Democracy INSTEAD OF the Bill of Rights.

[wmpratt]

Whether it is a good idea or not is actually entirely relevant in my country, as we are debating whether or not to introduce a Bill. Many of us are saying no. I wanted to test my ideas against some Americans loyal to the Bill.

Agreed on both counts, but I still think that when it comes to drawing up the very system by which rights issues will be decided, the system needs to be flexible enough to accommodate various experiments in social policy. We just don't have the wisdom to codify a document for all time. Things change, and a Bill of Rights is far harder to modify than a policy. So you're stuck with privacy trumping driver security. (For just one example). Your privacy is more important than having demonstrably safer roads through RBT. This is just one area I can think of.

I'd be surprised if the 10th amendment would be included in any future bill of rights for any nation. We aren't following it now (illegally). It's an amendment restricting what govt can do.

By the way, there is no Right to Privacy in the US constitution. The Supreme Court wrote it in for abortion only. You can't use it for anything else. The drunk driving thing falls under our 4th amendment. But again not followed with sobriety check points.

 

[eclipsenow]

The Bill of Rights is in effect just part of our constitution.

But it's a very special part of your constitution with extra powers handed to Judges, not policy makers, as part of your systemic approach to human rights. The arguments against a Bill of Rights are that it is such a wishy washy, ivory tower document, those Judges could make it decide anything without consulting the people.

That's the heart of the problem I have. They're given special power to interpret the law that overrides the normal democratic processes of writing and changing the laws of the land. One cannot experiment with things like RBT's as a matter of policy initiative when the Constitution itself prohibits it. Then an RBT-ish policy becomes exponentially more difficult to introduce, even if it obviously going to save tens of thousands of lives a year (like gun control policies?), because in many cases the culture has also been blinded by the Bill of Rights.

An example of the Bill influencing culture is gun culture. Owning a gun is as American as stories of the wild west and Billy the kid. It's who you are, not a historical quirk of where you came from. It's in your Bill. Therefore, you are all entitled to guns. But after Australia had a terrible massacre, we immediately said "Never again!" and DID something about it. We immediately outlawed whole categories of rifle and introduced an enormous gun buy back scheme which cost the Federal government $350,000,000 to run. Now, please, I'm not trying to get into the gun-control debate again. I'm offering this as an on-topic and pertinent example of why Rights should not be in the Constitution, but should instead be in a more flexible domain such as the Parliament. It's about trusting the people to vote for the right thing. It's about having a sense that we are not just individuals, but communities. It's about common sense when you see your gun homicide rate is 9 times higher than Australia's, and drink driving is killing too many people, and who knows what else we might need to legislate on in the future as new technologies emerge? It's about the speed of response and having the right response because an old fashioned document isn't holding you back.

 

[IanCG]

Where are you getting that information? The bill of rights is the first 10 amendments to the constitution. They're no more special than the other amendments other than their historical significance. If you have a problem with the Bill of Rights, you're saying you have a problem with the constitution in general.

 

[GarfieldJL]

It's not my line to draw: it's a community discussion, the wisdom of the crowd (not the 2 wolves, nor just the sheep).

Actually the analogy was relevent, regardless of whether or not you choose to accept that fact is immaterial.

Such an action is completely unappealing to the vast majority of Australians so it probably will not come up. A man's home is his castle. But a car is a public activity that involves public co-operation and is an even greater source of death and injury than intentional homicides.

A lot of what the Nazis advocated in Germany would never have ended up in getting them elected ordinarily, but you get the right set of circumstances happening, and people start acting on panic/desperation, and it is extremely scary what people will suddenly support...

The Bill of Rights, is there as a safeguard, there are plenty of examples throughout history of majority rule takes a very dark and sinister turn.

Thank you. That is a vast improvement over a certain previous poster.

Yeah I kinda figured out that was directed towards me by the obnoxious comment you posted on the visitor messages on my profile...

Even though you aren't going to read this, I follow politics fairly closely, and am very knowledgeable of US and World History...

