Sean Hayward

I agree with you that the principles of the constitution should not change. Those principles being freedom, democracy, equality, etc. However, society's interpretation of those principles is always changing, and the constitution should be amendable to reflect that change. I got the impression that you favoured some kind of frozen constitution because you have repeatedly stated your position that rights are constant and that no new rights can be created by society. You said, in other words, that if the "correct" set of rights was entrenched to start with, slavery would have been eliminated. Therefore, you are saying that there is a "correct" set of rights that would not have to change. No, I still think that what you said about "refining the definition or deciding what fits the definition" is what I have been arguing for throughout this discussion. Manufacture by consensus is another way of describing how society "refines the definition or decides that something fits the definition". The question I would propose is "Does this constitute a right in this society?" Substitute any term for "right" that you want: "natural right", "inherent right", etc. Affirmative action is different from equal rights because what we were talking about was taking rights away from certain groups, such as the right to life, not social programs and who is the benficiary of them. Everyone has equal rights under the constitution in Canada. Certain groups may receive special treatment, but not different rights. I am not misunderstanding your position. You believe in inflexible principles as the foundation of a constitution. I agree, but my point is that society's interpretation of those principles is bound to change. I think you have agreed to that concept as well, so there is no disagreement there. Whether economic rights are, in fact, rights is simply a matter that society will have to decide, when it enters the arena of public debate.

I absolutely endorse the spirit of the title of this thread. Canada, you have a country you should be proud of. charter.rights, your ideas are poorly conceived. You obviously hate this country, so just brood by yourself in a dark room somewhere and keep us out of it. Thank you. Why is it that an American starts a thread about how good Canada is, and then a Canadian tells him how silly he is to say so? This I find extremely annoying: some Canadians seem to be so modest that they not only rarely celebrate their own country, but they also argue with anyone who dares to say that Canada is worth celebrating. This level of modesty is, quite frankly, ridiculous and corrosive to our society.

I think that is exactly the point of divergence. I have already said that you can call rights whatever you want, whether "natural", "inherent", "inalienable", etc. What I'm saying is that society needs to retain the ability to modify what rights they guarantee, ie. interpret their principles according to the current realities. In your first paragraph, you have demonstrated perfectly my reasoning against an inflexible set of rights. A primitive society would interpret "natural rights" in a primitive way, so if you took their interpretation, put it into the constitution, and "froze" it, not allowing future generations to modify it to follow their principles, you would be stuck with a primitive set of rights forever. This is the reason that rights must be amendable by society to change with their interpretation of their fundamental principles. Yes, I think that what you said about "Society can refine the definition, or decide which behaviours fit the definition" is exactly what I have been saying all along. Rights being "manufactured by consensus" means that if we get enough people, ie. a consensus, to agree that something should be a right, according to their interpretation of their principles, then the society should have the ability to entrench those rights in the constitution. On the issue of favourable treatment, I think you are referring to Section 15(2), which allows affirmative action for disadvantaged groups. I personally disagree with that type of thing, but apparently society has decided in favour of it. I don't think we can mix the issue of native rights here without making this a lot broader of a discussion. It follows the concept of collective rights, rights belonging to a group rather than an individual. That is another concept beyond our current debate. So you are suggesting that a constitution, or the rights therein, should not be amendable at all, even if every single person agreed to the proposed amendment? Can you please explain exactly how your idea of a constitution would function in reality? You misinterpreted steps 4 and 5. I will explain my position. If an inflexible set of rights had been implemented to start, it would have used the interpretation of the time it was written in. It would therefore achieve exactly the opposite of what you say it would; rather than abolishing slavery, it would entrench slavery. On step 5, I said that society's interpretation of what constitutes a "natural right" changes over time, and that constitutions should be flexible enough to change accordingly.

But that's just it, nothing is independent of society. There is no definition that will stay the same forever in the interpretation of society. What a reasonable person would have interpreted "natural rights" to mean hundreds of years ago is far different from what a reasonable person would interpret "natural rights" to mean today, based on the definition you have provided. Society changes, and society's principles change, over time. Nothing can stop this. No definition is definitive enough to withstand it. I think we almost agree on the basic concept. We both agree that people should have rights guaranteed to them. And I see something you said that is very similar to what I have been saying: "Society can refine the definition, or decide which behaviours fit the definition". That's another way of saying it. Society defines the rights of its members. Whatever title you want to give to rights is fine, natural rights, inherent rights, etc. The idea of rights being "manufactured by consensus" is simply the fleshing-out of the body of rights that the society guarantees. I highly doubt that the Charter grants favourable treatment to women, and Natives are an entirely different issue relating to the indigenous peoples and their rightful place. Manufacture by consensus is the way that society decides what constitutes a right. I am not at all opposed to a constitution based on "natural rights" if it gives society the authority to modify those rights as their principles change. What I am opposed to is applying some absolutely rigid definition to a society without giving it the ability to alter those rules to suit its specific realities. "Which is it, inflexible and static, or flexible and dynamic?" You are completely twisting things by implying that I said both of those descriptions about the same thing. I said that your idea of natural rights appeared inflexible and static, and then I outlined my proposal that rights should be flexible and dynamic. They are deliberately opposite as I was presenting two opposed philosophies on rights.

