<table cellspacing="0" cellpadding="0" border="0" ><tr><td valign="top" style="font: inherit;"><DIV>Paul,</DIV>
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<DIV>Your work here is fantastic. To my humble mind and logic it is accurate and well reasoned. It is a good guide and capstone to any work in the field of human rights. </DIV>
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<DIV>The partial conclusion that we must continually strive to reach which we cannot possibly acutally accomplish, could bring about a sense of futility, but any good builder knows that no matter how perfectly they build a house, it needs constant upkeep and vigiliance in remodeling and morphing to remain a home.</DIV>
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<DIV>Your particulars and citations regarding the inalienableness and divine nature of human rights is well parsed. But here we have logical divergence. A divergence that should never interfere with our ability to work together yet independently. A divergence that demands "respectful interface". Seperate conclusions that require us to listen and not filter out what we do not want to hear. If human rights are inalienable and of a nature predetermined and devine* then man cannot and will never be able to deny them. If you place me in binds and turn me into a beaten and denied slave you still have not taken away my rights. They live on regardless of your inhuman behavior. But we both come to the same conclusion -- what we are talking of here is the <EM>enforcement</EM> in the corporeal of our rights as men**.</DIV>
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<DIV>* Devine here is used in a sense of "not of man, but more absolute. ** Men is used here in keeping with tradition. God can be a her, and founding fathers can be mothers. Obviously there can never be anything approaching sexism in human rights -- lest they be human wrongs.<BR><BR>--- On <B>Sun, 8/16/09, Paul Lehto <I><lehto.paul@gmail.com></I></B> wrote:<BR></DIV>
<BLOCKQUOTE style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: rgb(16,16,255) 2px solid"><BR>From: Paul Lehto <lehto.paul@gmail.com><BR>Subject: Re: [governance] Civil & Political Entitlements, and a Declaration of<BR>To: governance@lists.cpsr.org<BR>Date: Sunday, August 16, 2009, 11:41 PM<BR><BR>
<DIV class=plainMail>On August 15, 2009 "Yehuda Katz" <<A href="http://us.mc839.mail.yahoo.com/mc/compose?to=yehudakatz@mailinator.com" ymailto="mailto:yehudakatz@mailinator.com">yehudakatz@mailinator.com</A>> wrote:<BR>> Again... The Question is:<BR>> How should a Declaration (of Rights) be written(?); So that<BR>> it avoids the abuse-of-rights(by all), provides equal distribution of the Right's<BR>> Intended-Welfare, and equalizes the Control-of-Governing Agency (respective<BR>> the Right) ???<BR><BR>Hi, I'm Paul Lehto, and this question of rights in the law of<BR>democracy is sort of my primary area of interest as a writer and<BR>former election law attorney (details below in case anyone's<BR>interested). I published in 2008 a lengthy legal encyclopedia article<BR>on the political theorists of democracy.<BR><BR>My Short Answer (and I submit, ever so humbly, that the extended<BR>answer below is worth anyone's time that is
interested in their own<BR>freedom or rights or of others' freedom and rights):<BR><BR>The rights must be conceived and placed beyond the power of any group,<BR>government, individual or business to modify, even by amending a<BR>Constitution, and it must be a democracy of one person one vote<BR>equality, with universal suffrage, and recourse to the electorate on<BR>any issue deemed of importance to them (since they are in charge), by<BR>some reasonable procedure for invoking the rights of "We the People"<BR><BR>Mid-Length Explanation or Foundation for the Above:<BR><BR>Obviously, the only time anyone really needs a right is to do<BR>something somebody else doesn't want them to do -- or even that a<BR>majority doesn't want them to do, like speak to an unpopular issue.<BR>Karl Llewellyn said that the "law [itself] begins" here -- when two<BR>people disagree. But certainly rights are critical against any power,<BR>including majoritiarian power
