Newsgroups: bit.listserv.politics
Date:         Sat, 5 Sep 1992 15:31:45 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Rights, and other comments ...

>From:         Kerry Stephenson <KSTE@PURCCVM.BITNET>
>
>G. Racz states that a bill of responsibilities would be in diametric
>opposition to the Bill of Rights.  Not so.

This is actually quite complicated.
I would have to agree that strictly speaking, a bill of responsibilities
would not be in diametric opposition to the Bill of Rights.

On the other hand, I think Missy is wrong to say that rights
granted to a person imply responsibilities assigned to that
person. Of course, it depends on what kinds of rights are
at stake. But the responsibility not to yell "fire" in a crowded
theater is not a responsibility that is implied by the right
of free speech. It is rather an activity that isn't protected
by the right of free speech. The right is stated in only a loose
way in the actual document.

>                             By the same token, the Court has
>ruled that the 14th Amendment right to "privacy" does not extend to a
>protection of the act of homosexual sodomy.  The Court said "to claim
>that a right to engage in such conduct is 'deeply rooted in this
>nation's history and tradition' or 'implicit in the concept of
>ordered liberty' is, at best facetious."  (Bowers v. Hardwick
>478 U.S. a86, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986]  The internal
>quotes refer to Palko v. Connecticut and Moore v. East Cleveland.

Let this be a lesson to "substantive due process" adherents.

There is no right of privacy in the 14th amendment. There may
be, as Justice Douglas suggested, a right of privacy tacit in
the structure of the Constitution as a whole, and authorized by
the 9th amendment.
It is also a mistake, though not at all absurd, to claim that
the unenumerated rights must be derived from deep roots of the
history and culture of the nation. There is, after all, a deep
history and culture of racism in this country.

>   The Constitution is a document of *ordered* liberty, not license.

Um. Didn't Missy just quote approvingly an opinion scoffing at the
idea of "ordered liberty"???

>Liberty without order is anarchy, and order without liberty is fascism.
>This is a democratic republic--not, I remind you, a democracy--and it
>is premised on the notion that human beings, being sinful, require
>government for their own preservation.  The Founders did not forsee
>a nation in which all rights would be considered equal, nor one in
>which all behavior would be considered a "right."

No, but of course no one on this list has suggested such a silly
reading, either.

>    We can argue all you like about whether the Founders were "Christian"
>or not; that is not the point.  The point is that their understanding
>of ordered liberty was premised on a notion of morality that most people
>on this list do not share, and which some go so far as to ridicule.

Actually, I think you're right about that. But I bet we disagree
on exactly which people on this list have moral views closer to
those of our founders.

>If the Founders had wished to create a society based on unfettered
>personal freedom in all aspects of behavior, they would have created
>Revolutionary France (which Jefferson, by the way, was wildly favorable
>toward, even after the fact).  They did not.  And the Republic has
>been the better for it.

WHAT??
What are you talking about? Are you saying that the French Constitution
is more libertine than ours? Or that Jefferson was a libertine?

>If we wish to create a new society, one that rejects God, rejects
>morality, and defines as right anything anyone wants to do that does
>not directly harm another, then we might just as well call a new
>Constitutional convention and create that society.

Are you putting special emphasis on the word "directly"? Do you
really mean to say that there are some things that are wrong,
and should be illegal, even though they harm no one at all?

Our society does not "reject" god. But in its public workings,
for its public justifications, it must not appeal to revealed
truth. That was something well understood by our Founders, and
argued for by many of their intellectual influences.

John Locke has a good explanation of why we must not appeal
to revealed truth for public justifications, in his
_Letter Concerning Toleration_. Of course, Locke was a good
Christian, you know.

Jamie
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