Jacob Hornberger:"We Don't Torture... But Torture Does Work"

[Brant Gaede]

Gentlemen:

My point was that there is a difference between the Constitutional rights that apply to Americans under the American Constitution.

There is also a consensus as to the existence of human rights by the people in the world.

These are not co-equal and/or one and the same. That was my point to Chris.

Adam

All rights are Constitutional rights, even those not specified. They were first apropos to the federal government then extended to the states after the Civil War.

--Brant

[Brant Gaede]

Brant -

I wasn't really looking for insights on how to get visas, or how my wife can get a USA passport. I am well aware of that information. It is quite well documented.

My question had to do with whether you saw any human anywhere in the world as having, in the USA, each and every right and privilege accorded to US citizens.

Your "No and No" makes it clear that your answer is that you do not see that. So now the question boils down to what differences are appropriate.

Bill P

Actually the necessity of presenting documents to cross foreign borders is rights' violation.

--Brant

[Selene]

Brant:

This statement is well intended, but inaccurate.

I understand your arguments regarding a global human citizen.

My argument was limited to Constitutional rights in the American Constitution.

Your statement about:

"All rights are Constitutional rights, even those not specified. They were first apropos to the federal government then extended to the states after the Civil War."

Nope -

"8. The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law, and from denying to (p.543)any person within its jurisdiction the equal protection of the laws;

but it adds nothing to the rights of one citizen as against another.

It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty."

Another section from DC v. Heller:

Only those rights which are inalienable are "universal" in the sense intended by the Founders. Second, in the IX (9th) (Ninth) Amendment, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

"The people..." is specific as it is used in the Constitution a total of three times, I believe. It was the crux of the brilliant Court of Appeals arguments in support of the DC v. Heller case which is one of the most critical decisions in US history by Court of Appeals SILBERMAN, Senior Circuit Judge:

http://pacer.cadc.uscourts.gov/docs/common...03/04-7041a.pdf <<<<link Judge Silberman's BRILLIANT decision.

[58 pages of Constitutional genius - Of course O'Biwan would never consider him for the Supreme Court vacancy when numb nuts goes back to reading by candlelight up in Vermont - what a disappointment Souter is.]

"We look to this because it has always been widely understood

that the Second Amendment, like the First and Fourth Amendments,

codified a pre-existing right."

In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to 'bear arms in defense of themselves and the state' or 'bear arms in defense of himself and the state.' 8*** It is clear from those formulations that 'bear arms' did not refer only to carrying a weapon in an organized military unit."

*** 8See Pa. Declaration of Rights §XIII, in 5 Thorpe 3083 (“That the people have a right to bear arms for the defence of themselves and the state. . . ”); Vt. Declaration of Rights §XV, in 6 id., at 3741 (“That the people have a right to bear arms for the defence of themselves and the State. . .”); Ky. Const., Art. XII, cl. 23 (1792), in 3 id., at 1264, 1275 (“That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”); Ohio Const., Art. VIII, §20 (1802), in 5 id., at 2901, 2911 (“That the people have a right to bear arms for the defence of themselves and the State . . . ”); Ind. Const., Art. I, §20 (1816), in 2 id., at 1057, 1059 (“That the people have a right to bear arms for the defense of themselves and the State. . . ”); Miss.Const., Art. I, §23 (1817), in 4 id., at 2032, 2034 (“Every citizen has aright to bear arms, in defence of himself and the State”); Conn. Const.,

Art. I, §17 (1818), in 1 id., at 536, 538 (“Every citizen has a right to bear arms in defence of himself and the state”); Ala. Const., Art. I, §23(1819), in 1 id., at 96, 98 (“Every citizen has a right to bear arms in defence of himself and the State”); Mo. Const., Art. XIII, §3 (1820), in 4 id., at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves and of the State cannot be questioned”). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006).

Scalia noted in a footnote in Heller, "Some Considerations on the Game Laws 54 (1796) ('Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece . . . ?')"

THE PEOPLE is the most rarified of the "rights".

Adam

[Christopher]

Adam:

I think this discussion is adding clarity to our communication. It is correct that many Constitutional provisions are targeted for citizens. Bill has suggested perhaps some examples that might be citizen privileges. At the same time, I'm in agreement with Brant that all human rights are Constitutional rights. These set of rights (that are human rights and not privileges) must be extended to all individuals universally. However, given that we are now proposing that the Constitution contains both rights and privileges, the interpretation of what is a right and what is a privilege becomes subjective, and this is dangerous territory.

For example, I believe "due process" is a human right, and Michael believes "due process" is a privilege. Due process is essentially a method (in my interpretation) of proving guilt fairly and without prejudice. To argue against due process is to support convictions without sufficient evidence; hence it is not an objective judgment of guilt.

If we choose not to refer to the Constitution as a guide for universal human rights protections by our government (universal human rights being the premise for this document and for our government), then what objective ethical boundaries does the government actually have?

Christopher

[Brant Gaede]

Constitutional rights that are not universal human rights are privileges. Privileges that are not also universal human rights are possibly rights' violating if used. I'm sorry, but I have no time to actually verify, concretely, WTH I'm talking about. But Adam, you've impressed the hell out of me. You might enjoy my grandfather's Irving Brant's book "The Bill of Rights, It's Origins and Meaning" if not his bio. of James Madison.

--Brant

[Christopher]

Alright, rereading Adam's post, if the Constitution is setup to protect the State from encroaching on the rights of the individual as opposed to guaranteeing rights (yes, this is the correct way to think about it), then logic still holds that the Constitution serves as the best document for outlining protection of the rights of non-citizens as well. The Constitution specifies what inalienable rights the State cannot infringe on. Those inalienable rights are universal according to the premise of the Constitution and the U.S. government. Therefore, it still follows that the Constitution is an excellent guideline for determining how to treat non-citizens.

I didn't read the link. I'm sure it's good, but it's long and takes a later commitment. Anyway, where can we take this discussion now?

Christopher

1. The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law, and from denying to (p.543)any person within its jurisdiction the equal protection of the laws... It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.

2. Only those rights which are inalienable are "universal" in the sense intended by the Founders

[Selene]

Yes. Chris, that is exactly the case to make with the Constitution as the model.

"Therefore, it still follows that the Constitution is an excellent guideline for determining how to treat non-citizens."

I think we have made a large step to a consensus that makes rational sense.

Where any; thread goes on OL is not predictable.

Adam