expressed through a legislature, if<BR>universal human rights and freedoms are to be preserved. The majority<BR>can't just silence the minority before or after it wins some<BR>legislative victory.<BR><BR>If you follow what I'm saying above, and wish to resist tyranny of the<BR>majority as well as governmental tyranny and the tyranny of any other<BR>large concentration of power, then there must be a conception of<BR>rights that is beyond the ability of the majority, the government or<BR>any other power to legitimately alter or control. Thus, such rights,<BR>while they can be violated, even violated for a very long time and<BR>egregiously so, NEVER go away or get waived. They just get violated.<BR><BR>Some call the above class of rights "inalienable" rights, others call<BR>them birthrights, still others call them nonderogable human rights,<BR>some call them natural law.<BR><BR>Whatever they be termed, they are, as the most
conservative founder of<BR>the USA put them (Alexander Hamilton, who at one point even offered up<BR>the idea of a king coming from Prussia!):<BR><BR>"The sacred rights of mankind are not to be rummaged for among old<BR>parchments, or musty records. The are written, as with a sun beam in<BR>the whole volume of human nature, by the hand of the divinity itself;<BR>and can never be erased or obscured BY MORTAL POWER."<BR><BR>In other words, nothing on this earth can change the inalienable<BR>rights, they need not be, and often aren't, in Constitutions or "old<BR>parchments," they are derived from Reason Justice and the sense of<BR>right and wrong of our moral sense, which in turn are derived,<BR>depending on the preferences of who's the writer, either from Nature,<BR>Reason, Almighty God, the Supreme Ruler of the Universe, and so on.<BR><BR>The CRITICAL thing is that the rights are placed beyond "ANY MORTAL<BR>POWER'S" ability to LEGITIMATELY alter
them.<BR><BR>A constitution can be amended, at least by a supermajority and<BR>sometimes by a majority. If inalienable rights are placed in<BR>constitutions, they function only as reminders, and there's a danger<BR>in putting them there because it may become perceived that they are<BR>political footballs subject to majoritarian decisions or tyranny, when<BR>this is not so.<BR><BR>If one wishes to be free from majoritarian tyrranny, or the tyranny of<BR>any large wealthy elites who may control government from inside or<BR>from outside via corporations or what have you (in the old days, the<BR>"political bosses" who were never themselves elected), then you must<BR>believe and conceive of the rights as outside human power to change.<BR>Inalienable birth rights, derived from Justice.<BR><BR>Thomas Jefferson consciously tried to set forth ideals that would last<BR>centuries. But Ben Franklin put it most concisely when we said it was<BR>"commonly
observed" in the colonies that they were not just fighting<BR>for their own freedom, but for the freedom of all humanity (Franklin<BR>said "mankind"). In addition, as Senator Henry Clay later echoed,<BR>the basic framework of rights was intended as a guide for "all<BR>posterity" -- literally forever into the future. Thus, in 1776 the<BR>battle was conceived quite commonly as for all the marbles: for all<BR>time and for the entire world.<BR><BR>The Accomplishment: We the People stepped into the shoes of King<BR>George (and all possible kings and queens) as the sovereign, or<BR>ultimate and sole legitimate source of power. That idea of<BR>self-government, to put it in one word, is the core of the DEclaration<BR>of independence, and central to the Universal Declaration of Human<BR>Rights as well. People without a say in the governance of their<BR>community are, as Thomas Paine the architect of the
American<BR>Revolution wrote, "rendered slaves" -- and a slave is defined broadly<BR>as someone whose opinion doesn't matter because they don't have a vote<BR>or suffrage.<BR><BR>The Limitation of 1776: Heavily armed and war weary after the<BR>American Revolution, there was no appetite for an immediate Civil War<BR>on the issue of slavery, which ultimately did happen and cost over<BR>650,000 American lives. Yet, elections continued even amidst the<BR>Civil War, as Pres. Lincoln insisted, since to call them off would be<BR>to give victory to the principle being fought against:<BR>Slavery/Tyranny. THey are ultimately aspects of the same exact thing,<BR>and the opposites of Liberty and Freedom.<BR><BR>Resolving COntroversy over 1776: The continuing course of history<BR>from thereon is a dissection or legalistic struggle, if you will, over<BR>what "we" means in "We the People." From modern perspectives, it<BR>seems
