Monday, January 12, 2015

You Can't Cherry-Pick Rights.

I recently re-shared this graphic that was passed on to me

I have pointed this out previously on this blog; and others as far back as Hamilton and Adams have done the same. There's really nothing controversial about it. My liberal and conservative friends alike have no problem agreeing with the principle...

...until you point it out in practice. Then people's brains explode. Mine, too. This essay went a bit further afield than I originally intended, and you may be steamed by the time you get to the end. IF you get to the end.

CASE STUDY 1: The Second Amendment

It's funny to me is that immediately I thought of the Second Amendment (the right to bear arms). This was before I knew that the graphic came from Cold Dead Hands, a "Second Amendment Society". So why would I make that connection, and why would a "Second Amendment Society" push this particular graphic? You may wonder, "Don't they have the Second Amendment to grant the right to bear arms?"
AMENDMENT II: 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.
Well no, they don't. It doesn't grant anything, and doesn't guarantee the right to bear arms either. As stated in the graphic, rights are inherent in you. The Second Amendment merely asserts that right and prohibits the government from infringing it. And the only thing that guarantees any of your rights is your own vigilance and your willingness to elect representatives that will defend them on your behalf by restraining themselves in the passage of laws... and your willingness to defend them on your own behalf should the need arise.

The Second Amendment is not necessary for you to have the right to bear arms. The Ninth Amendment reminds you that you are not limited to those rights enumerated in the Constitution. A good example is the "right to privacy", which is recognized by all US courts and is not enumerated.
AMENDMENT IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
You know what else isn't in the Constitution? Life, Liberty, and the pursuit of Happiness, though the Declaration of Independence assures us they're "unalienable". The Ninth Amendment exists so rights like this won't be forgotten.

The Tenth Amendment reminds you that those powers not specifically delegated to the government are reserved to the People. (The government has no "rights". It has only those "powers" granted by the people and no right whatsoever to anything more.)
AMENDMENT X: "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."
Delegated, not created. Reserved, not granted. Going back to the Second Amendment, you don't have a right to bear arms only because the government allows it, but because it is recognized here as a natural right. Now, many people make much ado about the "well regulated militia" clause and imagine it to mean that only the militia may be armed, and try to limit certain firearms based on this. Many other pro-gun activists swallow that fallacy and twist themselves inside out to demonstrate that the "militia" of colonial times consisted of the populace (and here in South Carolina that's explicitly stated in our state constitution). Still others try to deflect the difficult aspects of the argument by trying to appease "hunters" and "sportsmen", as if hunting and target practice were the only relevant aspects of your fundamental rights to consider.

However, these arguments miss the point. Consider that the Ninth Amendment explicitly states that any enumeration of rights does not deny others. The Second Amendment doesn't limit this right; it gives a reason. The federal government cannot infringe on the Peoples' right to bear arms, and the Fourteenth Amendment trickles this down to the states. The mere enumeration of one reason in the Second Amendment does not deny or disparage the other reasons that individuals have for holding that rightIts foundation is your fundamental natural right to self-defense arising from your right to Life. That is a right of all living creatures, and there is no limit upon it. I get to use whatever means are at my disposal to defend myself. It's held up for millennia in courts around the globe. If you corner me and threaten my life, I can kill you. I don't need an amendment to assert it. I don't need to limit myself to specific means. Furthermore, if you claim that the government has the power to limit this to specific means, you must point out where in the Constitution this power is delegated to the United States. Good luck with that, because it's not there. You might throw a Hail Mary pass by invoking the "general welfare" clause, but that clause cannot negate a person's rights. It's a no-go. So,
  1. It's a right that is founded in the natural right to self defense (Ninth Amendment)
  2. It's asserted along with a second foundation, the security of a free state. This assertion takes the form of an explicit order that the government may not infringe the right (Second Amendment). 
  3. No portion of the Constitution empowers the government to limit the right of the People to bear arms. The inclusion of one reason in the Second Amendment does not preclude others. (Ninth Amendment)
  4. All powers not delegated belong to the People (Tenth Amendment)
Prohibition of arms ownership in America is unconstitutional. Q.E.D.

