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Member since: Sat Sep 24, 2011, 10:36 AM
Number of posts: 11,976

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The 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Founders, at least, expected people to think before they spoke (which is, perhaps, one reason why the Bill of Rights is out of date).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

Six shooting threats in three days.

Got an interesting phone call last night from the sherriff's office of the little county in Kentucky I'm living in now (pop 25,000 and some change).

The gist of it was that there have been six threats of shooting in the County's schools brought to the attention of the office since 19 February (that's right, 19 February). All six have been investigated and arrests made in four. This in a rural (hell. practically desert) area of 25,000 citizens.

That certainly seems like a lot.

-- Mal

Crappy food you like anyway...

... and don't try to talk me out of it.

I'll start:

Chef Boyardee Spaghetti
Kraft Mac and Cheese
Pop Tarts

Fess up, pilgrims, what horrible, unhealthy, and yummy food do you love, and are not one bit "guilty" about it?

-- Mal

Jim Wright strikes again.

Mr Trump wants a parade? Mic drop time:

Look, here's the thing:

Tough guys, the real deal, the snake eaters, those confident in their abilities, they don't brag, they don't swagger, they don't need to impress you with macho bullshit. They know who they are. Their brothers know who they are. Those guys, the truly deadly ones, they don't go looking for a fight. They avoid it, if possible. But if trouble finds them, well, then they end it. Without fanfare, without bluster, without cock waggling. They do what is necessary BECAUSE it's necessary and no more.

It's the blowhards, the cowards, the insecure, who strive constantly to impress you with their macho toughness and bulging muscles, with their tales of derring-do, with their war stories and their supposed heroics. They threaten and brag and swagger and crave your adulation.

But it's the guy in the back, the quiet one in the shadows with his hands in his pockets, you should be afraid of. Because HE doesn't need your respect. Or your admiration. Or your fear.

Now, if you're a repressive dictatorship with a cardboard military and a massive inferiority complex, you parade your tanks through the streets to impress the peasants. To brag and swagger and threaten the world with your macho.


(More at: https://www.facebook.com/Stonekettle)

As I have observed elsewhere, Jim Wright is a brilliant writer. He can clear up just about anything. Which might make him, from time to time, offend liberals, because he is ecumenical in his insistence on clarity, logic, and common sense. Highly recommend his Facebook page, and his blog at http://www.stonekettle.com/

-- Mal

My mother was a fanatical Eagles fan for over 50 years...

... she dies in June, the Eagles win the Superbowl in February. **sigh**

Well, she's smiling now.

-- Mal

One subtlety of that Quinnipiac poll the other day...

... several people have commented about the fact that while 69% of respondents think Mr Trump is not sane, only 57% consider him unfit to be President. They worry about the 12% who think it is okay to have a madman as President.

But it's actually worse than that. This presumes that all 31% who do think Mr Trump sane also believe him fit to be President. But is this a safe assumption? After all, I can think of many people whom I think are perfectly sane, but unfit to be President. So, for every 1% of that 31% who do think Mr Trump is sane, but unfit -- another 1% think it's okay to have a madman as President.

See, we have even more reason to worry about the State of the Union than we thought.

-- Mal

Mirai Nagasu, 2018 US Championship FS

Okay, okay, she two-footed the triple axel. Sue her.

I thought her PCS should have been higher. Silver medal, forsooth.

-- Mal

Thanksgiving with Arlo Guthrie

-- Mal
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