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Is a Bill of Rights the best way to actually protect human rights? I don't think so!

Discussion in 'International Politics' started by eclipsenow, Jul 3, 2020.

  1. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    Bottom line? A Bill of Rights encodes the abstract ideals of one age in words that can be misinterpreted by another - and ALSO is anti democratic in that the population don't get to decide on matters of social policy. A dusty old parchment from a dusty old era encodes these 'laws' once for all, then equally dusty old Supreme Court judges decide on matters of 'law' that are actually social policy! This is my blog page about why I don't ever want to see a Bill of Rights in Australia.
    ___________

    I’m all for human rights, who isn’t? But what is the best mechanism to protect human rights in a country? Is it a Bill of Rights, or some other mechanism? I think there are a number of problems with developing a Bill of Rights and then with implementing it.

    1. A Bill of Rights is stuck in an ivory tower and is not specific or real!
    We all want the right to privacy, right? Let’s just have Australia sign the Bill of Rights and be done with it. Pass the champagne. As long as we stay in the abstract like this we are happy.

    But let’s see what happens if we take it out on the road for a test drive. While we can all agree on a right to privacy in the abstract, when we get specific in the real world, people will disagree. For instance, I’m quite happy with Random Breath Testing (RBT). Australian police have the power to pull you over and ask you to count to 10 on their breath analyser. I only get tested about once a year, but it means I’m on statistically safer roads. When I explained RBT to an American friend he exploded in outrage – “But what about your right to privacy?” My argument is what about my right to life? I want to live on safer roads where my family is less likely to be wiped out by a drunk driver, and will gladly submit to the law and do RBT as required.

    Or now that we have a global pandemic, I’m happy to download a government app that helps track and trace my random street contacts in an anonymous digital bluetooth handshake for the next year or so and warns me if I met anyone that turned out to have the virus. The data is protected by law, and deletes every 21 days. When the crisis passes I will do a factory reset on my phone and delete the app. Also, anyone worried about a collection of anonymous Bluetooth handshakes should REALLY worry about using Siri or Google Maps! But in the meantime, doesn’t my right to life outweigh my right to privacy? Shouldn’t we all be prepared to give up some things in order to beat a global pandemic and then get the economy back on track?

    We can all agree on a right to privacy, but once we get specific the battle lines are drawn up. RBT and tracing apps are not the point — the fact that we can so easily disagree about RBT and tracing apps is. I see it helping my right to life but others see it attacking their right to privacy. We can all agree on a vaguely worded, sugar-and-spices bill of rights sitting in a shiny showroom, but take it out on the streets for a drive in the real world and we suddenly discover all sorts of problems.

    So what do we do about it? Once we get into the mucky business of getting specific we discover that smart, educated people disagree. The rest of this page is about how best to protect our rights in a society that must adapt to new technologies, changing cultures, and above all, have a process for protecting our rights even when people disagree. I believe Australia already has those mechanisms in place, but we simply don’t appreciate them for what they are because too many of us feel we need a parchment of fine sounding words, without asking what all these fine sounding words actually mean in our daily lives.

    As ‘Big Ideas’ said:

    The language of human rights is arguably the dominant language of moral discussions in today’s world, but does this language alter a State’s scope for action? According to today’s guest yes it does. He argues that the language of human rights can achieve a sort of bogus consensus because it deals in moral abstractions that are so abstract and so couched in emotively appealing connotations and generalisations that just about everyone can sign up to it. And that the definitions of human rights are contestable and contested, debatable and debated every day and all of the time.
    Canadian Professor James Allen

    2. A Bill of Rights will make unelected Judges the interpreters of our rights, not our elected Politicians who are often trained in the statistics of social policy and public mood.
    Does RBT infringe on my right to privacy or help protect my right to life? Will society judge that my right to privacy is violated if a cop pulls me over and asks me to blow into a tube, or will society decide my right to protection from drunken idiots wielding a ton of steel at a hundred kilometers an hour is more important?

    When we break down notions of human rights into specific questions we can see that they become divisive. It’s just like watching the ABC’s Q&A, you can see the audience drawing up their battle lines and feel the tension in the air. Educated, nice people will just disagree because of their own life experiences and baggage. For instance, if I have had a ban run in with the authorities as a youth, and naturally feel suspicious about giving the police extra powers, I would no doubt want to ban RBT. It’s just too open to abuse! But if — on the other hand — I had watched my dear father die in the twisted metal of a car wreck, then I might be more likely to want strong action against drink drivers.

    Lawyers and judges have had training to interpret the law, not decide social issues for us. Who are lawyers to interpret multi-disciplinary issues that might involve Australian society, culture, psychology, architecture and infrastructure? Human rights can affect everything, from how we design a train station with access for the disabled to how we run the public transport system as a whole. Rights questions are asked of employment programs and military training, running a school and how you walk to school. Are a bunch of wealthy lawyers going to make better decisions than engineers and teachers and bus drivers on these matters? Are they somehow more qualified to debate the issues and rights and wrongs of the best ways to protect Australian citizens living in the real world with real problems?

    I say no. I say — as imperfect as it is — that we keep our human rights where they are. We keep them under Parliamentary Law. For our Parliaments, whether Federal or State, are subject to the ebb and flow of contemporary wisdom and common sense. Politicians should adapt the laws to the concerns of the day. Every year brings new social problems, scientific concerns, technological innovations, infrastructure concerns and public health crisis. Laws travel in one direction for a while and society learns from experience. Then — when the situation changes and public pressure builds — laws can move back again. This is a good thing!

    Social policies should be decided by science and statistics and sociology and psychology and, if all else fails, elections! Surely, in a specific question like the RBT laws, we want the public to decide. Surely we want controversial policies like banning the Burqa or pub curfews or teenage driving laws decided by statistics and social sciences and public opinion, not dusty old texts written by our grandfathers. For make no mistake — a Bill of Rights will age. Even more so in this era of technological acceleration.

    3. A Bill of Rights will politicize the judiciary
    Lawyers and judges are unelected, unaccountable, and unsuited to interpret a bill of rights in the thousands of very real, very practical questions that could be put to them. A bill of rights turns judges into high priests of social policy. This politicizes the judiciary. Just watch American politics the next time a new judge is appointed to the Supreme Court.

    4. A Bill of Rights will encode the silly prejudices and blind spots of our generation forever!
    Policies can be right for one generation and wrong for another. RBT might be necessary in this generation of drinking and driving. But if robot cars arrive over the next ten years, driving may become a thing of the past — let alone drink driving. So if RBT’s become irrelevant, the laws and policies can easily be changed. They are not enshrined in some interpretation of the Bill of rights — a hallowed parchment up there with our Constitution!

    The problem with these Bills is they cannot predict the thousands of new social policies we will need for each situation. The ivory tower doesn’t always understand life on the street. A bill of rights attempts to condense weighty and complex issues into trite summaries. Do we really want these things encoded for all time?

    Bills of rights promote an absolute formula of ‘rights’ as interpreted by our generation, and make them absolute for all time. However they should more accurately be described as social policies and Parliamentary laws held to account by the political process and democratic discussion of the day. Instead of ensuring our rights through some abstract, ivory tower parchment codified for all time, we should protect them through a strong democratic process. It will reflect the silly prejudices and blind spots of our day.

    Instead let’s protect our human rights by protecting the free press and good government and integrity of our elections and all the other foundations of a good democracy. Let’s stay vigilant in protecting the processes of effective democracy, for this best protects the integrity of the conversation of the day. Not some piece of paper stuck behind glass in a museum.

    5. A Bill of Rights will enshrine selfishness over the good of the community
    I would have sworn the Australian Christian Lobby would have been for a bill of human rights. Of course they are for human rights, but surprisingly they are against a bill of rights as the mechanism of guaranteeing rights. Instead, Brigadier Jim Wallace, AM, (Ret’d) Managing Director of the Australian Christian Lobby said something to the effect that “Bills of rights enshrine selfishness over the rights of the community”, which helped me remember my conversation with my American friend about RBT. For is it really that big a deal to pull over and blow through a little tube once a year, if that? Is it really affecting my privacy that much, especially if I am a law abiding citizen and have nothing to fear? In other words, YES, I support RBT! I think it is a valuable tool for getting the idiots off the road. Drink driving is death on wheels. I have trouble imagining a society that would refuse this powerful tool for curbing a very real problem. But my American friend gasped in revulsion at the concept. He saw view it as an attack on his freedom because he was taught about his ‘right to privacy’ from a very young age. But that’s not really the lesson Americans seem to learn. Instead, in this and so many other areas, they learn that the individual matters more than the community, that selfishness is good. I find that appalling.

    Please, “Don’t leave us with the bill!” Download the podcast here.
    Don't Leave Us With The Bill: The Case Against an Australian Bill of Rights
     
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  2. Dave G.

    Dave G. Well-Known Member

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    Actually it worked well till people frigged with it. The Fathers said that would be the case. And so it seems to be. This country was formed under a covenant with God, go ahead and break the covenant, you know what has happened all through scripture with people who did that.
     
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  3. Redwingfan9

    Redwingfan9 Well-Known Member

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    This country was most certainly not formed under a covenant with God. Had it been the case Christ would have been named King and the Constitution would have specifically stated it was a covenant between the people of this country and God. Instead, the founding document makes no mention of God nor a covenant.
     
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  4. Rachel20

    Rachel20 Member

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    collectivists don't realize that individual rights ARE in the best interest of the community
     
  5. istodolez

    istodolez Well-Known Member

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    Can you help me, I didn't realize I was living in a theocracy. I thought I was a full member of US society but I didn't realize there was a "faith test" for America. (If only the Founding Fathers had written in something into the constitution to keep that from happening...)
     
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  6. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    Compare Australia's population responding to the coronavirus pandemic, and America's.
    Case closed.
     
  7. Rachel20

    Rachel20 Member

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    Give up your liberty for your safety and in the end you'll have neither
     
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  8. istodolez

    istodolez Well-Known Member

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    What did Australia do that would destroy liberty? I might have missed something.
     
  9. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    I agree with iStodolez - this is a non-comment unless you have a specific example. But hey, there are freedoms I will gladly 'give up' if it means I live in a safer society - as per my Random Breath Testing (RBT for short) example above. Mathematically it only works out I get tested once every 6 months if that. It's probably because I'm older now and not partying after dark as much, not on the most common routes to drive home after a night clubbing or at the pub. But in Australia, when someone gets caught and fined for RBT, who do we snarl at? The police? That thar guv-ern-myant for intruding on Mah Rights and Mah Freedom? No. We snarl at the drunk driver. How dare they! Who do they think they are? Responsible adults do not do that - they simply don't go out to drink if they don't have a plan for getting back home again!

    So again, you're going to have to be specific about what freedoms you're worried about losing?
     
    Last edited: Jul 3, 2020
  10. Rachel20

    Rachel20 Member

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    We're discussing collectivism vs individualism, not sure why Eclipse brought up Australia, but I haven't joined that conversation
     
  11. Rachel20

    Rachel20 Member

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    Not sure what point you're trying to make with the slang, but the spirit I'm feeling isn't good at all. Later
     
  12. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    The problem here is you are illustrating exactly my point in the Opening Post.
    As long as we keep the language vague and fluffy, everyone can agree with the idea of a Bill of Rights.
    No one wants to subject themselves to 'collectivism' - what is that, mob rule that's going to stop me going out when I want to? Stop me going to get a burger or something? I like the word 'individualism' when I hear it. It's about me! :oldthumbsup:
    So 'collectivism' vs 'individualism' - individualism wins hands down.
    In the abstract. In the shiny car showroom of political ideals divorced from the real world. Which is why I was asking you for a concrete, real life example. If we take these two words out into the real world for a test drive and discuss something specific, that's where society - through the democratic process - should be making decisions. Australians have voted for their representatives to look after them in times of national crisis. We didn't vote on the pandemic, or even know it was coming when we had our last election. But we put them in office to represent us. We comment on news articles and make our voices known. The government are responding to our voices. How?

    By ordering a lockdown to save lives! In this instance, we went 'collectivist' - which in this instance - helps to save me and my neighbour as individuals. Because by locking down, everyone is safer. I'm happy to give up some of my freedoms for a year or so for the collective good so that I and my loved ones are safer. And if I don't like what the government did during this time, I can have my say now online, on talkback radio, by writing to my local representative, or by voting against them next time. But when you take certain 'rights' out of the hands of the people and encode them on a paper behind glass, and appoint a bunch of old legal experts to vote on them legally, you remove them from the democratic process.

    Which do you prefer - a bunch of old lawyers deciding whether or not your police can have RBT powers, or you?
     
  13. FireDragon76

    FireDragon76 contemplative humanist Supporter

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    As an American, let me just say there's alot of similarities with what I see in the US between Constitutional Law as handled by the Right in our country, and biblical fundamentalism, particularly how the Constitution is weaponized to favor the socially and economically privileged. It's a certain magical belief about the power of words and texts, despite the vagueries of human interpretation, subconscious bias, all those things the Founders knew nothing about (they were naive Scottish Common Sense Realists for the most part, which is just garbage as far as philosophies go). And I can tell you, it's all stuff and nonsense. Everybody who is an educated, critical observer of our Courts knows its down to political ideology with a thin veneer of legal jargon and abstract legal theories.

    So I don't think a Constitution would serve Australia that well at all. Just keep the ideals of the Enlightenment at the helm, and I think Australia can stick to a relatively safe course in a changing world.
     
  14. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    I think you meant a "Constitutional Bill of Rights" - but I hear what you're saying.
    Hey, the laws I accept as our least-worst option right now are written with words that must be interpreted. I don't think a relativistic philosophical critique of what I'm saying actually helps - because that would be critiquing with words - which can be subjectively philosophised away as well. Or something... :oldthumbsup: To me, words are important. They separate us from anarchy. Legal words are important and can be understood if made about certain specific things.

