Comments on the U.N. "Universal Declaration of Human Rights"

The following is the United Nations’ “Universal Declaration of Human Rights”.  It expresses many worthy ideals and begins in prose analogous to the Declaration of Independence, but especially in the final pages it slips into extremely socialistic language.  This document is being touted around the internet by some as an ideal.  I've decided to refute those passages that I find offensive.  I will highlight the offending or questionable words or phrases in red, and my comments will be in blue and I’ll include links to pertinent articles from my blog:

PREAMBLE       

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Taken literally this passage is not offensive, freedom from fear and want is certainly a worthy aspiration, but in the overall context of this preamble that talks of “fundamental human rights” and “fundamental freedoms” and taking the entire document into account, this passage seems to raise the desirable goal of “freedom from want” to the level of an inalienable right, and that is a dangerous concept…  http://thoughtofasecularconservative.blogspot.com/2011/11/natural-rights-social-rights-and-social.html

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

OK, maybe I’m just paranoid about the word “progressive”, and also about the notion of using “teaching and education” to promote this document.  I have no problem with teaching the value of human life, diversity, and respect for all, but if I disagree with some of this documents “rights and freedoms” then I don’t want them taught to my children and grandchildren, and while I’m teaching my children and grandchildren about inalienable rights and freedoms, I’ll keep the Declaration of Independence and the United States Constitution “constantly in mind” rather than anything published by the United Nations. http://thoughtofasecularconservative.blogspot.com/2010/10/progressivism.html

Article 1.

• All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

• Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.

• Everyone has the right to life, liberty and security of person.

Article 4.

• No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.   (Does this include punitive taxation?)

Article 5.

• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

• Everyone has the right to recognition everywhere as a person before the law.

Article 7.

• All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

• Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

What constitution is being referenced here?

Article 9.

• No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

• Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Who determines what’s “fair”? What constitutes the “independent and impartial tribunal”?  Is the UN planning to monitor American courtrooms?

Article 11.

• (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
• (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.

• No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.

• (1) Everyone has the right to freedom of movement and residence within the borders of each state.
• (2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

• (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
• (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

I think I agree with the spirit of this passage, but how can it be said that anyone from any country has the “right” to asylum in another country?  Such implied subordination of sovereign nations to the UN is very troublesome and is found throughout this document. 

Article 15.

• (1) Everyone has the right to a nationality.
• (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16.

• (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
• (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
• (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.

• (1) Everyone has the right to own property alone as well as in association with others.
• (2) No one shall be arbitrarily deprived of his property.

Article 18.

• Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.

• Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.

• (1) Everyone has the right to freedom of peaceful assembly and association.
• (2) No one may be compelled to belong to an association.

Article 21.

• (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
• (2) Everyone has the right of equal access to public service in his country.
• (3) The will of the people shall be the basis of the authority of government; this will be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Again I agree with the spirit of this statement, but in the United States our Constitution is the basis of the authority of government.  While it’s true that “the people” have it in their power to amend the Constitution, it is by design a difficult process not subject to the whim of a momentary majority.

Article 22.

• Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

What does this mean? Does it mean that each member of society has the right to work toward his or her full potential? If so how does the “organization and resources of each State” come into play?  The very vagueness of this statement and others in the document is disturbing, as if designed to sneak in meaning that might not be caught by the casual reader.

Article 23.

• (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
• (2) Everyone, without any discrimination, has the right to equal pay for equal work.
• (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
• (4) Everyone has the right to form and to join trade unions for the protection of his interests.

(1) What does “protection against unemployment” mean?  While everyone has the right to work pursuant to agreeable terms with an employer, no one has the right to force an employer to hire them, nor does the state have a legitimate right to force someone to hire against his will.  Does this mean that everyone who is unemployed has the right to some kind of government provided sustenance?  Such a notion is raw socialism. http://thoughtofasecularconservative.blogspot.com/2010/10/communism-socialism-democracy-and.html

(2) Equal pay for equal work is certainly fair and desirable, but as I’ve stated elsewhere, state enforcement of such policy is impossible, and attempting it would be disastrous to liberty.

