June 25, 2019

Horse 2561 - I Hate The Idea Of A Bill Of Rights, Because I Believe In Human Rights.

One of the concepts which I occasionally bring up on this blog from time to time is human rights. I will readily admit that I am a rampant hypocrite when it comes to this subject because whilst I will often quote various documents and legislation to prove a case, as the result of being radicalised online (by the weight of legal argument), I have come to the conclusion after many years of deliberation that I am fundamentally opposed to the enumeration of human rights.
I realise that from the outset that this makes me sound like some kind of hideous monster (and maybe I am) but my reason for opposing the enumeration of human rights into legislation, is precisely because I see the whole subject as being more grave and serious than even legislation can conceive. I hate the idea of a Bill of Rights, precisely because I view human rights as simply too valuable.

My problem stems from the fact that most people's idea of what a bill of rights is supposed to do is hideously limited in scope. I also think that it can be proven fairly reliably that when a bill of rights has been enacted into legislation, then that becomes a piece of settled law which sells the people of the future well short.
I am also consistently annoyed at the fact that people do not seem to realise that we already have one Bill Of Rights in operation in Australia¹ (possibly two¹) and the Universal Declaration of Human Rights is frequently cited in court cases and informs legislation.

Even though Australian law already contains what amounts to three sources of human rights law, most people's conception appears to be limited to the American Bill of Rights which was attached to the US Constitution. It is yet another case where our cultural cringe is still very much in effect and whether by imposition of will, cultural imperialism, or a desire to be Americanised, we look to Uncle Sam and not John Bull.

Let's examine that document critically. The Bill of Rights in American legislation, were tacked on to the end of the US Constitution as ten amendments. Now either that means that the US Constitution was wrong in the first instance (which is itself completely valid and evidenced by the fact that the American system of government has been copied by exactly zero other countries), or that by definition, they are amendments and should always be subject to change as per Jefferson's and Hamilton's original conception of the document.
The US Constitution is not some God-given document which fell out of the sky, "like oh my goodness, where did it come from?" but was argued out by a bunch of exclusively white men in smelly rooms in the middle of the summer. Second to that, it explicitly says in the First Amendment that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- First Amendment, US Constitution 1791

The obvious question is how they argued out the US Constitution without the Bill of Rights already being in operation. It is an inherently idiotic assumption to make unless the rights contained merely enumerated what they already thought were in existence; which actually makes the Bill of Rights self redundant. It is also worth noting that this amendment limits the Congress, rather than giving rise to a right.
The US Constitution was conceived by men, for men², and owing to the fact that it explicitly counted some people as property and less than men; rather than endowed them with human dignity and literally counted that 'property' as 'three fifths of a person', then citing it as a bastion of human rights is bunk.

The US Constitution exactly encapsulates the basic problem with enumerating people's rights. I think that it is perfectly valid to suggest that people's rights can and should change in the long run of history.
The Second Amendment to the US Constitution which started out by containing provisions which were useful and necessary for me the day, have through interpretation been reduced to the words 'shall not be infringed'. People will fight for that right to the exclusion of any consequences. What was appropriate in 1789 is absolutely in no way appropriate for a modern urban environment and I'm sorry but if you value that right more than the unnamed right to life that people have, then you are an unadulterated moron. Now that the Second Amendment is there, even despite the costs of money and human lives that it wilfully spends, it is impossible to remove.

In theory the most powerful Amendment to the US Constitution should be the Tenth Amendment which says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
- Tenth Amendment, US Constitution 1791

If you do not have enumerated rights, then the basic assumption at law in a Westminster System is that they already exist. Someone ought to be free to do whatever they like as 'allowed by law' (Section 7, Bill of Rights 1688) or 'unless hedged in by law' (James v Commonwealth 1936). It is simply nonsense to think that the law should give rise to rights which already exist and which ought to exist.

If you have rights which are internally redundant and others which should have expired, and the process for adding new ones is painfully impossible, then what is the point? It would have been better to have normal legislation which can be replaced and repealed or added to as society changes.
The rights which were never stated in the US Constitution, which include the right to life, liberty, the pursuit of happiness, quiet enjoyment of one's surroundings, adequate health care, adequate housing, the right to be paid a proper wage, and rights to abortion, marriage and freedom from harassment and discrimination, are all still being contested; where as the right to bear arms which has the consequences of actively destroying people's life, liberty and happiness, is not. That discussion is practically dead, buried and cremated, as indeed are its victims.

Some of those things such as abortion, marriage, euthanasia, and discrimination, are still being contested. We aren't talking about some vague abstract concept here but rather, the very matters of life and death and how the law interacts with them. Herein lies the issue with why I hate the idea of enumerating people's human rights.
Firstly there is often contention as to what those human rights are. Secondly, there is the almost insurmountable fact that once a set of rights has been enumerated, they're almost always made nearly impossible to add to or subtract from. Thirdly, this places the interpretation of the law further into the hands of the judiciary and not the parliament.

The grand question of what we expect rights to do, is in my opinion a secondary question to the broader question of democracy. Democracy is itself a perpetually unfinished process; with the less powerful constantly having to fight. As a perpetually unfinished process, there isn't any final victory and there also isn't any final loss. Enumerating people's rights in a document, freezes that process; if you freeze the process then the things that the people should have as rights, might be easily denied to them.

If you think that the idea of not enumerating human rights is a weak idea, then consider what happened with the national plebescite on same sex marriage. Yes, the whole process was less than stellar but when the country moved, it did so quickly. Society as a thing and the voting polity, is across most western democracies nominally conservative in outlook and I mean that in the proper sense and not some notion of political point scoring (as most 'conservatives' are actually nothing more than people trying to protect the rich).
As society is nominally conservative, it means that it generally doesn't want to move particularly quickly on anything. Time and time again, the rights that society decides to confer upon itself happen at the end of some process and then after having happened, society immediately forgets that the world was any different. If that seems like a bad method of changing human rights as enshrined by law, then why do people who are calling for a charter or new bill of rights, wish to impose that upon the people of the future?

Society itself is conservative enough as it is. My great objection to the enumeration of human rights is that it solidifies one particular conception of human rights at one particular point in time and prevents the future from deciding its own conception.

If we want to look at the best expression in my opinion of why there shouldn't be a bill of rights, then we need look no further than Thomas Jefferson and James Madison who were among the original architects of the US Constitution. The US Constitution didn't even have the bill of rights originally for good reason. Jefferson wrote in a letter to Hamilton:

On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.
- Thomas Jefferson to James Madison, 6th Sep 1789.

I would rather see the contestation of rights happen among the living; rather than being imposed upon the future by the dead.

¹The Bill of Rights Act 1688, and the Scottish Claim Of Right 1688. They are identical for all practical purposes.
²Australia with no enumerated Bill of Rights, extended the franchise to women some 20 years before the United States did. That's pretty impressive for a supposedly inferior legal framework.

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