If you're a Liberal and you like that graphic, you should be backing gun rights. If you don't like gun rights, that graphic should be giving you a guilt trip.

CASE STUDY 2: Drugs, and The Right to Die

In the first case study, the Left tries vehemently to deny your rights, and the Right have opposed them with varying degrees of success. In this second case study the opposite is true. Conservatives would deny you a right that should be obvious under natural law. Not just Conservatives, either. While Conservatives focus on drugs, Liberals focus on things as innocuous as food or the size of soft drinks.

Natural Law is a very pertinent subject, in that it forms the foundation of all of our rights. It's directly referenced in the Declaration of Independence as the reason we as a nation are "entitled" to "separate and equal station". You may remember those three "unalienable" rights listed there: "Life, Liberty, and the pursuit of Happiness". Your right to Life is absolute.

But whose right is it? It seems perfectly obvious that my right to my life is mine alone. Not yours, not the government's, not a court's, not a doctor's. Mine. The hallmark of something that is yours is that you control it. You may do with it as you like, and you may dispose of it as you will. A thing that you can't control... not even when doing so harms no other creature on Earth... isn't really yours at all. Instead you are managing it in accordance with the rules and dictates of your Master.

Now that may be perfectly acceptable to you if your master is God and you've given your life over to Him voluntarily. But even God makes it voluntary, whereas the government has decreed it their business to tell you what you can or cannot ingest or smoke. Well, it's really not their business. It's none of their business whether you smoke, or do drugs, or get fat or get thin. What you do is only their business when it infringes on the rights of other people.

This doesn't mean that it's their business if you merely offend someone. In a free society where everyone has equal rights, it follows of necessity that there can not be a "right not to be offended". That line of thinking results in stupidity and death. It most recently resulted in the massacre at Charlie Hebdo in France. A free society absolutely depends upon tolerance, and that means that when you're offended you simply suck it up. You must actively infringe someone's rights for the government to have a legitimate stake in anything you do.

Now, that might be the case if you're defrauding someone. If through misrepresentation, deceit, or force you sell dangerous products, then may the long arm of the law rest on your shoulder. But every single day dangerous and poisonous products are sold legally. Bleach and gasoline will kill you if you drink them, but you know that, and distributors clearly label poisons. Rat poison is just flat-out called "poison". The point is, I can legally buy poisons. However, though a Gordian knot of logic, it's illegal to buy other substances that are far less toxic. Granted, these are substances that are actually intended to be ingested, but I know that, too. There's not a hint of deceit or fraud in the purchase of marijuana or other drugs. But somehow it's become the "conservative" position to deny liberty to individuals regarding their own lives. Not with regard to all drugs, though... the knot's not that easy to unravel. Socially acceptable drugs like tobacco and alcohol get strong defense from the Right... that is, unless you're really, really Right, in which case you're back to teetotalling.

The very fact that you are alive is a daily choice, and it should be yours to make. Some believe it to be a sin to take their own lives. Others ridicule that belief, saying, "how dare you die before God is finished fucking with you?" There's a solid point behind their irreverent tone. The fact is, different people have different religious beliefs. Not all believe in an afterlife, or the same kind of afterlife, or that suicide is a sin. Some find themselves with degenerative diseases and want to exit Life while still in command of their faculties. Some would not burden their families. Your religious beliefs are appropriate to you, and you should have every right to exercise them as you will. By all means, hang on until God is finished with you. But other people have the same right to live according to their convictions. Your rights stop where their rights start.

Your life is yours, not theirs.
Their lives are theirs, not yours.
You can exert control over what is yours. 
It's really not that hard. 

Nor does acknowledging their rights need to make you any less conservative. Continue to not do drugs and continue to not smoke and not drink if you don't want to, and even encourage others not to as well; don't kill yourself; all while understanding that you can't force your will on other people. God didn't give you a badge to enforce what He will not, so be religiously tolerant. You're supposed to lead by example, not fiat. That's most of what it takes to get you from just being on the Right to being actually right.

