Relying on common law and tradition limited the power of those in the present. It shackles politicians and judges alike in order to limit them and protect us.
Those rights will be replaced with the made up rights found in civil law European nationals, particularly when it comes to “balancing rights”. Any right that can be balanced can be balanced away and voided.
The recent Supreme Court cases over Obamacare and Same-Sex Marriage are the tipping point where invented “rights” trump the musty old annals of Common Law and shared existence. One such invented right is the “right to dignity“
To understand how revolutionary, in every Jacobin sense of the term, one must understand how things worked before this brave new world was thrust upon us:
“In Glucksberg, the Supreme Court reversed the Ninth Circuit’s holding that the Constitution contains a substantive-due-process right to assisted suicide. Substantive due process is a doctrine under which courts may discover and enforce unenumerated constitutional rights. The Supreme Court stated that in order to find a substantive-due-process right, a court would have to determine that the right, based on a ‘careful description’ of what it included, was ‘objectively deeply rooted in this Nation’s history and tradition.’
“…
“Under the Glucksberg standard, same-sex marriage has no roots whatsoever in American history, and the existence of a general right to marriage does not help. The right to marry might be deeply rooted, but nearly every state for nearly all of American history has limited marriage to individuals of opposite sexes.
“Rather than admitting that there was no substantive-due-process right to same-sex marriage, Justice Kennedy buried Glucksberg. He acknowledged that the Glucksberg test ‘may have been appropriate’ when talking about assisted suicide, but claimed that a more lenient approach is appropriate when ‘discussing other fundamental rights.’
“With Glucksberg out of the way, he had no need to find a historical right to same-sex marriage so long as he could find a more general right that could conceivably encompass it. Kennedy made this doctrinal change without any substantive legal analysis or explanation as to why the seemingly sensible limitation on judicial power should be lifted.
“Not satisfied with simply removing Glucksberg’s ‘careful description’ requirement, he also called into question its ‘rooted in this Nation’s history and tradition’ requirement. Kennedy stated that ‘rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.'”
One but has to real the Preamble of the Bill of Rights to see that rights, properly understood, preexist any acknowledgement. Rights were not invented, for the Bill of Rights were simply “declaratory and restrictive clauses” that acknowledged what already existed.
The Obamacare decision, itself being primarily an enabling act that trumps the separation of powers, is the final nail in the coffin of a Constitutional system that used to divide the government up into executive, legislative, and judicial branches, but now has become de facto rule by unelected oligarchs.
That the Supreme Court declared that “established by the state” didn’t mean what it said does nothing but confirm the Humpty Dumpty nature of our brave new Progressive world.
"Victory!"
Rather than the rule of law, we have a situation where rights can come and go according to the arbitrary decision of broad and vacuous intent. The rule of law served to bind the government; the Progressive view is that the government should bind the law. Now, with conflicting rights, we have the idea of “balancing” rights against each other, either exulting or diminishing one right over another based on some vague government desire.
This is the ideology seen in the South African and Namibian constitutions which declare for equal rights yet guarantee inequality through Affirmative Action.
And what is the desire of the Progressives?
“90% of the left’s attempts at social control are simply attempt to outlaw behaviors they perceived as favored or engaged in by ‘traditional’ ‘conservative’ ‘old-school’ ‘white’ etc. people.”
In effect, cultural and social genocide.
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