Wednesday, January 19, 2011

Intro: Part One


The enormous expense of Governments has provoked people to think, by making them feel; and when once the veil begins to rend, it admits not of repair. Ignorance is of a peculiar nature: and once dispelled, it is impossible to reestablish it. It is not originally a thing of itself, but is only the absence of knowledge; and though man may be kept ignorant, he cannot be made ignorant.
Rights of Man, Thomas Paine, 1791

Here is a simple question: what is a right? The question became important when I became involved in the formation of the American Conservative Party. As a gay conservative I was constantly dealing with individuals that ‘knew’ exactly what rights we had and it was often a rather short list. In discussions on the limits of government and the principles of liberty, rights were constantly being debated.

In May 2008 I was challenged during an online debate to state my system for determining what rights were ‘correct’ and which were no more than the ranting of a lunatic or the justification of a tyrant.

You are going to have to answer the question of where our rights originate before this discussion can go anywhere. Just saying that we have them isn't an explanation, but the absence of an explanation.

At the time I had given my positions some thought but the challenge galvanized me into spending time and considerably more effort on giving those positions substance. In the process certain aspects changed. Some will consider my journey to be one deeper into the rabbit hole. For myself, I am willing to go where the premises I set took me. I don’t always like some conclusions, but if they are sound, my like or dislike is irrelevant.

What premises do I stand by? 1) The individual is sovereign. We are the masters of ourselves. 2) All rights are inherent in us. Rights exist because we exist. The foundation of rights can be found in each of us.

If I were going to honestly take up the challenge, I was going to have to find support for my premises AND where they led me.

It took a year to find my starting point. Thomas Hobbes and John Locke were known to the Founding Fathers. Thomas Paine and Jean-Jacques Rousseau were contemporaries. Many of the concepts of liberty and rights stated by these men influenced our founding principles. Our founding codified individual liberty and rights in ways that changed the world.

In Thomas Hobbes’ (1588-1679) Leviathan (1651), Hobbes took his observations on the natural state of man…

“Nature hath made man so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind that another, yet when all is reckoned together the difference between man and man is not so considerable…”

…and considered the State necessary for human progress:

“…that is to say, of getting themselves out from that miserable condition of war which is necessarily consequent, as has been shown, to the natural passions of men when there is no visable power to keep them in awe, and tie them by fear of punishment to the performance of their covenants…”

When John Locke (1632-1704) struck pen to paper, he made the same observation Hobbes declared as a natural state of man:

“Man being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of Nature, equally with any other man…”

He came to a similar conclusion – government was necessary

“…and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant that civil government is the proper remedy for the inconveniences of the state of Nature...”

Not just necessary and proper, but with authority forever over all…

“The power that every individual gave the society when he entered into it can never revert to the individuals again, as long as society lasts, but will always remain in the community”

Jean-Jacques Rousseau (1712-1778) published The Social Contract in 1762 seeking to:

“…examine whether, in the ordering of society, there can be any reliable and legitimate rule of administration, taking men as they are, and laws as they can be.”

After much effort to establish man as the source of legitimate authority for “administration”, he all but takes away man’s freedom, subjugating it to the Society as controlled by the State, for their freedom and benefit, of course.

“In order therefore that the social pact should not be an empty formula, it contains an implicit obligation which alone can give force to the others, that if anyone refuses to obey the general will he will be compelled to do so by the whole body; which means nothing else than that he will be forced to be free; for such is the condition which, giving each citizen to his country, guarantees that he will not depend on any person. This condition is the device that ensures the operation of the political machine.”

Ordered liberty, or ordered existence? Edmund Burke (1729-1797):

“I should, therefore, suspend my congratulations on the new liberty of France until I was informed how it had been combined with government, with public force, with the discipline and obedience of armies, with the collection of an effective and well-distributed revenue, with morality and religion, with the solidity of property, with peace and order, with civil and social manners. All these (in their way) are good things, too, and without them liberty is not a benefit whilst it lasts, and is not likely to continue long.”

Burke, a favorite of today’s conservatives, was firm in his opinions on the French Revolution and the concept of a government by the people:

It is claimed that “…the people of England have acquired three fundamental rights, all which, with him, compose one system, and lie together in one short sentence; namely, that we have acquired a right
“To choose our own governors.”
“To cashier them for misconduct.”
“To frame a government for ourselves.”
This new, and hitherto unheard-of, bill of rights, though made in the name of the whole people, belongs to those gentlemen and their faction only. The body of the people of England have no share in it. They utterly disclaim it. They will resist the practical assertion of it with their lives and fortunes. They are bound to do so by the laws of their country, made at the time of that very Revolution which is appealed to in favour of the fictitious rights claimed by the Society which abuses its name.“


“The very idea of the fabrication of a new government is enough to fill us with disgust and horror.”

Paine destroyed Burke’s assertions on the benefits and necessity of rule by monarchies:

“Society in every state is a blessing, but government even in its best state is but a necessary evil, in its worse state an intolerable one.”

“A greater absurdity cannot present itself to the understanding of man than what Mr. Burke offers to his readers. He tells them, and he tells the world to come, that a certain body of men who existed a hundred years ago, made a law, and that there does not now exist in the Nation, nor ever will, nor ever can, a power to alter it. Under how many subtilties or absurdities has the divine right to govern been imposed on the credulity of mankind! Mr. Burke has discovered a new one, and he has shortened his journey to Rome by appealing to the power of this infallible Parliament of former days; and he produces what it has done as of divine authority, for that power must certainly be more than human which no human power to the end of time can alter.”

His passionate arguments in Common Sense helped to fan the flame of independence. Paine thought government necessary, but the best government was the simplest:

“Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. Freedom and security.”

Thomas Jefferson (1743-1826) of course disagreed with Burke; in the Declaration of Independence took square aim at government and fired a devastating broadside:

“Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Government was and is the servant; the people, as sovereigns, were the masters and only the free exercise of sovereignty by the people gave government any legitimacy and authority. Fundamental rights and authority began and remained with the individual. Government and society were beneficial as long as they served the individual.

It is a natural progression from individual to family to community to society but at no point is government as an entity either natural or preordained. Up to that point, man was a beast and needed to be tamed. The American Revolution said, no. Man could order his affairs. Individuals had the right to do so. Government was but a tool of society, not the pinnacle of it:

“Some writers have so confounded society with government, as to leave little or no distinction between them;”

But society was not and is not in every state a blessing as John Stuart Mill (1806-1873) would note in On Liberty (1859):

“Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.”

His response made clear the limits of a beneficial society (or State):

“…to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Looking back at the writings of Hobbes, Locke, Paine, Jefferson and Mill, the thread is there to follow: man (beast that he could be) was the source of legitimate government and authorities. If a system of constraints could be formulated that would limit his more base passions without creating despots and tyrannies, the result would benefit all mankind. Jefferson laid the foundation:

“…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.”

But on this point he was very wrong:

“We hold these truths to be self-evident…”

My goal is to define what a right is, determine their origins, and establish their limits.

After reading the authors quoted here, it was clear the issues had been of concern long before I came around and that one set of answers formed the foundation of our United States. So many of their concerns are still relevant today and their observations continue to enlighten.

The world and society were slowly evolving 230 years ago, a process that has sped up considerably in the last 50 years. It is time to revisit the questions and some of the observations. In his introduction to Common Sense, Thomas Paine offered more hope for his point of view than I do mine:

“Perhaps the sentiments contained in the following pages are not yet sufficiently fashionable to procure them general favor; a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of custom. But the tumult soon subsides. Time makes more converts than reason.”

In Part One I lay out a definition and origin for rights. In Part Two I look at how rights serve as a foundation for government management of rights and in Part Three I discuss some of the issues and considerations.

PART ONE: The Origin of Rights

…we must consider what estate all men are naturally in…

The Natural State of We, the people…

Alive. We know the mechanism now. One sperm, leaving the man; one egg leaving the ovary. Both alive. And when the sperm finds the egg, cleaving the surface and entering, becoming one. Alive.

The zygote and the gamete are both human cells. Carrying genetic material, by themselves, they are dead ends. Only joined together do we get true potential. Together they carry the genetic blueprint but without purpose, without a goal.

The genetic blueprint begins with a very basic function: Grow, divide; grow, divide. Eventually the cells begin to differentiate, to specialize. But there is no free will, no decisions; no choices are being made. The first cell grows and divides according to the blueprint. The cell becomes a million cells and still, no decisions are being made, no choices are being considered. Living and yet doing only what is laid out by the genetic blueprint.

As cells differentiate, structures form and coordination between the various parts form patterns we recognize as a ‘human’. The coordination is not choice, it is not a consciousness imposing direction or control. The child, however recognizable, lacks the structure and internal integrity to exercise any control over itself. S/he, is still just following the genetic blueprint already provided.

Yet, somewhere down the line, after 18-20 weeks, the child stirs . The first actions are not according to any blueprint, they are not written into the genes. No protein map that says on the 149th day, kick the left leg. Is it a choice? A decision made? Or just a random firing of neurons beginning to establish pathways and connections?

We know the brain begins to show activity well before this point, but all the action appears to be ‘internal’ to the brain structure.

First, intermittent electroencephalograpic bursts in both cerebral hemispheres are first seen at 20 weeks gestation; they become sustained at 22 weeks and bilaterally synchronous at 26 to 27 weeks.

Actual physical control of the body by a specific ‘thought’ in the brain - if it is occurring - is beyond our ability to detect. Even if it is occurring, it does not appear to be anything more than a localized biological response to some stimuli. It does not appear that the brain is telling a part of the body, move.

For all the technology available to us today, we can see brain activity but we can not tap in and listen to the ‘conversation’. Those first thoughts, maybe fleeting sparks of awareness, belong uniquely, within the brain. For the entire life of the child each thought will occur away from anyone else’s knowledge or understanding - unless s/he chooses to share them with others. And from those first thoughts, the plan built into our genes begins to turn over control of the body to the consciousness growing and learning within.

Despite the growing complexity of brain activity, there does not appear to be a ‘thought process’ going on. The child’s brain is reacting to its body, which is reacting to the environment it is in. Stimulus causes reaction. The mother hums a tune, eats a spicy meal. Becomes scared, becomes excited. Each of these events causes the environment the child is in to change and the child’s body reacts. Specific sounds excite or calm the child. Is the child thinking, “ah, mom is singing that song I like”? Does the mother’s state of mind while singing cause a release of hormones that cause a specific reaction in the brain of the child? Is this thinking? Is this the infant brain making choices? Relax? Rest? We don’t know. Our technology can register the reaction, see the change. We can measure the change in hormones, know that they have an impact, but KNOW if there is a specific choice being made?

