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Comment by vec | Hacker News Reader

Speaking as a progressive, that's because most of us consider the US Constitution to be a means, rather than an end unto itself. We tend to make a strong distinction between Natural and Legal Rights[1] and to group the Constitution into the latter category. And Legal Rights are useful only insofar as they align with the underlying Natural Rights they support (i.e. life, liberty, and the pursuit of happiness).

Our constitution is extremely useful. It's among the best systems for protecting our rights that we as humans seem to have devised, and we disregard the wisdom it encodes at our own peril. But that doesn't mean it's either perfect or sacred. If a law is actively harming (or negligently failing to protect) the inherent worth and dignity of every human being, then that law is wrong by definition, and I've yet to hear an argument that the Bill of Rights is exempt from that analysis.

[1] https://en.wikipedia.org/wiki/Natural_and_legal_rights

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> We tend to make a strong distinction between Natural and Legal Rights[1] and to group the Constitution into the latter category

The framers debated the inclusion of the Bill of Rights in the US Constitution for the simple fact that enumerating the rights made them appear though they were "granted" or in your words "Legal Rights." Furthermore, just by entertaining the idea that they should be explicitly enumerated, called into question whether they were "inalienable". However, they fully believed that those first ten amendments were "Natural Rights". In the end, they felt that enumerating them worthy, and given how the amendments are treated/respected/discussed and the litigous environment today - I'm glad they did.

Yes, the framers did debate whether to include the Bill of Rights, but my understanding is that their fear was that by enumerating some rights it would delegitimize those that were not enumerated. That's why we have a (mostly ignored) tenth amendment.

Plus the Bill of Rights aren't quite Natural rights as I understand them. Half the Bill of Rights (plus the 13th and 14th amendments) are about setting up a Legal Right to a somewhat complex and specific trial by jury system. But you don't actually have a Natural Right to participation in that exact system. You do have a Natural Right to just and fair treatment from your government, even when accused of a crime, and a jury trial is a very good way (though not necessarily the only good way, nor the absolute best way) to formalize that right.

On the other hand, I believe I have a Natural Right to bodily autonomy. If I want to surgically change my gender, or have sex with another consenting adult, or ingest a mind-altering substance with full knowledge of the side effects, then that's my right and the Government should have an extremely high bar to clear in order to prevent me from doing so. However, the fact that these rights are not enumerated in the Constitution has historically been a huge barrier to having them respected, which indicates to me that the framers fears were well founded.

> The framers debated the inclusion of the Bill of Rights in the US Constitution for the simple fact that enumerating the rights made them appear though they were "granted" or in your words "Legal Rights."

No, they debated them because any enumeration would fail to be exhaustive, and they wanted to avoid omissions from negating rights. There was no mistake on either side that the rights written into law would be legal rights, even if they were motivated by conceptions of natural rights.

The confusion of the Bill of Rights with a statement of natural rights rather than a set of legal rights designed to achieve goals set by moral principles which include a particular concept of natural rights is a more recent phenomenon.

Speaking as a liberal who refuses to identify as progressive, this kind of thing - the idea that e.g. freedom of speech is a legal rather than a natural right, and that the only natural right a person have is basically "to be happy" - is one of the reasons why.

To address your specific point, by itself, speech cannot harm the worth and dignity of any human being. Worse yet, what constitutes "worth" and "dignity" is so extremely subjective and culturally relative, that any such analysis would be the same. Because of that, I dare say that it is a poor basis for legal constructs. We should stick to laws that reflect measurable, objective harm, and use other mechanisms to deal with things like these.

For example, hate speech is best dealt with not by fines and prison terms (which tends to create martyrs out of those people, and boost their propaganda - "if they're trying to silence them, they must be saying something important"), but by voluntary boycotts, public shaming and other forms of social ostracism. This makes the definition of "hate speech" fluid, subject only to the social mores of the given era - as it should be. It also means that no idea can be completely silenced solely on account of being offensive, which is important to ensure true political freedom.

Speaking as a progressive, you shouldn't buy into Republican framing here. Republicans are adamant about changing, misinterpreting or ignoring the constitution when it suits them.

As progressives actively attack the 1st, 2nd, 4th, and totally blown out the 10th.

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