Michigan just upheld its legislature's definition of adultery as a felony punish-able with jail time. They did so despite criticism as to whether the legislature intended the results it has legislated. http://news.yahoo.com/s/afp/20070118/lf_afp/usjusticesexoffbeat_070118055859. Some of my friends will probably respond to this law by saying "that is unconstitutional" but it has been on the books so long that constitutionality isn't the issue. Common sense is. Some people claim that their opinions are backed by their constitutional beliefs, but a fair assessment of constitutional principles will show that those opinions don't hold water.
A law can be immoral, unjust and effectively "unconstitutional" as most people might think of the subject, while being perfectly constitutional. And we need to remember this while framing debates about social justice, responsibility and politics. States have been criminalizing personal and private behavior since before there was a constitution and there is nothing in the constitution that prevents them from doing so now.
The better questions are, "should they be making adultery a felony?" What are the principles that should guide us in framing just laws and a just society? and how do we derive just laws from general principles?
Making the clear distinction between what our rights are, and what we have to do to achieve them is something we have to make both in our minds, and as bodies of humans (collective aggregations) or we risk endangering the privelages and ennabling rights we need in order to achieve the theoretical rights set out in our Declaration of Independence and the pre-amble to the constitution by letting others decide those questions in their own convenient manner.
I believe that if people can be more thorough and logical in the adoption of general principle and its application they can more successfully settle disagreements over application of principle. If we can get people to agree on general principles, and to be rigorous in their application then we have a better chance of fashioning a workable society.
An abstract right such as justice is "inalienable" because it exists as an abstract principle. An abstraction is a generalization drawn from observations that can be formed into assumptions that can later be used to guide behavior. Rights such as "justice" are something we assume we should have, and because all people are assumed to have similar needs, we can pretty much agree that all people should share those rights.
But rights are abstractions. People, like President Bush, can mouth abstractions like "freedom is on the march" while promoting the opposite because the words themselves are abstractions. We can find disagreements on the weights to be given to these principles. The principle is "inalienable" because it remains a principle even as it is attacked and undermined. Indeed, as we found out from the behavior of the founding fathers, no one more values his "liberty" than the owner of slaves or the former slave. Indeed the act of acting against principles such as freedom or liberty only reinforces just how important those principles are.
I value freedom, equal opportunity, and justice. Some put more weight on freedom and see no value to equal opportunity. Still others have an emphasis on justice that may emphasize peculiar values of what that is. It is this difference in assumptions and their derived principles that drives much of human conflict. A man like Jefferson could establish "inalienable" principles and see their obvious application to white males, but fail completely to see their application to blacks, or women. Principles are inalienable, but humans regularly are alienated against their wise application. This is something to be wary of, even the smartest of people can so mix garbage assumptions and lies with his efforts that he can undermine his own efforts from within -- all the while convinced that outside enemies are out to get them. It is why i read most pundits and SIPs with a container of salt handy.
Most of our conflicts come, not in the principles themselves, but in the application of those principles. But the first thing we have to realize is that all "general" principles, in their application interpolate and are derived from assumptions that in turn flow from observation of reality. Since no individual human being stands in the same "time/space" none of us observe that reality exactly the same way. This seems to present an obstacle to deriving shared principles, but it isn't.
One general assumption we can all share, is that ultimately we dwell in a field of related "time/space" and that therefor we share that reality. Moreover, from that reality we have a need to derive and share common "principles" or shared assumptions in order to function as communities who have to interact with each others. Therefore, to get shared principles, we have to find a way to share the basis of the assumptions which are behind those principles. The way to do that is by writing them down, along with the scenarios and examples on which they are based. This use of logic, example, reason, is a reasonable way to debate and draw out workable policy ideas from general principle. Once one gets the strategy right and the policy right, one has a better chance of producing workable solutions.
On the other hand, poorly derived principles do nothing but cause problems. For example the simplistic anarcho-libertarian premise that government "is the problem" does nothing but cause problems in developing societies. For a simple example, in a developing society one needs to pay for infrastructure as part of the income stream of that society, yet most libertarians will push for development first, infrastructure second, and then scream about the tax costs and infrastructure inflation that follows the effort to retrofit urban societies after they've arisen pell mel. Systematic (systems) thinking can help us construct societies that will actually be functional -- but to do that we have to find ways of communicating the issues.
