Wait: it gets better.
Love the English “Bird” thrown in there!
Privileges come from Governments, Rights come from God, or Nature, if you’re Divinely disinclined.
Anything a Government can “give” is a privilege that can be taken, anything that can exist without a government, cannot be Lawfully taken by anyone.
Such is the nature of a right.
Can not be lawfully taken, but they can be given up by way of consent.
There is an interesting ambiguity in that statement: individual vs. representative consent.
Consider the idea that taxes may not be imposed by a government but by the consent of the governed. I’ve always understood this to be representative consent; Taxation which requires individual consent is merely a suggested donation.
Why isn’t a representative body able to grant consent for their constituent’s homes to be searched at whim? Well, besides the 4th amendment.
A Representative can only consent to actions they were given power to consent to in the first place. To overstep those bounds would be a Breach of Trust.
We give power to our Representatives to execute the duties that have been enumerated for them for the purposes that has been specified, as defined in the Constitution. The Constitution enumerates Strictly what they CAN do and for what purposes; any thing or purpose omitted, is an explicit statement of forbidding any authorization to act on that thing or purpose at any time.
For example, note the text of the 19th amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
This amendment presumes that women already have the right to vote. It is therefore technically incorrect to say, “The 19th amendment granted women the right to vote” rather than “The 19th amendment recognized women’s right to vote.”
The way American law works, a “right” is something you have regardless of whether the government permits it. It’s not granted by anyone — it doesn’t come from God or nature or the government or anything.
Instead, we say rights come from the the philosophical principles on which our society was founded, as expressed in the Constitution and its amendments. As their definition and interpretation have been seen to evolve over time as society evolves, it’s not uncommon to also say that they are defined by the present mores of our society.
Actually, the rights are defined by the constitutional convention, the amendment participants, and of course the courts — all of which are governmental. So to that extent they are “created” by the government. Though we prefer to say we’re just “discovering” and “defining” them.
Privileges and licenses are easy — they’re stuff to which you don’t have a preexisting right, and over which we’ve given the government the power to restrict. If you want the license, you’ve got to play by the government’s rules.
Maybe this is a silly question, but is it actually important that the Constitution and its amendments use the language of “discovery” and “defining” rather than “creating” when talking about rights? If this weren’t so, would there be substantive changes in the way the law is applied, or is it just a matter of style?
I would say that “Rights” evolve out of Enlightened Self Interest. I have them because everyone one else wants them, and if they deny my rights they have to worry what I will do to them.
I’m going to touch on this briefly in a couple of pages, and then for real once we get to Constitutional Law.
If I can just… wrap… up… this crim pro… stuff… first…!
Much patience must the Webcomic Artist have.
I’ve always found it strange that the original interpretation of the first amendment was that it was a restriction only on Congress and did not apply to the various States. While this is obviously the actual text of what is written, it seems (to me, having grown up in the modern-day) an absurd result to read it as a narrow restriction on one part of the federal government and not as broad rights that no aspect of any government can infringe upon.
That involves our evolving juries too. To modern people that writing means something different than it means to the original authors. When that was written the US Federal Government had very little power. These days it seems natural for a federal government to proscribe the activity of the states as it is seen as ‘above’ them. Then the Federal Government was just a joint body for diplomacy and war. (A crude simplification, but more or less true.)
The text of rthe1st amendment explicitly states “Congress,” because the original understanding and intent of the Constitution did not grant Congress the power to legislate for or to, the states or the people. It had no jurisdiction, and according to law, still has no such jurisdiction, save only what people consent to give it individually.
Also, a little known fact about the states is, that, even after the ratification of the Constitution, several states Did actually have “State Religions” and bars to public office based on religious affiliation. This changed with The individual state Constitutions, rather than any act by congress. And even by law, it is still unlawful for an Athiest to hold Public Office, due to a certain maxim “to swear is to call God as a witness and is an act of divine reverence.” To Affirm was to prevent discrimination in public office of certain religions (Quakers) who believed the New Testament forbade swearing.
The Law does not change, people simply become ignorant of it, and through their ignorance, pervert it for the misunderstanding of generations after.
As I understand, the law changed with incorporation (the 14th amendment).
Every body of laws is filled with outdated laws whose specific use makes no sense taken out of cultural context. Which brings us back to the accumulated clutter of laws making systems unworkable.
It looks like laws, like any good code, need to be ripped up by the roots and streamlined every so often to get rid of accumulated ‘junk code’. Just as many of the revolutionary and then-brilliant ideas that formed the basis of the US constitution need to be painstakingly explained to modern students because the social ills they were meant to address have not been seen in a hundred years.
I would tend to disagree. Rights are not defined or discovered through the process of law. Rather, Law is enacted to prevent government from infringing on the ‘rights’ people already possess when in a state of nature or anarchy. This is what is meant by the phrase “Rule Of Law,” being law is made to restrict government behaviors, not proscribe for people what they may or may not do, as would be described by the phrase “Rule By Law.”
It was for this reason that the Federalists resisted a “Bill of Rights” because it would lead to the perception that Governments held all the power to determine what was and was not “lawful” for a person to do, when that power was never granted to that governmental entity in the first place.
The Second Amendment doesn’t give me the right to bear arms, nor does it define my ability to have that right, no, that power exists within me in a state of nature, and since the Constitution was made without consenting to waive that right, no power to govern over it was given to the government by way of the Constitution. The Second Amendment serves merely as a reminder to that lack of jurisdiction, and could otherwise be considered meaningless inkmarks on parchment.
In fairness, the expression of your tendency towards disagreeing with is what Nate says in the very first paragraph of what he wrote above.