“There be in animals two sorts of motions peculiar to them: One called vital, begun in generation, and continued without interruption through their whole life; such as the course of blood, the pulse, the breathing, the concoction, nutrition, excretion, etc; to which motion there needs no help of imagination; the other is animal motion, otherwise voluntary motion; as to go, to speak, to move any of our limbs, in such manner as is first fancied in our minds.

…And because going, speaking, and the like voluntary motions depend always upon a precedent thought of whither, which way, and what, it is evident that the imagination is the first internal beginning of all voluntary motion.”

Many of the first actions we take as humans are based on direct reaction to specific environmental stimulus. The actions are basic, almost completely automatic. Our bodies make demands, we respond. That does not change, will never change. From birth until death, we will seek food when hungry. We will seek sleep when tired. We will seek a bathroom (or similar) when we need to relieve ourselves. We can decide to ignore those bodily demands, for a time. Eventually the body will override our decisions. In a few cases, even when hunger is ignored for days and weeks, the body will respond, until it can no longer survive.

The process of learning how to react, how to respond, how to control our bodies begins as the brain begins to assume control over the body before birth and continues with certain immediacy after birth. It is a process that will go on for a lifetime.

With very few exceptions, this is the process every human goes through. With very few exceptions we can predict the process with a high degree of accuracy. Whether our parents were rich or poor, educated or not, king or pauper, each of us began this way. We are all born with certain characteristics regardless of race, gender, class, religion or income. We have a heart that beats, lungs that breathe, a body that moves and a brain that thinks.

“Nature hath made man so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind that another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he.”

The Law of Nature or the Character of Nature

“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;”

A law of nature, lex naturalis, is a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved.”

Hobbes and Locke suggest that the law of nature has two components: state – that condition of being equal and independent, and consequence - the result of reason no one can harm another.

Of the state of nature:

We know that in each species, there is a set of characteristics that apply to all offspring, each equal and independent. We know there is a considerable range of possibilities within those characteristics: weight, height, potential for intelligence, propensity for exceeding – for better or worse – the parents. These natural variations give rise to diversity in the population. It is the purpose of nature to encourage this diversity. However, nature does not need that all individuals survive or that any one should prevail. The goal of nature is to give each species the chance to grow and thrive, but it is indifferent to individual life. To Nature each individual is as good for it’s purpose as any other is.

Each species however has a great desire that each individual survive. Unlike Natures indifference, each species seeks to nurture those individuals most likely to help carry the species into the future. For the weak, infirm, and elderly incapable of perpetuation the species, there is no future. The species seek the strongest at the expense of the weakest and will cull itself of the non-performers. Each species has a biological imperative that force beneficial (to the species) behaviors on individuals. In humans we call it morality.

Nature may be indifferent to the individual, but we are not. Unlike other ‘species’, we have free will. We can ignore the imperatives and support the weak, the infirm and the elderly. We have the ability and liberty to choose for ourselves; individuals can choose to ignore or conform to the purpose of nature.

“And because the condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against everyone, in which case everyone is governed by his own reason…”

Of the consequence of nature:

Hobbes and Locke may reason that as a consequence of all being equal and independent, we should not harm ourselves or each other, but that ignores the nature that they find us in ‘a state of war’. Here is how I think they get to their erroneous conclusion:

All equal means none have more claim or authority than any other on resources needed for survival. As the species grows in number, competition for resources increases. The diversity inherent in human characteristics grants a natural INEQUALITY in abilities; some individuals will be able to take more than their share of resources. It benefits all individuals to work together to insure everyone has access to resources. For Hobbes and Locke (and many others), in the face of natures competition, working together insures that all survive.

Reason dictates that if an individual threatens another, the transgression can call down upon him or her a forceful response threatening their own survival. It is a form of self preservation that dictates to individuals that threats to others should be avoided.

Nature has no such reason. Nature does not need nor expect that all individuals survive or procreate. Competition within and between species is one of the characteristics of the law of nature. Once an individual ceases being useful, a species is as indifferent as nature itself.

In early humans, competition often resulted in death. It is the ‘state of war’ that Hobbes spoke of. The only change that has occurred over the centuries is we have channeled that competition into non-fatal (usually) sports. Species (even homosapiens) continue to encourage competition; the biological imperative is strong.

Like the state of nature, humans can impose reason over competition; we can impose free will over the biological imperative. Liberty is not bound by nature. The law of nature is for the unthinking animals. Humanity, expressing a thought, exceeds the limits of nature and sets for itself, each one of us, our own path through life.

Such is the human condition: a part of nature, but by free will, unbound from the indifference of nature and free to choose compassion over competition. These characteristics are part of the human condition and are the foundation of the statement: all men are created equal.

“I think….”

What is the nature of thought? Thought is the physical action of the brain. When thought occurs, our body responds. For a thought to occur we need some things. The brain must have structure and integrity, it must have resources such as nutrients and energy, and it must have impulse such as internal or external stimulus.

When these things are in place, thought is possible. From thought comes action. The body responds to the brain’s thoughts. Whether it is autonomic such as breathing, or conscious, such as running, the thought proceeds the action. A specific thought expressed as an action is unique to each individual human; the process of thinking and acting is integral to the physical structures of each human.

The human condition grants no one greater, nor less authority or station than another. At birth, the groomsman and the prince share the human condition equally. Every human needs air to breathe, food to nourish and water to drink. These needs are the primary or fundamental impulses that stimulate thought.

Never, have our thoughts been subject to review, interpretation, interception or modification by another person. Every thought that has ever moved within our minds belongs to us. We may choose to share them with others, we may act in ways that people can interpret as a response to a thought we have had, but the thought is ours alone forever. It can not be taken by another, it can not be restricted, or limited by another. The owner of the thought is without question, the human in which it is formed.

Thought is an expression of free will. It requires effort on the part of the individual. A thought is the sole property of the individual. A thought, by itself, exists only as long as the individual holds it. Whether the thought continues, whether it is expanded, or restricted is the choice and responsibility of the individual.

This is freedom – the source of liberty. The absolute, unrestricted act of thought that finds its expression in every single human being. It does not find its source in government or society; by document or decree. It occurs without leave or permission from another or all. It is inherent in every human, by nature of our existence. It can not be denied or refused; it is inalienable. The absolute freedom exists as long as we exist.

Our thoughts are ours until we decide to share them with others. It is always, in every way , our choice whether a thought comes out from behind the curtain. We own our thoughts and we own the actions that result from those thoughts. As the means of having and holding those thoughts is ours, the thought is ours. This ownership is the essence of individuality.

“In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign”.

If we own the thought then we own the action that expresses that thought and the consequences thereof. You can not separate the act from its consequences. The structure that allows thought, the thought held and expressed by an act and the consequences of that act form an unbroken physical chain unique to each individual. This is part of the foundation of personal responsibility.

Actions are an expression of our thoughts. In order to satisfy the needs of the human condition, we need to express our thoughts with certain actions. All actions necessary for the continuation of an individual are fundamental to their existence and the need to freely express those acts is absolute. The human condition demands that we express those acts.

“But though this be a state of liberty, yet it is not a state of licence; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it.”

The actions are required because we exist and because our existence depends on them.

Before there is an act, there must be a will to act. And before there is a will to act, there must be a thought. Without thought, there is no free will. Free will is the physical expression of thought. It can not be restricted except by our own desire/choice. It can not be denied except by our own limitations.

Two impulses create thought: needs and desire. We share needs – they are part of the human condition. Desire is that aspect that Jefferson called the ‘pursuit of happiness’; it is no less fundamental to the human condition. We are more than bare existence. We seek to satisfy our fundamental needs but they are more than just breathing, eating and existing. We seek companionship and we seek to extend ourselves with children and accomplishments. The actions that allow us these pursuits are as necessary to our well being as the food we eat. Each of these needs stimulate thoughts that seek to be expressed by actions.

Thought exists within the individual, unless the individual expresses that thought, either directly or by expressing an action, it remains out of sight from others. This is the foundation of privacy. Every act belongs to the individual as do the consequences of those acts. Privacy is ownership of thought and the individuals ability to limit the expression of that thought.

Attempts to restrict the free expression of fundamental actions are a threat to the individual. We have the need to protect our freedom to express fundamental actions. This is the completion of the foundation of personal responsibility. It is a fundamental characteristic of the human condition to desire to continue to exist. The species seeks to maximize the individual and each individual seeks no less.

Threats to the individual can be dealt with by any means such that the threat ceases to be either imminent or persistent.

“And consequently it is a precept, or general rule of reason: that everyman ought to endeavor to peace, as far as he hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war. The first branch of which rule containeth the first and fundamental law of nature, which is to seek peace and follow it. The second, the sum of the right of nature, which is: by all means we can defend ourselves.”

“In transgressing the law of Nature* the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men for their mutual security, and so he becomes dangerous to mankind;

….the execution of the law of nature is in that state put into every man’s hands, whereby everyone has a right to punish the transgressors of that law to such a degree as may hinder its violation.”

* that being all equal and independent, no one ought
harm another in his life, health, liberty or possessions.

Obviously Locke is not suggesting that the character of “equal and independent’ is being transgressed, but rather the violation of consequence or the precept that one should not harm another or self. It is the state of nature that competition exists and that competition is often fatal. Competition does not always exist between individuals and species. If the needs of the individual or group are being met, there is no competition for resources. Among humans, if each individual’s needs are being met, competition is social interaction. Unlike species of animals, humans have the ability to work together (in situations of scarce resources) rather than in competition. Once again, humans can exceed nature by exercising free will. However, individuals (or groups) that act to obtain more than their needs at the expense of others have interfered in the ability of others to satisfy their needs, such an act is the nature of the transgression.

There is nothing in the human condition that prevents such transgressions except reason. These types of acts are threats to others. When they are acts expressed solely for the pleasure of individuals, we call them evil. When these evil/threatening thoughts are expressed, it is part of the human condition to seek to limit, restrict or stop them. This is the foundation of self-defense.
I have the need to breathe, if you attempt to prevent me from fulfilling that need, you have proclaimed to all humanity that you are willing to deprive others of their needs; that your reasoning has determined denying the needs of another is acceptable or desirable. Such reasoning is a threat that needs to be faced or addressed, as you would do any such threat to your existence.