(3) There are many jobs that do not and cannot pay a wage large enough to assure a family “an existence worthy of human dignity”.  Such jobs are usually held by young people in high school or college or by someone who is not the primary bread winner in a family.  Forcing employers to comply with this statement would be economically disastrous for all concerned. Supplementing “by other means of social protection” is pure socialism and would result in even greater disaster.

(4) No argument, but I’d add that everyone also has the right to not join a trade union and every employer has the right to hire non-union personnel.

Article 24.

• Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Again a reasonable and desirable thing that is NOT a “right” – classifying such things as rights distorts the meaning of the word and that’s a dangerous thing to do.  Such things are negotiable between employer and employee, or group of employees organized into a union.

Article 25.

• (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
• (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

OK, this is as good a place as any to make the point that no one can have a “right” to something that must be paid for by someone else.  This statement says that I have the RIGHT to be completely taken care of by society.  I don’t know why this statement mentions unemployment – who in the world is going to work if they have the right to all of this stuff just for existing?

Article 26.

• (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
• (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
• (3) Parents have a prior right to choose the kind of education that shall be given to their children.

(1) Here’s that word again. I’m all in favor of free education through high school, but it’s not a “right”. In my article “Natural Rights, Social Rights, and Social Privileges” (link above) I refer to free education as a “social privilege”, a gift given by society and morally valid because virtually all of society benefits.  One cannot have a “right” to something that has to be paid for by someone else.

(2) This statement is mostly OK unless one accepts this document’s definition of “human rights” and “fundamental freedoms”, but the notion that education should promote the United Nations is repugnant.

(3) I like this and believe that it contradicts (2) along with one or two other statements in the document.

Article 27.

• (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
• (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.

• Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

As already discussed, many of the “rights and freedoms” set forth in this declaration are not legitimate rights and freedoms so the entitlement of a social order guaranteeing them is equally illegitimate.

Article 29.

• (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
• (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
• (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

(2) “General welfare” is always a phrase to be viewed with suspicion; and yes, I know it is used in the Constitution, but the meaning at that time was not what is often implied today see link below).  In any case the problem here is that this statement seems to be saying that we have the right to exercise our rights as long as exercising them is beneficial to others.  In other words they are not rights at all.

http://thoughtofasecularconservative.blogspot.com/2013/01/the-general-welfare-clause.html

(3) Now I may not exercise my rights if they are contrary to an Ad Hoc assembly of ambassadors whose authority I do not recognize.  This means I do not have the right, in spite of the First Amendment, to advocate that the United States should leave the UN and stop funding it, because that would certainly be “contrary to the purposes and principles of the United Nations.” 

Article 30.

• Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

This is vague enough that I’m not sure but I think I've already violated it…

In fact many of the articles in this document are vague, seemingly by design.  Sometimes that happens when those creating such a document cannot agree on more precise language; such was the case in some passages in the United States Constitution.  Other times vague language is purposely used to confuse the reader and slip in language that many would otherwise object to.  I’ll leave it to the reader to decide if such language appears within this document.

The Source of Liberty – an American Dichotomy

Author’s Note:  The following is only a theory based on reasonable knowledge of the times discussed and much thought, but no sociological research.  As far as the author knows this theory is unprecedented and has not been studied or tested by academia.

 

In spite of being unaware of John Locke and only perhaps vaguely so of Thomas Jefferson, most American children know at some gut level that people are born free; that a state of liberty is the natural state for humans.  Having this notion of natural freedom and liberty as part of our fiber is an American trait, and was once uniquely American.  The United States was the first country in recorded history to officially embrace the Enlightenment concept of Natural Rights – the concept as stated in our Declaration of Independence 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.”  Our British brethren prior to the Revolution were a relatively free people by European standards, but it was generally understood in Britain that the rights enjoyed by Englishmen were given to them by the monarch, often at the point of a sword, and held in trust by Parliament; only a rare philosopher suggested that the rights of humans did not come from government but are “God Given” or “Natural” – rights that belong to humans by the nature of being human.  This philosophical anomaly was the foundation of the United State of America. *

