Foreign comparison (22 posts)

9. Government out - a conservative position?
Sat, Feb 13, 1999 - 4:45 PM/EST
McRostie

At the risk of being corrupted Jim, I'll suggest that my "conservative" position that the government should stay out of personal areas excepet where we have general agreement that the conduct involved is criminal is not exactly in line with the positions taken by many of the "conservataive" leaders of the day.

For instance, my "conservative" positioin is that the govenment has no business enacting prohibitory legislation in the areas of birth control, early-stage abortion, or consentual sexual activities (gay or otherwise), If in taking these positions I have revealed my corrupted nature, I'll confess, I have sinned.ff

If, on the other hand all I have revealed is that I prefer to keep government's nose our of my personal affairs, I'll suggest that is a liberal position entirely consistent with our founding father's ideas of personal freedom.

Regards, McRostie

10. It was to laugh, McRostie
Sun, Feb 14, 1999 - 7:09 PM/EST
JimP

You took me way too seriously. The lol means laugh out loud.

On the other hand, let's talk a bit about government, and the legislation it passes.

Should the religious right (which is probably neither) ever garner enough votes to win a majority of seats in the Congress, and, should they pass the laws you enumerate above, that's legislation and rule by the majority. That's using the system as it was meant to be used, at least initially. By initially, I mean that eventually the rights of the, then, minority, would have to be heard in some court.

So, where would you be then? Figuratively in Canada? Now, don't take me wrong here, please. I'm just attempting to have us think about the way's our Constitution protects the minority, about extremists, about change in general, and in individuals in particular.

Regards,

Jim

11. Constitutional protection?
Mon, Feb 15, 1999 - 12:17 PM/EST
McRostie

First, I didn't take your comments personally. I did think that perhaps they indicated a need for me to explain my positions more fully.

Your example of the "religious right" gaining political control is, as you say, a case of using the constitutional power as it was meant to be used. And you are correct, it would be subject to review by the courts, and in the present day, be overturned even if the court is made up of a majority of "conservative" individuals.

I will also point out that the Constitution also protects the majority against the acts of a minority. That is what the courts so often do when they find a law to be an infringement on our rights. See Roe v. Wade.

As to my being in Canade while I waited out the Court decisions protecting my rights, I guess it depends on what was involved. Had I been of draft age during Vietnam, I might have been as I believed that mis-adventure to be a terrible wrong. How much we could have done to make life better in the world by spending the same amount of money in productive, as opposed to destructive ways.

Regards, McRostie

PS I'll never take offense at your comments Jim as I know they are well intentioned.

12. Legality vs morality
Wed, Feb 17, 1999 - 5:28 AM/EST
FelixG

McRostie - your admission that you might have been in Canada to avoid the draft to Vietnam interests me. Can I use it to kick off in a different direction?

Where exactly (impossible question!) would you, as the only lawyer amongst us (I think?) would you draw the line in placing the public right of law above the private right of morality?

Felix

13. Where exactly (impossible question)
Wed, Feb 17, 1999 - 10:48 AM/EST
McRostie

You're quite correct Felix, it is a question to which there is not a definitive answer, at least if you believe as I do that morality is not something which is absolute. I've lived too long and been too many places to come to that conclusion. No one to my mind has a corner on the "truth".

As to Vietnam, way back when, I "sort of" supported the French in their defense of their colonial empire. It didn't take too long however for me to come to the conclusion that this was wrong, and totally destructive. You English were a strong influence in my change as you gradually, and without undue resistance, "gave away" your colonial possessions.

Finally, I came to several conclusions. First, that the killing in defense of what (I couldn't tell) was entirely unconcsionable, and Second, that the money being spent could do a lot more good to "save the dominos from falling in SE Asia" than was the case with the war effort. And lastly, as I got older, I learned that I'm really a congential coward. So, Canada it would probably have been. Luckilly, one of my sons was too young and the other had a draft number which was too high so I didn't even have to face that choice.

Now, as to public law -vs- morality directly. As I've said in an earlier post, I think law is needed and appropriate where there is substantial agreement that an act should be criminal. I guess I basically have to say that to me, the words crime and sin do not mean the same thing. When it comes to crime, we prohibit because transgression is destructive of social order. Sin, on the other hand is destructive of one's salvation, a truly personal problem.

This could probably go on, but for now, that's enough. I hope it answered your impossible questionk at least indirectly.