What actions are fundamental? If eating is fundamental is gathering food fundamental? Is preparing or cultivating food fundamental? Any action necessary for the free expression of a fundamental act is not subject to limit, restriction or denial EXCEPT when the act threatens others.

The individual has the need to express fundamental thoughts and to defend against attempts to limit, restrict or deny those needs. Actions by individuals, groups or societies to limit, restrict or deny that freedom are a threat to the individual and all individuals and are therefore subject to any action to prevent or eliminate that threat.


At this point, we need to define responsibility as it relates to the individual expression of actions. Any stimulus can provoke a thought, but our free will determines what happens next. Do we keep the thought or dismiss it? Do we express the thought through action? These are our choices; this is our free will in action. We can be coerced, threatened or encouraged but it is our choice what happens next. It is the fundamental nature of thought that gives us both the ownership and the responsibility for them. Many people will make lots of arguments that coercion can be extreme, that stimulus can be so well known and defined that specific thoughts can be forced to be expressed. In each and every case, once the thought exists, it is the free will of the individual, the choice of the individual, to dismiss, hold or express a thought. Individuals are solely and always responsible for the expression of a thought by their actions and the consequences thereof. I can not hold you responsible for my thoughts and actions. I own my thoughts, I choose to express them by acting. I am responsible for them. You can not hold me responsible for your thoughts and actions. You own your thoughts, you choose to express them. You are responsible for them. Each of us have thoughts, express them and are responsible for those actions. As long as those actions do not threaten another, there is no limit to the number of possible actions we may take.

“…though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself…”

In this Locke was wrong. He said it but either couldn’t see it or wouldn’t see it. Slavery was/is a choice. If every thought belongs to you and every act and consequence likewise, then being a slave is a consequence of the choice to accept servitude or the alternative (often death). There is no slavery except by choice:

“For whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw down on himself the death he desires.”

Death can be a choice. When the burdens of life exceed the value an individual holds for it, they choose to die or not to continue to fight for life. For many, this is the final expression of a fundamental thought and they have just as much freedom to express it as any other fundamental act.

The Island

Last night you went to bed, comfortable in your life. This morning you awoke, alone, on an island somewhere in the middle of an unknown sea or ocean. After the required yelling to find out who is playing a trick on you, or where the cameras are hiding, you determine you are, in fact, alone. Your sense of organization kicks in, or is it just your hunger, and you set off to find the necessary requirements for sustaining your life, at least for the next couple of hours.

A day spent exploring your island confirms a growing suspicion that if you are going to survive, it will be up to your imagination, your abilities and the resources available to you. Today, you are the king of your domain. Survivability is the only rule. Over the next several weeks, you gather food, water and the materials to build some shelter. You took what was needed, you choose a place to build, and you soiled the previously pristine environment. You did what was necessary to survive. Soon, certain routines became established, but whether something was done on a Monday or a Thursday was as irrelevant as whether it was Monday or Thursday. You sought food and water when necessary, repaired your shelter when it needed it. Whether you sat back and waited for whatever came next or strove to alter your circumstances, each day was devoted to ensuring the next.

Without exception, every action you took was either to further your survival, or increase the comfort of your situation. You required no permission, no license or grant. If you could imagine an action, if you had the ability and the resources, you could take that action. Every action had direct consequences. A failure to obtain water meant thirst. Cause and effect came unbuffered. Soon you learned which actions would benefit you, and which would make you uncomfortable or take you to the brink of death. Those choices became rules for your survival.

If you were the type that thinks from a philosophical point of view, you would probably note that you had absolute freedom to do whatever you wanted. Only your imagination, abilities, resources and the consequences of your actions could limit your choices. It doesn’t take many false steps to realize the need to consider both choice and outcome. Yet, there is no denying the freedom to express whatever thought comes to your mind.

No one granted you that freedom. It was not handed to you, or provided by decree. That ability to act with complete freedom is inherent in the situation. Alone on an island, there is no government or society to impose limits on your actions. On the island, you have the complete freedom to act in any way that your imagination, your abilities, the resources and the consequences allow. You are the king of the realm, the sovereign of the island.

Then one day, another person appeared. After the requisite yelling and shouting, you stood staring at each other. Effective immediately, all your resources were cut in half...or were they? What did you owe this new person? You had already ascertained food and water resources, built shelter and established your domain. What right did this new person have to what you had worked so hard to establish?

Here was someone, like you, stranded. A short conversation revealed he too went to sleep one night and woke up to find himself relocated, no lock, no stock, no barrel. Although two would now divide your available resources, you gained the additional human resource of new imagination, new abilities and a second pair of hands. Knowing that your food and water resources would be sufficient to support both of you, you offered your new domain partner support and friendship. In return, he offered friendship and a chance to double your labor pool.

As of that day, your freedom to express yourself completely and freely ended. Some boundaries would be established, some limitations imposed. You would teach your friend the rules you learned the hard way. Society had come to your little island.

Your ability to express yourself did not end with the appearance of a second person, you imposed a limit on it. Society, such that it exists on the island, imposes limitations upon you. It is done with your agreement because you want to ‘improve’ your situation on the island, not create dissension. This is the fundamental purpose of society, to create a means for individuals to freely express their actions and to establish boundaries for each member in doing so. For the benefit of all, each of us gives up some freedom to act. Our ability to express ourselves does not disappear, the options available become self-limited.


How many of the actions we take for granted today didn’t exist three thousand years ago? How many actions are based on knowledge that didn’t exist two hundred years ago? Today, children are taught actions in elementary school based on knowledge that was unique to specialists just a decade or two ago. As knowledge grows humans take that information and combine it in new and unique ways, thinking new thoughts that need new actions to express them. While the number of possible acts is infinite, there are only three types of limits on the ability to express thoughts through actions:

Limits by Nature: Knowledge, ability and resources.
Limits by Self: Consequences, free will.
Limits by Force: Individual, State/government

Limits: By Nature

There are natural limits on the actions that individuals express. As many will attest to, I am tone deaf. I can sing, but most people want me to avoid it at all costs. When I sing it generally offends people in earshot. The first person to sing did not know about scales or tone. They just ‘sang’. (I acknowledge the first ‘singing’ was probably more like humming, non-information bearing sounds that were pleasing to the singer and hopeful those around him or her.)

There is a foundation of knowledge that must exist prior to the thoughts that require a new action. Individuals are limited by their own knowledge and abilities and any thought they express is equally limited. Each new action is based on the knowledge and actions of those that preceded it.

The ability and knowledge to act are part of the human condition. Without the ability to make sounds, there is no singing. Without the ability to hear, there is no need (or desire) for singing. This does not mean that a deaf person can not sing. Singing exists in the knowledge base of humanity and is therefore available to all with the knowledge of it, with or without the ability to express it.

The knowledge base of actions belongs to all humans. Once established, the action is universal even to those of us without the ability. If one person lacks the resources to act specifically, the act still exists. For each human, singing exists even if they lack the ability (tone deaf) or the resources (vocal cords).

Some actions are so basic that only individual abilities, knowledge and resources will limit their expression. With few exceptions, every individual will be able to express them as their abilities as humans expand with their knowledge. The range of actions has expanded slowly as history progressed. Limited access to natural resources and individual abilities made basic actions all that could be imagined. Small groups of nomadic humans formed to expand the abilities and resources available so that they could express their few actions with fewer inherent limitations. A new action might be expressed in China but not seen in Europe for decades or even centuries. Other actions were resource dependent to the extent that groups closely guarded access to the resource, limiting the ability of other groups to know or express an action such as bronze making. Every new resource would prompt a flurry of innovation of thought and action.

Every action requires physical qualities and knowledge that the action is possible. For most basic actions, the physical qualities necessary exist in virtually all of us, but the knowledge must be learned. From sitting up, to walking, to eating, to sex, humans spend years learning to use the physical qualities of the human body. Many of the basic actions humans take are fundamental – they satisfy a basic need of the human body. They are also often beneficial – they have a range of possible actions that can equally satisfy the basic need.

For those that lack an ability (deafness for example), some individuals will be able to overcome the obstacles or limitations. Others will learn new abilities, or obtain resources not previously available. But not everyone will be able express every action. It does not make the actions less universal.

Our ancestors could not imagine knives or forks because they had no knowledge of metallurgy or even (far enough back) tool making. The knowledge base was shallow, the abilities available to them limited. For them, all acts were fundamental. The need to provide food and shelter left little time for anything else.

We truly stand on the shoulders of our ancestors. Our knowledge base, our universe of actions has been established by the painstaking acts, thoughts and imaginations of millions of forebearers. Every act had consequences and only through trial and error, success or death, accomplishment or failure did humanity learn which acts were beneficial. Humans spend their waking time in thought and action. The process of learning determines which thoughts deserve action and what acts deserve repetition. As the consequences of acts are learned, new knowledge is combined with the existing and new thoughts occur. The process is repeated in each of us throughout our lives. The process is part of the human condition, a consequence of our characteristics. It can no more be restricted or denied than breathing.

Beneficial actions ensure, assist, improve or satisfy the needs of the human condition. I asked earlier if eating is a fundamental act, what would procuring or preparing food be? Such actions are the nature of beneficial acts. The range of actions that are possible in order accomplish beneficial tasks are broader than fundamental actions. Breathing is breathing; not many options to accomplish it. Eating is fundamental, but what is eaten, when, how, how much are all variables with various degrees of freedom. Beneficial actions are still necessary actions and have the same demand on freedom of expression, but we can control the expression of such acts well enough to consider the consequences. Beneficial acts are the foundation of liberty and the pursuit of happiness. They are necessary for the health and well being of humans and therefore are part of the human condition.

I knew a woman many years ago that gave birth to a child with no swallow reflex. It was painful to watch her deal with the slow death of her child. Many of us take eating for granted. It is one of those ‘bodily’ functions that we just do. But any parent will tell you that babies and eating are a messy combination. Our physical ability to eat is built in, but we must still be taught to eat. From a basic eating process to the more creative preparation and savoring of a seven course meal, we learn TO eat, WHAT to eat and even when to eat. Satisfying a fundamental need can often be done using beneficial acts.

Learning what foods are safe or useful has been a human endeavor from the beginning of our time. A child is exposed to many foods that have already been vetted by his/her parents. How often have we wondered how and why someone decided something would be good to eat? The entire concept of caviar makes my stomach lurch yet many people love the texture and taste. (YUK!) Over thousands of years humans have built up a knowledge base of acceptable foods that include a significant portion of the plant and animal matter on the planet. Yet, even acceptable foods to a parent sometimes are bad for the child. The learning process must be repeated for each human. Our learning process did not just include which foods were acceptable, but how they were prepared. Consider wheat. We mill the grain, combine it with water and other items. Tools to plant, harvest, mill, and cook all had to be developed and tested. Each act had to be expressed, the consequences determined and the results assessed. If the act were beneficial, it could be used again and it could lead to further developments. The need to eat can be expressed in as many ways as there are individuals. Whether it took thousands, or just hundreds of generations, eating became more that just satisfying the fundamental need to nourish.

