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I maintain that the zeroth principle of Constitutional law, indeed all law, is Catch-22:

We have a right to do anything you can't prevent us from doing.
The zeroth question thus becomes, "How can we prevent them from violating our rights, or punish them for doing so?" In other words, what remedies do we have?

In conventional legal language, this is the Roman legal maxim

There is no right without a remedy. Ubi jus ibi remedium.
I go further: the substance of any supposed right consists of nothing other than its remedies.

There are many philosophical, even theological theories of human rights. They are bushwah. Rights are not things with independent existence. You do not have rights. God did not give you rights. Government did not give you rights by saying you had them. The law by itself does not give you rights. There are no inherent rights. There are only remedies or the lack of them. Again, the law does not give you self-working remedies. Remedies, and thus rights, are complex constructs based primarily on political will.

Those are strong claims needing strong evidence, and a counter-theory that actually makes sense of what rights are, what they are good for, and how to get some. Which requires a trip past the orange thingamawhatsis.

Furthermore, I contend that the only way we get rights is by taking the trouble to give them to each other—over and over and over…because political will from the Founding Fathers is bupkes. Even yesterday's political will is worthless if you won't turn out today to assert it yet again.

Never mind supposed Constitutional Originalism or the Intent of the Founders, or even the plain language of the law. It does not in fact matter what the Constitution or laws or treaties say on their faces when Supreme Court justices can just make up legal doctrines with impunity. What matters is what you can prevent them from doing, now or in the future, by sustained, organized action. Can you enforce any kind of legal or moral right when they pretend to apply their laws to you, or simply usurp power and don't even bother with pretense? What does that take, and how can you do it? What are the remedies?

My principle, that rights consist only of the remedies provided to prevent and punish violations, is an instance of the Feynman Thesis, propounded by physicist Richard Feynman's father. He taught his son that the name of a thing conveys no information. What counts is its behavior. This concept has been used in a variety of branches of mathematics since the 19th century, saying for example that points and lines in geometry are not defined by some metaphysical substance, but by the question whether they obey certain axioms for particular kinds of geometry.

Similarly, it does not matter what the law says on its face. What counts is how it functions in court and in society. Can you expect the police or other arms of government to respect your rights? (Some, for some people, some of the time, but certainly not all.) Can you get a court to tell them in a timely manner to respect your rights? (Maybe. It could take a while. They could decide to ignore the courts. Eisenhower had to send troops to enforce school desegregation.) Will violators of your rights be punished? (You're joking, aren't you?) Would a new Administration better respect your rights? (That can go either way.)

Let's try an example. The Soviet Constitution guaranteed Freedom of Speech. This clause could not be asserted in a Soviet court. Attempting to insist on it would have gotten a lawyer the Communist equivalent of contempt of court, which at some times could include a stretch in prison in Siberia alongside his client.

That's clear enough, isn't it? But you might think that that was just the lawless, evil Soviet Communists, not the good old US of A. Well, then, try this bit of Constitutional Originalism:

[Blacks] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.[Emphasis added] He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world.

The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time.

Fact-challenged Supreme Court Chief Justice Roger Taney, in Dred Scott v. Sandford, ignoring the plain words of obviously unimportant people like Founding Fathers and Presidents George Washington and Thomas Jefferson, themselves slaveowners who detested slavery, as well as every other early President.

Yes, yes, but that was then, and we fixed that with the Reconstruction amendments. What about now?

Not so fast. How much do you know about Jim Crow, Separate But Equal, and the Klan? It took nearly a hundred years after the Civil War before we could end lynching, allow interracial marriages, fully desegregate the military, mostly desegregate most of the South, and give Black citizens the actual ability to vote. Then we got the Republican Southern Strategy, so we are still fighting on desegregation, economic rights, and voting today. And Driving While Black, Stop and Frisk, and a multitude of other indignities and injustices. And the rights of other minorities, women, immigrants, and more recently LGBTs.

But all right. What about now? Allow me to introduce you to Justices Antonin Scalia and Clarence Thomas, who are hostile to every right of minorities, women, and so on, and only support rights of the rich and powerful, of their preferred sort of Christian, and of corporations, or at best rights that are neutral in application, such as the right not to have a drug-sniffing dog on your front porch without a warrant. These two were put on the court specifically in support of the Republican Southern Strategy of racism, bigotry, intolerance, misogyny, More Guns More!, and kleptocracy, and even more specifically in the hope of getting a majority for overturning Roe v. Wade and plunging us back into the horrors of back-alley abortions. (Roberts, Alito, and Kennedy are bad, but not as bad as those two.)

In short, if the Constitution, a statute, or a treaty says you have a right, and the Supreme Court says, "Nuh-uh!" then you don't have that right until we can get a new Supreme Court majority or somehow amend the Constitution, which is much, much more difficult. (I'm holding out for replacing Scalia and Kennedy, the oldest on the conservative side, within the next ten or twelve years. Even if that means hold your nose and vote for Hillary.)

