Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

What precisely are the human rights that must be protected?
http://clinton4.nara.gov/Initiatives/Millennium/bbailyn.html ^ | Dr. Bernard Bailyn

Posted on 11/21/2006 10:26:54 AM PST by tpaine

--- What precisely are the human rights that must be protected? ---

A lecture delivered at the White House by Bernard Bailyn

There is no more important passage in American history, and in the history of the modern liberal state, than the groping, fumbling efforts of Adams' generation to make the protection of rights effective in ordinary people's lives.

The issue was felt to be necessary but was found to be extremely difficult even to understand. At first, in many of the state constitutions, written immediately after Independence, they simply stated the general, abstract proposition that all inalienable rights should be preserved and protected; but when it came to particulars, to defining what these rights were, they found themselves at sea.

What precisely are the human rights that must be protected? Some seemed obvious, but many were not, and turned out to be whatever happened to occur to the authors of the constitutions when they were writing.

The newly written states' constitutions contain, in all, 75 inalienable rights, and some of them seem rather strange. In Pennsylvania one apparently God-given human right was the right to hunt on unclaimed land. A consensus did develop on a certain core of substantive and procedural rights, but there were no clear boundaries, and definitions differed.

When the federal Constitution was written the wisest minds in America decided that there should be no national Bill of Rights, not merely because most of the state constitutions already contained some such protections, but, as Madison (who would later write the federal Bill of Rights) said, "There is a great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude."

In other words, the enumeration of rights by the federal government, the mere listing of them and defining them, would necessarily limit their scope. "The rights of conscience in particular [he said], if submitted to public definition, would be narrowed more than they are likely ever to be by an assumed power."

The right solution, he and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people latent rights, still to be evoked and enacted into law.

But was this workable? In any given situation, someone would have to decide whether the rights that were claimed were valid, and that would leave the existence of rights to the mercy of personal and political opinion, and no one would be safe. A core body of rights protected against the powers of the federal government would have to be specified, and the residue somehow protected in general terms.

This is the compromise that we have inherited from them and that we live with, and struggle with, and benefit from, every day of our lives: in the first eight amendments of the Constitution, a carefully worded list of specific rights protected from encroachment by the federal government, together with the belief that there are not only rights protected by the states but a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law.

They were not anticipating our struggles over judicial activism. They were saying that the world changes - that rights, like law itself, should never be fixed, frozen, that new dangers and new needs will emerge, and that to respond to these dangers and needs, rights must be newly specified to protect the individual's integrity and inherent dignity.

So, despite all the differences that separate our world from the 18th century, we are contemporaries of Adams in venerating government but fearing power, and in protecting rights that can never be finally defined or limited in number.


TOPICS: Constitution/Conservatism; Culture/Society
KEYWORDS:
"-- The right solution, he [Madison] and others then felt, was what is implied in the present 9th Amendment: that, in addition to the rights specified by the states, there is a universe of rights, possessed by the people - latent rights, still to be evoked and enacted into law. --"

Note that Bailyn is claiming that newly acknowledged basic rights can be enacted into law, -- not that basic rights can be restricted by new law.

1 posted on 11/21/2006 10:26:56 AM PST by tpaine
[ Post Reply | Private Reply | View Replies]

To: y'all

Slow day bump.


2 posted on 11/21/2006 10:44:14 AM PST by tpaine
[ Post Reply | Private Reply | To 1 | View Replies]

To: tpaine

~Really~ slow day, -- but close to setting a record with 70 views, no replies.


3 posted on 11/21/2006 11:07:33 AM PST by tpaine
[ Post Reply | Private Reply | To 2 | View Replies]

To: tpaine

I think Hamilton had a better grasp on the issue of the Bill of rights. And to a large extent I agree with him, read on:

"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government...What signifies a declaration, that "the liberty of the press shall be inviolably preserved''? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights."

The problem is that from the time of Lincoln foward, the government no longer saw the Constitution as a list only what it was allowed to do but only as set of restrictions. Take property laws for example, the founders would have looked at the Constitution and seen that they did not have a right to act in that area because it wasn't mentioned. Today's political leaders look at the Constitution and see that their involvment is not explicitly forbidden and so they act.


