[governance] Civil & Political Entitlements, and a Declaration of

[Paul Lehto]

On August 15, 2009 "Yehuda Katz" <yehudakatz at mailinator.com> wrote:
> Again... The Question is:
> How should a Declaration (of Rights) be written(?); So that
> it avoids the abuse-of-rights(by all), provides equal distribution of the Right's
> Intended-Welfare, and equalizes the Control-of-Governing Agency (respective
> the Right) ???

Hi, I'm Paul Lehto, and this question of rights in the law of
democracy is sort of my primary area of interest as a writer and
former election law attorney (details below in case anyone's
interested).  I published in 2008 a lengthy legal encyclopedia article
on the political theorists of democracy.

My Short Answer (and I submit, ever so humbly, that the extended
answer below is worth anyone's time that is interested in their own
freedom or rights or of others' freedom and rights):

The rights must be conceived and placed beyond the power of any group,
government, individual or business to modify, even by amending a
Constitution, and it must be a democracy of one person one vote
equality, with universal suffrage, and recourse to the electorate on
any issue deemed of importance to them (since they are in charge), by
some reasonable procedure for invoking the rights of "We the People"

Mid-Length Explanation or Foundation for the Above:

Obviously, the only time anyone really needs a right is to do
something somebody else doesn't want them to do -- or even that a
majority doesn't want them to do, like speak to an unpopular issue.
Karl Llewellyn said that the "law [itself] begins" here -- when two
people disagree.  But certainly rights are critical against any power,
including majoritiarian power expressed through a legislature, if
universal human rights and freedoms are to be preserved.  The majority
can't just silence the minority before or after it wins some
legislative victory.

If you follow what I'm saying above, and wish to resist tyranny of the
majority as well as governmental tyranny and the tyranny of any other
large concentration of power, then there must be a conception of
rights that is beyond the ability of the majority, the government or
any other power to legitimately alter or control.   Thus, such rights,
while they can be violated, even violated for a very long time and
egregiously so, NEVER go away or get waived.  They just get violated.

Some call the above class of rights "inalienable" rights, others call
them birthrights, still others call them nonderogable human rights,
some call them natural law.

Whatever they be termed, they are, as the most conservative founder of
the USA put them (Alexander Hamilton, who at one point even offered up
the idea of a king coming from Prussia!):

"The sacred rights of mankind are not to be rummaged for among old
parchments, or musty records.  The are written, as with a sun beam in
the whole volume of human nature, by the hand of the divinity itself;
and can never be erased or obscured BY MORTAL POWER."

In other words, nothing on this earth can change the inalienable
rights, they need not be, and often aren't, in Constitutions or "old
parchments," they are derived from Reason Justice and the sense of
right and wrong of our moral sense, which in turn are derived,
depending on the preferences of who's the writer, either from Nature,
Reason, Almighty God, the Supreme Ruler of the Universe, and so on.

The CRITICAL thing is that the rights are placed beyond "ANY MORTAL
POWER'S" ability to LEGITIMATELY alter them.

A constitution can be amended, at least by a supermajority and
sometimes by a majority.  If inalienable rights are placed in
constitutions, they function only as reminders, and there's a danger
in putting them there because it may become perceived that they are
political footballs subject to majoritarian decisions or tyranny, when
this is not so.

If one wishes to be free from majoritarian tyrranny, or the tyranny of
any large wealthy elites who may control government from inside or
from outside via corporations or what have you (in the old days, the
"political bosses" who were never themselves elected), then you must
believe and conceive of the rights as outside human power to change.
Inalienable birth rights, derived from Justice.

Thomas Jefferson consciously tried to set forth ideals that would last
centuries.  But Ben Franklin put it most concisely when we said it was
"commonly observed" in the colonies that they were not just fighting
for their own freedom, but for the freedom of all humanity (Franklin
said "mankind").    In addition, as Senator Henry Clay later echoed,
the basic framework of rights was intended as a guide for "all
posterity" -- literally forever into the future.  Thus, in 1776 the
battle was conceived quite commonly as for all the marbles:  for all
time and for the entire world.

