Rights

What are rights?  How do we define them?  The concept of a right in today’s power driven, power grabbing political class is a flexible concept that they can use to buy your vote.  But, if they can reclassify what is a right and then give them away for votes…  Yes, that is cynical, think deeply on that as we proceed and see if you don’t feel used by the end.  We must get back to the founding principles of a constrained government that protects our freedoms and liberties.  A government that keeps others from infringing on our rights.  The rights we hold that are not granted to us by any government or ruler.

The start of paragraph 2 of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Paragraph 1:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Unalienable Rights – Separate and equal station entitled by the laws of nature.  Those are very powerful statements.  It is a lot of responsibility for us to hold and maintain those rights, that station.  But, they are ours to lose.  The only guard is our vigilance to this concept and our demand to keep and have our rights protected, something we only gain through self-responsibility, self-governance.  Remember, the original constitution did not have a bill of rights, The first 10 amendments added after ratification.  The founders did not want to enumerate our rights and make it seem like they were given to us from our government.  If you read the first 10 amendments, they are really a refined set of restrictions on congress to protect specific rights we already had.  Well done really.

So, what is a Right?

To find a definition I had to search a lot of places.  A great start is John Locke.  His two treatises on government in 1690 were the basis for a lot of the founders thinking on liberty, rights, limited government and even wording in the Declaration of Independence.  It is worth a read and study on John Locke and Thomas Hobbes.  Some great philosophical thinkers from the Enlightment.   Side note:
John Locke expressed the radical view that government is morally obliged to serve people, namely by protecting life, liberty, and property. He explained the principle of checks and balances to limit government power. He favored representative government and a rule of law.

Definition of Unalienable Right:
Things which are not in commerce, [such] as public roads, are in their nature unalienable. Some things are unalienable, in consequence of particular provisions in the law forbidding their sale or transfer, as pensions granted by the government. The natural rights of life and liberty are UNALIENABLE. – Bouviers Law Dictionary 1856 Edition

John Locke wrote:
“Reason, which is that Law, teaches all Mankind, who would but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions…   A Liberty to follow my own Will in all things, where the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another Man.”

Rights are mutually exclusive, my right to life does not infringe on your right to life.   My right to my opinion and free expression does not infringe on your right to do so.  Note, that is slightly more refined than the simplistic free speech.  There are things I can say that begin to infringe on your rights, your safety, your protection and as a civil society we can make laws to limit harmful speech.  But, we must be very careful where we draw that line.  We do not have a right to NOT be offended.  Trying to protect that right would certainly infringe on others rights.  Policing thoughts and speech becomes a dangerous precedence.  If you want the right to free speech you must defend another’s right to speak their mind even if you do not like hearing what they have to say.  That is real liberty and freedom.  That is what it takes to defend your own rights.

A definition of Civil and Political rights:
A class of rights that protect individuals’ freedom from infringement by governments, social organizations, and private individuals, and which ensure one’s ability to participate in the civil and political life of the society and state without discrimination or repression.

Personally I would change that definition to Civil Rights protection laws.  A class of laws that protect an individuals’ rights and freedom…       … Right to pursue happiness.

So, do I have a right to health care?  Or a right to affordable healthcare?  I do not see a way to enforce/protect that right without infringing on another’s right.  Someone else would need to pay for or provide that healthcare.  I am under no obligation by even natural law to provide that service or “right” to another person.  Do not confuse that with a moral obligation or the “right thing to do”, to help my neighbor.  But, I should be able to help my neighbor under my own free will.  By choice, not by force.  Do not confuse what is right with a right.  We all have different opinions of what is right and we are free to have those opinions, but there is really no question on the unalienable rights.  Forced morality and charity is not compassion.  I also believe it breaks the laws of nature, has consequences and begins to erode our rights, not protect them.

