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Right to Privacy a Fundamental Right, Says Indian Supreme Court

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Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#91

Post by akvadrako »

lisper wrote: post #27
rayiner wrote: post #16

Earlier quoted context omitted.

At least in the U.S., that is not the real issue. Nobody disputes that the Bill of Rights is not exhaustive. But just because the Bill of Rights is not exhaustive does not mean that the Supreme Court may make up new rights over time. Legal conservatives in the U.S. adhere to the idea that for a right to exist, society must have recognized it as a right at the time the Constitution was written. In other words, you do…

> Nobody disputes that the Bill of Rights is not exhaustive. Unfortunately, that is not true. Robert Bork famously disputed it, even going so far as to deny the validity of the ninth amendment. Many conservatives support Bork's position today, e.g.: http://www.nationalreview.com/article/336142/judge-borks-ink... They do this because it's a logical pre-requisite for overturning Roe v. Wade.

That's not an honest depiction of the situation for 2 reasons.

1. If the 9th amendment is interpreted to mean the courts can declare anything they think is a right, it allows unlimited power. "The Ninth Amendment obviously does not create federally enforceable rights."

2. Overturning Roe v. Wade wouldn't require much legal logic, except the precedent has been upheld several times. Without that, you could question any of steps it relies on:

a. there's an implied right to privacy (9th or 14th amendments)

b. the federal government has a mandate to enforce it

c. this right implies states cannot restrict abortion

d. the "balancing test" is legit, terminating the right in the last trimester

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#92

Post by phiskk »

moomin wrote: post #85
dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

In practice I think the positive negative distinction is somewhat pointless. All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free. Part of the problem for Americans is that they have two definitions of rights. There's the ones in the Bill of Rights, which are phrased in a negative way. And there's those in the Declaration of Independence,…

For an admittedly artificial example of positive vs negative rights.

If you consider, say, a person living in the middle of a desert.

A right to privacy amounts to just being left alone, and enforcing that would only be required if another party were actively violating that right. A right to water, on the other hand, might require that some other party be forced to provide water to this person in the desert. <- Here many people might quite reasonably argue; why should others put themselves out to facilitate this persons life choices.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#93

Post by coldtea »

dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

>The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics. Bitter pill for anyone scared of a proverbial nazi takeover.

Nazi's are an easy target. The problem starts when things are not as clean cut -- when actual politics are involved, as opposed to crude stuff like "exterminate all jews" and "blacks are inferior", etc that Nazi's might say.

Let's say a team wants to overthrow the presidency and bring something like another parliamentary system in the US. Or rewrite the constitution and remove the BS ideas from 3 centuries ago.

Should they be allowed to express their ideas? If they get somewhat popular and other people worry about their influence?

And what's stopping disagreeing people from considering them the same, or worse, as they'd have more current influence, than Nazis, and asking to ban their speeches etc?

(Many people considered the CPUSA like that in the 30s and up to the 60s)

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#94

Post by [deleted] »

icebraining wrote: post #84
rmc wrote: post #74

Earlier quoted context omitted.

> A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. Correct. Right to a fair trail is also a positive right. To uphold it, the state must pay for a lawyer if you don't have one, the state must pay for enough judges (& associated costs) to ensure your trail isn't delayed ("Justice delayed is justice denied" and all that). > The right to free speech, conscien…

Right to a fair trail is also a positive right. Ehh, I'm not sure. The actual right is better described as the right not to be unfairly tried, which is clearly negative. The distinction is more than semantic: if the State launches an investigation and then drops it, leaving suspicion in the public's mind, you can't force them to go to trial to present your case and clear your name.

[deleted]

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#95

Post by noufalibrahim »

sametmax wrote: post #88
TheSpiceIsLife wrote: post #79

Earlier quoted context omitted.

> The right to free speech, conscience, affiliation , assembly and other political freedoms mean we need to tolerate and protect the proverbial nazis’ rights to try and spread their politics. I'm not convinced I know how I feel about this. I want to believe this is a false dichotomy. Can we have limits in polite society ? I keep thinking of the paradox of tolerance [1], which states, in brief, that if a society is to…

The limit is action. Words are not important. But a lot of words are mixed with actions: harassments, segregation, etc. Those should be clearly identified so that free speech don't protect them.

This is tricky. I think a workable solution is to create zones where free speech is unrestricted and where new ideas can be incubated. They themselves would have some restrictions (e.g. you can't physically hurt the person you lost a debate to) but would, by and large, be free speech zones. The idea was described in this speech https://www.youtube.com/watch?v=FJktQiZRa5A

The rest of society can have different rules which can be more nuanced.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#96

Post by srean »

eklavya wrote: post #90
srean wrote: post #46

Earlier quoted context omitted.