The History of the 2nd Amendment has to do with the Revolutionary War as well as some events that took place before we became the United States of America. The founders added the 2nd Amendment to the Constitution because they were afraid of government becoming tyrannical...

Your country never had to fight for its independence (and quite frankly your country isn't even independent considering your country considers Queen Elizabeth II to be its queen).

 

[eclipsenow]

Where are you getting that information? The bill of rights is the first 10 amendments to the constitution. They're no more special than the other amendments other than their historical significance. If you have a problem with the Bill of Rights, you're saying you have a problem with the constitution in general.

I'm saying that Constitutions are coded things, and hard to change. I'm saying Constitutions should protect the legal and political systems that run a vigorous democracy. They should not impinge on the particulars of public policy. For example, they should guarantee a fair and vigorous public debate about RBT, but not decide the outcome of that debate in advance. Constitutions age, yet are hard to change. Public policy is the arena for gun control and traffic rules and RBT policing.

Now, having said all this I would far rather live in America than, say, in North Korea. That's just taken for granted. But this is about choosing what is best amongst two good enough systems. I'm saying public policy belongs in Parliament, not codified and stuck forever in a Constitution.

 

[GarfieldJL]

I'm saying that Constitutions are coded things, and hard to change. I'm saying Constitutions should protect the legal and political systems that run a vigorous democracy. They should not impinge on the particulars of public policy. For example, they should guarantee a fair and vigorous public debate about RBT, but not decide the outcome of that debate in advance. Constitutions age, yet are hard to change. Public policy is the arena for gun control and traffic rules and RBT policing.

Wrong, the Constitution was deliberately made to be very hard to change to protect people from knee-jerk reactions and MOB rule, like what happened in the French Revolution...

Now, having said all this I would far rather live in America than, say, in North Korea. That's just taken for granted. But this is about choosing what is best amongst two good enough systems. I'm saying public policy belongs in Parliament, not codified and stuck forever in a Constitution.

Isn't comparing North Korea as being similar to the United States more than a little disingenious?

Australia and the United States have very different histories, we had just gained independence from 1 tyrannical government, the Constitution was created to attempt to ensure we didn't end up under another one, as well as to make sure we didn't slide into societial insanity as was seen with the French Revolution.

 

[samhall]

Believe it or not, I'm starting to think that we have a Choice between Democracy and a Bill of Rights. I'm convinced that a Bill of Rights so fundamentally undermines the Democratic process ................

Of course, but them again the American Republic was never intended to be a democracy.

BTW, just what is sooooo wonderful about replacing a single tyrant (who may actually know something about Ruling) with ignorant easily manipulated sheeple tiny tyrants who forum a majority of the stupid?

Far better a Pepublic which restricts a Voice in Public Affairs to the 25% or so of any People who actually have the intelligence, knowledge and committment to the general welfare to deserve a Voice.

 

[eclipsenow]

Of course, but them again the American Republic was never intended to be a democracy.

BTW, just what is sooooo wonderful about replacing a single tyrant (who may actually know something about Ruling) with ignorant easily manipulated sheeple tiny tyrants who forum a majority of the stupid?

Far better a Pepublic which restricts a Voice in Public Affairs to the 25% or so of any People who actually have the intelligence, knowledge and committment to the general welfare to deserve a Voice.

Well, that's another subject. Given the way modern democracies, or is that modern citizens (?) appear to have dumbed down the political debate to the absolutely lowest common denominator, you may have some sympathy. But it's not really what we are discussing in this thread. Cheers.

 

[GarfieldJL]

Well, that's another subject. Given the way modern democracies, or is that modern citizens (?) appear to have dumbed down the political debate to the absolutely lowest common denominator, you may have some sympathy. But it's not really what we are discussing in this thread. Cheers.

Actually it is what is being discussed in this thread, the United States Constitution makes the US a Constitutional Republic. There was another revolution that demonstrated why being a Constitutional Republic instead of a democracy was the correct course of action. Does the French Revolution ring any bells?