So initially because our Founding principles were taught, celebrated, and discussed nationwide and then, as Revolutionary fervor waned, in subtle, subliminal ways involving little thought, most Americans throughout our history have grown up with the notion of Natural Rights engrained in their psyches; they knew that our rights do not come from government, but that the purpose of government is to protect rights that are ours at birth, that “to secure these rights, Governments are instituted among Men.”  Americans had every reason to believe these truths; even those only vaguely familiar with our history lived in an environment that taught them by mere contact with our society.  This has been true for over two hundred years, but to a diminishing degree and not for all Americans.

When Thomas Jefferson wrote that all men are “created equal” he meant that the law applies to all men equally and that no man is superior to his fellows by accident of birth; he meant that all men are born with inalienable rights, not just an aristocratic few.  It was a direct refutation of the hereditary aristocracy that dominated Europe and of the idea that rights are a gift of government.  But did he mean to include African slaves or even African freedmen?  It may seem obvious that he did not considering that he was a slave holder, but the answer is not so simple – his meaning was in fact a subject of great debate in the years of political conflict leading up to the civil war.  In spite of being a slave holder Jefferson was opposed to the institution of chattel slavery and expressed hopes that time would bring it to a peaceful end.  The general attitude among the Founding generation, even among most southerners, was that it was a necessary evil that would be eliminated by time.  Two or three generations later, at least in the south where cotton had become hugely profitable following the invention of the cotton gin, this attitude had given way to one of justification - the general argument being that the Negro race was naturally inferior and meant to be subservient to whites, and that they were being blessed with exposure to Christianity.  The narrative had changed from “necessary evil that will eventually be eliminated” to “the way God meant for things to be perpetually”.

The great orator and compromiser, Henry Clay, principal architect of the Missouri Compromise and the Compromise of 1850, and also a slave holder, argued that Jefferson indeed meant to include all men in his famous passage – that Jefferson and most other Founders believed that Africans as well as whites were born with inalienable rights and that those rights being recognized and protected by the United States was an ideal for America to strive toward even if it could not be immediately realized.  Abraham Lincoln admired Clay and cited his arguments in his debates with Stephen Douglas.  The new Republican party of Lincoln still hoped that if slavery could be contained to the existing south it would eventually become economically disadvantageous, its supporters would lose political clout, and the “peculiar institution” would die out.  The argument in antebellum America was not about emancipation, it was about proliferation of slavery into recently acquired territories, about the balance of power between slave States and free States. 

The debate ended when war took its place – and during the Civil War Lincoln used war powers to free the slaves in the rebelling States and then following the war slavery was abolished throughout the country by the 13^th Amendment; blacks were given full citizenship and equal rights by the 14^th Amendment, and specifically granted equal suffrage with whites in their respective States by the 15^th amendment.**

The new freedmen, all born into slavery, had no cultural history of liberty or rights; any such history from their antecedents was stolen at the same time that those ancestors were stolen from their homelands in Africa and thrust into a slave culture of mixed origin, and in America there had been no liberty or rights for black slaves – and virtually none for free blacks.  It was certainly not possible immediately following emancipation for blacks to adopt the general American notion of inalienable rights endowed upon them at birth – it was not, and could not be, part of their culture – only slavery had been endowed upon them at birth.  So it was only natural for blacks to look at Lincoln’s Emancipation Proclamation as the source of their freedom and the aforementioned constitutional amendments as the source of their rights; and the source of that proclamation and those amendments was not God or nature; it was government.  Certainly there was a large percentage of religious blacks that looked to God for comfort and spirituality, but this was manifested primarily in faith in a sweet afterlife, not in a John Locke idea of God Given rights.  Rights were within the realm of Caesar, or else why had God denied them their rights for so long?  Under such circumstances only rare individuals made the mental and emotional leap to realize that emancipation and those rights guaranteed by the 14th and 15th amendments were Natural Rights being belatedly protected by a government that had previously denied them rather than a gift from that government.  All slaves especially the hundreds of habitual runaways that repeatedly risked death and almost certain horrendous punishment to grasp at a tiny hope for liberty must have had the burning for freedom and an instinctive resentment of Natural Rights denied them imbedded in their souls in a deep in the gut way, but when emancipation came they thanked God for his mercy and government for their freedom.  There could be no understanding of “God Given Rights” or Natural Rights” in an Enlightenment sense. 

