Essential liberties are the liberties that the writers of the Constitution--and more importantly the writers of the Bill of Rights--felt were necessary to the nation they wanted to create.
They include, but are not limited to, the rights to free speech, free press, privacy and due process.
I've always agreed with Alexander Hamilton's view on the Bill of Rights...which is to say that it's a travesty. Hamilton argued, correctly I think, that making a Bill of Rights indicates things not listed in the Bill of Rights aren't guaranteed rights. He was right, we now source only the right guaranteed to us by legislation, instead of possessing all rights, except those denied by specific legislation. I think all liberties are essential, because each liberty has specific meaning to the individual, if not the rest of the world.
I respect Hamilton's point of view, and I certainly concur that the Bill of Rights isn't every right that we should have.
However. (There's always a butt on these things, aren't there?)
The law is fairly tricky. You have to write your laws down. You have to say what is ok and what isn't, and it needs to be on paper and reproducable so that everyone will agree with it.
If you have a ruler (President, Supreme Court Justice) who believes that X and Y are right, that's just fine...but if it isn't on written record, what's going to make that true when that ruler is someone else entirely?
The law doesn't like value judgements. The suck part about that is most interpretations are just that...value judgements.
Of course, the real irony about it all is that the Founding Fathers themselves were surprised at the need to make a Bill of Rights. Many of them shared Hamilton's opinion, to a point, of thinking it was "Like, duh", and didn't need it written down.
I wonder if anyone has done an in-depth analysis of the help and harm those first ten amendments have had on the shape of our country as it is today, theoretically speaking.
I think there is something to be said for making a system where everything is allowed except that which is specifically excluded. Otherwise, when you run into a grey area...there's subjectivity. People yell about their rights a great deal, but what it really boils down to is what are you NOT allowed to do. For instance...I have "Freedom of Speech"....but I don't really...because laws have been passed limiting my freedom of speech. I can't make a sexist joke at the workplace. There is a law forbidding it. So, really, what does the "Freedom of Speech" give me. It gives me the freedom to speak, save where it is in violation of the law. If I wasn't given that right...I'd still have the freedom to speak, except where violated by law.
And we have a Supreme Court that can, has and will evaluate those laws to see if the impact of that law that prohibits your speech in that situation is acceptable in comparison to the fact that it is a right guaranteed by the Constitution.
If not for that, who would judge when such a law goes too far?
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no subject
Date: 2003-05-05 02:38 pm (UTC)Ben's not here to answer that...
Date: 2003-05-05 02:45 pm (UTC)Essential liberties are the liberties that the writers of the Constitution--and more importantly the writers of the Bill of Rights--felt were necessary to the nation they wanted to create.
They include, but are not limited to, the rights to free speech, free press, privacy and due process.
Re: Ben's not here to answer that...
Date: 2003-05-05 02:51 pm (UTC)I think all liberties are essential, because each liberty has specific meaning to the individual, if not the rest of the world.
Re: Ben's not here to answer that...
Date: 2003-05-05 03:08 pm (UTC)However. (There's always a butt on these things, aren't there?)
The law is fairly tricky. You have to write your laws down. You have to say what is ok and what isn't, and it needs to be on paper and reproducable so that everyone will agree with it.
If you have a ruler (President, Supreme Court Justice) who believes that X and Y are right, that's just fine...but if it isn't on written record, what's going to make that true when that ruler is someone else entirely?
The law doesn't like value judgements. The suck part about that is most interpretations are just that...value judgements.
Re: Ben's not here to answer that...
Date: 2003-05-05 03:48 pm (UTC)I wonder if anyone has done an in-depth analysis of the help and harm those first ten amendments have had on the shape of our country as it is today, theoretically speaking.
Re: Ben's not here to answer that...
Date: 2003-05-05 04:42 pm (UTC)People yell about their rights a great deal, but what it really boils down to is what are you NOT allowed to do.
For instance...I have "Freedom of Speech"....but I don't really...because laws have been passed limiting my freedom of speech. I can't make a sexist joke at the workplace. There is a law forbidding it. So, really, what does the "Freedom of Speech" give me. It gives me the freedom to speak, save where it is in violation of the law. If I wasn't given that right...I'd still have the freedom to speak, except where violated by law.
Re: Ben's not here to answer that...
Date: 2003-05-05 04:50 pm (UTC)And we have a Supreme Court that can, has and will evaluate those laws to see if the impact of that law that prohibits your speech in that situation is acceptable in comparison to the fact that it is a right guaranteed by the Constitution.
If not for that, who would judge when such a law goes too far?
no subject
Date: 2003-05-05 09:32 pm (UTC)