Worse yet, hyper-activist Conservative judges on the Supreme Court have held that the protections for ex-slaves and their descendants put into the Constitution in the wake of the Civil War really are meant to protect corporations and to make them More Equal than the rest of us. It goes back to Santa Clara County v. Southern Pacific Railroad, where the court reporter noted

One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.
Note that that was not even a decision of the court, merely an assumption, like Taney's assumptions about the treatment of slaves. This pernicious doctrine resurfaced in Citizens United, giving corporations the right to make unlimited political donations.

Rights in History

The earliest known governmental assertion of a right of freedom of conscience was in the reign of the Buddhist monarch Ashoka in India in the third century BCE. There was some talk of rights for women, children, the poor, and foreigners in the Hebrew Bible (Tanakh) and in Athenian philosophy and tragedy, notably The Trojan Women of Euripides (adding prisoners of war), but little came of it at the time. There were a few glimmers in the Roman Republic before it went all Imperial. The Qur'an asserts that there can be no compulsion in matters of religion, a doctrine occasionally taken seriously, but usually roundly ignored in Muslim societies ever since.

The modern era in human rights began after the printing press enabled Martin Luther's doctrine that every Christian had to read the Bible and come to his own understanding in dialogue with God, in opposition to the Catholic Church dogma on dogma. This had little practical effect in countries where the Lutheran church became established as the state religion, but took hold in the Netherlands during the Eighty Years War against Spain. Causes of the war included the Spanish Inquisition and the insanity of Spanish Imperial economic theory. Spain forbade spending any of the riches from South America outside the Empire, thus giving rise to the greatest inflation in history before the 20th century. The Lutheran teaching also took hold among Scottish Presbyterians, who made it the basis of their public school system, the first in the world. This became the foundation of the Scottish Enlightenment and thus of much of modern economic and political thought, including Adam Smith railing against subsidies and other economic favors demanded by the rich of their governments, and against income inequality.

Everything for ourselves, and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.
Notions of Natural Rights and God-given rights were of considerable rhetorical use in the 18th century (growing out of the declarations of Freedom of Conscience and Freedom to Trade in the Netherlands in the 16th century), when trying to convince people that human rights are prior to human law, and should be given force in the law. Thus Jefferson in the Declaration of Independence:
We hold these truths to be self-evident:

That all men[sic] are created equal.

That they are endowed by their Creator with certain unalienable rights.

That among these rights are Life, Liberty, and the Pursuit of Happiness.

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

  • None of this was or is self-evident. If it had been, the Greeks, at the latest, would have figured it all out when they invented logic. It is true that for a substantial segment of European populations hearing this doctrine for the first time resulted in immediate agreement.
  • Jefferson clearly did not mean to include women, slaves, Native Americans, and a whole lot of other people in "all men". Those would have been abominations to most of his readers, as equality of Blacks was later to Taney.
  • The mythical notion of God-given rights has been perverted in our time to hold that rights can only come from God, and therefore supposed human rights that contradict some perverted view of the Bible are not human rights at all, but Human Wrongs.
  • The notions of God-given rights and Natural Rights imply that they should be self-enforcing without the intervention of laws, courts, and police powers. This is obviously not the case.
  • If life were an unalienable right, the death penalty would be self-evidently illegal, and we would have gotten rid of it long ago. Similarly for endless restrictions on an assortment of Liberties, and especially the Pursuit of Happiness. The best we can do is to make Life, Liberty, and the Pursuit of Happiness into rights, but they are obviously not in the US Bill of Rights, nor are they in the UN Declaration on Human Rights.
  • The history of government is the history of tyranny, with many variations, but only rare exceptions until quite recently. Governments continue to be instituted by elites who ignore most of the people, as in Egypt, or by conquering powers, as in Iraq.

But never mind that the doctrine of the Declaration is all political fantasy. It served its purpose, which was to gain support for the American Revolution in the colonies and abroad, and to create a new political reality when the Revolution succeeded. It was an important part of creating a presumption in favor of civil rights among much of the population, and of government protections for those rights. It led fairly directly to the inclusion of a number of somewhat vague rights later on in the body of the US Constitution, and more in the Bill of Rights. That led eventually to expansion of those notions in further Constitutional amendments, in laws, in treaties, in court decisions, and in the history of much of the world outside the US, a process still in the early stages of unfolding.

The point about instituting governments to protect rights had historical precedent in the Netherlands and in a number of philosophers, but as an official political theory was really invented in the Declaration. Attempts to do this became common practice, with massive, even monstrous failures in almost all cases from the late 18th century up to the fall of the Soviet Union, and a fair number even today. France, back then, for starters, with the Terror and then Napoleon. Then the Bolivaran revolutions in Latin America, for example, leading to corrupt oligarchies and then banana republics, and so on down to Iraq, Afghanistan, and Egypt today. But democracy and human rights have taken hold to a fair degree in much of Latin America and some parts of Asia and Africa in recent times, and there is reason to hope for more, as the example of Myanmar shows. Maybe even in North Korea, the worst of the holdouts, at some unknown and unknowable time in the future.

We are in a highly anomalous period when we look at it this way. Our current notions of democracy, of republican government, and of human rights are only a few hundred years old, and have evolved massively in that period. Mechanisms for enforcing those principles are mostly even younger, and we are nowhere near done codifying the rights needed and the remedies for keeping them.