At the end of the day, you have a natural right to ingest what you want and do with your life as you will. We don't need laws to make that legal. Not even one law. We should instead remove the laws that prohibit it.

Sauce for the goose, friends: If you like that graphic, you should be for decriminalization of drugs. But if you'd rather dictate what a person can or can't ingest or imbibe, you should feel shame at the sight of it.

CASE STUDY 3: My Mind Explodes

All of what is stated above is ideological perfection according to the founding principles of the United States. It's basically what was intended by all those men who wrote the bloody documents and built the bloody buildings and fought the bloody wars. It's not an ideal that is shared by the country at large, except as lip-service.

We have failed to give a proper education in civics for decades now. The result is that most people are convinced that they are prohibited from doing anything unless they are permitted by the government. The government now believes that, too. Individualists are the odd men out, and our Founding Fathers wouldn't like what we've done with the system.

For instance, that bit about the "general welfare clause". Here it is, leading Section 8 - Powers of Congress:
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"
It was never intended that this simple statement of purpose should be taken as carte blanche to usurp rights of the people. The "general welfare", taken far too broadly, is an excuse for the government to do anything and everything it wants. That it is taken too broadly is proven by the existence of the Bill of Rights and its references to enumerated rights and the limit of power to those powers delegated "by the Constitution".

Nevertheless, that's exactly what's happened. The "general welfare clause" is the excuse for every law passed in modern legislation. It has been taken by increasingly clueless Courts to mean that the government can do anything unless it's specifically prohibited. It has diminished the rights of the People to a few that the politicians couldn't sweep under the rug because they had the bad fortune of being in writing. If it weren't for those we wouldn't have free speech, freedom of assembly, the right to bear arms... none of it. Read the news. Places you think of as "free" don't have a guaranteed right to freedom of expression. It's not written down, so the courts have concluded that it doesn't exist. Australia's a classic example.

The original, proper, and intentional reading of the Constitution is that government can do nothing unless it's specifically allowed. The default position was that the American individual had the right to self-determination except where specifically prohibited. Individuals have broad, sweeping rights except as otherwise written there. I'm not guessing at this. It's not interpretation. It was a Big Deal, and part of the public record. The arguments about the Bill of Rights were not about whether those rights existed. Rather it was concern over the fact that if they were written down, that might imply to people who don't know better that they're the only ones that exist. That's why Hamilton and Madison resisted a Bill of Rights and would not get behind it at all until the Ninth and Tenth Amendments were added.

Those two Amendments were a Very Big Deal. Nevertheless, in 1931 the Supreme Court called it a "truism" that added nothing to the Constitution as originally written. And those are the magic words... "as originally written". Because today it is not interpreted "as originally written". Every single fear that Madison and Hamilton expressed has come true.

Part of the reason, I think, is the elephant in the room: Slavery. Obviously slaves had the same natural rights as any other person, including the same "unalienable" right to Liberty as their owners. But because this was flatly ignored for so long, the general perception is that the Thirteenth Amendment abolished slavery, when it actually asserts a right that has always existed, and had long been violated. As such, the Thirteenth Amendment is no less a "truism" than the Tenth. Had the Courts not been so dismissive about the Tenth Amendment, the Thirteenth wouldn't have been necessary. Hamilton was right.

The Fourteenth Amendment followed shortly after to identify persons born in the United States as citizens and assert their rights to due process and equal protection under the law. You can see why these provisions would be applicable to the time. The concern of the Fourteenth Amendment was those former slaves born in the states who should have been citizens the entire time, and had nothing to do with immigration. The citizenship of slaves had to be guaranteed here because the Supreme Court, that bastion of very often bad decisions, ruled in Dred Scott v. Sandford that former slaves were not and could not become, citizens. But equality under the law was a right even before it was written down for the benefit of those too blinded by bigotry to see it.