The Accomplishment:  We the People stepped into the shoes of King
George (and all possible kings and queens) as the sovereign, or
ultimate and sole legitimate source of power.  That idea of
self-government, to put it in one word, is the core of the DEclaration
of independence, and central to the Universal Declaration of Human
Rights as well.  People without a say in the governance of their
community are, as Thomas Paine the architect of the American
Revolution wrote, "rendered slaves" -- and a slave is defined broadly
as someone whose opinion doesn't matter because they don't have a vote
or suffrage.

The Limitation of 1776:  Heavily armed and war weary after the
American Revolution, there was no appetite for an immediate Civil War
on the issue of slavery, which ultimately did happen and cost over
650,000 American lives.   Yet, elections continued even amidst the
Civil War, as Pres. Lincoln insisted, since to call them off would be
to give victory to the principle being fought against:
Slavery/Tyranny.  THey are ultimately aspects of the same exact thing,
and the opposites of Liberty and Freedom.

Resolving COntroversy over 1776:  The continuing course of history
from thereon is a dissection or legalistic struggle, if you will, over
what "we" means in "We the People."  From modern perspectives, it
seems utterly obvious that "we" means everyone -- universal suffrage
of adults (anyone capable of a free choice to wish to vote).  There's
no prerequisite to voting under universal suffrage under than the wish
to be an elector.  Any restriction on it, according to Montesquieu's
"Spirit of Laws" by definition creates an Aristocracy, since a
Republic or Democracy vests control and ultimate power in ALL the
people, while an Aristocracy invests that power in a subset of all the
people (creating a class structure, in effect).    However divisive
and long-standing the debates were on abolishing slavery, women's
suffrage and abolishing Jim Crow through modern civil rights, there's
never been any real debate that "We the People" are the only
legitimate sovereigns.  That's a universal human right.  While someone
may favor an authoritarian idea as "efficient" or whatever, they can't
call a spade a spade. IN some way they always parade as democracy and
freedom, even though they definitely are not.  This is a concession
and admission of illegitimacy of authoritarian or aristocratic rule of
any kind.     Thus, the controversy has never been about who's in
charge, it's always the people, it has only been about subdividing
"we" in "we the people" and/or disguising that subdivision so that an
elite class or person can control. The conception of equality
prohibits elite control, and is inherent in modern conceptions of
democracy and republics.  "One person one vote" is one way to sum this
equality up.

CONCLUSION:  While some critique political leaders of centuries ago
for not accomplishing the work of the centuries (literally) in one
fell swoop in 1776 or so, it's not fair to expect perfection given the
circumstances that were present, with an engrained slave economy of
great wealth and rule by a king with no vote.  HOWEVER, the founders
all personally opposed slavery and believed it would end within their
lifetimes, but they were off by a few decades, but right in the end.
Jefferson's first bill introduced in Virginia was against slavery.
But as "property" and since Jefferson was always in great debt due to
his enormous public service, he couldn't let his "property" go free
without banks foreclosing on his whole farm, and having the slaves
returned as fugitive slaves, on order of the foreclosing bank, in
order to preserve the value of the "collateral" -- the farm and house
at Monticello.

I wish to indulge in that brief defense of Jefferson's slaveholding in
order to allow a due appreciation of the sweeping revolutionary scope
of the SECOND PARAGRAPH ALONE of the declaration of Independence.
That has since inspired countless revolutions around the world, and
its basic ideas are enshrined in the Universal Declaration of Human
Rights.  As President LIncoln later observed, most aptly, the concept
of Equality was NO NECESSARY PART of achieving separation or
"independence" from Great Britain.  It was placed there, Lincoln
expressly said "FOR FUTURE PURPOSES."

I call Democracy, Equality and Freedom "guidestars."  While we may
never perfectly achieve all of them, like the stars in the sky,
especially the North Star, if we do not constantly seek them out and
sail our ships of state by them, we will TRULY be lost.  Please note
that in following the stars, we may not get to the stars, but we are
not hypocrites if we are trying our best.  Only those not trying their
reasonable best are hypocrites, the rest are more like Olympic
athletes in training for gold medals -- only one of thousands will
reach the dream, but the rest are never thought of as hypocrites, they
are more like heroes than hypocrites.  So was Jefferson, a hero in his
times.