Now we get to some real world logical applications of constitutional principles and other sound "construction" principles needed to create a constructive society. There are some really smart people working on these ideas. I think if we can tap into their ideas (and critique those that are unworkable) we can make some progress as a society.
further reading:
Explaining the liberal principle
The Tangle of Growth: A Dynamic Analysis
Maybe someone will organize a protest. When the weather is warm we can have a million people fornicating in the park. I know I'd go.
clown hidden
Posted by: clown hidden at January 24, 2007 12:53 PMI agree we need to have basic that we all buy into.
The problem is the so-called of abstraction of rights is taken way too literally. People, especially those of a conservative bent, take it to mean abstraction means something is not real. If something is not explicitly written down, then it doesn't exist as a general principle.
GE
I am conservative. My take is that rights are a given unless limited -- in that we yield certain rights and priveliges to government. I have the right to do as I wish; unless the act is expressly
forbidden.
"A privilege—etymologically "private law" or law relating to a specific individual—is an honour, or permissive activity granted by another person or a government. A privilege is not a right and in some cases can be revoked."
Posted by: robek at January 25, 2007 04:55 PM
"I am conservative. My take is that rights are a given unless limited -- in that we yield certain rights and priveliges to government."
Actually, Robek, the governments have no rights are or priveliges. They have powers which are limited by the letter and spirit of Constitutional Law. Only individual persons have rights and priveliges which government is enjoined from interfering with.
"I have the right to do as I wish; unless the act is expressly forbidden."
That's only partially. One's civil liberties are broad and can only limited by law. And laws to limit one's liberty can only be enacted when the government can show that one's individual conduct hurts other people. Thomas Jefferson expressed in this manner: "The legitimate powers of government apply to such acts as are injurious to other......" (Notes on Virginia
Jerfferson was refering specifically to religious belief in this partial passage I cited - "...it does me no harm for my neighbor to say that there is no god or many gods. It neither picks my pocket nor breaks my leg." However the sam principle could be applied to anything in the realm of an individuals conduct of his/her personal life.
In other words one can live how ever one unless as long as one's lifestyl is noninclusive of rape, murder, or pillagement.
GE
Posted by: Guitar Eddier at January 26, 2007 08:32 AMThe problem with "rights" and "privelages" is that someone can claim to be a "conservative" and that rights are given unless "expressly forbidden" -- but the constitution doesn't make that an easy distinction to make. On the one hand we need planning and forethought, and on the other hand we always have to be aware of the limits of our own and our fellow human beings "wisdom" in being able to plan, be, or solve all problems.
For example, Justice is a goal that needs a balance between the rights of the accused and the right of the rest of us to be secure from harm by tricky and malicious people. We want to protect, say children, from malicious people. Yet drawing the line between legitimate activities and ones that "ought to be illegal" is extremely difficult. Many very "moral" people end up advocating mass violence against people for what amount to pecadillos.
At the same time we need to be secure from attack, violence or infringement on liberties and rights by private individuals we need to be safe from unwarranted intrusions on our liberties by a sometimes paternalistic government. The laws on pornography and other non-violent "crimes" are case in point. Where are the lines? We can't always be sure they've been crossed. How can we trust the Government to keep us safe from people who often are the very officials charged with carrying out the laws we got passed out of fear of their violation?
Thus striking a just balance between goals, "rights" and "privelages" necessary to reach those rights requires ongoing debate.
I've been giving this considerable thought and for any set of "rights" to be meaningful they have to be first stated as Goals. The Pre-amble does this nicely with its statement
"to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."
Each subsequently stated right and privilage is directly tied to these initial ones. We can derive rights such as the "right to equal access to justice" from the goal of "establishing justice." We can further tie such inalienable privilages as Habeas corpus and similar to this pre-amble.
Goals bridge rights with the privilages or "capabilities" required to achieve and secure those rights. We all have a right to "pursue happiness." But what rights and privilages secure that right and make it possible?
Conservatives and liberals can both take comfort that the logical application of such principles will lead to saner law. We have to look at rights and privelages requiring balance, and that we need to engineer things in such a way so that whenever possible the choice is ours, and that when rights and privelages cross each other, a fair arbitration ensues.
Chris
Posted by: Chris at January 30, 2007 11:08 PM