Does Law Define Your Rights?

There have been numerous cases related to Capital Punishment reviewed by the US Supreme Court but we must understand that the Court only rules based upon the arguments presented and past precedent. I believe that there is the potential for capital punishment to eventually ruled unconstitutional based upon the "strict scrutiny" of the laws that allow Capital Punishment.

http://definitions.uslegal.com/s/strict-scrutiny/

I can find no "compelling" argument for capital punishment except to extract revenge against the person. As noted life in prison without the possibility of parole provides absolute protection for society against even the most heinous of persons. Timothy McVeigh, responsible for killing almost 200 people with a terrorist attack, was no longer a threat to society once he was incarcerated.

What we have are thousands of years of governments committing caplital punishment establishing precedent but there has never been a compelling reason for the government to commit premeditated murder. Perhaps, someday, the US Supreme Court will acknowledge that and declare capital punishment a violation of the 9th Amendment.

The Right to Life of a Person is unquestionably an inalienable Right and there is no compelling interest of government in violating the Right to Life of the Person.

BTW the Declaration of Independence was a Joint Resolution of the 13 individual States and does have precedent under US law. It is a statement of principle, not specifics, but those principles can be cited in any legal argument before the US Supreme Court. While laws are not judged based upon it but instead based upon the US Constitution the DOI still provides precedent for interpretation of the US Constitution.

 

Actually I can this time admit I did miss out a very important detail when defining it, when I said foreign terrorists I was meaning the current war we have, I should have been more clear there as it seemed I was saying we can just detain any terrorist we want. It's the same with any war in a sense as we detain prisoners of said war under the provisions of the Geneva Conventions as we are currently doing, this isn't just done for national security (though that's the initial reason) but afterwards we normally cannot just put them back in their own country as in a lot of cases they can be killed that's why some groups are trying to get them put in the US for this but obviously that has it's problems and unpopular side of it. After the war is finished many will be open to a trial as stated in the NDAA section 1021 subsection (c) parts 1 under the law of war they can be detained until after the war which has been dated as the end of 2014 if I remember right though this is only under executive order in extreme circumstances but yes the president has the power to pursue the detainment of people covered under that provision which is Al Qaeda members or affiliates that are not US citizens or people on US soil. The other parts say that a military trial is necessary for such people.

This was the original point I was trying to make by referencing the NDAA and it's constitutionality as you would probably know we have detained prisoners of war and tried them afterwards.

 

Now that I've got some time I can respond to this part, I haven't responded to your last post because I believe I've addressed it in my last one, if there is anything I missed point it out and I'll address it.

As for capital punishment it has already been ruled many times constitutional (though certain forms are seen to be cruel and unjust as they can be shown to be) though as for a government being allowed to deprive a citizen of life it has already been shown that a state cannot deprive someone of life, liberty or property without due process of the law as said by the 5th and 14th amendment so shows it's constitutional as any other form of justice.

Now as for Capital punishment being right I would disagree but for it to be fully unconstitutional you would have to get a constitutional amendment passed.

Now you cite the 9th amendment against it because life is an inalienable right but then so is liberty and property but you would agree through due process the state is allowed to restrict your liberty (as what jail does) and property in certain circumstances.

The declaration of independence was a declaration of war for King George saying what these people believed but has nothing to do with the constitution as even The declaration of independence was written by Thomas Jefferson who wasn't present during the constitutional ratification or the conventions. The best I could give you is the declaration of independence was what inspired them to write certain parts of the constitution how they did but again this doesn't make the declaration of independence a legal standing document. You cannot to to a supreme court and bring up the pursuit of happiness clause for judicial review of a law.

 

The NDAA allows for the detention of a person based solely upon "opinion" where no criminal acts have been committed. We have an inalienable Right of Thought and the First Amendment protects the Freedom of Speech that allows us to express those thoughts. NDAA allows the imprisonment of a person based upon their political opinions, not their actions, and is a fundamental violation of the First Amendment. If there is evidence that the person was involved in a criminal act of "terrorism" then they could and should be indicted by a Grand Jury because they are in violation of criminal law.

Technically "terrorism" merely refers to a criminal act where the motive is to influence politics. The actual "criminal acts" of are acts of aggression against persons that violate their inalienable Rights. "Terrorism" merely refers to the motive for these acts of aggression. Motive, lacking an act of aggression, is not a criminal act and we cannot detain a person based solely upon "motive" which is nothing but a "thought" and all persons have a fundamental inalienable Right of Thought and there Freedom of Expression of their "Thoughts" (i.e. Freedom of Speech) is protected by the First Amendment to the US Constitution.

Detaining a person for what they believe and for their expressions of those beliefs, so long as they are not actually conspiring to commit a criminal act (i.e. act of aggression against others) is a violation of their Constitutionally protected Freedom to Exercise (i.e. Freedom of Speech) their inalienable Right of Thought.