What happens to people with food allergies? The fundamental need still exists however people with allergies will be limited in the foods they can eat. The limit is not imposed from outside, but as a result of the consequences of eating inappropriate foods. Children learn they are lactose intolerant, or have a peanut allergy. Those foods are keep from their range of possible acts. But even these type of situations stimulate thought and actions. Soy milk and lactose free milks were developed and made available, increasing the knowledge base of possible foods for all humans. Individuals have taken the knowledge of food and allergies and applied different preparations in the process added to the knowledge and range of expressed actions that constitutes the human condition.

When a new action has been expressed, the knowledge of it can be spread to others with the appropriate physical qualities where it can be combined and expressed. The range of physical qualities and knowledge grows and changes. We would barely acknowledge the basic sounds and efforts of our distant ancestors as speech and they would be confused and probably terrified at the range of noises we consider normal speech today.

Once an action has been expressed, it becomes part of humanity’s knowledge base. They are part of our heritage that is passed down by generation after generation. As humans gain knowledge and combine it with the existing, we innovate. We think new thoughts and each new thought needs new actions to express it.

There is an infinite range of thoughts. The range of actions needed to express those thoughts is equally infinite. Each action awaits someone to imagine it and to consider acting in a specific way that expresses each new thought. Until someone does, the action remains unknown. Until the first person sang, there was no singing. Until the first person danced, there was no dancing. Once the first person sang, others, upon hearing, could sing. As knowledge spreads, actions spread.

Many of our actions are part of the human condition. They exist in every society and from archeology we can find evidence of many common actions in every grouping of humans from the earliest history. For many actions, their first expression resides tens (or even hundreds) of thousands of years in the past. Many more actions await our imagination in the future. Our universe of known actions continues to grow with each succeeding generation.

The source of every thought and action is the individual. An individual, using their knowledge, experience and thought, considered an action and expressed it. Every thought and action finds its source in the individual. Every expression of an action is by individuals, either solely or with the assent or joining of others. However, while each thought may belong to an individual, each act that expresses it belongs to humanity.

Limits by Self: Consequences, free will

The abilities and resources of the individual naturally limit the free expression of an action. Limits can also be self-imposed by the individual. All actions have consequences. When an action has been expressed for a long time, the consequences of its expression are well known. Often those consequences are precisely the intent of our action. Over history the expression of certain actions has resulted in specific consequences so consistently that the action and its consequences are tightly correlated. If this is the result you seek, this is the action you take. If this is the action you take, this is the result. Further, if the consequence of a specific action satisfies a need of the human condition, the action associated with it becomes fundamental to our behavior. Consider procreation.

However, new thoughts often require new actions that might have poorly understood consequences. If each human can express an action to the limit of their abilities and resources, the effects of those actions can extend and potentially threaten the free expression of other individuals. When this happens and the people know each other, it is possible for them to work together to either minimize the impact, or share the consequences. Individuals can choose to limit their actions to the extent that the consequences of their actions do not extend to the others. This self-limitation helps individuals function in groups or society.

The action continues to exist but a limitation has been imposed upon its free expression. The individual on the other side of the fire will bash my head in if I attempt to express my desire for his spouse. I can still act, if I am willing to live with the consequences. The learning curve for such self-limitation was probably pretty steep but those that survived the process passed along that knowledge along with the knowledge of the action itself.
Over time the consequences associated with particular actions became well understood, yet there remain inherent dangers not only to the individual, but also to those around him or her. The limits of the individual’s abilities and resources reduces the risks to others, but most individuals will impose additional limits on the free expression of their own actions in order to obtain the consequences they seek. Within a range of behaviors where consequences are well known and defined, individual actions with limits of expression become the established norm, or tradition.

When acts are rights

To this point, we have talked about how thoughts originate in the individual. Thoughts are owned and controlled by the individual. Thoughts are then expressed outwardly by actions. Thoughts and actions that support the fundamental needs* of our existence are part of the human condition that we share with every individual. These actions are the foundation of rights. A right is the ability and freedom to express a thought through action.

An inalienable right is the ability and freedom to express a thought through action that satisfies a fundamental need. You can not deprive the individual of the freedom to take these actions without depriving the individual of those needs required to continue to exist. These inalienable rights are part of the human condition. Deprive individuals of the freedom to satisfy fundamental needs and you are a threat to the existence of ALL that share the human condition.

Yet, not all rights are inalienable. Beneficial acts are rights to the extent they ensure, assist, improve or satisfy the needs of the human condition. I must have the freedom to obtain food in order to satisfy the inalienable freedom (right) to eat. The freedom however is limited. Actions that threaten the freedom of others are limited by force imposed by others (individuals, groups, communities, and or the State). Self-defense is an inalienable right.

Rights exist because we have the need to express thoughts fundamental to our existence. The historical source of our rights is not some government or document, but in the human need, freedom, and ability to express thoughts by action.

Every right finds its source in the individual. The freedom to act is not a function of society; it is part of the foundation of the human condition, to live, to exist. From your first expression of free will, you have the freedom to act to satisfy the needs of the human condition. Consider:

Unfortunately, not everyone has the abilities or resources to express every act. This does not deny them the action, only the ability to express it. Every action has natural limits. Actions we express are limited by our imagination, our abilities and the resources we have available. We also impose limits ourselves as we learn the consequences of our actions and finally, if we wish to participate in society, whether that is just one other person, or millions, we chose to place limits on our actions in order to improve our situations.

Unfortunately, not everyone has the abilities or resources to express every right. This does not deny them the right, only the ability to express it. Every right has natural limits. Rights we express are limited by our imagination, our abilities and the resources we have available. We also impose limits ourselves as we learn the consequences of our actions and finally, if we wish to participate in society, whether that is just one other person, or millions, we chose to place limits on our rights in order to improve our situations.

If my life is mine, not just to live, but to do as I chose with it, then liberty is that freedom of action.

Without exception on the island, every action you took was either to further your survival, or increase the comfort of your situation.

Joining with others in society is a beneficial act. How much you limit your actions for that survival and comfort is both an indicator of the value of the society you belong to and the value of your contribution to it.

Not every act will be fundamental or beneficial. Inalienable rights are not subject to restriction or limitation – we need them to continue to exist. Beneficial rights can be restricted or limited because there are multiple means to accomplish the goal of satisfying a part of the human condition.

Evil acts are those actions calculated to deprive others of their freedoms to express their thoughts or deprive them of the ability to satisfy the needs of their human condition. While an act that threatens others could satisfy a fundamental need, the act itself creates in others the fundamental need to stop it. This defines the limit of a right: actions that satisfy a part of the human condition that does not threaten other humans.

Each human has needs that must be fulfilled and as long as each can fulfill those needs, there is no cause to interfere with anyone else’s actions. In early human history, our planet offered abundant resources and virtually unlimited space. Humans formed small groups to increase the available resources (hands and brains) and to accomplish more than one or two could do themselves (bringing down a large animal). As long as each individual was allowed to fulfill their needs, the social groupings were beneficial.

For those early societies, a human that took the needs from another was no different than a beast attempting to attack a human and was probably treated no differently, either running him off or beating and leaving behind. From these early beginnings we have the concept of property. THIS is mine. THAT is yours.

“Though the earth and all inferior creatures be common to all men, yet every man has a ‘property’ in his own ‘person’. This nobody has any right to but himself. The ‘labour’ of his body and the ‘work’ of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to It something that is his own, and thereby makes it is his property.

In general, the following conditions are required in order to justify the right of first occupancy for a given piece of land. First, the land must as yet be uninhabited; secondly, no more must be occupied than is needed for subsistence ; and in the third place, possession must be taken not by empty ceremonies, but by work and cultivation, the only mark of ownership which ought, in default of juridical title, to be respected by others.”

Items that fulfilled the needs of the human condition were acquired and the effort to do so created ownership. Berries on a bush were available to anyone that came by and picked them. However, once picked, the effort to do so gave the person that picked them greater claim to them. Property is a characteristic of the effort of the individual. Before great societies a piece of land had no owner. The land existed. When someone came upon the land and then put labor to it, they held a claim against the land and against any other. If the land fulfilled a need of the human condition only with the effort of an individual, that individual had a claim on the fruits of his labor that exceeded any others. This is the foundation of private property.

Limits by Force: Individual, Government

“For though they that speak of this subject use to confound jus and lex, right and law, yet they ought to be distinguished, because right consisteth in liberty to do, or to forbear; whereas law determineth and bindeth to one of them: so that law and right differ as much as obligation and liberty, which in one and the same matter are inconsistent.”

In the island society, it was mutual agreement that guided choices and actions. But what happens when one breaks that agreement? Such issues on the island must be resolved by the two, but in a society of millions, the mutual agreement that exists is the system of laws that each society creates. Laws do not prevent the actions of their focus; they punish infractions. Those punishments establish consequences that people can use to make choices (such as civil disobedience). However, some punishments carry the penalty of incarceration. The forcible restriction of liberty is the only limit imposed by others we freely accept as a necessary component for the function of society. The authority for that force is granted by individuals to a government.


What is authority? When one or more other individuals have agreed to act in agreement with me, our actions constitute a single right to act that does not exist individually. It allows each individual in the agreement to call upon others in the agreement to act in concert. Its simplest form is created when we enter into a personal relationship with another individual. This is the foundation of marriage. It is an outward declaration that two individuals act as one and have claim on the freedom to act of the other.

Other forms of authority create communities, companies, organizations and governments. We give others the ability to call upon our freedoms either directly, or by agreeing to limit our actions for the benefit of the larger group. Locke called it the social contract.

When we grant an individual or organization the freedom to act in our name either for personal benefit (such as an attorney) or the benefit of the community (government), we have granted them authority. Our lack of consent revokes or denies the freedom to act in our name. This grant of authority is limited as to allowed acts and duration.

Our right to self defense is an example where we give the State to authority to act in our stead. It has authority because it has our ascent to do so.

Introduction to Part Two

Originally, this section was part of that online debate. If at times it appears that I am answering a question from an audience, I was. There are other beliefs as to the foundation or origin of rights. The two most common are morality and traditions.

