Think about and reflect on your learnings from this module, then make a substantive post about those learnings. If you gained some insight, share it. Try to avoid simple agreement or disagreement.
https://www.ala.org/advocacy/net-neutrality
To Be governed… To Govern…
“To be governed is to be watched, inspected, directed, indoctrinated, numbered, estimated, regulated, commanded, controlled, law-driven, preached at, spied upon, censored, checked, valued, enrolled, by creatures who have neither the right, nor the wisdom nor the virtue to do so.” — Pierre-Joseph Proudhon
“… and that government of the people, by the people, for the people, shall not perish from the earth.” — Abraham Lincoln, The Gettysburg Address
Our Ageless Constitution
What makes the US Constitution unique and ageless?
https://nccs.net/blogs/our-ageless-constitution/our-ageless-constitution
The Inalienable Rights
Under the America’s Constitution, people have rights that cannot be denied or abridged by the governmental laws. All the public entities are obligated to protect the rights of the people they serve by not making rules to curtail the rights, and by making sure that their practice does not infringe upon people’s rights.
Philosophy and Principles of the Constitution
The Quality of Agelessness
America’s Constitution had its roots in the nature, experience, and habits of humankind, in the experience of the American people themselves – their beliefs, customs, and traditions, and in the practical aspects of politics and government. It was based on the experience of the ages. Its provisions were designed in recognition of principles which do not change with time and circumstance, because they are inherent in human nature.
“The foundation of every government,” said John Adams, “is some principle or passion in the minds of the people.” The founding generation, aware of its unique place in the ongoing human struggle for liberty, were willing to risk everything for its attainment. Roger Sherman stated that as government is “instituted for those who live under it … it ought, therefore, to be so constituted as not to be dangerous to liberty.” And the American government was structured with that primary purpose in mind – the protection of the peoples liberty.
Of their historic role, in framing a government to secure liberty, the Framers believed that the degree of wisdom and foresight brought to the task at hand might well determine whether future generations would live in liberty or tyranny. As President Washington so aptly put it, “the sacred fire of liberty” might depend “on the experiment intrusted to the hands of the American people” That experiment, they hoped, would serve as a beacon of liberty throughout the world.
The Framers of America’s Constitution were guided by the wisdom of previous generations and the lessons of history for guidance in structuring a government to secure for untold millions in the future the unalienable rights of individuals. As Jefferson wisely observed: “History, by apprising the people of the past, will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it, to defeat its views.”
The Constitution, it has been said, was “not formed upon abstraction,” but upon practicality. Its philosophy and principles, among others, incorporated these practical aspects:
Recognition that love of liberty is inherent in the human spirit.
Recognition of Creator-endowed, unalienable, individual rights.
Recognition that meaningful liberty is possible only in the company of order and justice. In the words of Burke: “Liberty must be limited to be possessed.”
Recognition that in order for a people to be free, they must be governed by fixed laws that apply alike to the governed and the government.
Recognition that the Creator has not preferred one person or group of persons as rulers over the others and that any government, in order to be just, must be from among the great body of the people and by their consent – that the people have a right to self-government.
Recognition of human weakness and the human tendency to abuse power; therefore, of the need to divide and to separate the power granted to government; to provide a system of checks and balances; and to make government accountable to people at frequent intervals.
Recognition that laws, to be valid, must have their basis and limit in natural law – that law which, as Cicero wrote, “is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite.”
Recognition of the need for structuring a government of laws, not of men, based on enduring principles and suitable not only to the age in which it is formed, but amendable to different circumstances and times, without sacrificing any of the three great concepts of Order, justice, or Liberty.
Recognition that the right to ownership of property is a right so compelling as to provide a primary reason for individuals to form a government for securing that right.
Recognition of the need for protecting the individual rights of each citizen, rich or poor, majority or minority, and of not allowing the coercive power of government to be used to do collectively that which the individual could not do without committing a crime.
Recognition of necessity for incentive and reward as impetus for achievement and growth.
Recognition of the need for a “Supreme Law of the land” a written constitution which, consistent with its idea of the sovereignty of the people, would provide its own prescribed amendment process, thereby circumventing any potential unconstitutional changes by any of the branches of government without the people’s consent.
The Rights and the Laws – An Essay
It’s not an easy read, because it was written by a legal professional. But it’s a concise description of the relationship between the two.
Rights versus Laws
by Thaddeus P. Bejnar
January 2005
The American form of government was based upon the philosophy of natural law1 as explicated primarily by John Locke in his Second Treatise on Civil Government.2 Put it simply, the government was established based on the moral values of the society as recognized by its majority. As one of the first modern republics3, the United States has been the model for most of the rest of the democratic world, including Russia (1918)4 and the former Union of Soviet Socialist Republics (1922)5. Natural law holds that, as Locke put it 6, and Jefferson rephrased it, “there are certain inalienable rights”7 that arise from the very nature of interpersonal relations. Perhaps the
most basic of these is the right to self-defense. As related in the U.S. Constitution all of these rights spring from the three basic concepts: life, liberty and property8. The word law has many definitions and is used in many contexts9. This rest of this essay represents an attempt to
distinguish rights (arising out of the philosophy of natural law) from legislation, also known as fiat law10, (which arises from acts of the governing powers).
