My God! Brits actually have rights!
October 1, 2000 6:17 PM   Subscribe

My God! Brits actually have rights! Of course, it's not part of their constitution since they don't have one, but they actually have a codification of things the government can't do to them.
posted by Steven Den Beste (23 comments total)
Of course, taking for instance article 10 ("Freedom of expression") they've attached so many conditionals to it that it may have no practical significance at all. It looks to me like the second section of article 10 still gives the government the privilege of shutting up anyone they want, pretty much any time they want.

The same thing with Article 11 ("Freedom of assembly"). After you read through all the restrictions they're permitted to place on it, I at least am left wondering just how much "right" remains. (I was gonna say "how much right is left" but decided not to.)

In fact, as you read through here, the same phrase keeps popping up: " necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." I quoted that from Article 8 ("Right of Privacy") but essentially the same phrase appears in several other of the articles.

That covers a lot of ground, and that's when the government is permitted to abrogate many of these rights, including the most important ones (right of privacy, right of freedom of expression, right of assembly). Surely it will be able to find at least one of these excuses any time it wishes.

Meanwhile, Article 9("Freedom of conscience") says "Everyone has the right to freedom of thought, conscience and religion;" except when it represents a threat to "public order, health or morals" and a bunch of other things. In other words, you can believe anything you want, except when the government tells you you can't, because they can justify any restriction under one of those three clauses. (Since when are there "public morals"?)

Most of it turns out to be equally empty. It's couched with so many exceptions that most of it is meaningless. One of the few articles which are not nullified by exceptions is Article 14 which governs discrimination. THAT one is absolute, and damned right too.

I much prefer this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

No exceptions in there about economic wellbeing of the country, or protection of health and morals.

posted by Steven Den Beste at 7:10 PM on October 1, 2000

One last comment and then I'll let others have their say:

To me, something is a "right" only if it permits you to do something the government doesn't like, and the government still can't legally stop you from doing it.

No right is ever absolute, and every part of the 1st amendment (which I quoted above) can be challenged by the US government. But the conditions under which they are permitted to do so are VERY restricted and VERY rare. From my reading of the "Human Rights Act", it appears that all of the most important rights in it are subject to modification or outright abrogation by simple act of Parliament, and Parliament is given plenty of excuses and grounds for doing so ("public morals"? "economic wellbeing of the country"?).

posted by Steven Den Beste at 7:41 PM on October 1, 2000

I wouldn't know to feel so oppressed until you mentioned it. Funny, that.

One of the advantages of an unwritten constitution is that certain debates aren't based on 20th-c readings of 18th-c syntax. I kind of like that.

[Oh, and all of the European Treaty has applied to the UK since we signed it. It's just that the Human Rights Act places it under the direct jurisdiction of the English courts (it's already enforced in Scotland) rather than forcing people to go to Strasbourg. Or: what the preamble says.]

Of course, it would be nice to have certain other rights encoded in law, given the character of the Home Secretary: a proper Freedom of Information Act, the right to trial by jury, or the defence of public rights of way.

But, just because countries have constitutions, it doesn't mean they work. (France has been through plenty in 200 years.) And while the US Constitution is undoubtedly a marvellous mission statement for the infant nation, I remain unconvinced that it hasn't hamstrung the country's development from an over-deep attachment to its fine prose. Because, let's face, many of the defining political issues in the US are fought with somewhat archaic points of reference, whether they be the Constitution or the Old Testament.

(In short: let's not be too attached to the veracity of old words.)
posted by holgate at 10:41 PM on October 1, 2000

It's interesting.

Australia, while having a constitution, does not have one that encodes the rights of its citizens in the same way that the US has. There is always an ongoing debate about this codification and the establishment of a Bill of Rights.

While americans may be horrified to discover that other democracies don't codify these rights, the practice of common law in these countries has meant that its citizens can still claim that they are not oppressed by their governments nor living in tyranical dictatorships.

I agree with holgate's analogy about the literalist reading of biblical texts has created strange aberrations in the American consciousness. While I admire the codification of the Freedom of Speech, I'm simply appauled at the bizarre pschological blinkering and collective insanity caused by the antiquated Right to Bear Arms (please lets not get into a debate about that one here).

The question really should come down to whether America is a better place because of this.

That's an easy one for citizens of the World's Greatest Nation to answer in the affirmative. It's the greatest country in the world, after all.