Regards, McRostie

14.
Wed, Feb 17, 1999 - 5:03 PM/EST
JimP

I am not a lawyer, but I have something to say here. Surprise, surprise!!

"substantial agreement that an act should be criminal" - This often depends on the definition of substantial.

"... crime, we prohibit because transgression is destructive of social order" - And here we depend on a definition of social order.

What is missing, and I'm not arguing with your definition McRostie, is a set of standards defining these terms. In our case, that exists at several levels, with each higher level taking precedence over the other. The highest level of definition is supplied by the US Supreme Court. I contend that they also define and redefine the Constitution.

Group 15 has been discussing loss of freedoms in the US. I've followed that fairly closely. Yesterday they were discussing whether the loss of these freedoms actually changes anything in anyone's immediate lives. For me, the answer is not yet.

If the religious right succeeds in enacting specific laws concerning abortion, for instance, the Surpeme Court would have to reexamine the intent of the laws. What was legal may become illegal, simply by the definition of "substantial agreement." The destruction of social order may be necessary so that you and I can retain rights accorded to us now.

The Constitution is a set of standards used to measure all other laws. That Constitution has been a very fine standard. It obviously is not perfect, yet it is the best that has been devised in any nation's attempt to govern itself.

I've wandered about long enough.

Regards, Jim

15. Substantial?
Wed, Feb 17, 1999 - 6:47 PM/EST
McRostie

I'm incllined to require definitions too, Jim. In the case of "substantial agreement" I think there is not much we can do to improve on the word in general discourse. We both have a pretty good idea of what it means, and past that, I defy any one to arrive at a percentage we could agree upon. Or, as you're wont to do on ocasion, you may have been imitating Clinton's tecnhique and been pulling my leg at the same time.

I rather suspect we would have the same problem with Social order. The question of the "loss of our freedoms" is an interesting one. I'll suggest that one man's freedome (read Black student in Little Rock) is another loss of freedom (read white rights to segregarted schools). Or, put it in terms of the abortion debate, or gun legislation, or campaign reform, or ....

It seems to me that our freedoms are alive and well in the country. As evidence I'll cite the number of immigrants we've had in the past twenty years or so who came for freedom and economic advantage both.

Some of the folks crying the loudest about the loss of their freedoms remind me of some of my old neighbors in the suburbs. They moved out to get away from who knows what, and they had a strong desire to keep the neighborhood the way it was when they moved in. Every new subdivision to them was a loss of freedom. In a way they wre right. With population comes regulation. There is no other way.

Regards, McRostie

16. Quick reply
Wed, Feb 17, 1999 - 10:43 PM/EST
JimP

Your evidence doesn't actually illustrate your point. It essentially illustrates that freedom here is greater than the fredoms they had wherever they had been. That does not mean that the freedoms here are either more or less now than they were at some time in our own past.

On another point, you are right. With population comes regulation. I'm not entirely convinced that there isn't another way, but my other way would get us into a more spiritual realm. We don't want to go there, so I'll accept that too.

I think that there can be a strong case made that some distinct liberties have been limited in recent history that have nothing to do with increased population. However, I am rushed for time right now, and do not have my examples close at hand. I'll try to get some together soon.

Regards,

Jim

17. Missing reply to JimP
Thu, Feb 18, 1999 - 11:23 AM/EST
McRostie

I posted a "brilliant" reply to you Jim, but it hasn't shown up as yet. I'll check later and try to redo it if needed.

Regards, McRostie

18. Second Reply
Thu, Feb 18, 1999 - 12:40 PM/EST
McRostie

I guess I must have forgotten to click the Post button. Rats. I've done that before. I guess age is catching up.

I'll await your examples of "lost freedoms" with interest Jim. In the meantime since I've had this discussion with a Libertarian earlier, I'll try out an idea on you.

True freedom or liberty, to me, is the ability to act with predictable consequences under law. It is quite probably true that during Colonial, or Wild West times, we had fewer laws constraining our actions and were as a result,in a sense "more free" to do as we damned pleased. Of course we ran the risk of expiring in a duel, or a Gunfight At The OK Corrall, or in more flagrant ways in Salem.

When we enact a law constraining some activity, it only has effect on the activity constrained. All other activities are available for us as we deem appropriate. It may be said then that the great majority of actions are available to us all the time. That to me is a much greater measure of freedom than we had when faced with the duel, the gun-fight, or the stake based on the whim of the controller of the instrument used in reparation for assummed wrong.