 

[KarateCowboy]

Sounds great, and TOTALLY proves my point. Have you got a SPECIFIC point in mind? Can you get down out of the ivory tower and debate something SPECIFIC for once? Something that might be discussed in public, and voted on, so that the majority are not ruled by the MINORITY, especially if that minority are a privileged Machiavellian super-rich lawyer class given special priestly rights to interpret an archaic, out of date piece of paper any old way THEY want without being democratically accountable to the PUBLIC?

Do you believe in democracy or not?

I'm sorry, you were saying something about particular human rights or just throwing us unicorns and rainbows from your ivory tower of abstract irrelevance?

Thanks to spreeder.com I no longer write TL;DR. I read your whole OP.

Americans educated in the basics of civics do not believe in democracy. We have a republic, not a democracy, because democracy is tyranny of the majority. The American Founding Fathers introduced the Bill of Rights deliberately with the explicit intent of underminding democracy.

For example, in your essay you wrote that we should defend individual rights not by a bill of rights but through the free press. How will you protect the right to a free press without a bill which establishes that right?

You call a writ of rights 'ivory tower' because it does not conform to the whims of the zeitgeist. However, while times change human nature does not. Hence, human rights do not really change. So today you send a text message instead of a telegram; big deal. Does that make tyranny suddenly OK? Any evil can be justified in the name of 'the greater good'.

Democracy sucks; individualism wins. Long live the Republic!

What is America's True Form of Government? - YouTube

 

[eclipsenow]

For example, in your essay you wrote that we should defend individual rights not by a bill of rights but through the free press. How will you protect the right to a free press without a bill which establishes that right?

If you read the whole thing, it's about having a Constitution which guarantees the proper practices of a Democratic / proper Republic debate.

You call a writ of rights 'ivory tower' because it does not conform to the whims of the zeitgeist.

No, but because it does not bend to common sense or scientific data which proves one 'right' might actually be impacting on another more important 'right' significantly. In other words, as long as we leave these wonderful words like 'Right to privacy' and 'Right to life' up in the air with the Ivory Tower, congratulations! No one is going to disagree! Pass the champagne. But once we ask whether RBT is a worthy, temporary suspension of our 'Right to privacy' so that we can live in a society with a whole lot more 'Right to life', and that scientific studies prove this, well, then things get more complicated don't they?

However, while times change human nature does not.

No, but the drugs, guns, and cars those humans use do change. Your use of your drugs and car might just MASSIVELY impact on my 'right to life'. So your 'right to privacy' might just need to take a hit for 3 minutes a year in an RBT.

Hence, human rights do not really change.

If your Founding Father's got it so right the first time, why are so many of your rights amendments? They're so universal and so eternal that they... oh, just remembered the 'right to bear arms' later on. And then had to add other ones. And others. Which were expressions of the concerns of the time. Which basically reflected the Zeitgeist of the time.

But hey? They're eternal right. They know how to create laws for RBT's to protect my right to life, don't they? Well, don't they? They just KNEW we were all going to be driving cars back then? They had to! They were creating laws for all time!

So today you send a text message instead of a telegram; big deal. Does that make tyranny suddenly OK?

It's a big jump from cops being able to pull over someone texting while driving to tyranny. It's a big jump from an RBT to tyranny. Try asking some American friends who live in Australia. They might actually say it's a nice place! I'm not talking about tyranny. I'm arguing that the best way to guarantee human rights is through the public discourse and procedures of a proper constitutional democracy/republic.

Any evil can be justified in the name of 'the greater good'.

I know. RBT's are so evil. I mean, I've blown into one every few years: I must be the anti-Christ by now!

Democracy sucks; individualism wins. Long live the Republic!

Individualism sucks and creates a selfish society dedicated to ME first and ends up murdering 4 times as many people (on a per-capita basis), because American's have a 'right' to bear arms!

Long live DEMOCRACY!
Human Rights in Civil Society - Big Ideas - ABC Radio National (Australian Broadcasting Corporation)

 

[GarfieldJL]

staff edit

I'm posting it for the benefit of other people that are participating in this thread. I really don't care if you read what I post or not.


The problem with Democracies as you call them (which Australia is not a Democracy by definition), is you tend to end up with mob rule (such as what was seen in the French Revolution) and/or a panic situation where people elect tyrants (like Adolf Hitler) whom proceed to turn the country into a dictatorship.

