The idea of "inalienable" or "unalienable" (the edited spelling) rights was always a bit tricky in my mind. After all, in practice, the rights tend to be "alienable" (capable of being transferred ... it's one of those legalistic words we take at face value like "more perfect" in the Preamble). The state surely treats them as such. But, the Declaration of Independence is ultimately concerned with "natural law," the "laws of nature and of nature's God" to be exact.
Sometimes, waiving a right is involved -- so one has a liberty to speak or remain silent, and it is waived. The liberty overall is still there. On the other hand, sometimes the state takes it away, and it in some sense still remains. A police officer might beat up a suspect, but this does not legitimize the practice. Such is the logic here.
The Declaration speaks of "we" personally recognizing some self-evident truths, so the document is not quite as presumptuous as one might at first think. Likewise, natural law (and rights arising therefrom) is not quite "nonsense on stilts" to the degree the philosopher Jeremy Bentham sometimes suggested (or so I am led to believe). True enough that there is an arbitrary nature to the concept, since the human mind can formulate quite different, and often competing, sets of guidelines by a reasoned examination of nature. And, resting things on nature or God is questionable as suggested by the 20th Century concept of "human rights." Still, law must arise from the character of the community for which it is created (sure, some "creating" is done here) to apply.
The nature of the animal, so to speak, thus is important. For instance, it is simply like having water flow uphill to have overly restrictive mores and laws respecting sexuality, including even for teenagers. Sex is a natural part of our make-up, and it is on some level wrong to try to deny the fact. Sometimes, nature is bad -- some people have tendencies toward violence or perhaps prejudice is "natural" since distrusting the unknown (including a different race) was somehow an evolutionary marker. But, as with fundamental rights generally, few things are absolute. As a general matter, "fighting nature" should be done only when truly necessary.
And, from this, we can formulate a framework in which such things are "rights" -- society, not nature, would create them ... but "natural rights" is not really a bad way of looking at such things. Rights aren't the only thing that can be looked upon in this fashion. Perhaps, the need for certain restraints (which can be looked at the other way as a means to guard against invasion of rights) also arises from nature. Thus, in an important sense, certain criminal laws have a "natural law" flavor to them. We are naturally self-protective, even if the net result would be unfair. So, there are laws against self-dealing, and so forth. Men are not angels, as goes the saying, so negative things sometimes have to be done to restrain them.
This whole matter came to mind while I was reading the various majority opinions (I did read the dissents in the past, do not worry) in Furman v. Georgia, the big death penalty case that set things into motion to require more procedural safeguards ... and a clear upholding of the penalty a few years later. The opinions, including the dissents actually, are quite interesting ... they supply different points of view (as with editorials, I find court opinions a useful way to attack an issue) as well as useful background information. Justice Stewart was concerned with the arbitrary few sentenced to die, but did not want to attack the whole penalty at once. This led to a bit of natural law:
On that score I would say only that I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve," then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law.Justice Marshall, especially when facing similar logic in the later opinion, answered it in two ways: unbridled retribution is not a legitimate purpose of punishment, since it is "purposeless vengeance." But, yes, a basic sentiment that wrong doing must be punished is acceptable. Nonetheless, the death penalty would still be excessive, since there were other ways of handing it out in these cases -- especially, given the other problems with such a "can't take it back" punishment. Still, not the "nature of man" deal. Maybe, it is a bad part of us, but currently it still (like it or not) has a place in our criminal justice system.
As discussed recently on the Slate Jurisprudence Fray, however, it can be cabined. I'd add this brings to mind a discussion cited by Digby. It was noted that a devious technique of the Right* these days is to promote extreme positions as "acceptable," which in effect moves the goalposts. If abortion is always wrong, suddenly targeting second trimester abortions (and making first trimester ones more difficult, or even, allowing states -- well sure maybe they are wrong, but they have the power to be so, etc. -- to ban them) is a "reasonable" position. Heck, maybe even a "compromise." Nifty trick. All I have to say is that just because something is not radically ridiculous does not make it right.
The death penalty might not be patently unjust by any reasonable account to be unjust all the same. The trick is not to fall into such traps -- giving an inch is not giving an mile. An educated citizen, which simply is a bit too passe these days, recognizes the complexities of things. One need not use that nasty word "nuance," but a little of that helps too.
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* On that point, Perle was on Al Franken today. I welcome such crosspollination, even though I (it's a character flaw, what can I say) cannot really bear getting thru too much of the other side's crap. My beliefs are eclectic enough (is it time for me to complain about anti-smoking laws again, yet?) to allow me a decent amount of balance, but it does skewer things some -- I don't think I am too atypical here (it helps btw that a few people close to me are wrongminded on some issues but remain decent people -- perspective).
Anyway, Perle tried to do things like saying Cheney did not misspeak at all by saying "no doubt." Just a question of bad intel and all. Words simply do not have meaning here. If they did, NO and DOUBT would mean something. He did not say "beyond a reasonable doubt" or anything. No, crystal clarity was necessary. Good thing -- optional aggressive wars need that. But, giving an inch is apparently impossible, even now. Even an imperfect interviewer like Franken can show there was "doubt" that Cheney should have seen.
So, in the end, Perle has no credibility. Not 100% wrong or anything, surely, but if you want to talk to us like we are morons, get lost.