So for some time two completely different cultural notions regarding the source of liberty and rights existed simultaneously in the United States and these notions were so engrained in their respective cultures that many people were barely aware of their existence even while they lived and breathed one or the other and passed it to the next generation. 

If one is to give credibility to the philosophy of The Enlightenment, The Declaration of Independence, and the founding principles of the United States of America then it must be concluded that it was the cultural notion of the black portion of America that was in error, however understandable and inevitable that error was under the circumstances.  Whether one considers our rights a gift from God at birth or simply ours by nature, our liberty and rights do not come from government and cannot be taken away by government; they are innate and inalienable.

Since these notions regarding the origin of liberty and rights are largely unconscious, it’s difficult to say, and no one has attempted to measure, to what degree either continues to exist in 21^st century America.  We know that reinforcement of Enlightenment thought on Natural Rights is severely lacking in our education system so neither white nor black youth are being introduced to the concept, but in the ‘50s and ‘60s the civil rights movement made profound advances in promoting the idea of Natural Rights among blacks.  Thurgood Marshall referred to Natural Rights in arguing Brown vs. Board of Education, and Martin Luther King did so on many occasions including his “I Have a Dream” speech.  But we also know that people in general are becoming more dependent on government, so while many blacks are perhaps losing the erroneous notion of government being the source of our rights, other people of all races are adopting it, so as the black and white cultures finally merge, the two cultural notions about the source of rights can no longer be defined as a white notion and a black notion, yet both continue to exist, and the erroneous one needs to be corrected to the degree possible.

Why is it important that Americans understand that our rights are endowed upon us by God or by our very nature rather than by government?  Because if we believe that government is the source of our rights then we must accept that government can legitimately take those rights away, or grant them selectively - giving rights to some citizens but not all: white not black, rich not poor, young not old.  Also if we misunderstand the source of rights then the very definition of rights is endangered; believing that rights come from government leads some to believe that many socially provided services such as healthcare or education are actually inalienable rights.  Such distortion of the words “rights” and “inalienable” are not just verbal errors, they are dangerous mistakes.  While the wisdom or appropriateness of such services being provided by government is worthy of debate, or in some cases pretty much universally accepted, labeling them as government given “rights” changes them to something that government MUST provide, and therefore government MUST confiscate the property of some to provide these “rights” to others, thus trampling on real rights and eliminating proper debate about taxation via representation. ***

Whatever the sentiments of Jefferson and the other Founders, it’s time for all Americans to stand up and shout that every human, every man and every woman of every race, every nationality, every religion, and every sexual orientation was born free with inalienable rights.  It really doesn’t matter if we believe that those rights come from nature or from nature’s God, but we must expunge the notion that they come from government.

 * For more discussion on American Revolutionary era attitudes regarding liberty see:  http://thoughtofasecularconservative.blogspot.com/2011/01/american-exceptionalism.html

** It should be noted that the promises of the 14^th and 15^th amendments were not truly realized until nearly a century after their ratification except during the brief span called Reconstruction immediately following the Civil War when federal troops and northern Republican administrators occupied the South – another example of government being the source of rights for blacks.

*** For more discussion on Natural Rights vs. Social Privileges see:  http://thoughtofasecularconservative.blogspot.com/2011/11/natural-rights-social-rights-and-social.html

Amending the 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.”