The intent of the Constitution is to protect the minority from an out of control majority, it is a safeguard to block attempts of a tyrant to come to power.

We fought a war for our independence, a big concern of the founding fathers was the possibility of a new tyrant coming to power.

Australia on the other hand is still a subject of the British Crown (I looked it up).

If anyone else in this thread cares to use this information, feel free...

 

[I Eat Pie]

"The best argument against democracy is a 5 minute conversation with the average voter" -Winston Churchill.

I say we stick to the constitution, and make amendments when needed. Oh and also.

"When people see that they can vote themselves money from the treasury, that will herald the end of a republic"- Benjamin Franklin

I wonder if we can all boycott the Democrat and Republican parties and bring back the Constitutional party that our first president was part of...

 

[eclipsenow]

"The best argument against democracy is a 5 minute conversation with the average voter" -Winston Churchill.

I say we stick to the constitution, and make amendments when needed. Oh and also.

"When people see that they can vote themselves money from the treasury, that will herald the end of a republic"- Benjamin Franklin

I wonder if we can all boycott the Democrat and Republican parties and bring back the Constitutional party that our first president was part of...

I'm talking about how to make your Constitution better. I'm not against Constitutions, I'm against Bills of Rights totally constipating your parliamentary powers, and removing your right to vote on issues of rights.

 

[Panzerkamfwagen]

I'm talking about how to make your Constitution better. I'm not against Constitutions, I'm against Bills of Rights totally constipating your parliamentary powers, and removing your right to vote on issues of rights.

Why is that a bad thing?

 

[I Eat Pie]

The Bill of Rights is one of the best things to evwe happen to this country. The right to free speech, and to protect yourself, and loads of other stuff

 

[marawuti]

ONLY if they are driving so bad that the police officer has 'reasonable grounds'. However usually that person is so drunk it's amazing the person found their keys! No, see, our society is open to what SCIENCE says on this subject. We know which level most people are intoxicated at, and are scientifically proven to be slower to react. So we test for it. Randomly. So that less people will risk drink driving. Because we've found that drink driving is SUCH a deadly killer, our right to LIFE is more important than our right to privacy in this one particular area.
We've trialled it for decades and generally speaking, appreciate it.

You can be ARRESTED if you have a high enough blood alcohol level. The threat of this is a good thing. It just may have saved my family's life, and I would never know it.

You argue like one of my mates here in the US - bombastic proclamations but a little light on the facts. So, let's try to nail your toes to the floor a bit on a couple issues.

1) Driving in the US is a privilege not a right and RBT could be imposed if a state decided to create such a law and crafted it well enough to pass muster. There are some states that recognize a vehicle as an extension of your domicile and others that don't. If a legislature had the juevos they could explicitly revoke the privacy of your vehicle. Yes, it would be a knock down drag out legal battle to overcome current legal opinions / precedents, but it could be done.
2) Our LEOs can indeed arrest a driver for under the influence without a breathalyzer test. They do it every day with drug users.
3) Our LEOs apply "science" [I'll avoid the shouting capitals that you so annoyingly use] every day in both observation and testing drivers under the influence. My eldest son is a Sgt and we've had extensive discussions about the science that has been codified in court precedent for everything they do from determining probable cause to neurological indicators of being under the influence. Actually take a moment and talk to one of your Australian LEOs, and you'll find the same scientific observational tools are used there.

If a LEO wishes to site a DUI who is not "over the limit" s/he can, and in some cases may make it stick in court by being able to articulate what was observed. They generally won't bother because they are too busy, but they could.

Bottom line is that we chose to make protection of our liberties more important than protection our right to life as you state it. I don't believe you really understand what you mean by "right to LIFE", but you can attempt to articulate that with less presumption later.

To the heart of the conflict you have with constitutionally ensconced boundaries vs. democratic dynamism I'll quote one of our founding "old men":
"When the people realize that they can vote themselves money they will bankrupt the republic." I believe the evidence from current conditions validates Ben Franklin's predictions. Old guys rule!!!

