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Friday, September 20, 2013

The Picture Of James Madison

To define is to limit.

 - Oscar Wilde, The Picture of Dorian Gray

One last casual observation about rights.  I was told recently that the Bill of Rights' purpose was to guarantee rights, nothing more.  I demurred, noting that defining rights inherently places boundaries around them, and sometimes it's made explicit in the BoR, to wit:

  • Congress shall make no law...abridging....the right of the people peaceably to assemble... - the people must be peaceful and not devolve into riotous mobs.
  • No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. - quartering can happen during war according to duly-passed legislation.
  • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause... - it's not that you can never be searched, but it must be reasonable with a legitimate warrant.
  • No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. - you have rights to life, liberty and property, but each can be terminated in a variety of circumstances.
  • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. - you can be imprisoned and otherwise punished in myriad ways for (being accused of) violating laws, whether you agree with them or not.

I say this not to be a candidate for #slatepitches or to turn the spirit and meaning of the BoR on its head, but rather to observe that within these amendments which protect our natural and political rights, there are natural and political limits to their exercise.  Even the Great Writ can be suspended in certain conditions.

The point is that in civil society, individual rights sometimes clash with the community which protects them, and that's in large part what the political process is about.  So we say Congress can tax us, but we don't put any limit in the Constitution on that power--it's plenary, but politically it would be extremely unlikely that a wholly confiscatory tax regime would ever pass muster.  

We also say that we can be secure in our private homes from searches, but we can't hide behind our castle walls to engage in criminal activity that endangers our neighbors' rights to life, liberty, etc.  And there is freedom of religion, but we can't use that as an excuse to undermine the general rule of law, lest we eradicate civil liberty through capricious anarchy.  And on and on.


September 20, 2013 in Constitution, Schmonstitution | Permalink


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