Let’s get real about the Second Amendment – and I’ll start by stating that I’ve owned guns since I was seven years old, and I’ve posted and blogged in support of the Second Amendment for two or three years now. I also want to make the point that the “right to keep and bear arms” is not about hunting, it’s about protecting oneself, one’s family and ones community. But if taken literally the Second Amendment guarantees my neighbor the right to keep a nuclear bomb in his basement and frankly I’d rather he didn’t, and I’m pretty sure James Madison wasn’t thinking of nuclear bombs when he introduced the Bill of Rights into Congress. So I think it’s fair to say that some modification to the Second Amendment to accommodate the modern world makes sense.



The debate about whether or not we’re safer by owning guns rages on all around us and it’s not my purpose to jump into that argument at this time; my point here is not specifically about the Second Amendment or the right to bear arms, it’s about the integrity of the Constitution, and the point is that any modification or dilution of the Second Amendment via legislation, no matter how sensible or universally acceptable the laws enacted may be, is not constitutional; and allowing unconstitutional laws to pass and stand degrades the Constitution. The only means of modifying the Second Amendment under the Constitution is via another constitutional amendment; otherwise the Second Amendment is clear, “… the right of the people to keep and bear arms shall not be infringed.” Any law making it illegal for my neighbor to keep a nuclear bomb in his basement is unconstitutional.



Originally the Amendments in the Bill of Rights (the first 10) were assumed to only apply to the central government.  Each individual State government had the right to control arms, or to use tax dollars to support churches, or stifle freedom of speech, etc, unless prohibited by the respective State Constitution; but the Supreme Court has eliminated this distinction between the central government and State governments in regard to the Bill of Rights.* The Second Amendment and the rest of the Bill of Rights now apply to the State and local government entities as well as the federal government, so none can infringe on the right to bear arms – at least not constitutionally. Of course they do anyway in dozens of ways, some States require concealed weapon permits; cities outlaw carrying altogether; nuclear bombs are not allowed (I’m pretty sure); some classes of weapons in some States require background checks before purchasing – the restrictions, i.e. infringements go on and on. No matter how much sense these laws might make; no matter how much everyone agrees that we don’t want the neighbor harboring nuclear weapons, these laws are clearly contrary to the Second Amendment and should be declared unconstitutional unless and until a constitutional amendment modifies the Second Amendment.



The Framers of the Constitution recognized the need to allow for changes to it, so they provided an amendment process, but the amendment process was purposely made very difficult; the framers didn’t want changes to the Constitution taking place whimsically. One of the requirements for a Constitutional Amendment is ratification by 3/4 of the States, so no one attempts an Amendment to modify the Second Amendment because they assume that this supermajority of the States would be impossible to obtain, as it certainly would if an amendment were to seriously endanger the right to keep and bear arms, but an amendment to omit the right to keep nuclear bombs would probably fly.

If we were to make a list of all of the weapon types in the world in order of deadliness, with nuclear bombs at the top and perhaps fingernail clippers at the bottom, there must be someplace, moving society’s finger down the list, where the vast majority of us could draw a line and agree that the weapons above that line should be omitted from the arms that citizens of the United States are allowed to bear. My point here is not to define where the line should be drawn; my point is that it should be drawn by constitutional amendment, not by federal, state, or local officials or legislatures in disregard of the Constitution.



Every elected official in the United States takes an oath of office vowing to uphold the Constitution of the United States. This is important for legislators because the laws they pass are supposed to adhere to the Constitution; every bill should be scrutinized for constitutionality at every step in the process of becoming law by every legislator involved; but too many legislators in both major parties seem to ignore the Constitution and their oath, pass whatever laws suit them, and leave it to the courts to decide constitutionality. This is not as it was intended by the Framers – that’s why the oath exists. Perhaps it would be OK if the Supreme Court was able to immediately rule on every law as it passes, and on the process by which it passes, so that no unconstitutional laws went into effect; but instead they do go into effect and remain so until challenged and taken along an extremely long and expensive legal path to the Supreme Court. Legislators take this easy path, pass whatever laws they want with no regard to the Constitution, and the expensive process discourages challenge, or if a law is challenged it’s typically long after the law has accomplished the legislator’s purpose. For many legislators this disregard and even distain for the Constitution is openly declared making a mockery of their vow to uphold it, yet they are re-elected time after time. This means their constituents disdain the Constitution also, which is, of course, the real problem.