OK, but who defines "natural" rights? Obviously there is some ambiguity in the concept, as we have already agreed that a claim to a natural right to water or food holds some validity. So what authority, other than society, is there to resolve this ambiguity? Yes, perhaps "privileges" would be a better word than "rights" to describe the so-called "economic rights". As I stated in my earlier posts on this thread, the difficulties in entrenching "economic rights" in the constitution are considerable, but I express my general support for the concept. On the issue of unequal rights, my explanation is that it is one of the principles upon which the entire concept of constitutionalism is founded. Therefore, without it, the whole concept of society deciding on its rights and privileges cannot take place. It is one fundamental requirement, such as democracy. It is possible that society may modify rights in the future in a negative way, but we just have to take the reasonability of society as a given. If we assume otherwise, we set another trap of not allowing future society to change the things we do now. It is reasonable to assume that society becomes more reasonable over time. On the issue of slavery, the key thing you're forgetting is that society's idea of "natural rights" changes over time. Many hundreds of years ago, no one would have thought twice about the morality of having slaves. As philosophical thought advanced, people realized that it was unethical. As it applies to our discussion, this shows that constitutions must be flexible enough to advance along with the principles of society, which will inevitably change over time.

I am not a railway buff or an engineer, but I am a Canadian. Multiculturalism, immigration, diversity. These are some of the things that make Canada what it is. These are some of the things that make me proud of Canada. This regionalism and division in Canada exists primarily because of people like you, who are apparently unable to see the big picture and who see their country as a meaningless "thing", unworthy of their loyalty.

We are going around and around in useless hypothetical situations that contribute nothing to the discussion. Our positions are the same to the extent that we both believe that all people have (or should have) rights. Our positions diverge in that I say it is up to the society to define what those rights are specifically, and you say rights should be defined by some "objective" theory of "natural rights". But who, if not society, is to define what constitutes a right? No, I don't think a society would be justified in limiting rights almost entirely. I phrased that poorly, I admit. But a society would be justified in defining the rights of its members in different ways and to different extents than other societies. Unequal rights would not be justified because that is an issue integral to the rule of law, which is the foundation of rights and constitutionalism. I don't understand your position that allowing society to determine the rights of its members is "tempting fate" and that the people are "ill-informed sheep". What would you suggest instead? We don't live in centuries past, where abuses of rights were common. We live in a modern democracy. Your last point demonstrates exactly why a constitution, and the rights contained therein, must be amendable based on societal consensus. Slavery was accepted by society for thousands of years. It became increasingly unacceptable through the years until countries began abolishing it. The consensus was forming for the abolition of slavery in the United States. If rights were absolutely inflexible, as you suggest, then that societal consensus would mean nothing and slavery would continue forever.

I don't understand what kind of evidence you are looking for. There are no statistics to back me up because this is not a statistical question, it is a philosophical question. If ultra-religious principles truly hold a consensus in a society, then of course they may change their constitution to suit their principles. I do not believe in ultra-religious principles, but that is just my personal opinion. I don't quite understand what the second question is asking. Are you asking whether unequal rights are justified? Or are you asking whether a society could limit rights almost entirely? The answers to the questions are no and yes, respectively. I have more trust in Canadian democracy. I don't believe that our political processes can be motivated by fear and hate, etc. in the way that you suggest. The situation with same-sex marriage in the US is not based on "bigotry and fear". I would say that it is a society deciding whether or not something constitutes a fundamental characteristic of itself, based on its principles. History does not show me to be wrong. The example you bring up, in fact, proves me right. The American Civil War occurred because that society was struggling with the question of slavery, and it was getting closer to consensus on abolishing slavery.

And yet that is obviously not your position. Am I being foolish to be proud of such things?

You may be ashamed of your country for some inexplicable reason, but that is no reason to tell us that we're foolish to be proud of it. Being proud of a country is exactly the same as being proud of a child. Pride in what was, what is, and what will be. Pride in what we have done together. No one is saying that there aren't improvements to be made in Canada, but we have come a long way and we will go much further. When you hear about the great achievements in Canadian history, such as the building of the Canadian Pacific Railway or the Battle of Vimy Ridge, or about the vast potential of this great nation of ours, what do you feel? Indifference? Apathy? If it is foolish to be proud of Canadian history or the future of Canada, then I will be the first to admit that I am a fool. You are correct in saying that there are some things in our past that we should not be proud of, but I cannot, will not, ignore those things that we should be proud of.