I do have a right to pursue happiness (not be given, but to acquire by my own doing); vocation, property, find and procure reasonably priced healthcare from people willing to create that contract with me.  That is a right.  One me must honor and protect.  That is the market.  Remember the definition above, a right are things that are not in commerce.  Things that cannot be sold or transferred.  Let’s not confuse the market, the freedom of the market, the freedom to pursue, contract law and the guarantee of equal protection of the law by due process, with rights.  By the way, like Locke, I believe we only have the guarantee of equal protection, due process and the rule of law because we agree to not infringe on another’s rights as a society.  That agreement is aligned with natural law and the ramifications of not honoring natural law.  As the Declaration of Independence says:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

We gave up some of our rights and powers (infringed on ourselves) to give our government power and due process to protect our life, liberty and property, our right to pursue our needs, our happiness.

Conclusion:
Rights are ours to lose.  Use them wisely and responsibly.  Do not water them down by declaring everything a right in a selfish endeavor, or as a way to gain power, force others to do right.  If I have a right to food, housing, education, healthcare, etc… I am infringing on others rights to liberty, property and their own pursuit while they provide those “rights.”  I am diluting and eroding my own rights.  I must now support others through the “Arbitrary Will of another Man.” If we are Separate and equal in station, individual and equal, we must protect our rights and not infringe on another’s.   We must not vote for the politician that will promise us something at the expense of others, claiming it is a right!  Individual rights are the greatest promise.  The individual is the greatest minority that must be protected.

The Clauses – part I

Christmas may be over, but soon the 114th congress will be in session and the clauses will be used once again to expand the jurisdiction and help nationalize our federal government.

By clauses I am referring to:

  • General Welfare
  • Commerce
  • Equal protection
  • Establishment
  • Full faith and credit
  • Due Process
  • Supremacy

These are just a few.  The constitution is broken down into Articles, Sections and Clauses.  But the clauses must remain in context to understand the real meaning.  It seems very popular to use them out of context to make a case, make a federal case out of a topic of interest or cause one would like to see changed.  But it is most often, by convenience, a misreading of the constitution, a way around its restrictive, enumerated powers.  In general, a way to give the federal government jurisdiction over the issue and move the power away from local governments to the national level, to nationalize our federal government, create a one size fits all set of laws.  This is a dangerous precedence, one often allowed through ignorance of the constitution and federalism.  While you may think it’s great for your cause or issue when your party is making the claim, it will allow another party to make the same claim while taking an opposing view to yours.  It is a slippery slope and very often irreversible.  See my previous post on Jurisdiction and the Division Of Power, our founders planned for this by giving us federalism and a republic with dual sovereignty, sovereignty to our individual state and to the United States.

So let’s try to put the above clauses into context.  I personally prefer to error on the over restrictive side.  If there is a restriction at the federal level, it can be corrected or handled by state or local governments.  The states can be mini laboratories of democracy.  We can see how the practices work in other states before we change the law in our own state.  We also have options, an out, we can vote with our feet.  We can move to live under the laws we create and agree to.

“Laboratories of democracy” – is a phrase popularized by U.S. Supreme Court Justice Louis Brandeis in New State Ice Co. v. Liebmann to describe how a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939

General Welfare
The General Welfare clause shows up twice in the constitution.  In the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

And later in Article 1, Section 8 (in the enumerated powers)

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Note, Section 8 continues on to further enumerate the powers given to congress.  Section 9 further refines that power by restricting specific powers and Section 10 presents restrictions to the states.  But “general welfare” is in context of the union.  “In order to form a more perfect union and to provide a common defence and general welfare of the United States.”  The only time individuals are mentioned and it is still in a context of the total people of the United States is “Secure the blessings of Liberty to ourselves and our Posterity”   So the “General Welfare” is the security and liberty of the states.  To ensure that the states can continue and thrive to protect our life, liberty and property.  If the goal was to give up the power of the states, the states would have never ratified the constitution.

Also note that the start of Section 8 referenced above is also known as the “Spending Power”  Through the collection of money to pay debts, provide for the common defense and general welfare, congress has the power to tax and spend.  So, putting items in the scope of general welfare for spending purposes, increases the power of congress.  If congress funds it, congress can control it.