The primary purpose of the Second Amendment was to give citizens the means of protecting themselves from their government if it became despotic, and while still valid philosophically the notion of citizens in the United States taking up arms against their government is no longer practical, and certainly not desirable; but that’s all the more reason to vigilantly maintain the integrity of the document whose purpose is to prevent despotism; that document is The United States Constitution.







*See: http://thoughtofasecularconservative.blogspot.com/2012/03/constitutional-confusion-and.html

Let’s Be Fair – It’s Not All President Obama’s Fault (or Bush’s)

My liberal friends like to point to a State with a sluggish economy and blame the Republican governor; conservative friends point to the sluggish economy of the country in general and blame our Democratic President.  These people are all oversimplifying a very complex situation.  The state of an economy does not operate on consistent four year cycles, nor does it respond to all outside forces immediately.  Some forces have effects that are felt quickly; others take many years to have full effect, so it’s not always fair to judge the economic effects of a Presidency by comparing the economic situation at the end of an administration to that at the beginning. The effects of the actions and policies of any Presidency are both short term and very long term; we still suffer from precedents set by Washington’s administration and virtually every administration since.

 The “economic meltdown” of 2008 was caused by bad decisions by several administrations and Congresses, it’s not fair to lay the entire blame on Presidents Bush, or Clinton, or the Congresses that sat during those years; nor is it fair to lay the entire blame of current unemployment, sluggish recovery, and high gasoline prices on President Obama.  

If voters are concerned with economic issues, and we all should be, they should be less concerned with the economic snapshot of the moment than with the general economic philosophy of the candidates or political parties.  We should each ask ourselves if the philosophy expounded by a candidate or party is one that will have a long term positive effect on the economy or a negative one, the stated philosophy, policies, and agenda of each party and every candidate should be subjected to an economic common sense litmus test.

It’s difficult if unemployed or facing foreclosure on a home for one to take a long term view of the economy; it’s more likely that people in such situations would look for a person or party to blame or a quick panacea to support, but the party we find to blame is not likely to be completely at fault, and quick panaceas are very likely to be the primary cause of the next recession and in some cases can have negative effects for perpetuity. So if we care not only for our own well being but also for that of our descendents, we must think long term.  

Those that believe that the current economic trend in the United States is not sustainable - that the exploding national debt will have very negative effects in the future, and that Social Security, Medicare and other so called “entitlements” will sooner or later become insolvent if changes are not made - must ask ourselves which party, which candidate, which economic philosophy is most likely to lead to the changes needed. These problems are not the fault of any one President, Congress, or political party, so while we may debate about which party is the most to blame, it’s more productive to look forward and ask which party has the better solutions.   

While too many politicians think no further ahead than the next election, most give at least lip service agreement that the debt and deficit are too high; the differences in philosophy boil down to what appears to be a simple question: Do we tax too little or spend too much? Then, if we tax too little, who should be taxed more; if we spend too much, where should we cut?  The philosophies of the two major parties are well known on these questions, so the exercise left to each of us is to examine those philosophies and ask ourselves which one makes sense; which fits our own set of values; which leads to long term solutions and sustainability?

Having established that no President is completely responsible for the economic situation at the end of his tenure, it’s nevertheless worth noting that some Presidential policies have immediate effects, with negative effects more likely to take effect quickly than positive ones (arsenic acts very quickly on a patient; medicine generally takes time.)  Examples of fast acting negative acts by the current administration include Obamacare, the skyrocketing deficit, the moratorium on offshore drilling, failure to immediately push forward on the Keystone Pipeline, and reams of new regulations that hinder business - especially small business.  Another glaring example would have been Cap-n-Trade had it passed, as will be its sneaky backdoor equivalent if enacted by the EPA.  But are there offsetting positive effects that will take place in the future that result from actions of this administration?  Will Obamacare bend the healthcare cost curve?  Will green energy finally eliminate our dependence on foreign oil?  Would taxing the rich really help bring down the national debt?

