually a bundle of rights, part of which
      are natural, and part social, in origin. It can also be governmental in
      origin, as with things like intellectual property, that is established
      by statute.

      Distinction between rights, privileges, and immunities

      The U.S. Constitution uses the term "right", but as Madison explained in

      some of his later writings, the natural, social, and state rights, as
      broken out above, are rights against the actions of government, for
      which the term "immunity" is more accurate. Under this understanding,
      every immunity is a restriction on the delegated powers of government,
      and every delegated power a restriction on immunities. Together, they
      partition the space of public action, with immunities and powers being
      complements of each other. The rights created under the Constitution are

      then more accurately referred to as "privileges". All of these are
      public rights, to distinguished from the private rights that arise from
      things like contracts. The use of the phrase "privileges and
      immunities", used in the 14th Amendment, is therefore to be understood
      as a more precise way to express the legal concepts involved.

      The use of the term "right" for a sufficiency of scarce resources is a
      misuse of the term

      The U.S. Constitution recognizes a right of "due process", which would
      seem to be sufficiency of a scarce resource, but it is not. If an
      official initiates an action against an individual, he is expending a
      scarce resource, but "due process" only obligates that the resources be
      allocated in a way that is fair to all parties. It does not, and
      cannot, obligate anyone to expend any resources at all. The law cannot
      command the impossible, and therefore it may not command sufficiency of
      a scarce resource, only the fair distribution of it.

      The notion of "human rights" as it has emerged in the 20th century is
      essentially a socialistic aspiration of providing a *sufficiency* of
      scarce resources to everyone fairly. It contemplates entrenching
      entitlements into law, or even into constitutions, as though it were
      possible to go to court and have the judge order into existence enough
      for everybody. The deification of judges and courts might flatter the
      egos of some on the bench, but natural law (that first constitution) is
      not sympathetic, and most judges would deny that is within their
      jurisdiction or competence. The Universe is not organized for our
      comfort and convenience. We are lucky that it even permits a few of us
      to exist in misery, but less wallow in comfort, with a million
      entertainments.

      So let's stop using the term "right" for something we can't get from a
      court of competent jurisdiction. By all means let us try to manage human

      affairs to maximize sustainable liberty, prosperity and justice, but as
      the current meltdown should inform us, what is sustainable may be far
      less than most of us would like to admit, at least for as many people as

      now live on the planet, living off the land and the sea.

      -- Jon
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