Wednesday, July 28, 2010

The nature of rights: Humanity.

What is it to have rights? What do they comprise? How are they found? The rights I speak of are human rights, rights that are found at the basest essence of the human condition.
To have a right, it is required that one be capable of possessing a property. In the circular nature of rights, it is the very ability to have rights that makes one human, and the foundation of those rights is the humanity. But what makes one human? There are two aspects, the first is the capability to have and possess property, including the property of rights.

The argument of what it is to be human has been heard across history. In our history, it has been marred by the idea that people different than ourselves are less than human.

The essence of humanity, however, is not biological. Humans may lose a limb, may lose body parts, may have their heart replaced by machines, may use the liver or kidneys or lungs of another, yet still be human. The humanity is integral into the realms of the mind. The essence of humanity is the ability to create something unique, the ability to create property. Property is created, according to the old law, by an exercise of volition, creating a right to use that which was modified.

Volition is the core of humanity. Its exercise is the essence of what it is to be human. No human being, without that exercise of volition, is human. People may attempt to block the exercise of volition, for various excuses, but that volition is still invariably belonging to the individual. Others may kill the individual for that exercise, but it does not remove their humanity, nor the essence of volition.

There are old terms for the cessation of volition within an individual. When done by the government, attainder provided for the cessation of the right of property within individual rights, be that a right to own property, or a right to one's own life. Even in the British government under King George, that volitional termination required the judgment of termination of the individual's humanity and their life.

The slave debates were about humanity, about the essence thereof, for, after all, there was no question that humans had inalienable rights. The question was, at its core, what was human. Those that possessed and supported slavery had to throw the humanity of the slaves into question in order to maintain and support the slavery, and in order to still appear ethical within their own eyes.

In all aspects of history dehumanization and alienation have been a pandemic of government. They are a contagion created by desperation, a disease transmitted by acts believed necessary to preserve the society, and have, always and without exception, destroyed the society attempting that preservation.

The act of dehumanization, of separation, of laws affecting classes, be they serfs, felons, or lords, has always been the harbinger of arbitrary law, its greatest tool, and its most powerful self-fulfilling prophecy.

It is for the fear of losing power that they are created, and it is their extension that brings that society to the brink of civil war and dictatorship.

Perhaps Trop v. Dulles stated the result the best. However, one must ask, if statelessness and the loss of the right to have rights is forbidden, how much more forbidden must be the loss of the very right to be human?

We believe, as did Chief Judge Clark in the court below, [n33] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination [p102] at any time by reason of deportation. [n34] In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. [n35] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. [n36]

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. [n37] Even statutes of this sort are generally applicable primarily [p103] to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. [n38] In this country, the Eighth Amendment forbids this to be done.

In concluding, as we do, that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that, in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes, but neither can they sanction as being merely unwise that which the Constitution forbids.

We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.

The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we [p104] do not, the words of the Constitution become little more than good advice.

When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established, it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case.

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