Now, as I'm wrapping this up, I have a Facebook friend who commented on my original re-share there. He says:
That may have been true in 1787, but there was different thinking at work in 1865, at which point the federal government became a custodian of certain rights that the states might otherwise curtail. The 14th Amendment, which delegated significant additional powers to the federal government and significantly constrained the powers reserved to the states, constituted a major change in context for the 10th Amendment, one that is often overlooked today.
I have to both agree and disagree on a couple of points here. First, that "different thinking" was at work in 1865. Sure... Madison and Hamilton's fears were so blatant that they anticipated such thinking in 1787. But I think to say that at that point the federal government became a custodian of certain rights is erroneous. The 14th Amendment does not change the nature, origin, or ownership of any rights. To use the word "custodian" carries a false implication of ownership. I'm pretty sure he meant it in the sense of "stewardship", but I'd vastly prefer the word "guardian" instead.

Second, I feel the point about the "additional powers" of the federal government bears comment. The constraint upon the states was to prevent them from passing unconstitutional laws, specifically those that deny due process or equal protection. I understand it to mean that all the rights you have with regard to federal law, you also have with regard to state law. The additional power of the federal government is to enforce that through "appropriate legislation". Now, when it says that a state can't deny any person equal protection under the law, at the time it would have been clear that it was referring to the citizens of a state. For instance, Georgia can't pass a law that applies to White Georgians differently from Black Georgians. It took a while to get that right, too... it had to wait for the 1960s.

But while that's a positive move, we're arriving at a situation where the courts increasingly interpret this to mean uniformity of laws between states. So a federal court might look at a law passed in Georgia that treats all Georgians the same; and applying precedent from Tennessee, rule that it's still unconstitutional under the equal protection clause of the Fourteenth Amendment. This, I think, is a misreading and a mistake. Part of the value of having several states is that people disagree. And when they disagree, it's useful to be able to "send them to their own rooms". If you don't like New York, you can always move to South Carolina. My mother did... it works when there's a difference. But if there's no difference, then homogenous laws simply increase dissent. It's the opposite of what their proponents intend, but it's a consequence of applying pressure with no escape valve.

The important point here is that states were given autonomy for a reason, and it's not so we can name the college football teams. The states have vastly different geography, industry, population, culture, and needs. They disagreed on a lot of specifics then, and it wasn't going to get any better. Look at any "Red State/Blue State" map. Forcing one group to conform to another's ideals is silly. So we have different states, and the world has different countries because not everyone agrees to those ideals we agree on and hold precious amongst ourselves.

And that brings me back to that graphic. It's an ideal. 

I've heard people disparage the "old White men" who framed our system of government. I've heard people say how irrelevant the Constitution is because it was never followed perfectly.

I look at them like I would a high jumper with terrible form who says that the bar doesn't exist because he's never cleared it. The problem's not with the bar, it's with them.

When you don't clear the bar you fix your form. In 1787 "old White men" cut their ties with an unfair, exploitive monarchy and put together a system of government based on certain ideals. They had to compromise on the execution to make it happen, but the ideals were clearly stated. A mere 73 years later in 1860, more "old White men" split the country in two to fix its form and get rid of slavery. And 100 years after that, still more "old White men" passed Civil Rights legislation that should have been unnecessary under the Constitution of 1865.

The Thirteenth and Fourteenth amendments didn't add a single right that those people didn't have naturally. And that's a problem. According to Hamilton, none of the Amendments that assert rights should be necessary. The example of other countries show they are. The big reason is that people are conditioned to believe that the government grants them rights. They think they need laws to grant them that which they already have. And the politicians and the courts alike are very happy to encourage that belief by pretending they don't have those natural rights so that they can "grant" them all manner of things and keep this upside down system of power in place.

Ideals tell us what we're supposed to do. At this time that upside-down system is the #1 thing wrong with our country's form. It keeps people from recognizing that they are empowered and acting on it. People sit around waiting for someone else to fix their lives and make them right. My mind explodes because I look at this and see how hard people make it for themselves, and for each other, and how it could all be avoided if they looked at that graphic at the top of the page and believed it.

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