But for everyone else, I think the jury is still out.

posted by lagado at 11:28 PM on October 1, 2000

Well, it's been brought up before, but Canada is one of the most recent nations to have actually written a constitution for themselves.

They quite rightly kept the parliamentary system, because it's superior to what the US has. (Our system is too easily subject to deadlock.)

But they also gave careful attention to the US practice of directly and explicitly codifying the rights of citizens in the constitution rather than merely in the law, and did the same thing. Indeed, in certain areas they actually made their rights stronger and more explicit than the ones in the US constitution and its amendments. Irrespective of how Aussies and Brits feel about it, the Canadians decided the US had the right idea, at least in this one regard.

I would be the first to say that the US system has major flaws. (The two house system is a fiasco, and the fact that election of the President is unrelated to the election of Congress has lead to way too many years in which both parties controlled at least one of the three.) But I think that a formal constitution which formally spells out the rights of its citizens more than makes up for any such issues. (I also think that the Supreme Court was a stroke of genius. The Canadians apparently agreed with that, too.)

And I don't say that because I think the US is the World's Greatest Nation (that was a cheap shot, by the way). I say that because I think rights are too precious to trust simply to laws, which can be changed much too easily. I want the process of altering my rights to be more difficult than that; I want them to be more solid, more trustworthy. I want armor plate on them.

Common practice and common law aren't enough for me. It means that my "rights" only last until the government chooses to take them away by changing the laws. Here in the US, they have to amend the constitution. That's a hell of a lot harder, because you have to convince 38 state legislatures to go along with it.

One time in the history of the US an amendment was passed to decrease the rights of all its citizens: Prohibition. It was a complete failure, and another amentment was passed 14 years later which repealed it. We've learned our lesson, and every amendment since then which has dealt with rights of the citizens has expanded them. (For instance, the 18-year-old vote.)

And yes, I *do* think the US is a better place for it, because I've seen too many half-assed proposals for amendments which died, as they should have, due precisely to the difficulty of getting passed. If all that had been required were an act of Congress, we'd have a lot of evil laws on the books. (We do anyway, but these would be qualitatively worse.) Many badly conceived amendments have failed because the states didn't approve them. That's good. But before the states saw them, the amendment had to pass Congress, and did so. That's bad -- and that would have been sufficient under your system.

posted by Steven Den Beste at 12:32 AM on October 2, 2000

It's not just literalist readings of biblical texts, lagado: that literalism also applies to constitutional ones ;)

Basically, since the 18th century is my academic domain, I think the US Constitution is an awe-inspiring document. It crystallises a hundred years of classical liberalism (in its original term) in its negative apportioning of rights to the State -- the "...will have no power to restrict" phrasing.

But if you look, for instance, at the Amnesty report on human rights violations in the US, particularly with regard to policing, custody and imprisonment, it's easy to see where the remit of the Constitution is limited by its being the work of 18th-century gentlemen. (And I know about the amendment process, but let's face it, nobody's going to attempt a fundamental rewrite of such an iconic text: it'd be like rewriting the Bible.)

So, as the US constitution inspired the emergence of states at the turn of that century, I'd like to see the International Declaration of Human Rights guide their progress at the turn of this one. And that includes my own country, so very much.
posted by holgate at 12:36 AM on October 2, 2000

Steven: a completely apolitical question on constitutional reform. If the President is elected this time round on a minority of the popular vote, what chance is there of an upsurge in support for a revision of the electoral college?

(I'm genuinely intrigued by this question, because the system has an aesthetic cleverness to it, but I can't help thinking that it better fit the US in 1800 than now.)
posted by holgate at 12:46 AM on October 2, 2000

Agreed, sorry, a totally cheap shot, still as non-american I hear that one all the time on the net.

I won't argue against a bill of rights because I support it in principle, however, my point is that there are plenty of examples of free and liberal societies that operate without one.

I would still question whether the United States is in practice a freer and more just society.

posted by lagado at 4:25 AM on October 2, 2000

It's not just literalist readings of biblical texts, lagado: that literalism also applies to constitutional ones ;)

I totally garbled that paragraph. I meant to say something like that.
posted by lagado at 4:27 AM on October 2, 2000

As I noted on another thread, Steven, no, I *don't* think we've learned our lesson from Prohibition...