Every generation must use the guidestars to push things forward and
adjust in THEIR time.

Democracy makes a VERY wide tent. Jefferson used the term "Nature and
Nature's God" to make a tent that agnostics and atheists as well as
theists could read and think that the ultimate source of rights was
sound to them.

But despite the very wide tent, there are a few lines that can't ever
be legitimately crossed, Those are the rights that are inalienable,
and with every right is a correlative duty on everyone else's part to
respect that right.

Let's say we are theists, all, now.   The inalienable rights, coming
from God, are beyond any mortal power or superpower to change.
Inalienable birthrights are akin to, but more expansive than, the
international laws called jus cogens, which are binding without treaty
and prohibit, even in time of war and no matter the excuse, the crimes
of genocide, slavery, torture and inhumane treatment of war prisoners,
to give some examples.

Inalienable rights are possessed SIMPLY because we are HUMAN, and for
no other reason, except the voting right which is triggered at age of
majority when free will choices can be made and the child is legally
no longer the ward or under control of the adults (which would spoil a
ballot actually or potentially by intimidation, though parents
wouldn't think of it quite that way, they'd call it "guidance" or
"help")

In addition to rights there must be ACCOUNTABILITY.

Transparency is the bit too abstract term that is the informational
prerequisite to accountability.  What is secret or unknown is not
accountable.  Nobody can rationally approve of nontransparency to We
the People, the bosses and sovereigns of our countries, except in
extraordinary situations, perhaps of national security, but in all
cases nontransparency always means unaccountability, and nobody can
favor unaccountable government, especially since secrecy is an open
invitation to fraud and worse.

"Transparency" must be more than just information.  If there are no
remedies of control, like elections, referenda, and the like, mere
information is like being stuck on the train tracks with clear windows
(getting ALL information) but having no steering wheel, gas pedal or
brake.  Without CONTROL or "remedies" to use a legal term, one might
wish for non-transparency, and have an instantaneous death on the
train track instead of a long moment of absolute horror....

Currently, many shortfalls in governance are centered on the area of
lack of control or remedies.  Political promises in campaigns are
unenforceable and widely not kept, or perceived as such, and there's
no right of recall at least in the USA on the federal level.  Thus,
cynics can say that we elect a dictator for a four year term, since
impeachment has seemed to be the sole remedy and also been apparently
toothless.  Whether or not one agrees with the cynical view, it is
nevertheless true that the vindication of democracy, equality and
freedom requires more control by the people.  WIthout that, and to the
extent of its absence, a de facto unaccountability of government takes
its place, albeit for a term of years (presuming elections are fair,
transparent, open and honest and not fraudulent either in the vote
counts or in choices presented to the electorate).

So there you have my answer, which is mostly only my framing or
expression, but the ideas are timeless, the dream of the centuries.
It's why for the most part people only risk their lives for democracy
or religion: what's perceived as ideals noble and important enough to
justify such a risk. (Family, however broadly or narrowly conceived,
is another).  The political theories are not mine per se but
everyone's, albeit authored by many famous individuals, or rather
expressed by them.  The only thing I lay any personal claim to is the
thoughts about the twin aspects of information and control comprising
any meaningful accountability to the governed, and the analogy of the
railroad track to explain why informational transparency, alone, is
insufficient.

Accountability is absolutely crucial if We the People are to remain
the ultimate "boss" of our country (in our collective capacity, and
literally sovereign only in our acts of voting, and not the rest of
the year in which we must follow the rule of law, presuming it is just
and not void, and thus are subjects of the law, except when voting in
our sovereign capacity).

In a sense, one need not draft ANYTHING for these most important
rights, and indeed it is dangerous to do so to the extent the document
is then wrongly perceived or construed as limiting the scope of the
rights or forgetting their source.  Check almost any state
constitution within the USA and  you will see it begin "Grateful to
Almighty God for our Rights" (California) and so on.