NDAA is of doubious Constitutionality and it is certainly a violation of the inalienable Rights of the Person. Always remember that the Executive Branch of our government is responsible for "law enforcement" but is never the "Judge" of where a person is innocent or guilty. That responsibility resides with the Courts of the United States.

A person is always considered "innocent" until guilt is established "beyond a reasonable doubt" by a Court of Law. The President cannot determine, and has no authority to determine, if a person is a "terrorist" under the US Constitution. If the Executive Branch has evidence that a person might be a terrorist then it must present that evidence to a Grand Jury and the Grand Jury has the delegated responsibility to determine if a "crime" was probably committed and if the person was likely responsible for that criminal act. If the Grand Jury decides, based upon actual evidence, that both of these conditions exist then the person is prosecuted in the Courts in accordance with the Constitution. If not then the person cannot be detained any further. We must also remember that the Constitution establishes that anyone accused of a criminal act, which allows for their detentions has a "right" to a "speedy trial" and our government cannot, under the Constitution, violate this "Right" as expressed in the 6th Amendment.

Finally, to address one more issue, if a person has committed no criminal acts then why would the be in danger if they were returned to their own country? It is the responsibility of the government of that country to protect them from acts of aggression and not the responsibility of the US government. I have never read where anyone advocated allowing a detainee, such as those held at GITMO, to be allowed to immigrate to the United States. I have personally advocated that GITMO be closed because it violates the Cuban-American Treaty (GITMO can only be used as a naval refueling station under that treaty and for no other purposess such as a criminal detention facility) and that they be prosecuted by a criminal court but I don't advocate that they be allowed to move here. If someone is advocating they should be allowed to immigrate to the United States we can simply refer to them as whack-o extremists and they should be ignored.

Either prosecute them or set them free and send them back to their native country. If sent back then their government has the responsibility to address them, not the United States. Simply detaining individuals based upon their political opinions is completely unacceptable.

 

Once again I will point out that "strict scrutiny" requires that a "compelling interest" must be established for laws that violate our inalienable Rights and I don't believe that has ever been applied to Capital Punishment. The 14th Amendment of the Constitution does state that a person cannot be derived of "life, liberty or property" without due process of the law but that doesn't establish that the laws that authorize capital punishment are Constitutional. The laws themself that allow capital punishment can be declared unconstitutional under "strict scrutiny" if there is no "compelling interest" of government for them.

I agree that the Declaration of Independence was a de facto declaration of war, as are all declarations of independence (i.e. negating the Israeli claim that the Arabs started the 1948 Arab-Israeli War), although in theory there could be no war if that independence is granted based upon the Declaration where the insurrection if fundamentally unopposed. Rarely do such insurrections against the lawful government go unopposed (I can't think of any cases where it didn't result in war).

That said the Declaration of Independence was a "legal document" of government but it has never been the "Supreme Law of the Land" and the Supreme Court bases it's decisions ultimately upon the Supreme Law of the Land which is the US Constitution. That does not make the Declaration of Independence irrelevant though. It still established the ideals upon which the Constitution was based. We can note, for example, that the DOI does establish that the purpose of government is to protect the inalienable Rights of the People. No where does it imply that a government is supposed to impose "punishment" which is an act of revenge against a person that has violated the Rights of another Person by acts of aggression.

The problem is we have all of recorded history fundamentally estabishing that "government" had a role to "punish" the Person as opposed to being dedicated to "protecting the Rights of the Person" and the DOI was a dramatic change in how the purpose of government was defined. Here we are well over 200 years after the DOI was ratified by the 13 Sovereign States (we can consider it as a treaty between those States and a treaty is law) and we're still hanging on to the belief that a role of government is to "punish" a person that violates the Rights of other Persons as oppose to being limited to "protecting" the People of the United States.

It is embedded into our thoughts where we refer to "crime and punishment" as opposed to "crime and protection" that would be what the DOI expressed. We are a long ways from fully embracing the ideal as expressed in the DOI but it is our national goal to someday accomplish that which it proposed. It expressed an "ideal" and ideals are virtually impossible to achieve but that does not disparage the attempt to strive for the ideal.

As I mentioned, it may be a long time before we understand that the government of the United States was about government "protecting" us and that government has no authority to extract revenge because we, as individuals, do not have a Right of Revenge. Revenge is an act of aggression against the Person which violates their inalienable Rights and premeditated "murder" by government is technically no different than premeditated murder committed by the individual.

 

By this you could also say the 19th amendment was not necessary but we know it was so it doesn't matter if there is a necessary use for it the fact that states can choose to do it and it's written in the constitution that life cannot be takes without due process shows that you have to get a constitutional amendment passed for it and I would imagine you could actually get support for that.

