Natural rights v government granted rights

[Cali Coug]

Originally Posted by creekster

WHat process is due, from a natural rights perspective? This sounds circular to me.

Do you not agree that members of a social contract may agree to limit one or more natural rights? If so, then are you saying that we are required to grant natural rights to those not part of our social contract even if we have agreed to a limit on those same rights?

I gather your assertion of the founder's commitment to DP as a natural right is supported by certain of the bill of rights? You may tell me that this is obvious, but help an old guy out; where is this obvious fact set forth?

I am not arguing that any particular process is required, other than a process which gives fair opportunity to be heard and present a defense at the hands of an impartial tribunal. Even a military tribunal could be appropriate, if it satisfied the criteria above.

Bush will now provide a military trial (and I have no problem wiith that). What upsets me is the fact that he can hold people for as long as he wants before any trial is granted and that, if given the choice, he would give no trial at all. It also bothers me to see how pervasive those thoughts have become in our society.

[Archaea]

Originally Posted by hoyacoug

I am not arguing that any particular process is required, other than a process which gives fair opportunity to be heard and present a defense at the hands of an impartial tribunal. Even a military tribunal could be appropriate, if it satisfied the criteria above.

Bush will now provide a military trial (and I have no problem wiith that). What upsets me is the fact that he can hold people for as long as he wants before any trial is granted and that, if given the choice, he would give no trial at all. It also bothers me to see how pervasive those thoughts have become in our society.

I am not bothered that intentionally disenfranchised individuals do not receive due process rights, especially those intent upon harming our nation or its citizens and interests.

These aliens have become non-entities devoid of rights as a result of their actions.

Due process is important for our citizens and for resident aliens, but for those combatting elsewhere, it makes perfect sense to NOT apply the Constitution.

[Cali Coug]

Originally Posted by Archaea

I am not bothered that intentionally disenfranchised individuals do not receive due process rights, especially those intent upon harming our nation or its citizens and interests.

These aliens have become non-entities devoid of rights as a result of their actions.

Due process is important for our citizens and for resident aliens, but for those combatting elsewhere, it makes perfect sense to NOT apply the Constitution.

You are assuming their guilt without the due process afforded to determine their guilt!!! Don't you see the problem with that? You presume they deserve no rights because you presume they are guilty. This goes to the very heart of our disagreement. Before I would remove ANY of their rights, I would afford them due process (which they have a right to receive).

INNOCENT UNTIL PROVEN GUILTY.

[creekster]

Originally Posted by Archaea

I am not bothered that intentionally disenfranchised individuals do not receive due process rights, especially those intent upon harming our nation or its citizens and interests.

These aliens have become non-entities devoid of rights as a result of their actions.

Due process is important for our citizens and for resident aliens, but for those combatting elsewhere, it makes perfect sense to NOT apply the Constitution.

Not that he needs nay help to argue, but Hoya sasys that the rights don't come from the const., that what is happening is a denial of natural rights that exist apart from the const.

[Cali Coug]

Originally Posted by creekster

Not that he needs nay help to argue, but Hoya sasys that the rights don't come from the const., that what is happening is a denial of natural rights that exist apart from the const.

Yup.

[creekster]

Originally Posted by hoyacoug

I am not arguing that any particular process is required, other than a process which gives fair opportunity to be heard and present a defense at the hands of an impartial tribunal. Even a military tribunal could be appropriate, if it satisfied the criteria above.

Bush will now provide a military trial (and I have no problem wiith that). What upsets me is the fact that he can hold people for as long as he wants before any trial is granted and that, if given the choice, he would give no trial at all. It also bothers me to see how pervasive those thoughts have become in our society.

OK, so a military trial is OK? What if the trial consists of the commanding officer of the capturing unit making an intial determination of guilt or innocence, a sort of battlefield preliminary hearing? Is that enough to satisfy the demand of natural rights? What do natural rights have to say about speedy trials? Given that you accept military tribunals, the only question is how long can someone be held before the controlling power must bring that person to process of whatever type is used. SO how long is too long? ANd where is that specified?

There are certainly some problems with how Bush has handled these people. I have little problem seeing them all rot in Cuba at one level, but I also feel that we owe ourselves more than we have demonstrated there. As sure as I am that most of them would just as soon kill us all as look at us, I am also sure that there are some who shouldn't be there at all. ANd it does offend my sense of propriety, borne of long years living in this country, to see them held in perpetual limbo.