I doubt that is anything new. Political parties in power try to squelch the money stream of its competitors. Aadhaar or no Aadhaar they will find a way and have (sometimes they would rather look the otherway and share the 'profits'). On a related but tangential set of events: none of the bigwigs caught in the demonetization net had connections with the current party in power, but had patrons among the others. It is p…

You may think I don't have an argument and rightfully so, but honestly I don't care enough to search for all the news items where this was established.

> You may think I don't have an argument

Not at all. I want to learn and soak in the opinion and form/reform my own. I am quite sure citizens on the different sides of this argument have sincere good intentions as their motivations.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#97

Post by dieterrams »

icebraining wrote: post #84
rmc wrote: post #74

Earlier quoted context omitted.

> A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. Correct. Right to a fair trail is also a positive right. To uphold it, the state must pay for a lawyer if you don't have one, the state must pay for enough judges (& associated costs) to ensure your trail isn't delayed ("Justice delayed is justice denied" and all that). > The right to free speech, conscien…

Right to a fair trail is also a positive right. Ehh, I'm not sure. The actual right is better described as the right not to be unfairly tried, which is clearly negative. The distinction is more than semantic: if the State launches an investigation and then drops it, leaving suspicion in the public's mind, you can't force them to go to trial to present your case and clear your name.

The right not to be unfairly tried is easily satisfied by not having a trial at all.

The right to a fair trial is about two things: you must be tried before being found guilty and punishment/sentencing is administered, and that trial must be executed fairly. In effect, you have the right to a (fair) trial.

A trial and especially a fair trial are undeniably interventions on how things would otherwise proceed. But I agree with moomin that the positive/negative distinction is not really meaningful.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#98

Post by alphaalpha101 »

dragonwriter wrote: post #41
lisper wrote: post #27

Earlier quoted context omitted.

> Nobody disputes that the Bill of Rights is not exhaustive. Unfortunately, that is not true. Robert Bork famously disputed it, even going so far as to deny the validity of the ninth amendment. Many conservatives support Bork's position today, e.g.: http://www.nationalreview.com/article/336142/judge-borks-ink... They do this because it's a logical pre-requisite for overturning Roe v. Wade.

> They do this because it's a logical pre-requisite for overturning Roe v. Wade. It's really not, though, it's just a convenience; one could easily find grounds tomreverse Roe.and even the subsequent abortion decisions without just ignoring the Ninth Amendment. The real reason is that the Ninth Amendment is irreconcilable with the narrow mode of textualism that I personally think of as “four corners” or “sola scriptu…

As someone that isn't American, I support things like abortion rights and such, but I still think that your constitution seems to be so incredibly broadly interpreted that it might as well just be judges choosing whatever they personally think the result should be. It's basically a 9-man supreme legislature.

Abortion rights should exist. I just don't necessarily think they should exist because of an 'implied right to privacy'. Like, what? There are lots of things that Governments restrict that go on in private. I think nobody could really sensibly argue that the US Constitution actually says that the USA can't pass laws about what people do in their own privacy.

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#99

Post by sametmax »

noufalibrahim wrote: post #95
sametmax wrote: post #88

Earlier quoted context omitted.

The limit is action. Words are not important. But a lot of words are mixed with actions: harassments, segregation, etc. Those should be clearly identified so that free speech don't protect them.

This is tricky. I think a workable solution is to create zones where free speech is unrestricted and where new ideas can be incubated. They themselves would have some restrictions (e.g. you can't physically hurt the person you lost a debate to) but would, by and large, be free speech zones. The idea was described in this speech https://www.youtube.com/watch?v=FJktQiZRa5A The rest of society can have different rules w…

Or maybe time periods. Like in the purge :)

Re: Right to Privacy a Fundamental Right, Says Indian Supreme Court

#100

Post by dalbasal »

moomin wrote: post #85
dalbasal wrote: post #54

A lot of conversations about expanding rights, end up with a distinction between positive and negative rights. A right to water, is different to free speech. For everyone to have a right to water, someone needs to provide the water or be held accountable for not providing it. A default, state culprit needs to be designated. Privacy though, privacy is like speech or equality before the law or presumption of innocence.…

In practice I think the positive negative distinction is somewhat pointless. All rights, regardless of their "nature" require enforcement and consistent interpretation and neither of those things come for free. Part of the problem for Americans is that they have two definitions of rights. There's the ones in the Bill of Rights, which are phrased in a negative way. And there's those in the Declaration of Independence,…

I’m not opposed to positive rights, but I’d rather we call them something else so as not to erode the special nature of regular rights.

In Europe/UK, the right to housing is often mentioned. That is a completely different can of worms. A state can try and fail to provide everyone access to housing. This is different to free speech. There is no such thing as well intentioned failure to protect speech.

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