As for the rest, remember that much of this is about the difference between what a right is and how it “works” as a practical matter. Government action is one of the prime movers shaping our rights. Amendment 1 says (among other things) that “Congress shall make no law…abridging the freedom of speech….”
Congress passed the Smith Act, which more or less said “That free speech thing? Not so much, if you’re advocating the overthrow of the government.” The Supreme Court spent almost twenty years NOT telling Congress “Hey, you can’t do that.”
I do hope you’ll explain how TPTB managed to screw up the Second Amendment, then.
If it’s a right, as stated (and type of weapon is irrelevant, since bladed weapons are licensed, too – and there’s a movement to ban knives already!) – then the very act of requiring a permit to Purchase is an unconstitutional act.
Do please explain this fraud…
Wouldn’t torture result in letting guilty people go free, though?
If you convict the wrong person for a crime, you wouldn’t be looking for the right person, would you?
True, but the important thing is that society saw that someone who “committed a crime” was caught and punished, so other people aren’t going to start getting ideas. Even if we did happen to get the wrong guy this time, odds are we’ll get him next time.
Or something like that.
With most murder and assault deterrence doesn’t really enter into it, look back at the earlier chapter where this was addressed.
For those that commit fraud and theft it’s a combination of greed, need and disregard for the rights and welfare and others that causes that to continue to be an active problem in society. Again, this is something that deterrence won’t help much unless it actually lands on the guilty, because most people generally try to avoid becoming gangsters, grifters, pickpockets, muggers and such.
So no, as a pretty strict rule it’s bad to punish someone who is not guilty of the crime in question. It’s bad for everybody (besides the unpunished-guilty) unless your society has a strong problem with a lack of respect for civil order and the law. That failure of civil order has to get to the point that substantial numbers of ordinary, intelligent and otherwise moral people would perform criminal actions to rationally advance their interests before arbitrary punishment even could advance the cause of deterrence.
There’s one debatable exception: An oppressor can implement a campaign of terrorism to achieve political goals. In that case the arbitrary punishment exists to send the message, “This guy didn’t even deserve this so keep your head down or you’ll regret it!” or instead, “I just punished this person for bothering me, are you gonna risk bothering me?” This however tends to backfire if the oppressor seems too unpredictable, weak, or does not have sufficient support to resist the backlash like Baby Doc Duvalier.
It’s worth noting that campaigns of terrorist oppression can survive a long, long time like the reign of his father, Doc Duvalier.
Exercise for reader: Figure out how this is connected to ‘three strikes laws,’ ‘minimum sentencing limits,’ and ‘the war on drugs’ in America.
I suspect sometimes that’s a feature. If some low status person (poor, foreign, wrong race) confesses to the crime, there’s no need to hassle the rich kids. If all going after Whitey Moneybags is going to do is get a flurry of lawyers / recommendations from power to back off, at least Blackey Emptypockets will let you close this high profile crime without a lot of fuss.
It’s a pity both the UK and the US so readily jettison the notion of rights when “terrorists” are involved. The US seems to have forgotten that torture doesn’t work, too.
Sometimes I think Kiefer Sutherland “romanticizing” the notion of torture on 24 had something to do with it.
Hey, it may not work, be completely uncivilized, and go against everything this country stands for, but sometimes that’s just the sort of BOLD AND DECISIVE ACTION you gotta take when lives are on the line and you need results ASAP. THINK OF THE CHILDREN!!
Besides, you can’t prove 100% that we wouldn’t have gotten the information we did without torturing people for it. It took a few hundred waterboarding sessions, of course, since actual terrorists are surprisingly good at just telling plausible lies over and over to make it stop, but eventually some of them cooperated! Sort of!
Also, modern negotiation techniques where you just convince the target to willingly help you rather than give them and a bunch of possibly-innocent civilians more reasons to hate you are for cowards. You need to be TOUGH on terrorists and people who sort of look like terrorists!
…I really wish this was more of an exaggeration of things I’ve heard people say to defend torture.
I am unfamiliar with that torture device. Can anyone name it?
It’s one of a variety based on a simple vise, used for crushing. Thumbscrews were used for just the thumbs, this one’s a larger version for the whole hand, and there were others for the head and feet. The really scary-looking stuff you might have seen wasn’t really used much in real life — if it even existed, it would have just been in the room to frighten people for the most part. When it came to actually making you suffer, simple workmanlike devices were what got used.
To me, the mundanity of it all makes the cruelty somehow even more awful.
My first comment was incomplete. I had meant to add that after I had explained my background or lack thereof I was going to start commenting. Mostly I’ll lurk. This comic is fascinating and the art is excellent. I went back to the beginning and beat through the entire lesson. I feel better informed, and now know my impressions of American cop shows is correct, i.e., they are utter crap.
American cop shows that focus on procedure are great, but as their ratings slip into the toilet they add violence and simulated sexytime between the cops, between the criminals, and sometimes between the cops and the criminals.
Don’t get me wrong, sexual tension is great as a plot device, i.e. Mulder and Scully, Sherlock and Lucy Liu Watson, etc. If the relationship EVER crosses the line, the series is over.
So… What you’re saying is you don’t want to see Lady Justice and Green Shirt/Common Sense Guy ever getting too comfy?
Lady Justice/The State is my OTP. They know they have to keep a distance… but their desires yearn. YEARN, I say!
Didn’t Lady Justice get married to Lady Liberty a few years ago?
yes, but not all the states have recognized it yet.
“N’est-ce pas, ma petite jolie ?”, while gramatically correct, would not be something a native French speaker would say. He would say either “ma petite or “ma jolie”. A third option would be “ma belle”.
It’s because both are condescending, and combining them sounds cheezy.
Have a nice day!
Thanks! I was going for “condescending asshole,” not cheeze. Will fix.