 

[eclipsenow]

You argue like one of my mates here in the US - bombastic proclamations but a little light on the facts. So, let's try to nail your toes to the floor a bit on a couple issues.

1) Driving in the US is a privilege not a right and RBT could be imposed if a state decided to create such a law and crafted it well enough to pass muster. There are some states that recognize a vehicle as an extension of your domicile and others that don't. If a legislature had the juevos they could explicitly revoke the privacy of your vehicle. Yes, it would be a knock down drag out legal battle to overcome current legal opinions / precedents, but it could be done.

But my point is that it is those layers of legal battle that remove it from the public domain and enforce it behind the guardianship of dusty old lawyers, not out in the open dominion of parliamentary debate and public elections.

But thanks for the post. You're teaching me stuff. I thought 'Freedom of movement' was in your Bill of Rights, but it seems more to be a Constitutional amendment not an amendment to your bill. I wonder how much difference there is in practice?

Anyway, how does the 4th apply to cars?

• Fourth Amendment – Protection from unreasonable search and seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

2) Our LEOs can indeed arrest a driver for under the influence without a breathalyzer test. They do it every day with drug users.

I don't think I actually argued to the contrary? My point is the mechanism of arrest. They have to wait for 'due cause' such as wonky driving. Here in Australia our cops just set up a roadside testing station and pull over whatever cars they like which is the R in RBT! It's random. It more probable on a Saturday night. And it's effective.

3) Our LEOs apply "science" [I'll avoid the shouting capitals that you so annoyingly use] every day in both observation and testing drivers under the influence. My eldest son is a Sgt and we've had extensive discussions about the science that has been codified in court precedent for everything they do from determining probable cause to neurological indicators of being under the influence. Actually take a moment and talk to one of your Australian LEOs, and you'll find the same scientific observational tools are used there.

How does this work in the field? Do they have the power to randomly test vehicles or not?

If a LEO wishes to site a DUI who is not "over the limit" s/he can, and in some cases may make it stick in court by being able to articulate what was observed. They generally won't bother because they are too busy, but they could.

There's that 'observed' again. You have to wait until after the event. It's reactive, not a proactive.

Bottom line is that we chose to make protection of our liberties more important than protection our right to life as you state it. I don't believe you really understand what you mean by "right to LIFE", but you can attempt to articulate that with less presumption later.

I think if you read back in this thread you would see that I'm talking about a statistically greater chance of surviving the trip home.

To the heart of the conflict you have with constitutionally ensconced boundaries vs. democratic dynamism I'll quote one of our founding "old men":
"When the people realize that they can vote themselves money they will bankrupt the republic." I believe the evidence from current conditions validates Ben Franklin's predictions. Old guys rule!!!

Yep, some of those old guys really are worth studying! They knew how to use the language as well... unlike 'Illiteracy rates in America are appalling..." Bush. Oh how I miss him. "You're working hard to put food on your family." Old guys rock, even if we study them to see why we don't follow their advice: it helps us articulate our own position.

As for this one: it's just flat out wrong. The electorate seems to move from left to right on the dial as they bounce from the welfare largess of the left to the economic consequences, and then run to the right to cut spending and 'pay the bills' only to find the pain too great over too long a period, and so they run back again.

In reality the 'dial' is not moved all that much. Unless there's a President like Bush who cuts tax to the wealthy and starts 2 wars: especially the trumped up war in Iraq. (WMDs! We've got to get those WMD's! )

(Note: I've read different 'old guys' in a different area to American constitutional authors and political thinkers, but I'm agreeing with your sentiments).

 

[marawuti]

But my point is that it is those layers of legal battle that remove it from the public domain and enforce it behind the guardianship of dusty old lawyers, not out in the open dominion of parliamentary debate and public elections.

And it is just that kind of dynamism that the fight over the Bill of Rights was about. You apparently trust your electorate to do wise things. We did not, and some of us still do not.

Efficacy is not the correct measure in and of itself - witness our interment camps for the Japanese during WWII. Effective but too heavy handed for the very real threat of spies.