Countries may be just things to you, but it may surprise you that many people identify with their country and feel some sense of community with their fellow citizens.

I categorically disagree with your assertion that the judgement of society is just some "whim" or personal opinion. It is much more than that. You bring up the issue of ultra-religious people as if their views hold the consensus of Canadian society. That is simply wrong. Ultra-religious groups are very small in Canada and would never be able to muster the consensus required to amend the constitution to suit their ideology. Just because you recognize that society should be trusted to decide for itself what its fundamental characteristics and principles are, it doesn't mean you are giving any special interest group the ability to have their way with the constitution. The proposed amendments must be tested through the process of constitutional amendment, a very rigorous process. And yes, by my reasoning, if society did have a consensus to entrench ultra-religious principles in the constitution, they would be perfectly justified in doing so, otherwise you are following a double standard based on "personal opinions", etc. It is self-evident that society will use "objective facts, reasons, or principles" to determine whether or not to amend its constitution. That is simply the nature of public debate and collective decision-making. If you admit that some amount of judgement is involved in determining rights, the next logical step is the question of who provides this judgement. I believe it is the society itself. I would call a system that imposes a set of rules upon a society that does not support them arbitrary, regardless of the dictionary definition. Flexibility is an important aspect of the discussion. My contention is that laws should be flexible enough to change with the will of the majority, and constitutions should be much less flexible, but still flexible enough to change based on a consensus of society. You are correct in saying that there is a right to die, implicit in the right to life is the ability to not exercise that right. Therefore, various rights exist which are not specifically enumerated, but fall under the umbrella of other rights. As to your last point, that is definetly not my contention. Societies are free to do such things by consensus. However, because of the requirement for consensus, it is impossible for things considered egregious by the society to be done. The need for consensus is key. I must admit, I am not very familiar with Section 15 in this context. Are there any specific cases on this subject?

You didn't choose your kid, did you? So is it foolish to be proud of him/her?

The consensus required for modifying rights is not 50% plus one. It is much more demanding and is therefore protected from the whims of the majority and the "personal wishes, feelings, or perceptions" you speak of. Your examples are all exceptions to the rule. War is a situation where we recognize that many rights may have to be infringed for collective security. Capital punishment is a situation where the person in question has been found guilty of a serious crime and may therefore be deprived of their right to life. Abortion is a situation where something that, notwithstanding "personal wishes, feelings, or perceptions", our society has decided is not a person, is killed. To outright abolish someone's right to life would be a very grave step that I don't believe any modern society would take. In 1930s Germany, the right to life was removed by a dictatorship that clearly did not have consensus required to take that action. After September 11th, there may have been the consensus required to remove certain rights, but that consensus did not last long, and by now there would be the consensus required to restore those rights. I fail to see how the definition of arbitrary that you have provided fits my theory on defining rights. There is no way that "personal wishes, feelings, or perceptions" would be able to command the consensus in society to modify rights. If they did, then they are by definition no longer "personal wishes, feelings, or perceptions", they are principles of society. The society must, and will, use "objective facts, reasons, or principles" to define the rights that exist within that society. You agree with me then, that "natural rights" cannot be strictly defined. You may call rights what you want, "natural rights", "inherent rights", "inalienable rights", they all mean the same thing. There must be some source of judgement to decide what the rights of individuals and groups in a society are. In my opinion, the only legitimate source is the society itself. I don't dispute your definition of natural rights, but I can't state clearly enough that there much room for interpretation left in it. In other words, one could say that the right to water is as much a natural right as the right to life. Because of this lack of clarity, society must be the authority to decide what it deems to be a right. Your idea of natural rights is too rigid and inflexible because you leave no room for society to define what it consider a "natural right", and arbitrary for exactly the same reason, because it imposes a set of rules upon a society that does not necessarily support them. In the examples you have laid out to show why society cannot be trusted, they always involve a dictatorship that clearly did not have the consensus from society to do what it was doing. The blacks, a large majority of the society, were excluded from participating in the government in South Africa, so that government's actions were not representative of the society. In Germany, a dictatorship was in power which had no regard for its people and, although it may have been elected with a plurality of the vote, did not have, or even seek, the consensus required to take its extreme actions.

You seem to have very little trust in the judgement of society. Society is, through political processes, the authority on rights, and a substantial degree of consensus is required for altering the rights of the people. No society would ever have the consensus required to remove anyone's right to life, except for perhaps an extremely backward society, which would probably be too primitive to have a concept of rights anyway. This way of defining rights is very far from arbitrary, as it requires a substantial consensus. My point is not only that rights conflict, this will always be the case, it is that the definition of natural rights is too rigid and inflexible a definition of rights to be viable in a society. Also, who is to define what constitutes a "natural right"? If your answer is society, then we are in complete agreement on this issue. If your answer is anything else, then I am afraid that I must disagree with you and suggest that your method of determining rights is arbitrary.