Defining and Defending Our Rights

A full history of human rights would not be a book, nor even an encyclopedia. It would be a library, a substantial one. But the above is enough for us to begin examining our problem. At least we can start asking some of what I take to be the right questions.

  • What makes a right a right?
  • How are rights defined and recognized?
  • How are rights adopted?
  • How are rights enforced?
  • What are the basic human rights?
  • Are there more rights to come?

Let's start with the last one first: Yes, although not in this Diary. If you have a better idea, don't let me stop you working on it. Feel free to mention it in the Comments, and please write your own Diary. Certainly when we get to agreement on some of the existing rights, and can enforce them fairly widely, we will recognize that they are not enough. This will particularly be the case when we put an end to poverty and all of its miseries and associated ills. But there is more than enough for us to do without getting to that question.

So, back to the beginning of the list.

Rights are human social constructs with no material or metaphysical existence. Some of us decide that there should be a right, and how we want to go about making it a law with remedies for enforcing it. A right becomes a right when it enjoys majority, or (depending on the laws) supermajority support among a population that has the recognized right to set forth the new right and a set of remedies as such and require enforcement. The relevant population may be the voters in a state or country or the members of a state or national Supreme Court in a country that accepts the notion of the rule of law. The process typically takes about fifty years.

A leading example is citizens in US states under the Articles of Confederation making their views known in insisting on a Bill of Rights to be added to the Constitution as a condition of ratification, after something like fifty years taken up with agitation for rights under the Crown, rebellion, and the failure of the Articles of Confederation. Southern secession and rebellion in the Civil War cleared the way for the passage of the Thirteenth Amendment abolishing slavery after four score and seven years, and ratification of the Reconstruction Amendments was made a condition of re-entry to the Union for states that had tried to secede. The right to vote for Senators via the Seventeenth Amendment, instead of having Senators appointed by state legislatures, was far less controversial.

The Supreme Court struck down anti-miscegenation laws in Loving v. Virginia long before public opinion on the matter came around. Similarly, ending school desegregation in Brown v. Board of Education, and legalizing abortion and contraception (Roe v. Wade and Griswold v. Connecticut) got way out in front of public opinion in certain parts of the country. Gay marriage won in Iowa via its Supreme Court before it was ratified by legislatures or the public elsewhere.

Dissenters have the right to try to roll back new rights, and usually do try, sometimes for decades or longer. Sometimes dissenters win, as with the repeal of Prohibition, and the undoing of rights of slaveowners and slaveholding states in the original Constitution. Voters turned out several Iowa Supreme Court justices, but one has survived recall and others seem likely to, and their decision has not been overturned via proposed Constitutional amendments. Sometimes the bad guys attempt to repeal fundamental rights, like Habeas Corpus in the Bush Administration.

We can discuss the meaning of the Second Amendment, and whether it is needed any more, or is an impediment to other more important rights, or whether we can get adequate gun safety laws while leaving it in place. (Yes, RKBAers, I am well aware that that is heresy. The Slippery Slope argument is Conspiracy Theory, pure and simple. Scalia says we can regulate guns without violating the Second Amendment. Deal with it.)

Rights have a variety of remedies, all based on the fundamental design of checks and balances in government. In the best case, they are simply accepted. I have not heard anybody suggest bringing back drawing and quartering. Next best is to have rights enforced through government police powers and others, where they are willing, even against other branches of government. Hence preclearance under the Voting Rights Act. In other cases, we must seek remedies in the courts (where administrations are not willing) with the aid of civil society organizations such as the ACLU, the NAACP Legal Defense Fund, the Southern Poverty Law Center, environmental organizations, women's rights organizations, LGBT rights organizations, and so on. All of that is enforced, or not, by popular will expressed through political and issue organization to undo unjust laws and pass better ones, and to get them enforced. It is a vitally important remedy that a minority of committed citizens can enforce many of the rights of all citizens in court, with only a minority of government bodies openly defying most court decisions.

It's complicated.

The ultimate check and balance is the authority of the voters to throw the rascals out and elect a better class of rascal, assuming that we can vote and that our votes count, which has historically been increasingly the case, mostly. Hence fixing voting systems in the Senate (the filibuster) and in elections (the gerrymanders, voter ID, denial of service attacks under cover of law, etc.). And thus Better and More Democrats, which is where we all came in.

Guns, health care, voting rights, union rights, Social Security, Medicare, disability, unemployment insurance, workers compensation, the VA, immigration, abortion, contraception, marriage equality, education, pollution, speech, religion, torture, habeas corpus, search warrants, enemy combatants, war powers, drone killings, profiling, subsidies and tax breaks for corporations and the rich, insider trading, regulatory capture, perverse incentives, Too Big to Fail/Jail. Among other things. You may remind me if I left your issue out. It wasn't for lack of regard. I did think my list had gone on long enough to make the point.

Any questions?

Originally posted to Mokurai on Mon Apr 29, 2013 at 09:00 AM PDT.

Also republished by Political Language and Messaging and Community Spotlight.

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