4 posted on 11/21/2006 11:10:28 AM PST by Raymann
[ Post Reply | Private Reply | To 1 | View Replies]

To: tpaine
They were not anticipating our struggles over judicial activism. They were saying that the world changes - that rights, like law itself, should never be fixed, frozen, that new dangers and new needs will emerge, and that to respond to these dangers and needs, rights must be newly specified to protect the individual's integrity and inherent dignity.

I am not sure what I think of this, it seems purposely vague and ambiguous in spots, but it can be interpreted to support a "living" constitution. Who is this Dr. Bernard Bailyn? He seems to be giving the speech at the Clinton WH.

5 posted on 11/21/2006 11:11:22 AM PST by Mind-numbed Robot (Not all that needs to be done, needs to be done by the government.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Raymann
Take property laws for example, the founders would have looked at the Constitution and seen that they did not have a right to act in that area because it wasn't mentioned. Today's political leaders look at the Constitution and see that their involvment is not explicitly forbidden and so they act.

It is a fine intellectual point to guess about but is unable to be settled because it is surmising actions in the future.

It is my opinion that usurping powers not mentioned is easier than usurping powers that are strictly prohibited, especially for today's leftists.

Part of their strategy is confusing the language through linguistic twists while simultaneously confusing values through political correctness, affirmative action, feminism, etc. When values and the meaning of words are ambiguous and ever changing then assuming a different meaning for something that has been understood and accepted for 200 years is easier. That allows for passing unconstitutional laws and that unconstitutional decisions by liberal judges are more likely to stand. No need to go through the cumbersome process of getting the approval of the American people by Constitutional Amendment.

6 posted on 11/21/2006 11:29:57 AM PST by Mind-numbed Robot (Not all that needs to be done, needs to be done by the government.)
[ Post Reply | Private Reply | To 4 | View Replies]

To: Raymann
"-- Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? ---

Hamilton knew full well that the 'power to restrict' would be invented out of Congresses power to regulate.

The problem is that from the time of Lincoln forward, the government no longer saw the Constitution as a list only what it was allowed to do but only as set of restrictions.

Yep, that was one of the prime motives in passing the 14th, to restrict further the power of governments to ignore our rights to life, liberty, or property. -- Naturally, they've pretty well ignored it.

Take property laws for example, the founders would have looked at the Constitution and seen that they did not have a right to act in that area because it wasn't mentioned. Today's political leaders look at the Constitution and see that their involvment is not explicitly forbidden and so they act.

It is "explicitly forbidden" but they act anyway, because the people do not demand that they comply with the Constitution.

7 posted on 11/21/2006 11:33:31 AM PST by tpaine
[ Post Reply | Private Reply | To 4 | View Replies]

To: Mind-numbed Robot
I am not sure what I think of this, it seems purposely vague and ambiguous in spots, but it can be interpreted to support a "living" constitution.

I don't see that as his point. -- He's fairly clear [if you read the whole lecture] that he does not approve of 'Judaical activism'.

Who is this Dr. Bernard Bailyn? He seems to be giving the speech at the Clinton WH

Pulitzer Prize Winning Scholar Bernard Bailyn To Discuss "The Federalist" in Lecture Series That Examines Books That Influenced Western Thought

Bernard Bailyn, a Pulitzer Prize-winning author and Adams University Professor Emeritus, Harvard University, will discuss The Federalist at the Library of Congress on March 21.

The lecture is part of a series on works that "have mattered to Western citizenship, statecraft and public policy,".

. Bailyn, who has been a member of the Harvard faculty since 1949, is an authority on early American history, the American Revolution and the pre-industrial Anglo-American world. He has written more than 10 books and co-authored several others. His 1967 work, The Ideological Origins of the American Revolution, won both the Pulitzer and Bancroft prizes, and his 1986 book, Voyagers to the West, won several awards, including the Pulitzer Prize in history and the Saloutos Award of the Immigration History Society.

Other works by him include The New England Merchants in the Seventeenth Century (1955); The Origins of American Politics (1967); The Ordeal of Thomas Hutchinson (1974), which was awarded the National Book Award in History in 1975; Faces of Revolution (1990); and On the Teaching and Writing of History (1994). Dr Bailyn also co-authored The Great Republic (1977), a widely-used textbook in American history, and co-edited The Intellectual Migration, Europe and America, 1930-1960 (1969), Law In American History (1972), The Press and the American Revolution (1980) and Strangers within the Realm: Cultural Margins of the first British Empire (1991).

