7.1.2 Legal Guarantees that Protect Competing Rights
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7.1.2 Legal Guarantees that Protect Competing Rights
Generations have passed since Jean Jacques Rousseau, one of the great enlightenment philosophers said:
Rousseau believed that by nature people are born free, but the repressive governments of his time limited their freedom. True and legitimate power could come only from the social contract agreed upon by all citizens for their safety and prosperity. In other words, people exchange some of their freedoms for the negative and positive liberties offered by their governments.
Rousseau's ideas shaped the modern liberalism we experience today. Over time, liberalism has evolved to award citizens many civil, political, legal, and economic rights and freedoms.
But what happens when the rights of one person interfere with the rights of another? Is it possible for the state to interfere with individual freedoms? According to the rule of law, the solution should be simple. One person cannot infringe on the rights of another. Unfortunately it is not that easy!
Man is born free, but he is everywhere in chains.
Rousseau believed that by nature people are born free, but the repressive governments of his time limited their freedom. True and legitimate power could come only from the social contract agreed upon by all citizens for their safety and prosperity. In other words, people exchange some of their freedoms for the negative and positive liberties offered by their governments.
Rousseau's ideas shaped the modern liberalism we experience today. Over time, liberalism has evolved to award citizens many civil, political, legal, and economic rights and freedoms.
But what happens when the rights of one person interfere with the rights of another? Is it possible for the state to interfere with individual freedoms? According to the rule of law, the solution should be simple. One person cannot infringe on the rights of another. Unfortunately it is not that easy!
- Right of a woman to choose vs right of the unborn to life
- Right of a poor parent to raise a child vs right of a child to freedom from want
- Mobility rights for a woman whose culture calls for her to be escorted by a man wherever she goes
- Equality rights for a female student whose religion denies her schooling
- Freedom of the press when the government issues a publication ban to protect a witness
- Freedom of religion for a pacifist whose taxes support the military
- Freedom of expression for an artist whose views interfere with the religious beliefs of another
Read "Protection of Rights in Liberal Democracies" pages 372 to 374 of your text Perspectives on Ideology.
Many nations have bills of rights that outline the fundamental rights and freedoms to which their people are entitled. In fact, Australia is the only liberal democracy without a formal bill of rights.
The earliest known written laws come from ancient Babylon (modern Iraq) in the Code of Hammurabi from 1790 B.C. One of the earliest forms of a bill of rights comes from Britain in the form of the Magna Carta, or Great Charter of Liberty from 1215. The Magna Carta was one of the first examples of a written "rule of law" that outlined the rights of free men and limited the rights of the king. It is considered to be one of the first constitutions in the world.
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The Constitution of the United States of America
is the shortest constitutional document in use in the world today. It
defines "the people" as the source of authority in the United States and
outlines the role and organization of government. It does not outline
the rights of the people.
Four years after it was written, the United States Bill of Rights was produced to identify the fundamental rights of citizens.
Four years after it was written, the United States Bill of Rights was produced to identify the fundamental rights of citizens.
The Bill of Rights includes ten amendments (add-ons) to the U.S. Constitution:
- First Amendment ... freedom of speech, freedom of the press, and freedom of assembly
- Second Amendment ... right to bear arms
- Third Amendment ... protection from the quartering of troops
- Fourth Amendment ... protection from unreasonable search and seizure
- Fifth Amendment ... right to due process, protection from self-incrimination, right not to have private property taken for public use without compensation
- Sixth Amendment ... legal rights of the accused: right to a quick and public trial by jury, right to a lawyer
- Seventh Amendment ... civil rights including right to trial by jury
- Eighth Amendment ... limits to fines and bail, prohibits cruel and unusual punishment
- Ninth Amendment ... protection of undefined rights (the naming of some rights do not override others that are held by the people)
- Tenth Amendment ... power of States and people (Powers that are not defined are reserved for either the states or the people.)
As you read, consider the following questions:
- Which of the rights and freedoms granted to Americans under their Bill of Rights do you think matter? Could any of them be abolished?
- Would you consider the Bill of Rights a classical liberal or modern liberal document?
- To what extent is the Bill of Rights a reflection of negative freedoms or positive freedoms?
- How do these rights differ from Canadian rights and freedoms?
- When the freedoms of the majority interferes with the rights of the minority, how do we decide what to do?