In answer to your original query as to why poeple don't approach the topic from a natural rights point of view, I think the answer is becasue it is very, very difficult to craft a persuasive argument as to what rules should apply under that scheme. Moreover, I think very little process is due or even assumed in the world of natural rights. The very concept of a state of nature is truly questionable, empirically, meaning that a certain curtailment of the rights alluded to and specified by jefferson is inherent in the very existence of Homo Sapiens. So how do you use that as a means of deciding how to handle Sheik Khalid as he groggily ambles out of a CIA lear jet in Cuba?

Jefferson wrote grandly but the natural rights he asserted (e.g. Liberty) are by their very definition curtailed immediately upon the creation of even the most rudimentary social compact, let alone a governemnt as set forth in the consitiutuion. While you are correct that the Founders believed in natural rights, they did not all share Jefferson's Rousseau-esque view of those rights and some were not fully supportive of the preamble to the Declaration of Ind., except to the extent it turned George III's source of legitimacy on its head and placed it firmly with the people instead of God. If the PEOPLE decided who ruled, then the poeple could avoid paying those pesky taxes the King wanted. So even from the beginning in this country these 'natural' rights were situationally allowed, at best.

I guess I better stop, becasue even I have lost my point. Let me know if you find it.

[creekster]

Originally Posted by hoyacoug

INNOCENT UNTIL PROVEN GUILTY.

As I am sure you know, this maxim is not found in the constitution or the dec of ind.

[Cali Coug]

Originally Posted by creekster

OK, so a military trial is OK? What if the trial consists of the commanding officer of the capturing unit making an intial determination of guilt or innocence, a sort of battlefield preliminary hearing? Is that enough to satisfy the demand of natural rights? What do natural rights have to say about speedy trials? Given that you accept military tribunals, the only question is how long can someone be held before the controlling power must bring that person to process of whatever type is used. SO how long is too long? ANd where is that specified?

There are certainly some problems with how Bush has handled these people. I have little problem seeing them all rot in Cuba at one level, but I also feel that we owe ourselves more than we have demonstrated there. As sure as I am that most of them would just as soon kill us all as look at us, I am also sure that there are some who shouldn't be there at all. ANd it does offend my sense of propriety, borne of long years living in this country, to see them held in perpetual limbo.

In answer to your original query as to why poeple don't approach the topic from a natural rights point of view, I think the answer is becasue it is very, very difficult to craft a persuasive argument as to what rules should apply under that scheme. Moreover, I think very little process is due or even assumed in the world of natural rights. The very concept of a state of nature is truly questionable, empirically, meaning that a certain curtailment of the rights alluded to and specified by jefferson is inherent in the very existence of Homo Sapiens. So how do you use that as a means of deciding how to handle Sheik Khalid as he groggily ambles out of a CIA lear jet in Cuba?

Jefferson wrote grandly but the natural rights he asserted (e.g. Liberty) are by their very definition curtailed immediately upon the creation of even the most rudimentary social compact, let alone a governemnt as set forth in the consitiutuion. While you are correct that the Founders believed in natural rights, they did not all share Jefferson's Rousseau-esque view of those rights and some were not fully supportive of the preamble to the Declaration of Ind., except to the extent it turned George III's source of legitimacy on its head and placed it firmly with the people instead of God. If the PEOPLE decided who ruled, then the poeple could avoid paying those pesky taxes the King wanted. So even from the beginning in this country these 'natural' rights were situationally allowed, at best.

I guess I better stop, becasue even I have lost my point. Let me know if you find it.

I think I see a point, and I don't even necessarily disagree with it. You appear to be arguing that relying on natural rights is difficult to do. If so, I agree. It is difficult. As I noted earlier, even the mere process of defining what constitutes natural rights is difficult. But, as I also noted, if you accept the premise of natural rights, the first such right must be due process.

So, how do we decide what the appropriate process is? I think you start with the assumption that there must be due process. It must be fair. The trier of fact must be impartial. It must be conducted expediently. Within each of those conditions there is a lot of latitude. I don't argue that our court system is the only system that can produce a fair outcome. A military trial very well could produce a fair outcome and may be the only practicable form of trial available. If it follows the broad criteria set forth above, I believe it satisfies the detainee's natural right to due process.