Neither the government nor the people should be allowed to act too impetuously. Debate, to my mind, doesn't suffice as a damper as you seem to advocate. I've seen the articulate dominate over the wise too frequently.

Anyway, how does the 4th apply to cars?

That's the legal knock down drag out I was referring to. The presumption of privacy would have to be negated for private vehicles using our roads under privilege by state law and prior federal adjudications overcome. No small fete, but doable.

I don't think I actually argued to the contrary? My point is the mechanism of arrest. They have to wait for 'due cause' such as wonky driving. Here in Australia our cops just set up a roadside testing station and pull over whatever cars they like which is the R in RBT! It's random. It more probable on a Saturday night. And it's effective.

As I said above, efficacy is not a strong enough argument. We apparently have chosen liberty over some loss of life. We're making our Choice, and some of us are not happy with the loss of life. But, that's another argument.

There's that 'observed' again. You have to wait until after the event. It's reactive, not a proactive.

You seem to think that the LEOs can't detect near over the limit DUIs. Simply incorrect.

Yep, some of those old guys really are worth studying! They knew how to use the language as well... unlike 'Illiteracy rates in America are appalling..." Bush. Oh how I miss him. "You're working hard to put food on your family." Old guys rock, even if we study them to see why we don't follow their advice: it helps us articulate our own position.

What is your motivation for even going there? You sound so much like my mate Tom. Are you really an Aussy? ;-)

As for this one: it's just flat out wrong. The electorate seems to move from left to right on the dial as they bounce from the welfare largess of the left to the economic consequences, and then run to the right to cut spending and 'pay the bills' only to find the pain too great over too long a period, and so they run back again.

You actually have it bass ackwards. Yes, the people run to the Federal hand until the pain (economically) becomes so great that we swing to the right to correct it. But being an untrusting lot from the start, thanks to a heavy handed king of our special relationship, we chose not to be such a dependent populace. But the drift seems inexorable. :-(

And from this historical observation, the historical dogfight that was the political arena of the enactment of the Bill of Rights, and recent news on the BBC about the Australian political infighting, I'm quite happy with a less knee jerk approach to protection of my liberties (from the Fed's and my fellow citizens) than you 'stralians take. YMMV ;-)

 

[jayem]

But thanks for the post. You're teaching me stuff. I thought 'Freedom of movement' was in your Bill of Rights, but it seems more to be a Constitutional amendment not an amendment to your bill. I wonder how much difference there is in practice?

The Bill Of Rights are the first 10 amendments. They are not part of the 1787 Constitution, which went into effect in 1789, after being ratified by 11 states. The B of R didn't become effective until they were ratified in 1791.

Freedom to travel is not an explicit right. It's a liberty we take for granted in a free society--but it's not explicity stated as a right. The right to a fair trial is another. And BTW, nothing in the US Constitution guarantees a right to vote. There are amendments stating that voting cannot be denied because of race, sex, or age above 18, but that's it. All of these may be considered "unenumerated" rights. Which are mentioned in the 9th Amendment, (which is part of the B of R):

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Note that the language says the rights belong to the people, not the states. A right to privacy beyond what is mentioned in the 4th Amendment can be argued as being supported by the 9th. The 9th was also cited in Roe v. Wade as one of the legal bases for decriminalizing elective abortion. But it's true, that this leaves it up to judges to decide what is and is not a right.

And regarding your point about a written Constitution as being inflexible, you are on the same page here as Thomas Jefferson. Who wrote that every law or constitution should expire and be rewritten every 19 years.

The earth belongs in usufruct to the living,” Jefferson wrote to Madison in 1789. “[T]he question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water,” even though “it is a question of such consequences as . . . [to] place . . . among the fundamental principles of every government.” Jefferson’s answer to the question was no: “We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation to another.” Therefore, Jefferson said, “[e]very constitution . . . and every law” should “naturally expire[] at the end of 19 years.”

Quoted from a long, but interesting article on how Americans tend to revere the philosophic and legal principles of the Founders--maybe beyond what we should.​

http://www.yalelawjournal.org/pdf/112-7/StraussFINAL.pdf​