Difference between rights and privilege?

[JRH6856]

An individual is a free citizen. An isolated individual, in contact with no other person, has unlimited and unrestricted liberty. Anything and everything is permissible, though not everything is possible and certainly not everything is profitable. Such an individual certainly has unlimited rights.

When one free individual comes in contact with another free individual, something has to be worked out between the two so that there is no conflict between their respective rights and mutual respect for each other's rights to "life, liberty and pursuit of happiness". If the two are to live together in harmony, they must mutually agree to allow their individual right to unrestricted liberties to be restricted to some extent.

If a large number of individual are involved, the agreements and compromises may be codified and a system set up whereby the agreements may be administered fairly and justly. For example, a Constitution that establishes a constitutional government.

Since the individual is inherently free, All governmental authority derives from the authority that the individuals collectively agree to give to the government. The government exists and governs by the consent of the governed. Government therefore can never give anything to the people, it can only take from them, and then it can only take what it is allowed to take.

One major problem we have today is that too many people seem to think that government is the implement of an all-powerful entity known as "society" and that all rights or priviledge to do anything flows from the government to the individual. Many have been taught that this is the way it works, and many find it convenient to believe because such belief absolves them of any personal responsibility in the exercise of these rights. If a person only does what he is allowed to do by society, then the responsibility for what he does is shared by that society and is not his.

This is not truly the case. A society is made up of individuals, and the action of a society is the sum total of the actions of the individual members. Society can't force the individuals to comply with arbitrary rules and regulations, though society may make it easier for the individual to choose to comply rather than resist. It is still a matter of individual choice: No one ever does anything that they do not choose to do even though they may not be aware of making the choice or be comfortable with the choice they make.

The result of this inculcated mindset is that we spend a lot of time talking about what "they" should do about the problems we face and make very little effort to be part of the solutiion. But the Consitution says "We, the People", not "They, the People" or "They, the Government". We are the the government and the the government we have is the government we choose to accept.

As long as a significant majority of the individuals that make up a society hold the same or similar beliefs, the actions allowed by the society will reflect those beliefs and the society will assume that the rectitude of those beliefs, and the correctness of the actions, is obvious to all. However, problems arise when these beliefs are based on false premises. For example, the belief that society as a whole is inherently responsible for the welfare of individuals. Society may assume this responsibility as a result of the belief of its members, but since a society exists only because it has been formed by like-minded individuals, it is the individuals that are inherently responsible for the welfare of the society, not the other way around. The society will flourish only when the individuals that comprise it accept that responsibility. When the individuals refuse that responsibility, the society will eventually collapse like a house of cards.

 

[brickeyee]

gun owners would have been in a stronger position if the Court had decided McDonald based on the privileges or immunities clause, and taken the opportunity to overrule the Slaughterhouse cases.

And it would have made a mess of over 100 years of jurisprudence.

EVERY CASE that relied on the Slaughterhouse decision would be up for grabs, AGAIN.

Thus is what stare decisis is designed to prevent.

If cases can be revisited and altered we can get tied in knots very quickly (even worse than we are know).

 

[JRH6856]

Just wondering. Does respect for stare decisis vary with the strength of the original decision? IOW, is an 8-1 or 6-3 decision less likely to be revisited than a 5-4 decision?

 

[AlexanderA]

Stare decisis is just a guideline and is not set in stone. The Supreme Court occasionally overturns long-standing precedent. That's what it did, for example, when the Brown v. Topeka Board of Education case (school integration) overturned Plessy v. Ferguson (separate but equal).

Overruling the Slaughterhouse cases is something that has been advocated for years in law review articles. It would have been significant, but not earth-shattering.

 

[brickeyee]

It would have been significant, but not earth-shattering.

How many cases in almost 100 years?

it IS a big deal.

The "strength' of the decision has less consideration than the age of the decision, and the number of cases decided since the decision.

And it is not just the immediate cases that cited, but all the other cases affected.

Do we need to revisit every case that was decided on equal protection grounds?

If not every case, what cases?

Who is going to decide?

