Protection of unknown rights
Second revision:
First revision:
Rights that in the future will be considered fundamental to democracy, but are unknown due to 1. the problem hasn't arised that demonastrates the need for the right, or 2. society hasn't reached the requisite circumstances in which that right is revealed, i.e. The right to uncensored Internet could only be known after the Internet was created and was beginning to be used, will be protected with a clause which states "Any rights deemed fundamental to a healthy democracy by the people of the UK, but not specifically listed, shall have the force of power as if they were listed and can be added to the text of the bill of rights by a simple referendum."
Please comment on the execution of the idea, how I can make it better, shorter, or more appealing, not on whether this idea is a good one or not.
Phase 1:
Something I'm surprised hasn't garnered attention one way or another is an argument made by Federalists in the debates about whether to ratify the US constitution, namely the idea that listing a bunch of rights, ultimately limits them.
If a bill of rights simply lists rights, then as society progresses new rights that are deemed fundamental to a democracy are inevitable discovered and will not be constitutionally protected, unless the constitution is amended. Depending on the method ultimately chosen this could be quite difficult. This has already happened, when the first US Congress wrote the US Bill of Rights, while they suggested a right to privacy, they never ultimately expressed it. In addition, uncensored Internet is now being viewed as fundamental to Democracy, but it is only 20 years old, and how are we to know that another need for a right might not be discovered in the future.
As such there should be a clause, to plagiarize the US Constitution, "The enumeration in the Constitution of certain rights shall not be construed to deny or trivialize others retained by the people."
Andrew Bulovsky Apr 14, 2015
With only one week remaining in the refining stage, the facilitators will draft some language for this idea. We'll do everything we can to redraft the original submission in line with your comments and suggestions. If the original poster would like to take over the idea they are more than welcome to at any point. Please do comment to offer suggestions on specific wording and to guide us on which suggestions should take priority (by voting them up/down).
"Any rights not specified in this Constitution, but deemed fundamental to a healthy democracy by the people of the United Kingdom of Great Britain and Northern Ireland through a referendum, shall be recognised."
Users tagged:
Mark Cooke Apr 15, 2015
I can't see why this is necessary. If people think that a new right is necessary, why can't it simply be added by the amendment process? All this seems to say is that if we think of anything new and add it later, it will count, Which is otiose, isn't it?
Of course this depends on whether popularly initiated referenda on the rights clauses are going to be included. This cuts both ways - if a simple majority can add rights, they can take them away.
Trevyn Case Apr 15, 2015
"The enumeration in the Constitution of certain rights shall not be construed to deny or trivialize other(s) retained by the people." Original wording, almost identical to the 9th amendment to the US constitution except for changing "disparage" to "trivialize."
Trevyn Case Apr 15, 2015
"Any rights deemed fundamental to a healthy democracy by the people of the UK, but not specifically listed, shall have the force of power as if they were listed and can be added to the text of the bill of rights by a simple referendum." My first revision, it was intended to have much the same meaning as the original idea, however give the people the power to either add rights the government refuses to give assent to, or emphasize rights that the government recognizes but that isn't well-known and should be.
Trevyn Case Apr 15, 2015
If anyone else has any wording suggestions, please post, if it is just a word tweak of one of the ones I posted, please post as a reply. If you disagree with my analysis, please post that as well. As for voting, please vote for the reply or comment which you like best. Sorry for not doing this earlier, didn't come to mind until recently.
Malcolm Ramsay Apr 16, 2015
I'd prefer something like:
The enumeration in the Constitution of certain rights does not exclude other rights being recognised as fundamental to a healthy, free society.
Mark Cooke Apr 16, 2015
I'm finding it very difficult to see the point of this clause. The last posting seems not to make logical sense. If rights are enumerated in the Constitution:
1) Obviously that does not preclude new ones being added by the amendment procedure, but
2) How can the courts be expected to enforce rights which are not enumerated?
So what practical effect is this clause meant to have? Is it meant to influence judicial decisions in some way?
Mark Cooke Apr 17, 2015
I don't dispute that courts do in practice accept that there are 'generally accepted uncontentious principles' such as natural justice. But that doesn't address my question of what practical effect the clause is likely to have.
There is a difference between operating according to principles and enforcing a specific right, which in any real circumstance is going to be contentious, otherwise there would not be any case to judge.