utterly obvious that "we" means everyone -- universal suffrage<BR>of adults (anyone capable of a free choice to wish to vote). There's<BR>no prerequisite to voting under universal suffrage under than the wish<BR>to be an elector. Any restriction on it, according to Montesquieu's<BR>"Spirit of Laws" by definition creates an Aristocracy, since a<BR>Republic or Democracy vests control and ultimate power in ALL the<BR>people, while an Aristocracy invests that power in a subset of all the<BR>people (creating a class structure, in effect). However divisive<BR>and long-standing the debates were on abolishing slavery, women's<BR>suffrage and abolishing Jim Crow through modern civil rights, there's<BR>never been any real debate that "We the People" are the only<BR>legitimate sovereigns. That's a universal human right. While someone<BR>may favor an authoritarian idea as "efficient" or whatever, they can't<BR>call a spade a
spade. IN some way they always parade as democracy and<BR>freedom, even though they definitely are not. This is a concession<BR>and admission of illegitimacy of authoritarian or aristocratic rule of<BR>any kind. Thus, the controversy has never been about who's in<BR>charge, it's always the people, it has only been about subdividing<BR>"we" in "we the people" and/or disguising that subdivision so that an<BR>elite class or person can control. The conception of equality<BR>prohibits elite control, and is inherent in modern conceptions of<BR>democracy and republics. "One person one vote" is one way to sum this<BR>equality up.<BR><BR>CONCLUSION: While some critique political leaders of centuries ago<BR>for not accomplishing the work of the centuries (literally) in one<BR>fell swoop in 1776 or so, it's not fair to expect perfection given the<BR>circumstances that were present, with an engrained slave economy
of<BR>great wealth and rule by a king with no vote. HOWEVER, the founders<BR>all personally opposed slavery and believed it would end within their<BR>lifetimes, but they were off by a few decades, but right in the end.<BR>Jefferson's first bill introduced in Virginia was against slavery.<BR>But as "property" and since Jefferson was always in great debt due to<BR>his enormous public service, he couldn't let his "property" go free<BR>without banks foreclosing on his whole farm, and having the slaves<BR>returned as fugitive slaves, on order of the foreclosing bank, in<BR>order to preserve the value of the "collateral" -- the farm and house<BR>at Monticello.<BR><BR>I wish to indulge in that brief defense of Jefferson's slaveholding in<BR>order to allow a due appreciation of the sweeping revolutionary scope<BR>of the SECOND PARAGRAPH ALONE of the declaration of Independence.<BR>That has since inspired countless revolutions around the world, and<BR>its
basic ideas are enshrined in the Universal Declaration of Human<BR>Rights. As President LIncoln later observed, most aptly, the concept<BR>of Equality was NO NECESSARY PART of achieving separation or<BR>"independence" from Great Britain. It was placed there, Lincoln<BR>expressly said "FOR FUTURE PURPOSES."<BR><BR>I call Democracy, Equality and Freedom "guidestars." While we may<BR>never perfectly achieve all of them, like the stars in the sky,<BR>especially the North Star, if we do not constantly seek them out and<BR>sail our ships of state by them, we will TRULY be lost. Please note<BR>that in following the stars, we may not get to the stars, but we are<BR>not hypocrites if we are trying our best. Only those not trying their<BR>reasonable best are hypocrites, the rest are more like Olympic<BR>athletes in training for gold medals -- only one of thousands will<BR>reach the dream, but the rest are never thought of as
hypocrites, they<BR>are more like heroes than hypocrites. So was Jefferson, a hero in his<BR>times.<BR><BR>Every generation must use the guidestars to push things forward and<BR>adjust in THEIR time.<BR><BR>Democracy makes a VERY wide tent. Jefferson used the term "Nature and<BR>Nature's God" to make a tent that agnostics and atheists as well as<BR>theists could read and think that the ultimate source of rights was<BR>sound to them.<BR><BR>But despite the very wide tent, there are a few lines that can't ever<BR>be legitimately crossed, Those are the rights that are inalienable,<BR>and with every right is a correlative duty on everyone else's part to<BR>respect that right.<BR><BR>Let's say we are theists, all, now. The inalienable rights, coming<BR>from God, are beyond any mortal power or superpower to change.<BR>Inalienable birthrights are akin to, but more expansive than, the<BR>international laws called jus cogens, which are