:)   (CAPS are not yelling for me!)  BUT THE FIRST STEP IS TO GET
THOSE PRECIOUS RIGHTS OUT OF THE HANDS OF ANYONE WHO CAN TINKER WITH
THEM.  If one does draft something, one should ensure that it makes
clear what the source of rights is, that government guarantees but
never grants fundamental rights, and that putting them into written
form is merely intended as a partial guide for the guidance of anyone
in power, since power always corrupts, so they don't "forget" what
their true task and trusteeship is.  They hold only delegated power,
and are accountable to the governed on a basis of equality.

Even the most conservative have conceded the inalienable rights point
(Hamilton, above) and even the most conservative in past centuries
conceded the We the People are the only legitimate power.  THEREFORE
WE MUST WATCH OUT FOR FRAUD, theater instead of real politics, and
"puppetmasters", because no one can OPENLY rule as a dictator or
aristocracy.

No matter what problems anyone may come up with in the right of the
people as a whole to rule, rest assured that the problems in
justifying aristocracy or dictatorship and the like are FAR greater in
terms of being problematic.   It's really simple: by unanimous
consent, NOBODY has a better claim than we the people to be the
ultimate power or sovereign.  The thing to protect against is
sophisticated fraud, since anyone who thinks they have better ideas
than the average person is pretty likely to inflict them on everyone
"for their own good" if not out of any hostile sense.  Thus, in
assessing and protecting against fraudulent governments and fraudulent
elections (the primary accountability mechanism) the most important
consideration of all is that open attack is not available, only covert
or secret attack, pretending to be democracy, and thus that fraud in
elections, especially since the government runs them and they
determine the government's own composition and power, is an eternal
and extremely great risk, since no human being can be trusted to
determine their own power level.   Thus, I'd concentrate on protecting
elections and any other control mechanisms to make them utterly
transparent.

if elections are not 100% transparent, the fraud or undetected error
will concentrate in the even 1% non-transparency, and a fraudulent
freedom is or will eventually be created. (This is much like leaving 9
out of 10 doors locked, creating 10% nontransparency, by analogy. The
burglar will always move to and find the unlocked door or window).
Indeed, in elections, the unlocked door or window, so to speak, is
published in the law books or the policies and freely available to any
insider crook (the government equivalent of embezzlers) or outside
crook, so it's like having 9 of ten doors locked but having a bright
neon sign flashing that says "UNLOCKED DOOR HERE" and having that sign
in every law library in the country and on the internet as well.   NOT
A GOOD IDEA, I don't think.

Total transparency in all essential aspects of elections (except the
personal casting of one vote) is absolutely essential,  and
inalienable, if one wishes to protect freedom, i.e. the right of we
the people to control our own destinies and not be slaves and the
individual rights to be free of majoritarian tyrannies of all kinds as
well.  All of the transparency elements of information and of voter
control are inherent completely in the notion of the Accountability to
the Governed (which should be all voters in a universal suffrage
situation)

I'd be happy to answer any questions or objections either on the email
here or on the phone (contact information at very bottom). I've never
really had any fundamental objections though, happy to say, but only
folks who go on and ignore all of the above as if it didn't exist but
refuse to say they oppose it.

The key, really, is the "diffusion of education" as Jefferson put it,
of the inalienable rights of all humanity.

Yours democratically,
Paul Lehto, Juris Doctor

Background to Introduction:  I am a Juris Doctor in the USA, practiced
election law and consumer protection law for twelve years before a
very serious health crisis, and now am an independent legal scholar in
the area of the law of democracy, published in the areas of political
theorists of democracy, federal and state election law, Bush v. Gore,
and scandals in state and local elections in extended legal
encyclopedia articles as well as chapters in books on voting systems
and elections. Before ceasing my sole law practice, I did both state
and congressional election contest litigation, have a couple of
published legal cases, served on the Board of Governors of my state
Bar and by appointment of the Supreme Court of the state to the
Mandatory Continuing Legal Education committee, with authority over
what lawyers need to do to remain educated and competent in the law.

-- 
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-2333
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