I was pretty much in agreement until the last part, the government has the right to initiate force (within certain restrictions) people do not. I believe that is also part of the social contract theory, we relinquish our right to initiate force and put it as a government power.

This is why I've always found the idea of natural or inalienable rights to be rather stupid since I have great respect and agreement with Hobbes on the issue. He wrote natural rights encompass all rights this means the right to live, the right to kill, the right to protect and the right to steal as they are all part of rights without government as if you have nobody to enforce "inalienable rights" they are very easy to take away thus refuting the idea of them being inalienable.

 

I know I haven't responded back to this thread and your reply, I apologize for my negligence in that respect. Please allow me to catch up.

For the NDAA, I completely understand those statements are in there and are defined as such. However, my only concern is when Obama states that he has reservations over signing it, the Supreme Court begins to state that it has issues with some sections being unconstitutional (In particular, section 1021), then the White House fighting to prevent the Supreme Court from banning this section, a little red flag goes up for me. It becomes too much of a question, in my eyes, to just chalk it up as 'It's in the law' when folks are fighting over it. I think it's a little bit bigger of a deal than Rand Paul filibustering about drone strikes

In regards to your 'natural or inalienable rights' comment, I agree with it, to a point. I don't agree that any one has the right to initiate force. In the case of the government, when 9/11 occurred, we no longer became the aggressors. The military was sent out to capture Osama Bin Laden. Now it's become to a point where we are pushing this 'war on terror' fight all across the Middle East (Now looking like Mali, Iran & North Korea might be getting into this with Russia starting to do war exercises). I think it boils down to where do we draw the line? I believe that our mission has been over since we got Osama, there's nothing more left for us over there. Again, I'm not privy to the information they have, so I can't make any definite decision, just my own assumption/opinion.

In regards to Hobbes definition to 'natural rights', I lean myself more so towards Locke (Debatable on the context of Locke versus Hobbes, for the sake of another discussion of that, we'll leave it at that), when it comes to 'natural laws' & 'natural rights'. This is because I believe there should be some sort social contract, in which folks agree to it and oblige by it. In the context Locke talks about, I do believe we should respect the rights of others (As the saying goes, 'My right to swing my fist ends with your nose begins'). I don't believe we have a right to kill or a right to steal, then that would result in infringing on the rights of others. Do I believe you have a right to defend yourself? Absolutely. If you're life is being threatened by an aggressor, you have every right to defend your life, as you have a right to your life. I don't believe you have a right to kill another person, for the sole reason of killing the other person. In the aspect of stealing, if your good is stolen from you, you have the right to retrieve that stolen good back. This can come in various forms (IE: Asking for the stolen good back, taking the individual to court, etc).

Again, I completely understand your stance with the NDAA. To me, it just seems like there is too many questions revolving around it and I have my doubts at the Constitutionality of it. Then, when the Federal courts come into play and say it's unconstitutional, I'm willing to side on the Federal courts this time around (Not saying I will all the time, as it remains to be seen what they say about 'gay marriage').

 

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Natural rights extend from self-ownership. Since theft and homicide violate the self-ownership of human beings, one cannot be said to have a natural right to do those things. Tell us, what makes "social contract theory" not stupid compared to the allegedly stupid natural rights system of ethics?

 

Starting with the last first.

I disagree with some of Lockes positions as our understanding of (natural) inalienable Rights has developed since they were first proposed. At the sametime, when comparing Hobbes to Locke I find much of what Hobbes states to be absurd.

As individual "persons" we do not have a "Right of Aggression" against others. As has previously been noted by definition an inalienable Right cannot infringe upon an inalienable Right of another Person (or be dependent upon another person). The prevents any Right of Aggression because "Aggression" violates the Rights of Others. Hobbes is completely off-base on this issue.

If we cannot have a Right of Aggression because it would violate the Rights of Others then we cannot logically delegate that "power" to government if we strictly enforced the inalienable Rights of the Person. What we also know is that we must, based upon pragmatic necessity, we must sometimes infringe upon the Freedom to Exercise a Right of the Person to protect the Rights of others. In all such cases the infringement should be the least possible infringement to achieve the protection. While we don't have a Right of Aggression that we can delegate to government we know that we must still authorize acts of aggression by government to protect our Rights but such authorization needs to be highly limited so that government acts of aggression do not become tyrannical.

When the government commits the premeditated murder of a person that presents no threat to the Rights of the People then that is an act of tyranny by goverment because it is completely unnecesary and cannot be rationalized based upon the Protection of our Inalienable Rights. Someday I hope that argument is presented before the US Supreme Court and that the Justices actually listen to it as opposed to sticking to barbaric beliefs handed down for countless generations.