Morality foundations find their support in the idea that God has ordained or prohibited certain behaviors and it is appropriate to make laws for all based on those proclamations. Where God has been quiet (privacy?), no right exists.

When morality based on religion fails to define rights sufficient to our current period in time, we get argument that tradition and the vast experience of our forebearers defines the full extent of our rights. Our ancestors have tried all the variations and only what is left, works; that our institutions and historical precedent guide the range and extent of rights.

Both foundations or origins fail to move forward with human knowledge and experience. Leprosy is not the corruption of the skin by sin; seizures are not the outward manifestation of the inner battle against demons; fabrics are just clothes; pigs are just another meat that needs careful preparation; gays are natural variations in the human species; and our fathers do not want us to grow up with nothing more than they have or had.

Our rights are more than just the experience of our past, or the limits of our beliefs. They are the infinite expression of our free will.

Part Two

PART TWO: of Politics and Government

From Federalist #2, author John Jay:

Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.

Jay agreed with Locke over the NEED for government to protect us from ourselves. In my weaker moments, I sometimes agree that we have a long way to go to maturity. However, I am not willing to give government control over my liberty where others are not threatened. Government is a tool of society and society has, as Mills indicated, a tendency to put itself above the individual; the created claiming superiority over the creator.

The most basic component of society is the individual. Not the state, or the community, nor even the family. Some may argue that it takes a village to raise a child, but only when individuals are free to interact do we have a viable society. I am not going to give a definition of society here, for the same reason I don’t define a corporation: both would not exist without the individual and the freedom of that individual to associate with others.

One individual does not make a society. Build a structure that divides two people such that neither can interact with the other, and society does not arise separately on both sides of the divide. Only when two or more individuals interact do we see the beginnings of family, community, village or society. How we interact gives structure and definition to the groupings that arise. If these groupings are to survive, they must function to protect the individual’s ability and freedom to interact. Without individual interaction, there is no society. Society then must protect the individual and the individual’s ability and freedom to interact with others.

The human construct, society, serves many of the same purposes as ‘species’ does in nature. Society seeks to perpetuate itself, to encourage individuals to carry the load of continuing society into the future. Society imposes limitations on individuals so they conform to the needs of the society, at the expense of the individual’s liberty. Society creates a framework for competition to fulfill its needs.

Morality Foundations

In Part One, morality was claimed to be the system of behavior rules, humans use as a species to maintain control over individuals. Right behavior is defined as either what “God” wants or what benefits humanity as a whole. Neither definition encompasses what the individual wants. Hobbes, Locke, Rousseau and Jay all concluded that without some threat overhanging human choice, humans would be ‘at war’ with each other forever. Even a casual review of human history shows that the ‘threat’ used for the last couple of millennium caused as much or more war than it prevented. Society has created large populations operating under the same (and competing) rules. Maybe I am guilty of the same confusion Paine noted – confusing society and government.

Society is interested in perpetuating the species; its goal is to manage humanity. Society uses government to establish its morals as law. If society oversteps its authority informally, what damage can it do? When its morality become rules individuals must adhere to under threat, threats can interfere with fundamental acts. Society is slow to change, but no formal structures prevent it; government doesn’t tolerate the incremental, informal changes that characterize human behaviors. To paraphrase Mills, the best government interferes least.

Our rights, inherent in our creation, are not based in society's good graces, considered permission, disgusted acceptance, or moral acquiescence.

The concept of natural rights is absolutely dependent on morality. Without them, we have no rights of any kind and life would be "nasty, brutish, and short".

From the Stanford Encyclopedia of Philosophy, the term “morality” can be used either

1. descriptively to refer to a code of conduct put forward by a society or,
i. Some other group, such as a religion, or
ii. Accepted by an individual for her own behavior
2. normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.

What society proclaims, society can therefore deny. Edmund Burke thought that liberty was worthless unless it was combined with:

“…government, with public force, with the discipline and obedience of armies, with the collection of an effective and well-distributed revenue, with morality and religion, with the solidity of property, with peace and order, with civil and social manners.”

His concept of ‘ordered liberty’ so often espoused today, had a flavor many might actually find bitter:

“You would have rendered the cause of liberty venerable in the eyes of every worthy mind in every nation. You would have shamed despotism from the earth, by showing that freedom was not only reconcilable, but, as when well disciplined it is, auxiliary to law. You would have had an unoppressive but a productive revenue. You would have had a flourishing commerce to feed it. You would have had a free constitution; a potent monarchy; a disciplined army; a reformed and venerated clergy; a mitigated but spirited nobility, to lead your virtue, not to overlay it; you would have had a liberal order of commons, to emulate and to recruit that nobility; you would have had a protected, satisfied, laborious, and obedient people, taught to seek and to recognise the happiness that is to be found by virtue in all conditions; in which consists the true moral equality of mankind, and not in that monstrous fiction, which, by inspiring false ideas and vain expectations into men destined to travel in the obscure walk of laborious life, serves only to aggravate and embitter that real inequality, which it never can remove; and which the order of civil life establishes as much for the benefit of those whom it must leave in an humble state, as those whom it is able to exalt to a condition more splendid, but not more happy.

(bolds mine)

Protected, satisfied, laborious and obedient people…not exactly the vision of our founding. Freedom is messy. Ordered liberty is first, predictable but foremost, confining. Ordered liberty is everyone and everything in its proper place. It is the enslavement of the soul.

Further, the “inspiring false ideas” he considers a monstrous fiction is that all men are created equal. That some are destined to serve and some are destined to lead and inspiring some to exceed their station is to leave them angry and bitter when it can not happen. Burke’s support of the American revolution was safe – far in distance and time (months of ship travel) from his comfortable life. The Revolution of France struck to close to home and threatened his own station.

Morality imposed is tyranny. That does not mean morality is bad. Morality is any system of behavior that has rules and structure. Even pirates and thieves have a morality. There are several codes of conduct that can establish a moral society:

Sparta had a code of conduct most found brutal and yet functioned for their society. Sharia law is a code of conduct some suggest is incompatible with democracy or liberty. Communism, socialism, fascism and depotism all have codes of conduct that deny the individual any liberty. Which brings us to the form of morality (claimed) practiced in the United States for centuries – Judeo-Christian.

Most people when asked to define Judeo-Christian morality will fall back on the Ten Commandants (Judeo) or ‘love they self and thy neighbor as thy God’ (Christianity). For a personal system, that seems to work however infrequently in practice. For a societal system, it works not at all.

The Jewish Nation was rebuked and punished repeatedly for failing to follow their own rules. Christian history is only shorter in comparison. That said, can we look to Scripture to establish a formal system for society compatible with individual liberty?

“We have staked the whole future of American civilization, not upon the power of government, far from it. We’ve staked the future of all our political institutions upon our capacity…to sustain ourselves according to the Ten Commandments of God.”
James Madison

The Ten Commandments:
1. You shall have no other gods before me
2. You shall not make for yourself any carved image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; you shall not bow down to them nor serve them
3. You shall not take the name of the Lord your God in vain
4. Remember the Sabbath day, to keep it holy
5. Honor your father and your mother
6. You shall not murder
7. You shall not commit adultery
8. You shall not steal
9. You shall not bear false witness against your neighbor
10. You shall not covet your neighbor’s house

The question is: does society need to establish a formal rule (law) to codify each Commandment? What benefit does society expect from doing so? The first four deal with the individual relationship with God. Do we want laws about which God to honor/worship? About icon creation? About swearing? Which day do we want to keep holy, Saturday or Sunday and do we want thought police checking married individuals for inappropriate thinking about neighbors? I would oppose such. From this, we are left with four Commandments:

#6 You shall not murder. This is the same as Hobbes’ and Locke’s consequence of nature/reason. The command is to respect the life of another. Why is this Commandment necessary? Because people can and do murder. The Commandment, like any law that punishes, acknowledges the ability to act and yet does not prevent it. A good commandment but not unique to Judaism or Christianity. No society willingly allows members to kill other members.

#8 You shall not steal. Again, nothing unique here. Some societies are brutal with thieves. In the days of Moses, there were few if any luxuries; possessions were necessary for survival. Depriving another of his needs or property constitutes a threat to the individual and his family. Regardless of scarcity, taking what is not yours is a threat to individuals.

#9 You shall not bear false witness. Both Hobbes and Locke write of covenants or agreements and the necessity to honor them. In early societies there were no 30-page contracts; a man’s word formed agreements he was expected to honor. Speaking falsely left others no options but to cease dealing with the liar. In today’s society, the white lie is practically a necessity (much less necessary than most think). This situation was not unique to religious communities, the need for honest agreement existed in all communities and was dealt with without Commandments from God.

#7 You shall not commit adultery. Here we have a personal convenant; dishonor here disrupts the family – the first level of society. Do we want society to intrude into personal relationships? Do we want courts deciding punishment for failure to keep sacraments? Society may have an interest in the relationship, but government does not. Government has become involved due to the nature of secular contracts (of which marriage has become), but adjudicating? Again, this situation is not unique to religious communities. Imposing a continuation of the marriage contract exceeds society’s interest in the relationship (as it is unlikely to continue to serve the interests of society).

Only a short word on Christian morality – love thy neighbor. What function of government could compel such performance? The Commandments and Christian exhortation may be good guidance for individual behavior, but the few items with direct impact (a basis in the interference in the fundamental needs of others) on others also have secular options without resorting to a religious commandment.

If society has the requirement to protect the individual ability to freely associate with others then any formal rules must conform to that requirement. Compelling specific performance of personal relationships interferes with that requirement.

As for the rest of Scripture and ‘suggested appropriate behaviors’ (no mixing of fabrics, no pork products, modesty in dress), each religion can establish rules for it’s own adherents but as a basis for secular behavior, neither society nor religions should interfere in individual liberty that does not threaten others.

Traditional Foundations

Suggesting tradition forms a basis for rights resurrects the dead – or at least their reason. If that is the basis for law or rights, then why bother with rights at all. Slaves can continue to serve; races can continue to segregate; men can continue to rape; women can continue as chattel.