He is also the editor of Pamphlets of the American Revolution (1965), which received the Faculty Prize of Harvard University Press, and the two-volume Debate on the Constitution (1993).

8 posted on 11/21/2006 11:55:29 AM PST by tpaine
[ Post Reply | Private Reply | To 5 | View Replies]

To: Mind-numbed Robot; y'all

No Secrets Here: Federalist Society Plots In the Open
Address:http://www.freerepublic.com/focus/f-news/1742273/posts?page=8


The Federalist Society for Law & Public Policy Studies started with a group of conservative and libertarian law professors and students in the Midwest and elsewhere who believe in limited government, separation of powers and, as stated in their intellectual battle slogan, that:

"-- the province and duty of the judiciary is to say what the law is, not what it should be. --"


Hmmm, --- seems to be the same message
that Bailyn is putting out. -- Two bits he's a Federalist member.


9 posted on 11/21/2006 2:21:27 PM PST by tpaine
[ Post Reply | Private Reply | To 6 | View Replies]

To: tpaine

Thanks for the info.


10 posted on 11/21/2006 2:37:06 PM PST by Mind-numbed Robot (Not all that needs to be done, needs to be done by the government.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: tpaine

Spot on.


11 posted on 11/21/2006 2:44:20 PM PST by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be.)
[ Post Reply | Private Reply | To 7 | View Replies]

To: tpaine

Two bits, he's not. lol I really don't know. I vaguely recall that he was a pro-Clinton testifier before the House Judiciary Committee during the Clinton impeachment hearings. He was named Jefferson Lecturer by President Clinton.

Forrest McDonald testified as well. He is definitely a Federalist Society member.


12 posted on 11/21/2006 3:02:02 PM PST by petitfour
[ Post Reply | Private Reply | To 9 | View Replies]

To: Dead Corpse

Thanks..
And thanks for the bump.


13 posted on 11/21/2006 3:31:01 PM PST by tpaine
[ Post Reply | Private Reply | To 11 | View Replies]

To: petitfour
The Federalist Society for Law & Public Policy Studies started with a group of conservative and libertarian law professors and students in the Midwest and elsewhere who believe in limited government, separation of powers and, as stated in their intellectual battle slogan, that: "-- the province and duty of the judiciary is to say what the law is, not what it should be. --"

Hmmm, --- seems to be the same message that Bailyn is putting out. -- Two bits he's a Federalist member.

Two bits, he's not. lol I really don't know.

Well, if you read the rest of his lecture, I think you'd have to admit that he firmly advocates limited government, separation of powers and and that the duty of the judiciary is to say what the law is, not what it should be...

I vaguely recall that he was a pro-Clinton testifier before the House Judiciary Committee during the Clinton impeachment hearings. He was named Jefferson Lecturer by President Clinton.
Forrest McDonald testified as well. He is definitely a Federalist Society member.

A logical case can certainly be made against impeaching a prez for his sex crimes without being pro-clinton, and even some FReepers did just that, -- without getting banned, if you can believe it.

14 posted on 11/21/2006 4:10:07 PM PST by tpaine
[ Post Reply | Private Reply | To 12 | View Replies]

To: tpaine

The debate before the House Judiciary Committee was over whether or not the charges against Clinton were impeachable offenses. McDonald argued they were. I don't recall what Bailyn argued. I'm not sure McDonald believed Clinton SHOULD have been impeached for the particular charges. But that would set off a firestorm around these parts.


15 posted on 11/21/2006 4:26:48 PM PST by petitfour
[ Post Reply | Private Reply | To 14 | View Replies]

To: tpaine
A logical case can certainly be made against impeaching a prez for his sex crimes without being pro-clinton,

Not to hijack your thread, but I don't see how. It was never about the sex, it was about the perjury, suborning perjury, and using his position as Chief Executive to circumvent the legal process. If was only about the sex, I would agree. It was a lot more than that though.

He Initiated Fraud. A big objectivist No-no...

16 posted on 11/22/2006 5:26:35 AM PST by Dead Corpse (Anyone who needs to be persuaded to be free, doesn't deserve to be.)
[ Post Reply | Private Reply | To 14 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson