Poe's law just got lapped by reality

January 4, 2012 5:23 PM

New Hampshire State Republicans have sponsored a bill to require all proposed legislation "addressing individual rights or liberties" in the State Assembly to cite its authority from the Magna Carta.

The substance of NH HB1580: "All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived."

posted by gauche (110 comments total)

Why don't Republicans ever have any new ideas? This is just a ripoff of my proposal about the condo complex swimming pool and the Code of Hammurabi.
posted by box at 5:26 PM on January 4 [67 favorites]

This is how we get to Sharia Law, my friends.
posted by briank at 5:28 PM on January 4 [14 favorites]

Basically, the Bill of Rights isn't good enough for New Hampshire State Republicans.
posted by mek at 5:28 PM on January 4 [6 favorites]

The Magna Carta is the new Sharia.
posted by IvoShandor at 5:28 PM on January 4

Oh, beat to the punch by briank.
posted by IvoShandor at 5:28 PM on January 4

Aren't Republicans supposed to be against relying on foreign laws?
posted by brain_drain at 5:29 PM on January 4 [21 favorites]

Vita admitted he needs to "bone up" on the content of the charter, but said "it's a document that still functions." He views the bill as similar to efforts in Congress requiring all legislation to cite constitutional authority.

"I don't know what the fuck I'm talking about, but you should listen to me anyway."
posted by rtha at 5:29 PM on January 4 [48 favorites]

All I know about the Magna Carta is that it was written in 1215, and what I gleaned from a quick skim of the translation... so does it enumerate a right to bear arms in there, like the 2nd Amendment?

If not, does it follow that NH State Republican party is opposed to gun ownership by its citizens?
posted by hincandenza at 5:30 PM on January 4 [6 favorites]

I don't fee any problem with thif. The document waf written in 1215 after all, that's not all that long ago. I'm fure these Republicanf will have no trouble reading thif document.
posted by JHarris at 5:31 PM on January 4 [73 favorites]

I'm forry, I fhould have faid "thefe."
posted by JHarris at 5:32 PM on January 4 [17 favorites]

Not a lot of gay rights in that old rag.
posted by 2bucksplus at 5:33 PM on January 4

I want recognition of the divine right of kings damn it!
posted by a shrill fucking shitstripe at 5:35 PM on January 4 [3 favorites]

The "f" as "s" thing is really a much later affectation, and there were complicated rules about their usage.

Also, people don't need a translation of the Magna Carta because it's awkward, they need it because it's written in Latin. Which this guy probably didn't even know.

Is there any greater source of inadvertent humor than our state legislatures?
posted by absalom at 5:37 PM on January 4 [6 favorites]

I used to think it amusing that the idea Obama had inherited "anti-colonial" views from his Kenyan father was popular among a group styling itself the "Tea Party". But it appears they actually do long for the British monarchy.
posted by uosuaq at 5:39 PM on January 4 [8 favorites]

Surely this will show King John?
posted by drezdn at 5:42 PM on January 4 [27 favorites]

I want recognition of the divine right of kings damn it!


ultima ratio regum
posted by The Whelk at 5:42 PM on January 4 [1 favorite]

This bill proposes limiting the ability of individuals to propose bills, but it does not contain a relevant quote from the Magna Carta.
posted by Sticherbeast at 5:42 PM on January 4 [26 favorites]

Given that all the liberties in Magna carta are to be held from the English crown, they'd better get themselves busy swearing fealty to her majesty!
posted by Flitcraft at 5:43 PM on January 4 [1 favorite]

I assume this is a typical nonstarter 'THERE OUGHTTA BE A LAW' bullshit bill. At least they're distracting themselves with this and not, say, a personhood bill.
posted by rmd1023 at 5:45 PM on January 4

No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband.
posted by Paragon at 5:46 PM on January 4 [2 favorites]

Although few colonists could afford legal training in England, they remained remarkably familiar with English common law. During one parliamentary debate in the late 18th century, Edmund Burke observed, "In no country, perhaps in the world, is law so general a study." (source)

And now, legislature can be crafted from the vaguest hints of a memory of what historic laws might have been. Or as New Hampshire Democratic Party spokesman Ray Buckley said: "I appreciate all the hard work the Republican legislators are putting into the effort to make them look like extremists. Saves us the trouble."
posted by filthy light thief at 5:53 PM on January 4 [1 favorite]

And the Magna Carta arose from a challenge to the King by "feudal barons", addressing their grievences, not those of the "common people". So it's a solid foundation for Rule By the 1%.
posted by oneswellfoop at 5:53 PM on January 4 [5 favorites]

Everybody Wang Chung, tonight. And you can quote me on that.
posted by the Magna Carta at 5:54 PM on January 4 [32 favorites]

It's certainly stupid.

But in fairness, Representative in NH is an awful job. It takes a couple of months every year, it pays the princely sum of $100/year, everyone's bitching at you all the time, and unless you're a leader you have next to no real power because there are 400 of you.

And when the job is that crappy, from time to time three of the solons you can get to fill that job are going to get together and propose something stupid.
posted by ROU_Xenophobe at 5:54 PM on January 4 [7 favorites]

Let me tell you how this ends.
posted by furiousxgeorge at 5:55 PM on January 4 [7 favorites]

furiousxgeorge: Let me tell you how this ends.

Summary: ah, fuck us, we really should have read that old thing before deciding it would actually match our current goals.
posted by filthy light thief at 5:58 PM on January 4 [1 favorite]

New Hampshire: "Live As Dictated by the Magna Carta or Die!"
posted by argonauta at 6:00 PM on January 4 [5 favorites]

No Gordon Freeman shall be taken, imprisoned,... or in any other way destroyed... except by the lawful judgment of Dr. Wallace Breen, or by the Combine. To no one will we sell, to none will we deny or delay, right or justice to pay tribute.
posted by the Magna Carta at 6:00 PM on January 4 [3 favorites]

oneswellfoop: And the Magna Carta arose from a challenge to the King by "feudal barons", addressing their grievences, not those of the "common people". So it's a solid foundation for Rule By the 1%.

And there's a lot in there about God and the holy Church, which seem a bit contrary to the separation of Church and State that the founding fathers were pretty keen on.
posted by filthy light thief at 6:02 PM on January 4

Yeah, it's best not to worry too much about whackjob ideas in the NH Assembly. They have them on a daily basis and rarely does it present an actual problem. Every now and then they even get something right, like gay marriage, but for the most part it's the most ineffectual state body you've ever seen. That's why NH is one slow-to-change state, despite even efforts like the Free State Project. On top of the ridiculous shuffle of having basically a representative for each city block or so, they change governors every two years, so really, very little ever happens.
posted by Miko at 6:12 PM on January 4

It occurs to me that perhaps they got it mixed up with The Mayflower Compact? That's the only sense I can make of this.
8th grade American History FTW
posted by bleep at 6:17 PM on January 4

"Heirs may be given in marriage, but not to someone of lower social standing."

"At her husband's death, a widow (...) may remain in her husband's house for forty days after his death (...)"

"No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of."

"If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it."

"Every county, hundred, wapentake, and riding shall remain at its ancient rent, without increase, except the royal demesne manors."

"No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband."
posted by Flunkie at 6:21 PM on January 4 [4 favorites]

I think that Posner For Philosopher King is a bit strong, but I bet we could do better replacing one of the chambers in most states by a federal judge and skip the foreplay.
posted by a robot made out of meat at 6:27 PM on January 4

"Every county, hundred, wapentake, and riding shall remain at its ancient rent, without increase, except the royal demesne manors."

We've still got hundreds in Delaware. I don't know what mine's ancient rent is though.
posted by interplanetjanet at 6:29 PM on January 4

This is just another batch of Republicans with their chain mail undies in a bunch. Pretty soon they will decree that only men with beards can bust a move on the statehouse floor.
posted by Sparkticus at 6:33 PM on January 4

I vote that legislators can't fuck us any harder unless they can cite authority from the Kama Sutra.

(if we're gonna go backwards, let's go backwards)
posted by Benny Andajetz at 6:37 PM on January 4 [21 favorites]

I think someone must've just seen Braveheart and got really excited about that whole "jus primae noctis" thing then failed to do any further research.
posted by feloniousmonk at 6:44 PM on January 4 [2 favorites]

Are they allowed to cite articles that were repealed or only articles that are still in force today? Because all that is in force today is:

1. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.

9. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs.

29. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

I mean, have they ever read the thing?
posted by Joey Michaels at 6:47 PM on January 4 [4 favorites]

This could be pretty sweet, depending on the version of the charter they use; for example:

This section established a committee of 25 barons who could at any time meet and overrule
the will of the King if he defied the provisions of the Charter.

Is New Hampshire consenting to rule by a bunch of English barons?

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

I suspect that could create some issues.

all evil customs connected with forests were to be abolished

Hmm. What's an evil custom of the forest?

all foreign knights and mercenaries to leave the realm.

Well, I guess that plays well with the anti-immigration types.

pardoned those who had rebelled against the king

Free Bradley Manning!

no-one could be put on trial based solely on the unsupported word of an official

Oooh, bugger. I hope they aren't relying on any income from speeding tickets.
posted by rodgerd at 6:49 PM on January 4 [5 favorites]

Uhh, which one? There are at least five extant documents that could be considered the Magna Carta.
posted by eriko at 6:51 PM on January 4 [1 favorite]

So, would this cancel out some of the Patriot Act and NDAA BS?

I find this hilarious. It's like that Tenther stuff taken to it's logical extreme, since I guess the Bill of Rights is now too radical.
posted by mccarty.tim at 6:55 PM on January 4

eriko: Whatever version it is in bold in US Government/Civics textbooks, obviously. Come on, that's not even a real question.
posted by absalom at 6:56 PM on January 4

all evil customs connected with forests were to be abolished

Hmm. What's an evil custom of the forest?

I suspect it's something to do with customs in the sense of duties or taxes, which the king would impose upon the use of certain forests.

A similarly confusing (to modern ears) provision is that any forests which were created during his reign were to be "deafforested". This sounds like "Any trees that we planted will be uprooted", but really "forests which were created" means something like "group of trees that we proclaimed to be subject to various taxes and such", and "deafforested" means "no longer subject to various taxes and such".
posted by Flunkie at 6:57 PM on January 4 [3 favorites]

The "f" as "s" thing is really a much later affectation, and there were complicated rules about their usage.

If an s is at the end of a word, it's a regular s. If it's anywhere else, it's an ſ. It's more complicated if you're writing German or something, but in English that's the long and short of the rules right there.
posted by Sys Rq at 6:59 PM on January 4 [3 favorites]

I really really hope the guy goes back into work tomorrow and says "I messed up. I meant the Declaration of Independence. That one. The American thinger."
posted by mccarty.tim at 7:01 PM on January 4 [2 favorites]

If an s is at the end of a word, it's a regular s. If it's anywhere else, it's an ſ.

It's kind of like Cyrillic's C/c/s rule that way, yeſ?
posted by infinitewindow at 7:01 PM on January 4

Dunno. Just noticed, though, that all the esses in the first bit (at least) of the magna carta are long ones, no matter their position.
posted by Sys Rq at 7:06 PM on January 4

...on second look, no, that's not true. But there's definitely a "pluſ" in there!
posted by Sys Rq at 7:09 PM on January 4

Typical New Hampsterites - they're really just trying to one-up Massachusetts, where courts still cite 17th-century colonial ordinances in land-use rulings.
posted by adamg at 7:10 PM on January 4

Hmm. What's an evil custom of the forest?

Basically anything I do while hiking
posted by The Whelk at 7:15 PM on January 4 [1 favorite]

a shrill fucking shitstripe: "I want recognition of the divine right of kings damn it!"

As do We.

Recognize, peasants!
posted by Samizdata at 7:28 PM on January 4 [1 favorite]

The Whelk: "
I want recognition of the divine right of kings damn it!


ultima ratio regum"

Yeah, thanks for reminding me of the current administration.
posted by Samizdata at 7:30 PM on January 4 [2 favorites]

Brainstorming session. FCS.

... I wish I had the kind of time to spend sitting with my thumb up my ass just making completely irrelevant things up and getting paid for it.

I mean it's too stupid to even be counterproductive.
The next step has got to be just making surrealist tracts and trying to get them passed as law.
Although, hell, I'd vote Dada party.
In fact, I'll go caucus now. Blast some Acid Mothers Temple, slip on my g-string elephant underpants, guns akimbo, blindfolded, firing randomly demanding pretend problems for imaginary solutions, screaming "NO WAY IN HECK!" making dogs hit the brakes hard so people slam into the windshields, forcing people to eat Nutella even if they're not dating Canadian strippers.
It's a pretty good platform given what looks like the other options.

Kingsbury said he didn't intend for there to be penalty for not citing the document.
Pussy.
posted by Smedleyman at 7:30 PM on January 4 [6 favorites]

the Magna Carta: "Everybody Wang Chung, tonight. And you can quote me on that."

Done and done.

Wang Chunging commences.
posted by Samizdata at 7:30 PM on January 4 [2 favorites]

feloniousmonk: "I think someone must've just seen Braveheart and got really excited about that whole "jus primae noctis" thing then failed to do any further research."

What part of "Recognize, peasants" did you not understand?

We need a date.
posted by Samizdata at 7:33 PM on January 4

To quote my husband: "Clearly they've never read the damn thing. Also, what the fuck? This is New Hampshire, not. . . . Hampshire, I guess."
posted by KathrynT at 7:43 PM on January 4 [5 favorites]

Now you see the violence inherent in the system.
posted by newdaddy at 7:50 PM on January 4 [2 favorites]

HELP! HELP! I'm being repressed!
posted by newdaddy at 7:51 PM on January 4 [2 favorites]

I seriously thought this was an Onion article before I clicked the link.
posted by ActionPopulated at 7:53 PM on January 4 [5 favorites]

New Hampshire Republicans trying to move us back to the dark ages?

How timely.
posted by compartment at 8:15 PM on January 4 [1 favorite]

the problem with the metaphor "going off the deep end" is that it fails to capture the repetitive nature of today's Republican Party. Its like a mass psychosis.
posted by Ironmouth at 8:23 PM on January 4 [1 favorite]

Hmm. What's an evil custom of the forest?

Porn in the woods?
posted by the_bone at 8:27 PM on January 4 [3 favorites]

Upon seeing the bill, New Hampshire Democratic Party spokesman Ray Buckley said he was "mostly speechless." "I appreciate all the hard work the Republican legislators are putting into the effort to make them look like extremists," he said. "Saves us the trouble."

strange days.
posted by Ironmouth at 8:29 PM on January 4

Oh, those rascals. Just adorable.
posted by EatTheWeak at 8:29 PM on January 4

Human rights aren't given to you by a document. You have them already, just by being a human. This is the entire essence of American constitutional law... and it is eroding faster than a sandcastle being pissed on by an elephant.
posted by Slap*Happy at 8:34 PM on January 4 [4 favorites]

If any of the current legislators in New Hampshire are descendants of the d'Athee family, would that invalidate their election?
posted by Jehan at 8:47 PM on January 4

eriko: There are at least five extant documents that could be considered the Magna Carta

I am guessing they aren't including the Magna Charta de Foresta, with it's whole limiting of exclusionary private property in favour of the commons.

It being essentially a longer form, with enumerated and excellent rights such as hedgebote, housebote, cartbote, firebote and limits on chiminage, of the U.N's International Covenant on Economic, Social and Cultural Rights': "In no case may a people be deprived of its own means of subsistence."

It's interesting how often the Occupy movement seem to be stepping into the clouted shoone of the Diggers and Levellers in the battle against "the engrossers, the rack renters, the enclosers, the lease-mongers, and userers" to try and keep the forest in the Carta.
posted by titus-g at 8:54 PM on January 4 [4 favorites]

To quote my husband: "Clearly they've never read the damn thing. Also, what the fuck? This is New Hampshire, not. . . . Hampshire, I guess."

Which is why I'm going to New London stat to practice me some ancient liberties...
posted by ennui.bz at 9:07 PM on January 4

Hmm. What's an evil custom of the forest?

I'm no expert on English law, but "evil customs" (malae consuetudines) is generally 12c jargon for customs--which as Flunkie pointed out we can think of as being similar to taxes--that have been exacted or claimed recently (within the last few generations) by minor officials (of a sort) or people aspiring to petty nobility and usually accompanied by violence or the threat thereof.

I did a lot of hedging there, and the specific meaning of the term varies a little depending on time and place, but it can essentially be understood as referring to new taxes (or outright theft) being imposed by people with no (or dubious) legal authority by force of arms. Think Sheriff of Nottingham in Prince of Thieves.

The evolution of "government" over the course of the long twelfth century is fascinating, but the vocabulary makes me crazy. Things like "usages" and "customs" are difficult to describe with words that function anachronistically like "government", "legal", and "taxes".
posted by prosthezis at 9:26 PM on January 4

"House Bill 1580 is the product of such a brainstorming session this summer between three freshman House Republicans:..."

I'd like to see the ideas from that brainstorming session that weren't good enough to bring to the legislature.
posted by prosthezis at 9:29 PM on January 4 [2 favorites]

They decided to order in Thai food. In Concord. It was a TERRIBLE decision.
posted by maryr at 9:39 PM on January 4

On January 10th, these very people will be wielding great influence on who will be the Republican Presidential nominee - and so perhaps the next President.
posted by zoinks at 10:30 PM on January 4

Pretty soon they will decree that only men with beards can bust a move on the statehouse floor.

C-Span should cover this. Or at least pay-per-view.
posted by wallabear at 10:34 PM on January 4

Human rights aren't given to you by a document. You have them already, just by being a human. This is the entire essence of American constitutional law

Actually... that's not how that works. We're now talking about civil rights, i.e. rights granted by law, not human rights, something for which the American legal system has actually had remarkably little use.

As a matter of fact, one cannot argue that one has a right to do or be free from anything unless one can find a foundation for them in the Constitution. This is why Roe v. Wade is so controversial: the majority basically made up a new right, "privacy," which is never mentioned as such in the Constitution. The argument is that it is implied by the Constitution, and I mean, fair enough, but it's not actually in the text. But the argument is not that it's a right that we "have already, just by being a human." Make that argument in a court of law and you'll not only lose, you'll probably get your case dismissed right at the outset.

So no, human rights are not the "entire essence of American constitutional law," and you should probably disabuse yourself of that notion as quickly as possible, because human rights, as such, don't enter into it.
posted by valkyryn at 11:03 PM on January 4

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...
posted by Mei's lost sandal at 11:25 PM on January 4

Not "human" as in the U.N. Charter of and Geneva Convention, no. But "inalienable" as in the Declaration which paraphrases (and slightly bastardizes) Adam Smith, who summrizes the Enlightenment, yes.

That is the essence, and the two are close enough for hoseshoes and hand grenades.
posted by clarknova at 11:28 PM on January 4

Something about John Locke...?
posted by zoinks at 11:32 PM on January 4

I think the fact that you can expect "the Declaration isn't a legally binding document" as a response to the "inalienable" bit pretty much says it all about the current state of things. Not that it isn't true, but just let the idea that the Declaration is just an interesting historical novelty today sink in for a bit.
posted by feloniousmonk at 11:47 PM on January 4

Er, unalienable. Hah. Among other historical novelties, such as an edit window.
posted by feloniousmonk at 11:48 PM on January 4

I think the fact that you can expect "the Declaration isn't a legally binding document" as a response to the "inalienable" bit pretty much says it all about the current state of things.

Has nothing to do with the "current state of things." The Declaration of Independence isn't a legal document at all, and has, as far as I know, never been cited by any American court as the justification for any decision. Certainly not any decision which mattered all that much.

The "historical novelty" concept is a mischaracterization, because courts rarely cite to non-legal documents when reaching their decisions, and never really have. The Declaration isn't even the kind of non-legal document that gets cited, e.g. a scholarly treatise on a particular area of law. So the Declaration is no more a "novelty" than any other non-legal document in that Court's don't cite to Locke, Hume, or Smith any more than they cite to the Declaration.
posted by valkyryn at 11:57 PM on January 4

I rather understood that the Constitution enumerated powers of the Federal government, so rather than "if you don't have a right in there, you don't have it" it's more "if it isn't in there, the Federal Government can't do it." Which means that rights are irrelevant: if the state can't stop you doing X, then you have the ability to do X, and your liberty is preserved. But I am not an American...

I believe a Forest is not "a big wood" but "an area of land designated to belong to the King/nobleman for his purposes, typically but not exclusively hunting." So a forest might not have any trees, but your activity on it as a serf or nobleman might be very much curtailed - for example, the King designates a hill near you where you are accustomed to graze your sheep as a Forest, then denies you access to it. I suspect that's the complaint.
posted by alasdair at 12:15 AM on January 5

Wikipedia has an interesting discussion of the impact of Magna Carta in America. More here at the US National Archives. (Although the Wikipedia article gives the idea that 17th Century British developments weren't relevant to the US, when surely the US Constitution draws fairly heavily on the (British) Bill of Rights of 1689...)
posted by Infinite Jest at 12:22 AM on January 5

I think the fact that you can expect "the Declaration isn't a legally binding document" as a response to the "inalienable" bit pretty much says it all about the current state of things.

Except it isn't, and it is not, as far as I can tell, ever citied as such in US Law.

There is, however, the 9th Amendment, which is far more important here.

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

I rather understood that the Constitution enumerated powers of the Federal government

This was true of the original document, however, the Bill of Rights changed that somewhat by explicitly enumerating some rights, and later amendments extended this -- the 14th bringing the Privileges and Immunities, Due Process and Equal Protection clauses, the 15th preventing denial of vote based on race, the 19th preventing denial of vote based on sex, and the 26th establishing the franchise to all US citizens 18 years and older.

Indeed, after the bill of rights, a strong theme in the US Constitution is "No, you may not bar that citizen from voting because they are X." The only legal bars to suffrage are age (26th) and due process (14th)*.

Hint, GOP.

* This is why a convicted felon serving, and in some states, after serving sentence, can be legally barred from voting.
posted by eriko at 2:14 AM on January 5

I know it was never a legally binding document. A rebellion was started and people were killed over that document and the ideals therein, but since it was signed, we've legislated ourselves to the point where it's just something to read to stir up nationalism. It carries no weight beyond emotion. This is what I meant by "historical novelty."
posted by feloniousmonk at 2:21 AM on January 5

And to stave off more remedial history lessons, I'm including the Constitution when I say "legislated" there. We've never lived up to those ideals.
posted by feloniousmonk at 2:27 AM on January 5

It carries no weight beyond emotion.

Thing is: it never really did. Unless you count the whole "declaration of independence" part. But it was never intended to be nor served as any kind of foundation for any government anywhere. The Articles of Confederation didn't live up to what you're looking for either.

Really, if you think that philosophical documents can be or are even intended to serve as legal documents, you don't really understand how legal systems function.
posted by valkyryn at 5:37 AM on January 5

As a matter of fact, one cannot argue that one has a right to do or be free from anything unless one can find a foundation for them in the Constitution.

Come on. This isn't a statement of fact, it's one position in a debate which goes back to the inclusion of the bill of rights in the first place.
posted by ennui.bz at 5:46 AM on January 5 [2 favorites]

As a matter of fact, one cannot argue that one has a right to do or be free from anything unless one can find a foundation for them in the Constitution. This is why Roe v. Wade is so controversial: the majority basically made up a new right, "privacy," which is never mentioned as such in the Constitution. The argument is that it is implied by the Constitution, and I mean, fair enough, but it's not actually in the text.

This argument assumes what it's trying to prove. It would be stronger if there were some part of the Constitution which exhaustively enumerates the civil rights of U.S. citizens, still stronger if it were explicit about exhaustively enumerating those rights, but there is no such section.

Roe v Wade, while controversial, is case law that has not been overturned: it is therefore, at least for now, the law of the land that there are civil rights which are not mentioned in the Constitution.
posted by gauche at 6:19 AM on January 5

This is why Roe v. Wade is so controversial: the majority basically made up a new right, "privacy," which is never mentioned as such in the Constitution. The argument is that it is implied by the Constitution, and I mean, fair enough, but it's not actually in the text.

The right of the people to "be secure in their persons" is about as plainly pro-privacy as you can get. IMO, it's more of stretch to say that the Constitution doesn't address privacy, than to say that it does.
posted by Benny Andajetz at 6:21 AM on January 5 [2 favorites]

As a matter of fact, one cannot argue that one has a right to do or be free from anything unless one can find a foundation for them in the Constitution.

Ninth and Fourteenth Amendments.
posted by Slap*Happy at 7:03 AM on January 5 [1 favorite]

"if it isn't in there, the Federal Government can't do it."

There's a legitimate interpretation which goes only as far as "If it isn't in there, the right of the Federal Government to do it is undetermined."

There are matters on which the Constitution is silent, leaving state and local law to fill in, but the Constitution can be amended to create Federal power in those areas which then supercedes state and local law. So just because something is not mentioned as the document stands today doesn't mean that it one day might not become part of the Constitution. In fact, federal, state, and local governments try all the time to do stuff that isn't mentioned in the Constitution, and whether or not it flies depends on those actions being challenged. So as a document it's not quite preventative, but corrective.
posted by Miko at 7:08 AM on January 5

Wow, a thread on the Magna Carta derailed by the Constitution.
posted by Ironmouth at 7:10 AM on January 5 [3 favorites]

Next up they'll claim Prima Nocta.
posted by DreamerFi at 7:39 AM on January 5

This is why Roe v. Wade is so controversial: the majority basically made up a new right, "privacy," which is never mentioned as such in the Constitution.

Roe v. Wade was not the birth of the "right to privacy." The right to privacy emerged from Meyer v. Nebraska and Pierce v. Society of Sisters, and it was later cemented in Griswold v. Connecticut. The former cases are interesting because they're from the archconservative Justice McReynolds, the most reactionary (and grumpy) of the Four Horsemen. The latter case is even more interesting to read, however, as all but two of the Justices agree that there is a Constitutional right to privacy, but they simply disagree where in the Constitution one best finds such a right.

For the majority in Roe v. Wade to have found that there was no Constitutional right to privacy would have gone against dozens of Supreme Court cases and decades of case law - perhaps justly, in your opinion, but the Supreme Court as a whole does not typically run so swiftly backwards, barring a future Court composed entirely of Justice Thomas clones.
posted by Sticherbeast at 7:59 AM on January 5 [2 favorites]

And that's why the folks who want to control women's fertility and reproductive rights have started attacking Griswold instead of Roe.
posted by rmd1023 at 8:24 AM on January 5

Roe v. Wade was not the birth of the "right to privacy."

I wasn't attempting to suggest that it was. Only that even in the line of cases of which Roe is near the end, they all make Constitutional arguments, not human rights arguments. Showing up in federal court and saying that a party is entitled to something because it's their human right is the functional equivalent of saying "Just 'cause," and works about as well. This has always been the case.
posted by valkyryn at 8:45 AM on January 5

I wasn't attempting to suggest that it was.

This is false. You said: "This is why Roe v. Wade is so controversial: the majority basically made up a new right, 'privacy,' which is never mentioned as such in the Constitution." This statement by itself is not true, and your statement that you've never made such a statement is also not true.

Showing up in federal court and saying that a party is entitled to something because it's their human right is the functional equivalent of saying "Just 'cause," and works about as well. This has always been the case.

The majority opinion extended the doctrine of the right to privacy, which had previously covered birth control in several cases, to cover abortion as well. Disagree with it all you like, it was a logical extension of existing law; to have claimed that the right to privacy would stop short of abortion would be just as much of an invention. This was a legal question with a legal answer; there was no "just 'cause" argument. You can stomp your feet and hold your breath until it turns blue that substantive due process and the right to privacy are naughty doctrines which should not be honored, but the Supreme Court in general has disagreed with your personal point of view on these legal matters for quite a few decades now.
posted by Sticherbeast at 8:57 AM on January 5

This is fantastic, if utterly insane. For instance, from Article 37 of the Magna Carta:

Scutage [taxation] furthermore is to be taken as it used to be in the time of King H(enry) our grandfather, and all liberties and free customs shall be preserved to archbishops, bishops, abbots, priors, Templars, Hospitallers, earls, barons and all others, both ecclesiastical and secular persons, just as they formerly had.

Good thing us Templars stuck around. PAY UP, PEASANTS!
posted by koeselitz at 9:17 AM on January 5

And there's a lot in there about God and the holy Church, which seem a bit contrary to the separation of Church and State that the founding fathers were pretty keen on.

Actually, it's not at all contrary. It's one of the foundational building blocks of the whole concept of the separation of Church and State as the Founding Fathers® understood it. Although the idea of religious plurality hadn't really developed, the independence of The Church™ from government control was being asserted here in a primitive sort of way, and that's an important step on the road to religious freedom as we understand it.

Of course, our contemporary understanding of the word "Church," and what its "rights," and "liberties" are differs substantially from how the drafters of the Magna Carta understood it.

Let's see the Republicans champion an Originalist approach in this case. That should be fun.
posted by snottydick at 9:54 AM on January 5

The "f" as "s" thing is really a much later affectation, and there were complicated rules about their usage.

Wrong, absalom. The vertical "s", which resembles "f", both pre- and post-dates the Magna Carta. The rules for usage depend upon the alphabet used, the period, and sometimes the scribe; as a reader, it suffices to recognize that the "f" and the vertical "s" were not identical.