But, in general, I concur with your points, and this entire thread has been exceptionally erudite, not to mention informative... a nice contrast to some other recent threads. :-)
posted by baylink at 6:50 AM on October 2, 2000

Agreed, baylink.

Here's an interesting text -- the "Totalrevision" of the Swiss Constitution, in force since January, which includes this, at the end of its "General Provisions":

Article 6 Individual and Social Responsibility
Every person is responsible for him- or herself and advances, according to his or her abilities, the goals of state and society.

Definitely worth a glance for anyone interested in the question of how a "modern" constitution might look. It also makes me wonder how much work went into ensuring that ambiguities wouldn't arise from the fact that it exists in four versions, one for each official language...
posted by holgate at 7:30 AM on October 2, 2000

(in fact, you could class the Swiss Constitution as "intricately regulated libertarianism", if you can cope with the paradox. It's a fascinating document.)
posted by holgate at 7:38 AM on October 2, 2000

Somehow this didn't get posted the last time; maybe I forgot to press the "post" button again.

Holgate, the chance of the electoral college being changed is nil. Presidents have been elected on a minority before, and usually all that happens is a lot of grumbling. However, once there was a war (Abraham Lincoln).

For an amendment to pass, 38 states have to approve. There are too many states with tiny populations who wuld never stand for it: Idaho, Alaska, Montana, North Dakota, etc. The vast majority of the population of the US is concentrated in just 8 states and if popular count were used, the candidates would spend all their time there and the tiny (by population) states would get ignored completely. Their legislatures would never stand for it, and such an amendment would never be approved.

Lagado, I would never claim that the citizens of the US are more free than anyone else, nor that we have better justice. I do claim that it's a lot harder to take our rights away from us. That's sufficient.
posted by Steven Den Beste at 9:11 AM on October 2, 2000

I do claim that it's a lot harder to take our rights away from us. That's sufficient.

Conversely, though, it's a lot harder to argue the role of social responsibility within the American system, because of the way in which the constitution defines rights. After all, the USA is a product of the contractual model of society: people give up a measure of personal liberty in order to benefit from those guaranteed by the state; the provision of rights within is balanced by the assumption of responsibilities, by both the individual and the state.

There needs to be give as well as take.

That's why I quoted from the Swiss constitution, because it defines those responsibilities in both positive and negative terms. (And it's why the Swiss attitude to gun ownership interests me, because it's defined as a responsibility rather than a right, and that's reflected in gun use.)
posted by holgate at 10:02 AM on October 2, 2000

I give a lot. I give (lots of) taxes. I have a responsibility to serve on a jury if summoned. When I was younger, the draft was still in effect and I could be summoned to involuntary service in the military. If in the unlikely case that the US was invaded, I would join the insurgency and risk my life to kick the invaders out. I have on occasion reported serious violations of the law to the authorities. I give a lot. I just give different things than you're thinking of.

But to a greater extent than many other nations, the US believes in "You do your thing and I'll do mine and we'll leave each other alone" -- which in a sense, is the ultimate definition of "freedom". And as to "Freedom of Conscience", I find the entire concept of "public morals" as such to be repugnant; I will choose my own morals, thank you, as long as they don't break the law. I see no reason whatever why they should be forced to agree with the consensus.

In actual practice, Article 9 of the Human Rights Act is completely empty, completely meaningless. It's nothing but platitudes, because it doesn't permit me to choose morals which contradict the "public morals". In other words, under it I can believe anything I want, as long as it's what everyone else believes. ("You can have your car in any color, as long as it's black.") That's not really freedom; it's still enforced conformity.

Holgate, what I think you mean when you refer to "social responsibility" I would refer to as an infringement of my rights.

posted by Steven Den Beste at 10:55 AM on October 2, 2000

If the President is elected this time round on a minority of the popular vote, what chance is there of an upsurge in support for a revision of the electoral college?

Probably none. Bill Clinton was elected and re-elected with less than 50% of the popular vote. If that's what you mean by "minority" then the only people who care are the Republicans who think Perot sabotaged their candidates.