That's not what I meant at all. You are twisting what I am saying into support for apartheid, genocide, etc. What I said was that "the rights of the people exist by virtue of the might of the government". This is simply an extension of what I said in earlier posts about rights existing only if they come with a guarantee of enforcement.

We shouldn't encourage the kind of action that natives usually take for media attention, such as Oka, Ipperwash, Caledonia, etc. Peaceful protest should be encouraged. The government needs to start treating native occupations like any other criminal activity and enforce the law. It is a good idea to remove the exemption for Indians from the Canadian Human Rights Act. The Specific Claims Tribunal is another good idea. These structural changes in Indian affairs will eventually lead to a more just system for natives.

Might makes right. The rights of the people exist by virtue of the might of the government.

My thoughts exactly. Who do these immigrants think they are, that their petty personal interests are more important than the national interests of Canada, the country that so recently gave them the greatest opportunity of their life and allowed them to live here?

So basically, what you're proposing is a more radical version of the National Energy Program? Why don't you ask how some of the Albertans on here how they feel about the NEP?

What is "fundamental" to a society is entirely at the discretion of that society. If society, through political processes, determines that a certain characteristic is fundamental to their society, they will entrench it in the constitution. This is why the process of constitutional amendment is so much more rigorous than the ordinary legislative process, because it must be determined whether those principles contained in a proposed constitutional amendment truly have the consensus required to be considered fundamental of that society. I understand that you think there are more differences between a constitution and ordinary laws, so do I, but one key difference is the difficulty of amendment. I apologize if I offend you, but I am simply trying to test the concept of "natural rights". So, because one may do so without government, there are natural rights to kill and enslave others. And there is a natural right not to be killed or enslaved by others. These rights obviously and directly conflict with each other. Which has supremacy over the other? Is there a hierarchy of rights in the theory of "natural rights"? How can you say that the natural right not to be killed overrules the natural right to kill? Doesn't that violate someone's natural rights? So where do you draw the limitations? Which "natural rights" should trump others, if all are to be guaranteed?

If society considered RRSP deductions as a fundamental right in Canadian society, and the consensus was broad enough to enact constitutional change to that effect, then it would be a right. Such a situation will almost certainly never occur, and rightly so, but so be it if that is the opinion of society. Of course there are many types of contracts, but a constitution is a fundamental contract of society, and therefore only rules that society considers to be of a fundamental nature should be included therein. May one drink from the streams and eat food from the earth and have access to the resources of their land, without government? Yes. This is why the definition of "natural rights" is not as black and white as it appears at first glance. May one kill and enslave others, without government? Yes. Does that make those things rights in a society? You are not incorrect when you say that the difference between a constitution and ordinary laws is the difficulty of their amendment. This is because a constitution is a set of fundamental rules, that are intended to remain fairly constant, and ordinary laws are simply the rules that change with the times and the opinion of the majority.

I know we have such a framework. I disagree that it is fine to bind people to your "natural rights" but not to other rights. Society must decide whether something is a right or not, and entrench those rights in a constitution, so that they may not be infringed. I can't understand how you define natural rights. In other words, what is the test to determine whether something is a natural right? I don't think there is any objective method. I have not ignored your quotes, I just don't think those definitions are fitting in the context of a society. We have different views on the purpose of a constitution, so I don't expect us to agree on this. I see a constitution as a fundamental contract between the members of a society. The difference between this and ordinary laws is that the constitution is the set of fundamental rules that cannot be altered without broad consensus, and ordinary laws are rules that change at the discretion of society on a periodic basis.

I agree that most decisions about government should be determined on a periodic basis. However, the framework in which this determination occurs should be enshrined in a constitution, so that there is stability and fundamental laws which cannot be altered without consensus. A constitution, and all laws, bind future generations unless they are altered by them through the legitimate processes. Your quote about the tyranny of the majority illustrates the necessity of constitutionalism. Rights only exist in societies, so the idea that only rights which exist with or without society are legitimate, is false. If there was no other person with whom one could interact, the concept of rights would be illogical. I understand what you mean, but rights are guarantees provided to members of a society, a fundamental set of rules upon which the society is based. Therefore, I see no philosophical obstacle to the provision of economic rights, no distinction between negative and positive rights. Compelling reason? This is a matter of ideology. A constitution is a contract between members of a society to outline the way that the society is to govern itself and the guarantees that each member of the society is to receive as a result of their membership in the society. I see basic necessities as something that we should guarantee to all members of Canadian society. If these things are already done universally through policy, which is doubtful in some areas, then they are recognized by society as having the status of near-rights.

Ah yes, the reason that Canada constantly fails to build and maintain a world-class military. There is always something that is "more important" or "more urgent". To be honest, the military should have a higher priority than social services.