How do rights arise? The easy answer is that people recognize them.11 Not infrequently governments or revolutionaries have used natural law theory,12 or other competing theories such as authoritarianism,13 to create governing institutions. Such cases can provide a direct test of these theories. Advances in our understanding of natural law have come primarily from such historical
experiments, and from the very common historical experience of the breakdown or forcible destruction of state imposed order.14 In Anglo-American law the principles of natural law arise out of two sets of conflicts: one between the British Parliament and the King which gave us the unwritten “British Constitution”15, and the other between citizens, as expressed in the common
law, otherwise known as the body of judicial decisions. The first set of rights regulate the relationship between the government and its citizens and are often called “civil liberties”, while the second set of rights regulates the relationships between individual citizens, and are often called
“equitable rights”or “principles of fundamental fairness”. For example, the rights freedom of association and freedom to assemble are related to governmental actions, while the right to self-defense operates at the individual level.
Under American jurisprudence, in theory 16, rights are superior to legislation (laws made by governing bodies).18 Rights are intrinsic to each human being and rights cannot be given or taken away. However, rights can and do come into conflict, and the exercise of certain rights can be limited by governing authorities or the courts when that happens. For example, courts have held
that the right to contract allows an accused to bargain away his right to a jury. Similarly, courts have upheld the requirement for a municipal permit before allowing large assemblies, on the theory that exercise of the freedom to assemble should not impinge on the rights of others to travel,
or the rights of others to the peaceful enjoyment of their property.
Several of the rights recognized in the U.S. Constitution as civil liberties seem to come into conflict with the equitable rights of individuals. For example the freedom of the press which allows the expression of ideas in transferable media may conflict with an individual’s right to be free from libel (false witness), or to be free from interference in their business dealings. But more
often than not it is a desire to foist their own beliefs of what is fitting and proper onto other people that impels the censor.
Endnotes:
1. Natural law philosophy comes in many forms, but all basically agree that it does not depend upon rulers or external authority. It was the dominant legal theory is opposition to authoritarianism. More recently (since 1850) there have arisen in contrast to traditional natural law theory, two ways of looking at law that some argue constitute new theories: legal positivism and legal realism. Legal positivism argues that the law should be understood as a system of social rules. Legal realism argues that the law should be understood sociologically, that is, as it is actually practiced. Many natural law philosophers feel that natural law arises out of something they call “morality”. But this begs the question. A good reference is Kainz, H.P. (2004) NaturalLaw: An Introduction and Re-examination. Open Court Publishing Company:Peru IL.2. Locke, John (1690) Second Treatise of Civil GovernmentLinks to an external site., available as of December 14, 2018.
3. See, e.g., the Dutch Republic, 1588-1795.
4. See Articles 13 – 17 of the fundamental law of the Russian Socialist Federative Soviet RepublicLinks to an external site. (1918), available as of December 14, 2018.
“Article 13. In order to ensure genuine freedom of conscience for the working people, the church is separated from the State, and the school from the church: and freedom of religious and anti-religious propaganda is recognized for all citizens.
Article 14. In order to ensure genuine freedom of expression for the working people, the RussianSocialist Federative Soviet Republic abolishes the dependence of the press on capital, and places at the disposal of the working class and the poor peasantry all the technical and material requisites for the publication of newspapers, pamphlets, books and all other printed matter, and guarantees their unhindered circulation throughout the country.
Article 15. In order to ensure genuine freedom of assembly for the working people, the Russian Socialist Federative Soviet Republic, recognizing the right of citizens of the Soviet Republic freely to hold assemblies, meetings, processions, etc., places at the disposal of the working class and the poor peasantry all buildings suitable for the holding of public gatherings, complete with furnishing, lighting and heating.
Article 16. In order to ensure genuine freedom of association for the working people, the Russian Socialist Federative Soviet Republic, having destroyed the economic and political rule of the propertied classes and thereby removed all the obstacles which heretofore, in bourgeois society, prevented the workers and peasants from enjoying freedom of organization and action, renders
material and all other assistance to the workers and poorest peasants for purposes of their association and organization.
Article 17. In order to ensure access to knowledge for the working people, the Russian Socialist Federative Soviet Republic makes its aim to give the workers and poorest peasants complete all-round and free education.”
5. “The personal property right of citizens in their incomes and savings from work, in their dwelling-houses and subsidiary home enterprises, in articles of domestic economy and use articles of personal use and convenience, as well as the right of citizens to inherit personal property, is protected by law.” Article 10 of Constitution of the U.S.S.R. (1922)
6. “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions:” Locke, John (1690), Chapter 2.