Edmund Burke sought to place a limit on actions by tradition, or proclamation in the sense that a statement uttered centuries ago would be binding:

“To provide for these objects, and therefore to exclude for ever the Old Jewry doctrine of “a right to choose our own governors,” they follow with a clause containing a most solemn pledge, taken from the preceding act of Queen Elizabeth, as solemn a pledge as ever was or can be given in favour of an hereditary succession, and as solemn a renunciation as could be made of the principles by this Society imputed to them. “The Lords spiritual and temporal, and Commons, do, in the name of all the people aforesaid, most humbly and faithfully submit themselves, their heirs and posterities for ever; and do faithfully promise that they will stand to maintain, and defend their said Majesties, and also the limitation of the crown, herein specified and contained, to the utmost of their powers,”

“So far is it from being true, that we acquired a right by the Revolution to elect our kings, that if we had possessed it before, the English nation did at that time most solemnly renounce and abdicate it, for themselves, and for all their posterity for ever.”

Thomas Paine refutes Burke and the idea that the past can dictate to the future:

“Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow.

Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority in directing who shall be its governors, or how its government shall be organised, or how administered.

Those who have quitted the world, and those who have not yet arrived at it, are as remote from each other as the utmost stretch of mortal imagination can conceive. What possible obligation, then, can exist between them- what rule or principle can be laid down that of two nonentities, the one out of existence and the other not in, and who never can meet in this world, the one should control the other to the end of time?

The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living or the dead?”

Burke wanted to bind all posterity using the oath of the long dead. Do I want to be bound by the oaths of my father? Or mother? Did they intend that I should be? Traditions and the past have a venerated spot in our lives, but not in our laws. Traditions HONOR our past; they remind us of the struggles and achievements of our forebearers. Celebrate them, but don’t make them into chains or undying convenants.

Sovereign (Rights) Foundations

Society may take my life and snuff it out without so much as a glance if that is its choice. However, our Founding was based on the idea that rights are inherent and that without cause, society had no right to infringe upon them...with an exception:

"What principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else."

The individual is sovereign. The state and society are allowed some power over us as acknowledgment that each of our fellow citizens has an equal position of sovereignty.

The free expression of my rights may, and is, limited by society by the laws it establishes. The suggestion that a moral code is the basis for rights risks the elimination of rights should the moral code change. Such is the nasty, brutish and short life of women under the moral code of Islam. Rights exist absent any morality, law or Constitution.

You claim that there is no direct relationship between morality and rights

No direct relationship in their existence; any code that formalizes the state of nature just replaces the need for all to reason for themselves. But the code only recognizes what already exists in nature. Such a generally accepted code aids in their free expression. Rights exist. Living alone on a deserted island, they exist. There, I have a free and unfettered ability to express those rights as I choose. My sovereignty has no bounds except the limits of the shore (and a small distance beyond).

However, we do not live on a deserted island. We must give up some freedom to express rights in order to have a civil society. I am sovereign, but so is my neighbor, such is the state of nature “equal and independent”. We each give up some freedom to live neighborly. But our society is bigger than our neighborhood and we can't rely on the moral code of those that live far removed, so laws are created that establish the limits on our free expression of rights and allow us to enforce those limits on others with a different moral code than ours. The moral code becomes irrelevant. Laws establish a limit on everyone’s free expression of their rights.

Your moral code doesn't matter, my moral code doesn't matter, the law reflects the limit to which we both are willing to infringe upon the free expression of our rights. A third moral code introduced into the mix becomes an interesting, but irrelevant issue. The law is based upon our agreement to give up a portion of our rights. If the third moral code demands we give up more, it can go to hell.

But if our rights are based upon the moral code of the majority of society formalized in laws...then a change in majority can demand, and get, a change in our rights. There is a reason I never considered visiting the Middle East...their moral code is a death sentence to me. Unfortunately, that moral code is coming here now. Fortunately our laws are not based in a morality, but in inherent rights.

YOU may have a moral code. YOU may use such a code to justify supporting a law. BUT, the law, if based on a moral code, can be changed to reflect new moral codes. YOUR moral code, enacted into law, prevents you from raping. Someone else's moral code, should a community large enough and stable enough to decide so, can be made into law that would eliminate the ability to accuse you of rape.

Moral codes can make bad laws. They certainly can be used to support the status quo and stifle change. Moral codes supported slavery, supported the prevention of interracial marriage, supported the denial of voting to women, supported women as chattel.

And by the way, you do NOT have a "right" to dance

Yea, I do. Nothing on this green Earth except my own capabilities can prevent me from the free exercise of my right to dance. Nothing. Excuse me a sec....

*whew* SEETHUMA!

Whether you believe our inherent rights are endowed by the Creator, or natural to our existence, it doesn't matter. What is the phrase: you may not believe in God, but He believes in you. I may not believe in God, but my rights don't require it.

The Founders believed that our natural rights as humans came from somewhere for some reason - you believe they came from nowhere for no reason, but just exist.

Answered: our rights are founded on the requirement of individuals to satisfy fundamental needs to continue to exist. Whether God exists or not, our needs do. Our rights allow us to continue to exist, to live, to pursue our happiness, to exercise our free will.

"Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance."
--Thomas Jefferson: Legal Argument, 1770.

From the Stanford Encyclopedia of Philosophy:

The term “morality” can be used descriptively to refer to a code of conduct put forward by a society or, some other group, such as a religion...

I stand by my position: the individual is sovereign; all rights are inherent in each of our own existence - that absent a society, a Constitution or even a God, my rights exist as long as I exist. Society, by laws and imposition of morality, infringe upon those rights.

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual."
--Thomas Jefferson to Isaac H. Tiffany, 1819.

All rights are above the law. In a civil society, individuals surrender that portion of their rights, and only that portion, necessary for the orderly function of society. Laws are the agreed upon infringement of society into the free expression of our rights.

My right to liberty can not be used to interfere in the liberty of others. Each citizen, each person, has this liberty. Consider each of us in our own little bubble, free to walk where ever we choose, but limited when we bump into another bubble on the path they have chosen.

Sovereignty of the Individual

Our rights are not dependent upon others. To accept fully that ‘all men are created equal’ and that each of them are ‘endowed by their Creator’ means every individual must allow others the freedom to act in ways we can not or choose not to; That each of us individually is fully free to act, fully sovereign. When others refuse to acknowledge the existence of the rights of others – the freedom to satisfy fundamental and beneficial needs – they become a threat to all individuals.

The Founding of the United States of America

The freedom and ability to express a thought through action is a right. There are natural limits, physical limits and self imposed limits to rights. There are restrictions to rights necessary for the functioning of beneficial societies. But a fundamental act that satisfies a fundamental need is an inalienable right.
Beneficial acts are rights, inalienable to the extent they ensure, assist, improve or satisfy the needs of the human condition. This is the basis of liberty and the pursuit of happiness. Not all acts are rights. Those acts that seek to take or deprive others of their freedom to express their thoughts for their own gain or pleasure are evil and all individuals have the obligation to prevent such acts.

What is your basis for divining whether a particular assertion of a "right" is correct?

This is the wrong question. The right question is “what is your basis for determining whether a right is fundamental and therefore inalienable, beneficial and therefore subject to some interference by others, or evil and therefore subject to force to prevent or punish the free exercise thereof?” The question goes a long way towards answering itself.

If Tracy can conceive of an action, and Tracy thinks they don't infringe or reasonably could be thought to infringe, then Tracy has a right. Nice objective test. It rewards the creative person who is unreasonable. In contrast, a person who is very reasonable but not creative has minimal rights.

The two problems are ‘who gets to decide’ and what happens when someone is incapable of acting specifically. The position above suggests that someone has a ‘right’ or authority to decide what actions an individual can take BEFORE they act. The implication is that SOMEONE other than the individual has the ‘authority to make such a judgment! Who? The government? Society? Just because someone CHOOSES not to carry a firearm doesn’t mean they lack the right to do so.

Your formulation actually contradicts the Declaration of Independence. Your ability to conceive can be much more creative than someone elses, which means under your test, you would have more "rights" and thus your "rights" would not be created equal as specified by the Declaration of Independence.

Look at the bold portion of that sentence again. There is no equality of ability, or of outcome. There is no equality of acts. We all lack some abilities and therefore are unable to express certain acts. It is the freedom to express our free will that we all share, that is the gift we are endowed with. Some will be able to act in ways others can not; it is not the purpose of government to ‘balance’ rights’.

“Doctor, after the surgery, will I be able to play the piano!?”
“Of course!”
“Great! I always wanted to be able to play!”

The patient always had the freedom to play, but lacking the ability was never able to do so. The freedom was not denied or withheld from the patient. Nor did the doctor ‘endow’ the patient with the freedom during surgery! We are endowed with the freedom to act. That freedom along with ability and resources allows us express our thoughts through action. Those actions are ours, they belong to us individually and to all other individuals in the human condition.

Some worry that such a definition gives license to anyone to assert anything as a right. There is some basis for the concern. I claim that any act that I can think of, that I have the ability and resources to express and does not interfere with others is a right. But any act that I can think of that requires another person to accomplish does not fit that definition and that is usually the area where others object to ‘infinite rights’.

I don’t have a right to have sex with someone. I don’t have a right to make you act in a way favorable to me. I don’t have the right to make you act in ways that make me feel more comfortable. Other individuals have their freedom and only when they ascent to act in agreement with me, do my acts have authority.

I spoke earlier of authorities:

When one or more other individuals have agreed to act in agreement with me, our actions constitute a single right to act that does not exist individually.

When we as a society agree to limit our actions for the benefit of all, we grant authority to society to ‘enforce’ the agreement, usually by forming governments with the power to do so. Governments propose and enact laws to formally establish the limits of our acts for the benefit of all.

Laws are not preventative – they establish consequences. Each law seeks to engage in each of the three limits on rights:
Laws restrict access to resources (nature);
Laws establish consequences (self);
Laws establish punishment (force).

What they don’t do is eliminate rights. My ability to kill is not prevented by laws regarding murder – the law does not impede my action – otherwise, “Thou shall not kill” would have been the last word on the act.

Not all rights are inalienable. Many are restricted, limited or even denied on one or more basis. If you murder someone you have deprived him or her of the freedom to express thoughts though actions. Murder is a threat to all individuals and each has the RIGHT to use force to prevent. The right to use force against one that would murder belongs to each human. We can give the authority to act on our behalf to another or to a society or to a government; to act for us against such individuals that may engage in such threatening acts. This is one benefit of societies and one use of government.

Governments are formed by groups of individuals that design the parameters of government and give it the authority to act. At no point does government appear spontaneously and give individuals the freedom to act. First individuals, then groups, then society THEN government.

To the extent our freedom is protected by the power of society and government, it is restricted by the same power. When the society or government power exceeds what is needed to protect, the restrictions imposed on individuals become tyranny.