binding without treaty<BR>and prohibit, even in time of war and no matter the excuse, the crimes<BR>of genocide, slavery, torture and inhumane treatment of war prisoners,<BR>to give some examples.<BR><BR>Inalienable rights are possessed SIMPLY because we are HUMAN, and for<BR>no other reason, except the voting right which is triggered at age of<BR>majority when free will choices can be made and the child is legally<BR>no longer the ward or under control of the adults (which would spoil a<BR>ballot actually or potentially by intimidation, though parents<BR>wouldn't think of it quite that way, they'd call it "guidance" or<BR>"help")<BR><BR>In addition to rights there must be ACCOUNTABILITY.<BR><BR>Transparency is the bit too abstract term that is the informational<BR>prerequisite to accountability. What is secret or unknown is not<BR>accountable. Nobody can rationally approve of nontransparency to We<BR>the People, the bosses and sovereigns of
our countries, except in<BR>extraordinary situations, perhaps of national security, but in all<BR>cases nontransparency always means unaccountability, and nobody can<BR>favor unaccountable government, especially since secrecy is an open<BR>invitation to fraud and worse.<BR><BR>"Transparency" must be more than just information. If there are no<BR>remedies of control, like elections, referenda, and the like, mere<BR>information is like being stuck on the train tracks with clear windows<BR>(getting ALL information) but having no steering wheel, gas pedal or<BR>brake. Without CONTROL or "remedies" to use a legal term, one might<BR>wish for non-transparency, and have an instantaneous death on the<BR>train track instead of a long moment of absolute horror....<BR><BR>Currently, many shortfalls in governance are centered on the area of<BR>lack of control or remedies. Political promises in campaigns are<BR>unenforceable and widely not kept, or
perceived as such, and there's<BR>no right of recall at least in the USA on the federal level. Thus,<BR>cynics can say that we elect a dictator for a four year term, since<BR>impeachment has seemed to be the sole remedy and also been apparently<BR>toothless. Whether or not one agrees with the cynical view, it is<BR>nevertheless true that the vindication of democracy, equality and<BR>freedom requires more control by the people. WIthout that, and to the<BR>extent of its absence, a de facto unaccountability of government takes<BR>its place, albeit for a term of years (presuming elections are fair,<BR>transparent, open and honest and not fraudulent either in the vote<BR>counts or in choices presented to the electorate).<BR><BR>So there you have my answer, which is mostly only my framing or<BR>expression, but the ideas are timeless, the dream of the centuries.<BR>It's why for the most part people only risk their lives for democracy<BR>or
religion: what's perceived as ideals noble and important enough to<BR>justify such a risk. (Family, however broadly or narrowly conceived,<BR>is another). The political theories are not mine per se but<BR>everyone's, albeit authored by many famous individuals, or rather<BR>expressed by them. The only thing I lay any personal claim to is the<BR>thoughts about the twin aspects of information and control comprising<BR>any meaningful accountability to the governed, and the analogy of the<BR>railroad track to explain why informational transparency, alone, is<BR>insufficient.<BR><BR>Accountability is absolutely crucial if We the People are to remain<BR>the ultimate "boss" of our country (in our collective capacity, and<BR>literally sovereign only in our acts of voting, and not the rest of<BR>the year in which we must follow the rule of law, presuming it is just<BR>and not void, and thus are subjects of the law, except when voting in<BR>our
sovereign capacity).<BR><BR>In a sense, one need not draft ANYTHING for these most important<BR>rights, and indeed it is dangerous to do so to the extent the document<BR>is then wrongly perceived or construed as limiting the scope of the<BR>rights or forgetting their source. Check almost any state<BR>constitution within the USA and you will see it begin "Grateful to<BR>Almighty God for our Rights" (California) and so on.<BR><BR>:) (CAPS are not yelling for me!) BUT THE FIRST STEP IS TO GET<BR>THOSE PRECIOUS RIGHTS OUT OF THE HANDS OF ANYONE WHO CAN TINKER WITH<BR>THEM. If one does draft something, one should ensure that it makes<BR>clear what the source of rights is, that government guarantees but<BR>never grants fundamental rights, and that putting them into written<BR>form is merely intended as a partial guide for the guidance of anyone<BR>in power, since power always corrupts, so they don't "forget"