7. Jefferson (1776) Declaration of Independence
8. Preamble, U.S. Constitution (1789).
9. The Wikipedia encyclopedia
10. Fiat, from Latin, means “It is done.” which was the Roman equivalent of Captain Picard’s “Make it so.”, in other words, a command.
11. Courts and law-makers have been recognizing these rights as far back as we have written records. See, e.g., The Code of Hammurabi Article 55. In Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889) for example, the court considered the question of whether a murderer could take under the last will and testament of his victim. At the time there was no written law expressly prohibiting a murderer from taking under his victim’s will, nonetheless the court recognized the equitable rights of the victim, and prohibited it. Courts today
recognize these natural rights all the time, and often have to mediate between them. For example, as Texas courts in child custody determinations of the last few years frequently note, “While parental rights are of constitutional magnitude, they are not absolute; just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that the right of a child to emotional and physical stability should not be sacrificed merely to preserve those rights.” In re C.H., 45 Tex. Sup. Ct. J. 1000 (Tex., 2002).
12. “ Natural law in the strict sense and as an explicit theory emerged, as we shall see, with the Stoics. But the evolution of the concept can be traced with definite outlines through the pre-Socrates, Plato, and Aristotle with some reverberations in Greek literature.” Kainz, H.P. (2004) Natural Law: An Introduction and Re-examination. Open Court Publishing Company:Peru IL. p. 1.
13. Authoritarianism is the doctrine behind the so-called “Divine Right of Kings”.
14. Critias is said to have demonstrated that rule by men, as opposed to rule by law, was an inherently self-destructive process. He was the leader of “The Thirty” who instituted a reign of terror in Athens 404-403 B.C.E. See, Xenophon, Hellenica Book 2 Chapter 4 Section 8Links to an external site.
15. William Blackstone in his 1765 Commentaries on the Laws of England, Clarendon Press Oxford, Book the First – Chapter the First : Of the Absolute Rights of Individuals, available as of Feb. 15, 2005, as “the absolute rights of every Englishman” and traced their basis and evolution as follows:
* Magna Carta between King John and his barons in 1215
* confirmation by King Henry III to parliament in 1216, 1217, and 1225
* Confirmatio Cartarum (Confirmation of the Charter) 1253
* a multitude of subsequent corroborating statutes, from King Edward I to King Henry IV
* the Petition of Right, a parliamentary declaration in 1628 of the liberties of the people, assented to by King Charles I
* more concessions made by King Charles I to his parliament
* many laws, particularly the habeas corpus act in 1679, passed under King Charles II
* the 1689 British Bill of Rights assented to by King William III and Queen Mary II.
* the Act of Settlement of 1701.
16. In practice as Austin points out in The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995) p. 158, the courts often punish people under unjust laws.
17. For example there is a legal maxim: “Laws in derogation of the common law will be strictly (narrowly) construed.” Thomas Acquinas said “Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” “Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo, a lege naturali discordet, iam non erit lex sed legis corruptio.” Summa Theologiae, First Part of the Second Part, Question 95, Article 2.
Exsample of someone else post:
This module was extremely interesting to me. While I had considered the role of the librarian to provide information to patrons, I had not considered how privacy plays into this, especially as it pertains to the Freedom of Information Act. The Lamdan article, “Why library cards offer more privacy rights than proof of citizenship: Librarian ethics and Freedom of Information Act requestor policies”, made some very salient points. Even though libraries are public entities, I found it interesting that the ALA promoted “Choose Privacy Week”, where they warned citizens about “eroding privacy standards” and “vulnerable to [government] questioning” (2013). Most libraries have a code of ethics in place to protect their patrons. Because we deal with information, am reminded how important it is to ensure anonymity – people could potentially become frightened to search for certain information for fear of becoming known to other government entities. The right to privacy is an important one, and I’m happy to know that many states have laws ensuring protection to information requestors. In my opinion, this is certainly not common knowledge among people who are not directly involved with the Library and Information Science profession. A pertinent example provided in “Privacy and Positive Intellectual Freedom” by Rubel is that a person may lose a “material benefit” such as a job, security clearance, insurance, etc. if their reading habits were deemed troublesome (i.e. checking out books about mental illness or personal bankruptcy) (2014).
While these rules apply to the public library, I am interested to see how they would be applicable in the school library as well. In my School Library and Technology class, we just discussed that school libraries cannot receive certain funding unless they utilize internet filters that block certain information. While I’m sure most reasonable people agree that school-aged children should not have unfettered access to the internet, especially at school, the problem of relevant information being blocked and potentially inappropriate material being allowed through was brought up. Are children guaranteed the same right to intellectual freedom and privacy within their school libraries, or are they held to different standards?
References:
Rubel, A. (2014). Privacy and Positive Intellectual Freedom. Journal of Social Philosophy, 45(3), 390–407.
Lamdan, S. S. (2013). Why library cards offer more privacy rights than proof of citizenship: Librarian ethics and Freedom of Information Act requestor policies. Government Information Quarterly, 30(2), 131–140.