I have no proof of this, but have always suspected the fancy-"B" that Germans used until recent years for "ss" was derived from the appearance of two vertical "s", crammed together.
posted by IAmBroom at 11:09 AM on January 5

Also, while the "rights" contained exlicitly in the Magna Carta are obviously dated, it has always been interesting to me that (for the most part*) each section seeks to expand civic rights somehow. It truly was a Bill of Rights for its age.

* The rights of women and Jews are notable exceptions.
posted by IAmBroom at 11:11 AM on January 5

IAmBroom: “Wrong, absalom. The vertical "s", which resembles "f", both pre- and post-dates the Magna Carta. The rules for usage depend upon the alphabet used, the period, and sometimes the scribe; as a reader, it suffices to recognize that the "f" and the vertical "s" were not identical.”

Indeed, those rules would seem to date from ancient Greek, where the lowercase letter sigma has two (very similar) forms based on whether it is in the middle or at the end of a word.
posted by koeselitz at 11:14 AM on January 5 [1 favorite]

I have no proof of this, but have always suspected the fancy-"B" that Germans used until recent years for "ss" was derived from the appearance of two vertical "s", crammed together.

ß is a ligature of ſs. They're just connected up at the top there.
posted by Sys Rq at 11:17 AM on January 5 [1 favorite]

ß is called "esszet" and is discussed at some length here.
posted by gauche at 12:35 PM on January 5 [1 favorite]

This was a legal question with a legal answer; there was no "just 'cause" argument.

I know that. I really don't get what the misunderstanding is here. If the plaintiff had made that kind of argument, i.e. that the plaintiff was entitled to have an abortion because forbidding it was an infringement of her human rights, something she didn't do, she'd have lost. Instead, she argued that the relief they were seeking was an extension of existing constitutional jurisprudence. The other side argued that that was as may be, but that, the relief sought was not actually provided for in the text of the Constitution and that extending constitutional jurisprudence to include this was going too far from said text.

In other words, it was a contest about whether or not a particular right was founded in American constitutional law, and those who oppose the decision tend to think that the Court extended said law without adequate constitutional grounds.

Seriously, what's your deal?
posted by valkyryn at 12:35 PM on January 5

I know that. I really don't get what the misunderstanding is here.

You said the Roe Court "basically made up a new right" when it invoked the right to privacy. This is utterly, totally, completely false. In no sense is that sentiment correct.

When called on this falsehood and corrected, you then weirdly denied having ever said such a thing. This was trivially refuted by using Ctrl-F, Ctrl-C, and Ctr-V, in that order.

Now that you have been corrected, you have changed your argument to the basically corrected version - that Roe was about extending existing jurisprudence to cover abortion.

Good - go forth and sin no more. I'm all for changing false things to true things. But it's weird that you either still think the Roe Court basically made up a new right to privacy, with is both wrong and mutually exclusive with the truth, or that some gremlin other than yourself had typed that sentiment for you without your knowledge or participation.
posted by Sticherbeast at 12:51 PM on January 5

It's getting extra weird over in Cow New Hampshire.

HB1457: Scientific Inquiry. Require science teachers to instruct pupils that proper scientific inquire results from not committing to any one theory or hypothesis, no matter how firmly it appears to be established, and that scientific and technological innovations based on new evidence can challenge accepted scientific theories or modes.

"no matter how firmly it appears to be established" makes me think of these t-shirts.
posted by rmd1023 at 5:37 AM on January 6

"no matter how firmly it appears to be established" makes me think of these t-shirts.

In the spirit of those shirts, the teachers should band together and attack the bill for forcing teachers to express skepticism over gravity, germ theory, sexual reproduction, and the linear perception of time.
posted by Sticherbeast at 6:06 AM on January 6 [1 favorite]

Indeed, those rules would seem to date from ancient Greek, where the lowercase letter sigma has two (very similar) forms based on whether it is in the middle or at the end of a word.

Thanks, koeselitz!
posted by IAmBroom at 10:31 AM on January 6

Looking around a little, one of the sponsors has made a point, in a post linked from the front page of his website (link title "war is peace"), of explaining that there have been no "US" wars since 1950, that it's all because of the UN. One of them is a birther.
posted by rmd1023 at 6:55 PM on January 6