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Culture War Roundup for the week of October 31, 2022

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Great reply. The effort is much appreciated.

The thesis of the US Constitutional tradition is that God granted Americans certain rights, but since He isn't around to clarify what they actually mean, there is a priesthood (i.e. a group of wowzers who are educated at seminaries like Harvard and wear robes to the office) to do it. Regardless of the Constitutional text, the Supreme Court can take your rights away, or give you ones you don't want (like the Lochner right for bakers to work dangerously long hours). Because rights are granted by God, amending the Constitution to restrict them is seen as mildly sacrilegious.

I understand that your intent wasn't to give a full, technical description of the system of rights in the US, but this summary does not reflect the nature and origin of American rights. Americans have rights because America was established by Englishmen. English rights are, essentially, a series of rights derived from natural philosophy and Christianity combined with a long standing tradition of having such rights in fact, AKA the common law. The rights of Englishmen are essentially a birthright, and were viewed as such by the relevant players at the founding on all sides.

In any event, the rights of Englishmen in the colonies were thus transferred with the colonists as Englishmen, and through various legal instruments, crown charters, the courts established in the colonies which were common law courts, etc. Come the revolution, the common law persisted, and was officially recognized by the states by statue, and the common law rights most at issue in the revolution were recognized in the state and federal constitutions, etc.

So its not the case that "the US Constitutional tradition is that God granted Americans certain rights." Rather, God created the world(or the world is as it is), Englishmen have observed the world and decided upon certain rights according to natural philosophy and long-applied those rights, and Americans inherited and continued the rights of Englishmen and the whole common law system from which they are derived. As to interpretation, the common law has a built-in interpretative framework, so interpreting the law comes with a user manual, even though most people pretend it doesn't.

The reason why the right to keep and bear arms is protected in America but not elsewhere is not because the Second Amendment exists (RKBA is included in the English Bill of Rights as well, but we notoriously don't enjoy the right)

Although it apparently seems otherwise, I don't disagree that a strong culture and strong individual action are required to protect rights. This is obviously true. However, I do assert that American rights are unique from other rights because they come with the strongest institutional and procedural safeguards, and are formulated in the strongest manner.

Consider the example you provided about the RKBA in England. I agree that the English do have the right and that the crown is infringing upon that right moreso than the US federal government. More importantly, I would say that the reason the RKBA is protected in America but not elsewhere is literally because it says "shall not be infringed" in big bold letters right on the front of the box. To phrase it in the manner of the "strong culture" argument, I assert that the American framework of constitutional protection just described is the reason why we have the strong culture and institutional protections which protect the right. Its much easier to build and maintain a protective culture when the argument is as simple as, "see for yourself, it says 'shall not be infringed' right there and no more." In the practically identical Anglo cultures which took a different approach (UK, CAN, AU, NZ), the right is infringed to the point of practical elimination. Hence, I find that the US system of rights is indeed superior.

In addition, and in line with my original post, I find that a lot of people from cultures with less-protected rights than the US rely too heavily on the "strong culture" argument to insist that they have the same or stronger rights, when what they have is a prosperity derived from US power. I think people discount what their cultures and societies would be like, and what their legal systems would permit, if the US were not there to provide military and economic dominance. Its easy to shout "look how strong our culture of protecting rights is" from the EU when America guarantees and provides their prosperity. Things would look very different if the US packed up and went home.

I don't like this, but it Is, and rationality requires me to distinguish between what Is and what Should be. For this reason, and no other*, I am in favor of safety valves like the notwithstanding clause. If Doug Ford abuses the notwithstanding clause, and pays no political price for it, then the people of Ontario will have lost their rights due to laziness.

I'm not sure I follow this objection. I understand you to mean that people deserve whatever happens to them because they could have behaved differently in the past to avoid that outcome but did not. Why not eliminate the notwithstanding clause entirely to prevent its abuse and install American-strength rights? This will provide them with superior protection, and, if the people want them changed, then they can exercise their political will, and if they do not exercise their will, then the result is "due to laziness" but they still retain the superior protection.