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
or,
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 limited...by 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)
or
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.
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