Quote Originally Posted by gagged_Louise View Post
*excusing myself for keeping on this side of the topic, but it seems vital and this is my last post in the thread*

About the UN Declaration, well, nobody denies that it's hard to create a declaration of human rights - whether it's as a "bill of rights" or more generally stated, philosophical - one that's easy to issue and interpret, with sharp lines and easy to use in political reality. Americans are still arguing passionately about the essence of the Bill of Rights written more than 200 years ago, and about its relation to the power machinery of the constitution and to universal human rights. The law codes of many countries have some of the kind of "limit clause" you cited.

The UN was formed by countries with very different ideas of law and how to use the law - even Afghanistan was one of the founding members I think - so there was a need for that kind of clause to make the declaration viable. Both Truman, Hubert Humphrey (who was instrumental in working on the declaration) and Stalin understood that. The declaration isn't legally binding by itself really, but it managed to get a majority in the UN at the time (1948) - the countries who put themselves behind it by virtue of that vote - pleedging to accept it - included China, Afghanistan, Britain, Soviet Russia, the USA and Turkey. Not an easy bunch to unite on the issues of human rights!

The UN declaration wasn't written to be used for any politically unified state, and the chances of getting to anyone who violates any of those rights if they are not tried under national law has always been an issue under fire. The new league of nations came about under the principle that every state is sovereign on its own territory and that you can't normally drag a state to court outside its own territory, except in a tribunal of War crimes, genocide and so on (the Nuremberg court, which was put in the deep freeze during the Cold War and emerged again as a plausible idea only in the 1990s as the International Court at The Hague. The other week that court received one of the most notorious warmongers of modern European history, Mr. Radovan Karadzic.

I think we're a bit to the side if we start arguing about whether the rights of US citizens are always natural rights; in practice, many Americans tie them in to the status of citizenship, of being an American. And the risk that some of those rights can be revoked at a time that's judged to be an "age of emergency" is all too clear from what's happened under under Bush (Patriot Act etc). They can also be restricted so they don't apply to everyone (earlier racial segregation, which went unopposed for many many years).

The USA is certainly not the only country where people believe in inborn human rights - and that's part of the foundation for what those people at Santa Barbara were doing.
Just a couple brief points:

Many of the drafters of the US Constitution didn't want the Bill of Rights included at all -- not because they didn't believe in the rights, but because they feared that enumerating them would lead to a belief that: a) they were granted and not natural; b) that they were the only rights. The latter fear was addressed by Amendment IX, which states that the enumeration does not deny the existence of other rights.

Both of these fears have become realized in the US. I can't count the number of times I've heard "That's not in the Constitution!" by someone denying that something's a right and our public school systems often teach that the Constitution "gives" us our rights. Unfortunately, most people don't make enough of a study on the topic to know any better.

American citizens, deliberately kept ignorant on the subject by a school system founded to educate people just enough to take instruction in factories, may have trouble with the concept, but legal precedent is clear: Constitutional protections apply to individuals, whether citizens or not, where the US has sovereignty. And in Boumediene (the Guantanamo decision), the protections were clarified to apply to individuals where US sovereignty was de facto as well as de jure.

My issue with the UN DOHR is that the inclusion of that exception gives the UN the power to deny someone a right because the UN says so. I have the same issue with any constitution -- if a country's constitution provides the government with the option to arbitrarily deny a right, then the rights aren't worth anything. The reason being that these documents, the rule of law, is there to protect the individual from the police powers of the State -- if the State gets to decide when those rights apply, then the protection doesn't exist.

With regard to the Patriot Act: I've actually read the entirety of the legislation (there's a fun evening) and although I have some issues with the language being vague enough for abuse, I've seen no practical application that I feel was unconstitutional, especially with its sunset provisions. Now, keep in mind that this is coming from someone who spent 10-years as a card-carrying, dues-paying member of the American Civil Liberties Union and reads Supreme Court decisions for leisure -- I take my Constitution pretty seriously.

The rights that are most often mentioned with regard to the Patriot Act are privacy rights and habeus corpus. Habeus was addressed by Boumediene, and the rule of law decided that the right applies to foreign nationals held at Guantanamo -- the Government didn't get to say "but that's contrary to the interests of the government" and make the decision go away, because the US Constitution contains no clause granting the government the power to do so: habeus rights are inherent in the US, regardless of the US' interests. (Yes, there's a provision to suspend habeus, but that hasn't been done at this time.)

But, yes, I understand that there's sometimes a balancing act necessary in order to maintain a political whole. Since you brought up race in the US, I'll go back to the beginning when the issue almost destroyed the country before it was even formed. If the Northern States had pushed, as most wanted, for the abolition of slavery from the start, the Southern States would not have joined the Union and we'd all be speaking english here right now ... erm, well, the funny kind from across the Pond, not the good english we have now.

The misconceptions around slavery in the US and the extent to which that balancing act went are incredible. One of the examples of this is the 3/5 clause in the Constitution, which most people here in America consider to be racist and pro-slavery, when in actuality it helped to abolish slavery earlier than would otherwise have been possible.

I'm going to stop now.

And, yes, for me, this was brief. Imagine if I decided to be verbose.