    I'm actually asking who gets to write those words that have power over us? A bunch of people centuries ago and then they're encoded for all time and interpreted by a bunch of old lawyers? Or all of us? Do we all get a say on those words?

    EG: In our country, our parliament gets to make laws about RBT. It's allowed. It's not ruled out by an old parchment that only old judges get to interpret. Australians all - more or less - support it as a good idea. But if we decided we hated it, a movement would start, a party might side with that movement, and eventually we'd vote.

    So here are some words I'd ask you to choose from:-

    1. Random Breath Testing should be made illegal by an old document saying something abstract about 'privacy' and some old judges deciding that old document says "No!" emphatically for all time.
    2. Random Breath Testing is a modern technology that can help keep our roads safer - and could be a useful policy to try for a few decades that the people can vote against sometime in the future if they decide to.

    Which is more democratic? More practical?
     
  15. FireDragon76

    FireDragon76 contemplative humanist Supporter

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    More important is who gets to interpret those words, and what rationale they use for doing so. I don't know about Australia, but in the US, federal judges are often treated like a priestly class and the law itself is seldom subject to rigorous philosophical critique. That opens the door for all sorts of woo and nonsense to persuade a gullible public to vote for politicians to appoint judges to defend a particular partisan political stance under the guise of abstract concepts like truth and justice (which can't be merely reduced to "the Bible says it, I believe it, that settles it", much as many conservatives would want it to be).

    In short, it politicizes, even sensationalizes what should be far more reflective and even philosophical.
     
  16. FireDragon76

    FireDragon76 contemplative humanist Supporter

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    It was not. The legal theory behind the US Constitution was the English Enlightenment, specifically John Locke, who justified government because it had the consent of the people as a whole. No covenant with God was involved. That was later mythology, mythology that was alien to the sentiments of most of the Founders, who would be considered heretics by most people on Christian Forums, as most were not Trinitarians and did not believe the Bible literally.
     
  17. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    Agreed!

    Or democratic political and social policy critique, for that matter.

    Surprisingly, I agree with you, because as a Christian I accept that the separation of church and state actually comes from a proper understanding of the book of Romans.

    Yes, we call it the 'Politicization of the judiciary." If I'm hearing you correctly - you think it turns the whole process into a circus? I agree. I couldn't tell you who our Supreme Court judges were because, off the top of my head, they're not deciding things that are that important to me right now.
     
  18. Ana the Ist

    Ana the Ist Aggressively serene!

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    Ehhh....

    Laws are the organizational language of any society. They are, the defining aspect of where that society begins and ends.

    Rights, whether expressed specifically in a bill or outlined by a philosophy or whatever....act as a sort of guideline for the extent of those laws.

    I can fully understand why someone in Australia would not see any upside to a bill of rights. It's hard to envision a situation where the government may decide that for the good of the nation, they're going to deprive the citizenry of property, liberty, or freedoms.

    The reality is though....that happens. It happens a lot the more you're willing to look at the history of nations. There's no perfect process for avoiding this, but the enshrinement and protection of rights creates a precedent for when the abuses of government have become too much.
     
  19. eclipsenow

    eclipsenow God cares about his creation as well as us.

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    So the right to bear arms protects Americans?
    We had the Port Arthur massacre and decided whole categories of fast loading rifles were outlawed, and instituted a massive government buy-back scheme. We haven't had another massacre of that size since. Is that the government overstepping its rights, or protecting its citizens?
     
  20. Ana the Ist

    Ana the Ist Aggressively serene!

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    There's a guy in China I read about not long ago. China instituted a public propaganda campaign to get the people proud of China's culture and heritage. This included a revival of traditional Chinese martial arts.

    So this guy in China said, basically, that this was a lie...that traditional Chinese martial arts were useless in a fight. He's a modern MMA practitioner. The government was angry at this, traditional martial artists were angry and started challenging him to fights. He's only average in skill and athleticism by his own standards....and he considers himself at past his prime in his 40s....but he's easily beaten every king fu master that's challenged him. He's done it publicly to show that he spoke the truth.

    For this, he's lost his job, his ability to teach and train at the gym he's been at for the past 10 years, his right to travel, work, and many other things. China has been making it almost impossible for him to just get by. He's destitute and he has a family. All traces of him have been erased and denied by his gym. This is just for speaking the truth....not even criticizing the government.

    In all honesty, he's going to be lucky if he isn't disappeared and thrown in a dungeon somewhere never to see the light of day or be heard from again.

    I'm not saying that having his rights written down would stop all that. It does however, provide a rather clear marker for when government has overstepped its bounds and is abusing the public it's supposed to serve.

    Without it, I think you'd be surprised what people will allow as long as it happens slowly enough.
     
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