what<BR>their true task and trusteeship is. They hold only delegated power,<BR>and are accountable to the governed on a basis of equality.<BR><BR>Even the most conservative have conceded the inalienable rights point<BR>(Hamilton, above) and even the most conservative in past centuries<BR>conceded the We the People are the only legitimate power. THEREFORE<BR>WE MUST WATCH OUT FOR FRAUD, theater instead of real politics, and<BR>"puppetmasters", because no one can OPENLY rule as a dictator or<BR>aristocracy.<BR><BR>No matter what problems anyone may come up with in the right of the<BR>people as a whole to rule, rest assured that the problems in<BR>justifying aristocracy or dictatorship and the like are FAR greater in<BR>terms of being problematic. It's really simple: by unanimous<BR>consent, NOBODY has a better claim than we the people to be the<BR>ultimate power or sovereign. The thing to protect against
is<BR>sophisticated fraud, since anyone who thinks they have better ideas<BR>than the average person is pretty likely to inflict them on everyone<BR>"for their own good" if not out of any hostile sense. Thus, in<BR>assessing and protecting against fraudulent governments and fraudulent<BR>elections (the primary accountability mechanism) the most important<BR>consideration of all is that open attack is not available, only covert<BR>or secret attack, pretending to be democracy, and thus that fraud in<BR>elections, especially since the government runs them and they<BR>determine the government's own composition and power, is an eternal<BR>and extremely great risk, since no human being can be trusted to<BR>determine their own power level. Thus, I'd concentrate on protecting<BR>elections and any other control mechanisms to make them utterly<BR>transparent.<BR><BR>if elections are not 100% transparent, the fraud or undetected
error<BR>will concentrate in the even 1% non-transparency, and a fraudulent<BR>freedom is or will eventually be created. (This is much like leaving 9<BR>out of 10 doors locked, creating 10% nontransparency, by analogy. The<BR>burglar will always move to and find the unlocked door or window).<BR>Indeed, in elections, the unlocked door or window, so to speak, is<BR>published in the law books or the policies and freely available to any<BR>insider crook (the government equivalent of embezzlers) or outside<BR>crook, so it's like having 9 of ten doors locked but having a bright<BR>neon sign flashing that says "UNLOCKED DOOR HERE" and having that sign<BR>in every law library in the country and on the internet as well. NOT<BR>A GOOD IDEA, I don't think.<BR><BR>Total transparency in all essential aspects of elections (except the<BR>personal casting of one vote) is absolutely essential, and<BR>inalienable, if one wishes to protect freedom,
i.e. the right of we<BR>the people to control our own destinies and not be slaves and the<BR>individual rights to be free of majoritarian tyrannies of all kinds as<BR>well. All of the transparency elements of information and of voter<BR>control are inherent completely in the notion of the Accountability to<BR>the Governed (which should be all voters in a universal suffrage<BR>situation)<BR><BR>I'd be happy to answer any questions or objections either on the email<BR>here or on the phone (contact information at very bottom). I've never<BR>really had any fundamental objections though, happy to say, but only<BR>folks who go on and ignore all of the above as if it didn't exist but<BR>refuse to say they oppose it.<BR><BR>The key, really, is the "diffusion of education" as Jefferson put it,<BR>of the inalienable rights of all humanity.<BR><BR>Yours democratically,<BR>Paul Lehto, Juris Doctor<BR><BR>Background to Introduction: I am a Juris Doctor
in the USA, practiced<BR>election law and consumer protection law for twelve years before a<BR>very serious health crisis, and now am an independent legal scholar in<BR>the area of the law of democracy, published in the areas of political<BR>theorists of democracy, federal and state election law, Bush v. Gore,<BR>and scandals in state and local elections in extended legal<BR>encyclopedia articles as well as chapters in books on voting systems<BR>and elections. Before ceasing my sole law practice, I did both state<BR>and congressional election contest litigation, have a couple of<BR>published legal cases, served on the Board of Governors of my state<BR>Bar and by appointment of the Supreme Court of the state to the<BR>Mandatory Continuing Legal Education committee, with authority over<BR>what lawyers need to do to remain educated and competent in the law.<BR><BR>-- <BR>Paul R Lehto, J.D.<BR>P.O. Box #1<BR>Ishpeming, MI 49849<BR><A
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