For the United States, our Founders laid out the problems with the existing government in the Declaration of Independence and then set about trying to not repeat the problems they found in other types of government. It was not a process without problems. However, we got it finally and the anti-individual, anti-liberty, monarchists have been fighting it ever since.

Like our liberty, our rights precede government. The Constitution is only a document that creates government. Our rights, liberties and freedom exist whether the Constitution exists or not.

The Constitution SPECIFICALLY addresses this:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

It was discussed by our Founding Fathers that a list of rights included in the Constitution would leave us open to the claim that any right not included did not exist. Our rights are not granted by the Constitution, they are protected by it.
Rousseau believed we gave up our personal sovereignty to give the power to the State to act as a sovereign power over us. Thomas Jefferson and Thomas Paine disagreed in the sense that we as sovereigns retain the power to reclaim that sovereignty given to the State when it has become corrupt and no on longer a servant of our will.

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.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

I am often told that whether I believe in God or not doesn’t matter, He believes in me. I appreciate the thought but when certain things are attributed to God, I’d like a little more than just faith or belief to support it. Evil people attribute disasters to God bringing down His wrath on some perceived bad people. Such people offer no evidence that disasters are God induced; it would seem to me that the only God induced disaster in history (of Scripture) was the Flood. And God owned up to it and promised not to let it happen again.

When Thomas Jefferson wrote the Declaration of Independence, God/Creator was the only explanation for much of the natural world. As we have grown as a species, we have obtained knowledge and been able to explain much of the natural world in terms that, with respect, displace the need for a God explanation .

“We hold these truths to be self-evident”
“These” truths were not self-evident to most people in 1776. Governments were monarchies. Often taken by the sword, rulers were in their positions by Divine Right, or so they claimed. Even those a step or two below the Crown considered the position of the King (and occasionally Queen) the source of individual rights, if rights existed at all.

“We fear God; we look up with awe to kings; with affection to parliaments; with duty to magistrates; with reverence to priests; and with respect to nobility. Why? Because when such ideas are brought before our minds, it is natural to be so affected; because all other feelings are false and spurious, and tend to corrupt our minds, to vitiate our primary morals, to render us unfit for rational liberty; and by teaching us a servile, licentious, and abandoned insolence, to be our low sport for a few holidays, to make us perfectly fit for, and justly deserving of, slavery, through the whole course of our lives.”

Our Declaration of Independence was rightly understood not just a Declaration against England, but against monarchies and all forms of government formed by the sword or fiat.Yet, even to many that opposed England, the idea of a King was too ingrained. Fortunately, George Washington was not one of them.

“that all men are created equal”
A government elected by the people, for the people was as radical a notion as could be imagined.

“The very idea of the fabrication of a new government is enough to fill us with disgust and horror.”

For much of human history, once born, people seldom left their social and economic class. Each group considered their position the result of their birth. No one would suggest that the child born to the King was equal to the child born to the groomsman. By the Declaration, class, in one single act, disappeared, at least in America. Every person born into the United States would share the same human condition, sovereign (except of course slaves).

“Every measure of prudence, therefore, ought to be assumed for the eventual total extirpation of slavery from the United States.... I have, throughout my whole life, held the practice of slavery in... abhorrence.”
John Adams, letter to Evans, June 8, 1819

“that they are endowed by their Creator”
Kings used this concept to justify their rule for thousands of years. THEY were endowed by their Creator to lead and rule. THEY were chosen by GOD to determine the fates of their subjects. Jefferson took the justification of kings and claimed everyone had the right to claim divine justification. No longer would the blessings of the Creator be limited to just the rulers, but to all men. Once more, a simple phrase struck at the heart of the justification of monarchs every where.

“with certain unalienable Rights”
Rights? Common men with rights? “By your leave” was a phrase asking permission of the Crown to do, well, everything. Permission to marry, permission to farm, permission to have a child came from the benevolence of the King. Commoners had no rights. Here, we have a country that not only claimed citizens had rights, but that they were unalienable! Not only would citizens not have to ask permission to act, their freedom to act could not be taken away.

If citizens inherently had rights, then they did not require a lord, or king, or even a government to bestow them. And if those rights were already part of the citizen, a lord, king or government could not withdraw them. A government in such a situation would find itself no longer the master of its citizens, but the servant.

“among these are Life, Liberty and the pursuit of Happiness”
How many discussions, essays and books written on these rights, ignore the first words in this partial quote: among these. The list of Rights is not limited to these three. Many suggest the idea that all other rights flow from these three. I believe that interpretation is wrong. The phrase is ‘among these’; it could have been ‘foremost among these are...’ or, ‘first among these are...’. But let us look at the suggestion.

Life first, for whatever follows needs life. There are no rights without life. The dead have no rights. The unborn have no rights . To each of us, when we are born, our lives belong to us, they are not the property of a Crown or a government to call upon. There is alternative, liberty being more important than life, for a life born into bondage is no life at all. If I can never chose my own path, if my happiness will never be a function of my choices, what liberty do I have, what life is that?

What limits are imposed by this freedom of action? Beyond the natural limitations, none. All actions are within my liberty. However, if there is no limit to the number and type of actions, there IS a limit to the scope or range that those actions can reach.

My right to liberty can not be used to interfere in the liberty of others. Each citizen, each person, has this liberty.

…a long habit of not thinking a thing wrong, gives it a superficial appearance of being right…

The right to marry someone of your choosing is not in the Constitution. It simply isn't there. Find a citation for me..

I have no need to find a right in the Constitution for it to exist:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Constitution does not grant rights. It restricts them. While people often and continuously claim the Bill of Rights DOES grant rights, a reading of them proves otherwise:

* First Amendment – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

* Second Amendment – A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

* Third Amendment – No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

* Fourth Amendment – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

* Fifth Amendment – No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

* Sixth Amendment – In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

* Seventh Amendment – In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

* Eighth Amendment – Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

* Ninth Amendment – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

* Tenth Amendment – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Each of these put a limit on the actions of the government created by the Constitution; they do not grant rights.

Your logic can be used to justify virtually anything that any person wants to do under the Ninth Amendment.

Claiming a right and the free exercise of that right are TWO very different things. I may have the right to bear arms, but I certainly don't have the right to use them against you "just because I want to". I may have the right to free speech, but I certainly don't have the right to incite violence using it. The existence of a right does not preclude a legitimate need of society to infringe upon it, nor does it preclude government’s ability to regulate it.

But the right exists without a Constitution to grant it. So, yes, I am using the 9th to suggest that rights exist even if they are not listed - ESPECIALLY - if they are not.

Congress can pass legislation limiting a right, regulating a right, define how that right can be exercised, it can even deny the free expression of a right (though I am very dismayed at the idea). But it can't deny that the right exists, its very action against a right acknowledges its existence. Congress can not make an act illegal without acknowledging that the act exists.

Government can define marriage anyway it wants. It can not deny me the freedom to marry anyone I damn well please - it can however, refuse to provide that marriage with legal protections or benefits. As it has done. The question has never been can; government can do a lot of things it shouldn't do.

Scalia's Dissent in TROXEL et vir. v. GRANVILLE:

Does Scalia agree that 9th Amendment includes rights not enumerated?

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage."

However, defining that right and regulating or restricting it, is not a judicial right:

Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

(bolds mine)

Scalia doesn't think a Judge should be imposing his opinion on the rightness or effect of laws that infringe on a right or should be defining the limits or scope of a right he agrees exists even if not enumerated. I tend to agree with that position.

Scalia acknowledges that rights are inherent, they do not have to be enumerated, that the 9th opens a door in the Constitution for previously unrecognized rights to be introduced to the legal framework established by the Constitution. I believe he is clear in just that portion of the quote, that many rights exist that are not enumerated. He dissented from the majority in that he believed he, as a judge, did not have the right to establish by judicial fiat the legal framework necessary for the expression of a right previously not recognized.

California had created a framework for civil unions that mimicked all the rights/privileges/benefits of marriage, but didn't call it marriage. And that framework for civil unions included gay couples as acceptable participants in the process. The California Supreme Court found that creating civil unions with all the legal framework of marriage but refusing to call it marriage, was an issue of "separate but equal" and that was discriminatory. Now, that does not appear to me to be judicial activism; that does not appear to me to be creating a new right out of whole cloth. It appears that two legal frameworks were created legislatively that had all the same attributes, but were not equally applied. I see no judicial interference with legislative process. An argument that the legislature intended two separate but equal frameworks and it should have been left alone, I think, fails to understand previous rulings against separate but equal frameworks. I could be wrong.

I can conceive of a right that has no means of being expressed in an objective reality (the right to transfer personal property from one space station to another without first getting permission from the space station, HELD, the approval to transfer includes personal property) Protections on wire-tapping were not necessary till we actually had wires to tap. But because there is no means to express a right at a given time, does not mean it never can, never should be.

Legal rights? The legal framework allowing the expression of a right does not grant a right. The right exists, the law does not create it. The law is a regulation of, limiting of, or denial of a right, not a creation of a right.

Scalia believed there was an unenumerated right, he further believed that the law infringed upon that right BUT that he had no right as a judge to impose a legal framework for the free expression of the right. Which is what he thought their ruling was doing. He believed, stated, that was the job of the legislature.

Laws create the framework for the expression of a right (you can do this much, but not that way, do it then, but not over there). The right exists regardless of the law. If there is no law dealing with seethuma, the right of seethuma still exists. Laws dealing with seethuma only regulate or restrict it.

Congress, any government entity, only has the power we give it or that we allow it to take from us. The power it has, is the power to
infringe upon our rights, not to grant them.

My rights, as inherently endowed, as they exist, give me the liberty to pursue anything that makes me happy. What they give YOU is exactly the same freedom. What they DON'T do is give me license to infringe upon your rights, nor you to infringe on mine.

I do not have the right to murder because to do so violates denies the liberty of another. I can’t take your property, because that denies your right to it. I can not use my liberty to deny you yours. I can not use my life, to take yours. I can not pursue my happiness at the expense of your liberty to pursue yours.

These rules of conduct, this morality, is based on a system of rights based on the characteristics of the human condition.

I stay my hand not out of a sense of responsibility or morality but out of self-preservation. If I deny you your rights, there is nothing to stay your hand against mine. To threaten you is to expose me to actions of others in defense of the condition of nature.

Just because a judicial result changes the operation of a law, it doesn't automatically mean that a judge is legislating. I will admit, the situations are seldom, and I LIKE the position of Scalia in the dissent I quoted earlier.

We have a right to bear arms. If enough people agree for long enough, we can have a constitutional amendment that denies that right. We can have a Constitutional amendment that brings back slavery, if enough people agree with it.