Just analyzing the impacts would take years.

 

[ATLDave]

Technically true, but I would argue that a judiciary can achieve an "activist" result that's just as real by either upholding a law or declining to rule on a law.

Activism comes down to judges acting in a manner that intentionally supports or intentionally does not support a particular agenda. Deciding not to act is itself an action.

I would argue that's a pretty meaningless definition/underdstanding of "judicial activism," because it either applies to virtually no judges or virtually all of them. Almost every judge (excepting those on the take or otherwise not even remotely interested in justice - a tiny, tiny percentage) is trying to do the right thing under the law. They just have various different understandings of the way the world and the law works. To someone who does not share those understandings, it looks like an "agenda." I assure you that, whichever judges you like, someone somewhere looks at the same decisions and sees an "agenda."

In essence, your definition boils down to "a judge I disagree with." Since disagreement is easily expressed and explained as such, there's no need to change the definition of a phrase - judicial activism - that already has an established meaning.

 

[jackpinesavages]

I think you have the Constitution confused with the Declaration of Independence.

No, this is what I believe to be in the spirit of U.S. Constitution's writings. Simple.

The Constitution gurantees your rights to pursue life, liberty, etc., as long as it does not impinge on anyone else's.

Almost everything we do in this country is a privelage which can be taken away, as deemed necessary by Society and it's Laws agreed to for regulation. As laws are living documents, open to changes and amendments, we do so as seen fit.

Privelages are usually involving licensing, regulations, and penalties for not following the regulations/laws; business ownership, driver's license, or other permit scenarios like hunting/fishing etc..

 

[Owen Sparks]

The point of the Declaration of Independence is that your unalienable rights are NOT to subject to be “taken away as deemed necessary by Society and it's Laws” or even by a king and his laws.

 

[AlexanderA]

The Declaration of Independence is not a legally binding document. It's a "statement of intent," if you will. Lawyers don't spend a lot of time arguing the Declaration.

Constitutional law is based on what's within the four corners of the Constitution itself, its amendments, and the vast body of case law that later grew up around it. Maybe the Federalist Papers to shed some light on the original intent.

Arguments based on "God-given natural law" tend to fall on deaf ears, when it comes to the courts. Leave this stuff to the philosophy class, not the legal arena.

 

[ATLDave]

Lawyers don't spend a lot of time arguing the Declaration.

Corrolary: Lawyers who enjoy winning cases don't spend any time arguing the Declaration.

 

[SkyFreek60]

What i find interesting about the argument is that for 200 years there was no question about what was meant and thus few restrictions. I would think the people in the immediate era would have a much better grasp on what it meant than the "enlightened" people nowadays (last 50 or so years) that think they have a better grasp of what the creators meant.

I am all for keeping guns out of the hands of bad guys and don't mind getting a background check (other than the fee) but it just irks me when the non-gunners "know" what the law means better than the drafters.

Land of the FREE because of the brave.

 

[ATLDave]

What i find interesting about the argument is that for 200 years there was no question about what was meant and thus few restrictions.

It's not surprising if you think of it like this: Each of us has a bundle of rights that forms a bubble around us; remember the old saw that "your rights end where my nose begins"? Well, as our population has increased, those bubbles bump into each other more and more often. Every time that happens, someone's bubble has to get a little smaller. This isn't limited to guns, of course... they're just one manifestation.

 

[Neverwinter]

What i find interesting about the argument is that for 200 years there was no question about what was meant and thus few restrictions. I would think the people in the immediate era would have a much better grasp on what it meant than the "enlightened" people nowadays (last 50 or so years) that think they have a better grasp of what the creators meant.

I am all for keeping guns out of the hands of bad guys and don't mind getting a background check (other than the fee) but it just irks me when the non-gunners "know" what the law means better than the drafters.

It is a misinterpretation to describe it as enlightened people having a better grasp of what the creators meant, rather than the fact that the world has changed significantly since ratification. Jefferson admitted as such when he expressed the sentiment that the Constitution is not a suicide pact after he acquiesced to the Louisiana purchase.

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