To argue that one is "free" when one is liable to suffer retribution from one aggrieved, simply because that one is bigger, or stronger, or wealthier, or the king of emporer is not, in my opinion, consistent with logic. Under those circumstances, my every action is fraught with perils of which I know not. At the risk of being redundant, THAT IS NOT FREEDOM NOR IS IT LIBERTY.

19.
Thu, Feb 18, 1999 - 1:00 PM/EST
JimP

If the measure of freedom is "the ability to act with predictable consequences under law" the folk in extremely repressive societies are the most free. Their every act has predictable consequences.

I'm still rushed, but will reply with my list either later this afternoon, or tomorrow. This evening is consumed by a company briefing.

Regards, Jim

20. A Legal Impossibility
Fri, Feb 19, 1999 - 10:31 AM/EST
McRostie

The example you propose Jim is impossible. No society can legislate about every act, and only the ones legislated about are repressive.

The key to the problem is, as we have said in our founding documents,people are basically and intrinsicaly free. The problem comes about when that freedom is infringed, not by laws but by men. That is when the "perils of which I know not" come into play and my freedom to act is taken from me by fear.

When we talk of repressive societies, I think in the last analysis, we are always talking about societies ruled by men rather than by law. The USSR, for instance, spoke often about its Constsitution, but that document gave the power to rule to men in the seats of power. There was not much law to resort to for protection or to constrain the activities of the powerful men.

Oddly enough, that fact is the genesis of much of the problems in Russia today. They have no or too few laws regulating banking, commerce, tax collection, etc.etc. which are generally applied and respected. The result? The strong are able to take and keep for themselves as they are free to do without the constraints of those laws. The poor and the weak can only strive with no certainty that they will be able to retain the fruits of their efforts.

I'll repeat, THAT IS NEITHER FREEDOM NOR LIBERTY.

Regards, McRostie

21. Freedom
Fri, Feb 19, 1999 - 10:42 PM/EST
JimP

Once again I haven't been clear. When I said 'If the measure of freedom is "the ability to act with predictable consequences under law" the folk in extremely repressive societies are the most free. Their every act has predictable consequences', I wanted to show that in a repressive society every act is controlled, and therefore has predictable consequences. Now, as to whether those consequences are a result of the law or of men is unimportant in this particulr venue. But, strictly speaking, my reading of your definition is accurate. However, I certainly agree, that is neither freedom, nor is it liberty.

So, in my opinion, we need a better definition of freedom for this discussion.

Second subject - freedoms lost. I have been doing a lot of thinking about this, and have almost, but not quite, come to your perspective. I can list a few freedoms I feel have been limited recently, but none that have directly affected me. Here, we could easily go into a discussion about the slippery slope, but I don't think we want to do that either.

The Communications Decency Act has limited speech on the Internet. I know that there are many, many people concerned about that.

The recent rash of seizures of property under the racketeering act has, in a great number of people's opinion, gotten out of control. Police have too much power under that act. I could probably cite instances, but why?

I think instances such as Waco and Montana illustrate that the government, or at least men in the government, think they have the right, or certainly the power, to eliminate opposition. I realize that these instances can be justified, but they can also be condemned, with equal fervor on both sides.

But, in my final analysis, I realize that the reason we are even aware of these infringements on freedom is that we have the most free society in the world. In that vein, I declare you to be correct, and that our nation of laws is working fine. It may waver from the finest example is could uphold at times, but it remains the best of all current examples.

I do hope that you will join me in acknowledging that there are men, even in this land of laws, that would control people's rights through that law. Therefore, it behooves us to remain vigilant.

Regards, Jim

22. Venal men (and women)?
Sat, Feb 20, 1999 - 12:24 PM/EST
McRostie

I'll agree Jim, they exist in this society as in all societies. The human race has not reached perfection by a long shot.

Some of the egregious examples you cite are certainly that. Can the law go too far in and of itself? Yes it can, and when it does so is sooner or later found to be unconstitutional in our system. More often, howeveer, the law is carried too far by the people in charge of using it.

I think in the repressive society discussion, what you miss is that the law does not constrain the acts of men, it permits them to act if they fall into a preferred group such as party members. Thus it grants a license to act rather than constraining acts and in so doing, creates the government of men rather than of laws. I really don't think that is an example of the law controls every act in the repressive society. I'll suggest again that law that perasive is impossible in that we can't begin to imagine all the acts of which people are capable.

Regards, McRostie