Steven's right that small-population states have an interest in the continuation of the electoral college system and because of that, the system will probably never be changed to a purely popular system. It's the old debate that led to the legislative structure we have today. It seems to me that the structure of the Senate is just as unfair, if not moreso, than that of the electoral college.
posted by daveadams at 11:31 AM on October 2, 2000

I just want to say that this has been a very enjoyable discussion to read. My kudos to the writers here.
posted by cowboy at 12:35 PM on October 2, 2000

Holgate, what I think you mean when you refer to "social responsibility" I would refer to as an infringement of my

To my liberal lug-holes, though, "I give (lots of) taxes" sounds a mere breath away from the "Why not? I pay my taxes" justification that I've heard too many times, almost always from Americans who rank "big government" way up among their hierarchy of evils. It's a big cultural distinction between the US and Europe: even those countries which were, until quite recently, totalitarian -- Spain and Greece, for instance -- seem prepared to accept that the impact of government is benign at the very least.

But that's by the bye. We're both lucky to be members of societies which not only let us hold different views, but debate them openly -- and even exchange them should some unimaginable event occur ;)

There's a fine, fine piece in today's Guardian by Geoffrey Robinson QC, which talks about how the tenets of the Human Rights Act are indebted to a long tradition of English radicalism; the political spirit which drove the abolition of slavery and fuelled revolution abroad.
posted by holgate at 5:42 PM on October 2, 2000

To offer another quote from the U.S. Constitution:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

There is a reason that the founders of this country put this at the beginning of the Const., before delineating any rights. They realized that there are certain intrinsic responsibilities that come with having freedoms. Rights and responsibilities are inexorably linked, and while they chose to list our rights separately from our responsibilities, they are attached nonetheless. I think, Steven, that you recognize this when you talk about serving for jury duty if called, for your right to a trial of your peers depends on your fellow citizens taking up their responsibilties.

My reading of the Human Rights Act is not that the state is going to take away your rights if you act outside of "accepted practice", but that the rights that we have are necessarily linked to how we live as citizens with the responsibilities that we have. Modern political philosophers such as John Rawls and Michael Sandel recognize that human beings as such are members of society (Who do you know that functions without any interaction with others or with the trappings of society, such as roads and electricity?) and therefore are indebted to one another.

I like the way these folks think, and I believe that other countries that have recently adoped constitutions or other political ideas that are couched in political liberalism recognize the danger that comes from not explicitly linking rights to responsibilities. Namely, the danger that we take our rights to such an extreme that they become the only thing that we defend, rather than a part of what it is to live free.
posted by Avogadro at 7:03 PM on October 2, 2000

I'd just like to point out that the preamble to the Constitution has no legal significance. It is never cited in legal decisions; it is not binding. It's definitely important, but it should be treated more like free verse than like law.

It surprises many Americans to learn that the Declaration of Independence also has no legal significance in the law. The contents of the Declaration of Independence cannot be used in court. We glorify 1776, but because that's when the revolution began.

The revolution was won and the new government created in 1787, when the Constitution was ratified. But the legally significant part of the Constitution begins with Article I.

Which is not to say that I disagree with what the preamble says (or the Declaration of Independence either). I just want to make sure everyone knows that it's not foundation of law.

I recently purchased and read a book called Angel in the Whirlwind, a history of the revolution, and I think it's very good.

But the one thing I came away with from reading that book was an appreciation of just how remarkable a man George Washington really was. There's a good reason why he's called "The father of our country"; there was no-one else who could have done what he did; without him we would have lost. There aren't many generals about whom you can say "He lost most of the battles he fought, but he won the war."

Also, he truly was a man, not an icon. He had his foibles, and he made many mistakes. He not only fought the British and loyalists, he had to fight the Continental Congress as well. The more I read, the more awed I became by the man.
posted by Steven Den Beste at 9:30 PM on October 2, 2000

It is not law, no, but I believe (without actual knowledge; Mike?) that it may be cited in the context of "Legislative Intent", in the same fashion that such commentaries are now cited from Statues and Legislative Minutes, when they exist: they help a judge choose between two reasonable but potentially conflicting interpretations of a point of law.
posted by baylink at 12:53 PM on October 3, 2000

That would not surprise me. But there are number of people I've run into who think that "...all men are created equal..." is actually a legally enforceable principle simply because it appears in the Declaration of Independence.

It happens that equality under the law is legally enforceable, but not because of the Declaration of Independence. It's enforceable because of fifth and fourteenth amendments.

posted by Steven Den Beste at 2:35 PM on October 3, 2000

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