This is the danger. If enough people think owning a gun is immoral, then the right can be denied. I do not deny that the morality is justifying the law denying a right, further, in reverse, morality can justify a law recognizing a right.

But the right exists regardless. From Mill’s On Liberty:

Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

Some can see no other way to build the legal framework for the free expression of liberty. Only our morality provides guidance in the regulation, limit or denial of an inherent right. I disagree.

Endowed by the Creator with certain unalienable rights. Does my recognition that you are created, just like me, with unalienable rights constituted a morality? In the sense that morality is a code of conduct, I have a morality that recognizes your rights. Whether you exist or not is irrelevant to me and my rights. However, that you exist means you have rights that I recognize. If you don't agree I have rights, others will recognize that you do not and act against you accordingly. Your hand is stayed against me on the basis that you will show yourself untrustworthy to others and risk retribution - not just from me, but also from others. It is self-interest then that stays my hand from the absolute free expression of my rights. I trust that others have the same self-interest.

What is your basis for divining whether a particular assertion of a "right" is correct?

A right is an action taken to satisfy a need of the human condition. The individual, not you, or me, or a committee determines whether the action fulfills a need. The limit of the free expression of that right is the limits of someone else’s liberty. The desire to establish some defined package of rights is the tyranny of society - to establish limits on individuals, not of necessity but of preference.

Individuals or society seeks to confine individuals into defined and confined boxes. Neither it nor they have such authority. That authority rests with the individual.

What is your basis for your "rights as a sovereign."

My rights exist, because I exist. They are necessary for my(our) continued existence. They are inherent. As many will point out, the free expression of those rights is seriously laws, by the boundaries of the rights of others.

If I am alone on a deserted island, I have rights. If I don't exist, YOU still have rights. The right exists, even if I choose NOT to act upon it. My basis recognizes everything. I have lots of rights - society and by it's enforcer, the government - has the authority to regulate, limit or deny those rights. That doesn't mean they don't exist.

All men were created equal. Why didn't the automobile get invented two thousand years ago? Why did it take until 1969 to put a man on the moon? Did man have the right to fly? Leave the Earth? Did ONLY Armstrong have the RIGHT to step on the moon first?

A universe of rights exists. A law addresses the interaction of a right exercised by one or more upon the rights of others. A 'new' right has no laws infringing upon it, because no one expected to need such a law.

I used seethuma earlier, let me do so again. If my community sought to establish a law preventing the public display of seethuma and a lower court struck down that law as an unreasonable infringement on my right to seethuma - would you say that the court had created a right where none existed before? Would you say the court had engaged in judicial activism? Some would say the answer is yes to both. If however, the court said the law was too broad and it restricted the public display from 10pm to 8am, would that be judicial activism or creating a right where none existed before? My understanding of Scalia is that he would find the restriction judicial activism because the court created a restriction, not the legislature.

Rights are no more inherently right/correct than morality is inherently good. (Treating your slaves well is a positive - ignoring of course the evil of owning slaves...) I don't advocate an unfettered right to do everything I can conceive of - that is pure libertarianism and anarchy. I do believe there is a universe of rights waiting to be recognized and acted upon. I do believe, once conceived, all rights belong to every individual. They may be limited in their abilities or proclivities to act upon those rights, but they exist nonetheless. Laws establish the limits of those rights; for newly conceived acts, laws don't exist and ANY infringement on them is going to be argued against. The worst, and most useless argument someone can make FOR such infringing laws is that the right proclaimed doesn't exist. It is a stupid, archaic, authoritative position.

Some can argue that a law sufficiently limits/regulates a right to the point that there can be no free exercise of the right without running afoul of the law - therefore there is no legal right but that is just words. The right exists, laws ban its expression. It may have no practical difference in your mind, but to the person being denied, it matters.

You have the right to an abortion - we are making it illegal to act upon that right

is different than

You have no right to an abortion; that right does not exist anywhere in the Constitution and you can't make it up out of whole cloth.

In the first case, you need to show a compelling reason why the state can infringe/deny the right. The second one lets you (the supporters of the denial and the government) off the hook to justify your stance.

I have the right to marry whomever I want, I have the right to call it a marriage. The state has the ability to deny legal protections for such a relationship, it has the right to deny recognition of such a relationship as a marriage. I am simply calling out the position. The right exists, justify denying its exercise.

Saying that the right doesn't exist or saying that there is no legal right is not justification. You can claim a justification by tradition/status quo, or you can claim a moral position (majority rule), but both of those positions are almost as weak/useless, as claiming no such right exists.

The only justification acceptable for infringement/denial (whether that has any impact on the reality of the situation or not) is that the exercise of my right harms others. And that harm has to be objectively shown. Saying a gay marriage harms a straight marriage is insufficient. In the Iowa Supreme Court decision on gay marriage, the Court addressed the issues relating to gay marriage:

Maintaining Traditional Marriage. Initially, the court considered the County’s argument the same-sex marriage ban promotes the “integrity of traditional marriage” by “maintaining the historical and traditional marriage norm ([as] one between a man and a woman).” The court noted that, when tradition is offered as a justification for preserving a statutory scheme challenged on equal protection grounds, the court must determine whether the reasons underlying the tradition are sufficient to satisfy constitutional requirements. These reasons, the court found, must be something other than the preservation of tradition by itself.

“When a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification accomplishes the governmental objective, which objective is to maintain the classification.” Here, the County offered no governmental reason underlying the tradition of limiting marriage to heterosexual couples, so the court proceeded to consider the other reasons advanced by the County for the legislative classification.

Promotion of Optimal Environment to Raise Children. The second of the County’s proffered governmental objectives involves promoting child rearing by a father and a mother in a marital relationship, the optimal milieu according to some social scientists. Although the court found support for the proposition that
the interests of children are served equally by same-sex parents and opposite sex parents, it acknowledged the existence of reasoned opinions that dual gender parenting is the optimal environment for children. Nonetheless, the court concluded the classification employed to further that goal—sexual orientation—did not pass intermediate scrutiny because it is significantly under-inclusive and over-inclusive.

The statute, the court found, is under-inclusive because it does not exclude from marriage other groups of parents—such as child abusers, sexual predators, parents neglecting to provide child support, and violent felons—that are undeniably less than optimal parents. If the marriage statute was truly focused on optimal parenting, many classifications of people would be excluded, not merely gay and lesbian people. The statute is also under-inclusive because it does not prohibit same-sex couples from raising children in Iowa. The statute is over-inclusive because not all same-sex couples choose to raise children. The court further noted that the County failed to show how the best interests of children of gay and lesbian parents, who are denied an environment supported by the benefits of marriage under the statute, are served by the ban, or how the ban benefits the interests of children of heterosexual parents. Thus, the court concluded a classification that limits civil marriage to opposite-sex couples is simply not substantially related to the objective of promoting the optimal environment to raise children.
Promotion of Procreation. Next, the court addressed the County’s argument that endorsement of traditional civil marriage will result in more procreation. The court concluded the County’s argument is flawed because it fails to address the required analysis of the objective: whether exclusion of gay and lesbian individuals from the institution of civil marriage will result in more procreation.

The court found no argument to support the conclusion that a goal of additional procreation would be substantially furthered by the exclusion of gays and lesbians from civil marriage.

Promoting Stability in Opposite-Sex Relationships. The County also asserted that the statute promoted stability in opposite-sex relationships. The court acknowledged that, while the institution of civil marriage likely encourages stability in opposite-sex relationships, there was no evidence to support that excluding gay and lesbian people from civil marriage makes opposite-sex marriage more stable.

If you want to ban the exercise of a right, fine. Get a majority to agree with you and bam, you got it. Don't call it anything else than an infringement of individual rights.

My issue has been that attempts to regulate rights are either:

the right doesn't exist (in the Constitution, in history, etc)


The right exists, but we are going to deny you the freedom to engage in it.

I think government has the authority to limit my freedoms to act. It is an authority I have given it as a sovereign, and it may, with the careful scrutiny we have in the Constitution, act against me for the benefit of all that seek to express their rights.

I don’t oppose a means of establishing the limits of my freedoms, provided that the means are based in some kind of framework we can agree on. Morality is not one of them. Traditions or the status quo are not one of them.

The questions should not be how do we limit a right, but how much of a right do we have to limit. It is about a point of view, a perspective.

I have the ability to ride a motorcycle without a helmet. How much freedom does the government have to limit that ability? Many hate the nanny state because it imposes on our rights, a concept that we can't be adults and accept the consequences of our actions. But defending the status quo is the same thing. Defending the limitation/infringement or denial of a right because, well, it MIGHT have unintended consequences is the same thing as denying us a gun because it MIGHT be used wrongly.

I am stating a right exists. The basis is: I can conceive it. A right is the ability to act. I have no right to fly into the Sun, notwithstanding Icarus. Maybe, some day, I will own a ship that can fly into the Sun and then we can talk about whether I have the right to do so or not.

But, if I can conceive of an act, I have the right to act in that manner. If in the free expression of that right, my actions infringe upon another, or reasonably could conclude I would, there is an obligation to protect their rights. In the case of seethuma, there are no laws now, so some legal framework might need to be created if I am going to continue to assert the right to seethuma.

Such anarchy...people asserting rights no one every heard of before - taking pictures in public...air rights...damn, what will be next?
All men are created equal - but that doesn't mean I can dunk a basketball. It doesn't mean that if you can, you have more rights than I do. You have a greater freedom to act than I do, but it has not altered our shared human condition.

The free expression, the acting about that right may be beyond the ability of some, but that does not deny the right for them.

If Tracy can conceive of an action, and Tracy thinks they don't infringe or reasonably could be thought to infringe, then Tracy has a right.

And so therefore does anyone else that wishes to repeat the action for themselves. I can not conceive of a right for myself, that excludes, by definition anyone else from the free exercise of that same right.

The individual is sovereign. Not, Tracy is (the only) sovereign. In this society, the United States, we have a Constitution that provides the legal framework so that each individual sovereign can freely express his/her liberties to the maximum WITHOUT infringing on others. The only reason government can exercise a limitation upon my free expression of my rights is to protect others.

The individual is sovereign. All rights are inherent in me, as they are in you. I can not freely exercise any right, if in the process, they deny you the ability to freely exercise yours. We give up some of our sovereignty - some of our liberty to freely express our rights, in order to create clearly defined lines where the free expression of our rights can come up to, but not cross. I believe this is the premise that underlies the foundation of this Country.