Let's compare that to what is actually occurring. People have been captured and detained for as many as 5 years now without a trial. They have not been told what the charges against them are. They have not been allowed to present a defense. Their case has not come before any impartial tribunal. Until the Supreme Court ruled on the issue, there was no plan to provide them with any of the relief discussed above. There was only a plan to hold them indefinitely. Even now, Congress has granted Bush the authority to capture people and hold them without a trial (and we will have to see how the Court will react given the new factor of congressional approval).

As to this:

Originally Posted by creekster

If the PEOPLE decided who ruled, then the poeple could avoid paying those pesky taxes the King wanted. So even from the beginning in this country these 'natural' rights were situationally allowed, at best.

You lost me here. I don't know what correlation there is between selective application of natural rights and the people choosing their leader. The right to rebel and form a new government is also a clear natural right. If anything, rebuffing King George to institute a new government was the highest expression of natural rights.

I also disagree with this:

Jefferson wrote grandly but the natural rights he asserted (e.g. Liberty) are by their very definition curtailed immediately upon the creation of even the most rudimentary social compact, let alone a governemnt as set forth in the consitiutuion.

While in a sense you could argue rights are curtailed upon the creation of a social compact, the principle purpose of that compact is typically to protect the natural rights (and other priviliges) of the parties to that compact. The compact, therefore, is designed to liberate by instituting a higher guarantee of protection of rights. The purpose is not to curtail rights. An analogy would be to keeping the Word of Wisdom. While it may "curtail" your ability to drink alcohol, the end result is additional liberation.

As to my original premise, I am not arguing natural rights should be the basis of an argument to decide what degree of due process should be afforded. It IS the basis of the argument to decide that due process should be afforded in some degree that results in fair treatment.

[Cali Coug]

Originally Posted by creekster

As I am sure you know, this maxim is not found in the constitution or the dec of ind.

As I am sure you know, it is quite clearly implicit.

[tooblue]

Originally Posted by hoyacoug

I think I see a point, and I don't even necessarily disagree with it. You appear to be arguing that relying on natural rights is difficult to do. If so, I agree. It is difficult. As I noted earlier, even the mere process of defining what constitutes natural rights is difficult. But, as I also noted, if you accept the premise of natural rights, the first such right must be due process.

So, how do we decide what the appropriate process is? I think you start with the assumption that there must be due process. It must be fair. The trier of fact must be impartial. It must be conducted expediently. Within each of those conditions there is a lot of latitude. I don't argue that our court system is the only system that can produce a fair outcome. A military trial very well could produce a fair outcome and may be the only practicable form of trial available. If it follows the broad criteria set forth above, I believe it satisfies the detainee's natural right to due process.

Let's compare that to what is actually occurring. People have been captured and detained for as many as 5 years now without a trial. They have not been told what the charges against them are. They have not been allowed to present a defense. Their case has not come before any impartial tribunal. Until the Supreme Court ruled on the issue, there was no plan to provide them with any of the relief discussed above. There was only a plan to hold them indefinitely. Even now, Congress has granted Bush the authority to capture people and hold them without a trial (and we will have to see how the Court will react given the new factor of congressional approval).

As to this:



You lost me here. I don't know what correlation there is between selective application of natural rights and the people choosing their leader. The right to rebel and form a new government is also a clear natural right. If anything, rebuffing King George to institute a new government was the highest expression of natural rights.

I also disagree with this:



While in a sense you could argue rights are curtailed upon the creation of a social compact, the principle purpose of that compact is typically to protect the natural rights (and other priviliges) of the parties to that compact. The compact, therefore, is designed to liberate by instituting a higher guarantee of protection of rights. The purpose is not to curtail rights. An analogy would be to keeping the Word of Wisdom. While it may "curtail" your ability to drink alcohol, the end result is additional liberation.

As to my original premise, I am not arguing natural rights should be the basis of an argument to decide what degree of due process should be afforded. It IS the basis of the argument to decide that due process should be afforded in some degree that results in fair treatment.

Does anyone else find it ironic that the framers of the constitution were likely veiwed as the most vile of terrorists of their time by the King and his court? And that Americans hold the right of the framers to rebel and create their own nation as inalienable and most sacred. I know, they were not the same kind of terroists ... ? Would the king, could he have captured them held them in a prison for perpituity (sp)?

Don't mind me, I'm just here for the entertainment.