[governance] Associated Press condemns US telephone record seizure

[Paul Lehto]

On Thu, May 16, 2013 at 10:23 AM, Milton L Mueller <mueller at syr.edu> wrote:

>  The point is not that the US state is flawless and holy, [...] To civil
> libertarians, ALL states are capable of such things, at ALL times, and
> therefore one needs institutionalized rights such as the U.S. Constitution
> and its Bill of Rights in order to keep them in check. We are certainly
> better off that those rights are enshrined in the constitution than if they
> were not.
>
>
At bottom is a list of dozens of recognized CONSTITUTIONAL rights or powers
that are NOT expressly mentioned in the Constitution, but have nevertheless
been held to be constitutionally protected rights or powers.  I share this
quickly cobbled together list mainly because  of Milton's over broad
statement that because liberty is always at risk everywhere, that we
"therefore" are better off with rights "enshrined in the Constitution than
if they were not." This is not necessarily so because once they are
"enshrined" people seem to think that this enshrining defines the limits of
our rights to the areas enshrined.  Even the Constitution itself in the 9th
and 10th amendments expressly reserves other rights to the People and/or
the states.

Even a quick read of the constitution of the former Soviet Union will show
that it purported to protect and recognize and "enshrine" even more rights
than the US Constitution. At the end of the day, without what is often
called "the spirit of liberty" there is no document or law or constitution
that will protect everybody's liberty in a meaningful way, and on a
long-term basis.

*The relevance of my list below to Internet Governance is to point to the
ambiguity of potential treaty language regarding the Internet, and the
problem that people will likely treat the treaty language as fully limiting
the scope of rights*.  (There are issues no matter whether rights are
enshrined or not, however, and enshrinement is not without its benefits).
It is closer to the truth to say rights that don't harm others are plenary,
and it is the burden of those who wish to burden or prohibit those rights
in any circumstances to justify themselves, rather than the burden of
people to prove the right.  But, the foregoing "truth" is true (or
apparent) o*nly to those who believe in this vision of liberty*. There are
many others who, as a matter of practice, do not so believe, and they would
put the burden on proving a right to something even where it does not
infringe on anybody else's rights.

In the final analysis, if you read the list below of things or rights not
recognized by the US Constitution, and also realize that virtually all of
those below are in fact dealt with on a constitutional basis in some way by
Supreme Courts over the centuries, it leads to the realization that it is
the METHOD OF INTERPRETATION of the Constitution and whether or not this is
done in what I've called "the spirit of liberty" that is really most
important in terms of actual results.  This is where the real battles go
on, usually in subtext but oftentimes openly.

*RIGHTS OR POWERS specifically NOT expressly Mentioned in US Constitution
but nevertheless recognized in significant degree as Constitutional rights
by Supreme Courts.* (i.e. "enshrinement" is not the only route to real
rights)

1. The right to marry,
2. right to travel (considered “virtually unconditional” and
constitutionally guaranteed even though it was expressly in the Articles of
Confederation and omitted from the Constitution),
3. right to move to different state,
4. right to emigrate,
5. right to fair trial,
6. right to jury of one’s peers,
7. right against revocation of citizenship,
8. right to judicial review,
9. right to be presumed innocent until proven guilty,
10. right to have children,
11. right to wear clothing of one’s choice,
12. right to start a business,
13. right to choice of schooling for children, and
14. the right to vote (and many others not mentioned here).
15. right to communicate via the Internet
16. right to use birth control,
17. right to form unions, or have consumer rights,
18. gay rights or disability rights,
19. right to have sexual relations with anyone (whether married to them or
not),
20. right of self-defense,
21. right to personal hairstyle,
22. right to conscientiously object to violent military service,
23. reproductive choice rights,
24. rights of the unborn,
25. right to be left alone,
26. rights to medical care, food, housing, and education, and
27. no right of revolt or revolution (like the Declaration of Independence
asserted as inalienable right) no matter how bad things are.

*Nothing authorizes, allows or addresses the following in the US
Constitution, which nevertheless exist and are recognized as of
constitutional import: *

1. No authorization for Air Force,
2. no congressional districts,
3. no electoral *College*,
4. no Executive orders,
5. no executive privilege,
6. no reference to God, legislative Chaplains, etc. (although "Lord" is
mentioned once in text stating the year Constitution was signed),
7. no indication that impeachment equals possible removal from office,
8. no prohibition of taxation without representation, (and indeed
Washington D.C. still suffers from this even though it is elsewhere
recognized as a principle)
9. no specific number of Supreme Court justices,
10. no paper money authority (only coinage),
11. no authorization of political parties (and the Founders hated them and
called them  “factions”),
12. no primary elections,
13. no qualifications for federal judges at all,
14. no qualifications for federal legislative politicians other than age
and residence,
15. no separation of church and state clause,
16. “separation of powers” not explicitly stated,
17. no “checks and balances” expressly mentioned,
18. no express power to regulate immigration (only “naturalization” of
citizens).
19. no rights of peremptory military attack.
20. And many more which might be listed.

I am not approving or disapproving all of the above, I am just saying that
they are not expressly enshrined in the Constitution.  There are various
ways beyond the scope of this post in which many or all of these have been
found to be of Constitutional magnitude. Some, such as the Internet
example, are subsumed under First Amendment freedom, but the point is that
they are not expressly mentioned and could have been handled separately,
depending on the methods and styles of legal interpretation and the spirit
of liberty at work in the system at the time of decision.

As seemingly vague as these two things may seem, they are the most powerful
forces controlling legal results in addition to two other broad, and
similarly vague things: partisan beliefs and general ideas/concepts about
fairness/justice.

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
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