James Madison expressly said The Constitution does not give a general grant of legislative authority to Congress! – Rather, ours is a Constitution of enumerated powers only. If a power isn’t specifically granted to Congress in The Constitution, Congress doesn’t have the power.

Following the opening of Section 8 are approximately 20 enumerated powers granted to congress to carry out its “mission.”  as James Madison defended in Federalist 41:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

Commerce
Article I, Section 8 says “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  Generally taken to mean interstate commerce, foreign commerce and Indian commerce.  Commerce between two people in the same state are outside the jurisdiction of the federal government.  Furthermore, while it may even effect the greater commerce among the states, it is still not commerce taking place between or among states.  All important distinctions.  It would be very easy and this has been done many times over, for the federal government to get involved in intrastate commerce, therefore overreaching its power and nationalizing laws best dealt with by the states.  Never a good idea, even if you agree with the law being passed.  Never ever be ok with giving power away to a centralized group in a distant place.

Article I, Section 9 also says “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”  This does not protect the commerce of a state, it only stops the federal congress from favoring one state over the other, one port over another.  It also unites the states as a single entity for commerce.  Again, Section 9 is about things that congress cannot do, the restriction of power.  (thus protecting state’s rights and our liberties.)

Here is an excerpt from Wikipedia about a famous commerce clause case:

In Wickard v. Filburn (1942) the Court upheld the Agricultural Adjustment Act of 1938, which sought to stabilize wide fluctuations in the market price for wheat. The Court found that Congress could apply national quotas to wheat grown on one’s own land, for one’s own consumption, because the total of such local production and consumption could potentially be sufficiently large as to impact the overall national goal of stabilizing prices. The Court cited its recent Wrightwood decision and decided that “[w]hether the subject of the regulation in question was “production,” “consumption,” or “marketing” is, therefore, not material for purposes of deciding the question of federal power before us.” The Court re-iterated Marshall’s decision in Gibbons: “He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political, rather than from judicial, processes.” The Court also stated that “[t]he conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.” http://en.wikipedia.org/wiki/Commerce_Clause

So, this extended congress’s power to situations that had an effect on interstate commerce even when no interstate commerce had occurred.  Again, this may have felt like a good idea but, (I do not believe it was and do not feel that it is the federal governments job to stabilize the wide fluctuations in the market price for wheat) there are unintended consequences and it is hard to limit power when the test is “does it impact” rather than “is it” Interstate commerce.  There are many federal laws and regulations that are deemed constitutional because they are trying to limit the “impact” on interstate commerce.  By whose measure?  Using what specific enumerated power?

The following link has a list of famous Commerce Clause cases.  While the goal and outcome of the case may be admirable, using the commerce clause to give congress jurisdiction is a reach in many of the cases, see what you think, or how you read them now, knowing this.  Remember once the power is given, the jurisdiction expanded, precedence set, it is hard if not impossible to reverse.  http://www.lawnix.com/cases/commerce-clause.html

Many of F.D.R’s new deal programs were being struck down by the supreme court as unconstitutional based on the commerce clause and a more strict reading of the constitutional intent.  In 1936 F.D.R set out to “pack” the supreme court with his “Judicial Procedures Reform” bill of 1937 in which he could basically appoint an additional justice to the court, up to a maximum of six, for every member of the court over the age of 70 1/2 years.  This could have expanded the bench up to 15 justices, the constitution does not prescribe the makeup of the supreme court.  The bill was held up in the senate judiciary committee.  Meanwhile the decision rendered in the West Coast Hotel Co. v. Parrish case in favor of the new deal was released and seen as a retreat by the justices and became known as “The switch in time saved nine.”  There were many cases that followed, greatly expanding congresses power, specifically using the commerce clause.  Even though the actual power was not granted in the constitution.  Just as Madison claimed was not possible or intended and concerned his adversaries.  Just as other powers were expanded with these clauses taken out of context.

I will cover the other clauses in the next post.