My purpose here is not to convince anyone of any particular opinion on these questions, but rather to encourage everyone to ask them and many others with honesty instead of habitually voting for one party or the other. The stakes are too high, surely the highest in memory, because the current economic trend is truly unsustainable and the consequences of continuing on the current path will have to be paid soon.

The “Buffett Rule”

The Senate votes on the so called Buffett Rule today, a tax law that the President says will “stabilize our debt and deficit for the next decade”.  He also argues that it is “fair” in that it will make those that don’t pay a fair share of taxes do so.  That sounds like a plan worth checking out, so let’s look at the numbers…

According to the Dept of Treasury, the Buffett Rule will raise less than 5 billion dollars per year which is less than a half percent of the projected deficit, or to look at it another way, less than it costs to operate the federal government for one day; less than 10 times the amount of money flushed down the Solyndra drain, not to mention the other failed “green” investments.  So it’s not the financial panacea that the President indicates, rather it’s an amount that the government could easily save by not making bad investments in green energy companies and paying for studies on the sexual habits of monkeys.

But independent of the fiscal ramifications, we need to tax the rich more just because it’s the fair thing to do.  Is it?  According to the Congressional Budget Office the top 1% of income earners who are targeted by this law are already paying nearly 40% of the income taxes paid in the United States while 90% of earners pay roughly 30% of the taxes and nearly 50% of workers pay no income taxes at all even though they enjoy the same government provided services as everyone else.  Is it really fair to tax that top 1% even more when it won’t do anything to help the fiscal mess we’re in?  *

When the President talks about the percentage of taxes paid by people like Warren Buffett, he’s referring to their dividend income which is taxed at a lower rate than normal income, but in order to understand why this is fair, one must understand that dividend income is money distributed by a corporation to its shareholders after it has already paid corporate income taxes, and the United States has the highest level of corporate income taxes in the industrialized world.  So when a corporation makes a profit that profit is taxed, and then the corporation might pay out some of its left over profit in dividends to its shareholders, and those dividends are taxed again; so it’s understandable that money that has already been taxed should not be taxed as normal income when it’s taxed the second time.

It’s said by supporters that the Buffett Rule only hurts those who can afford it, but if the dividend income tax rate is doubled for those huge investors as this law proposes, then billions of dollars will leave the stock market and go into such investments as treasury bills and municipal bonds.  This huge blow to the stock market would adversely affect every retirement account and 401K in America, and might well trigger another major recession.

So why is the President pushing a bill that, if passed, would have no measureable positive effect and would instead damage the investments of every middle class American and quite likely hamper the already anemic economic recovery?  Because he knows it won’t pass, and the not passing will help him reinforce his position that the Republicans are all for the rich and they refuse to help him solve the country’s financial problems.  The President hopes to win reelection by promoting class warfare; he knows that many of the people that pay little or no taxes will vote for him if he targets the rich while painting his opposition as supporters of the rich, no matter how unfair or unwise his proposals may be.


* http://www.heritage.org/budgetchartbook/top10-percent-income-earners

Constitutional Confusion and Controversy

Following the American Revolutionary War the thirteen individual and separate British colonies in North America found themselves to be thirteen individual and independents states – the word “state” being synonymous with the word “nation” or “country”. Following the Declaration of Independence each had formed a representative government derived from the colonial legislatures and by the end of the war all but two had written constitutions, nine within a year of the Declaration of Independence. These nations had wisely allied themselves with one another in a confederation for the purpose of fighting for independence and for mutual protection beyond that conflict; they had defined this confederation in a document called The Articles of Confederation that established a congress made up of representatives of each of the states with each state having one vote. Said congress had very limited power because the citizens of each of the states recognized the value of an allegiance called the United States, but they were reluctant to grant significant political power to any entity beyond the borders of their home state.

The United States under the Articles of Confederation were analogous to the modern European Union, individual nations allied together by mutual agreement. There were important exceptions to this comparison: The states had just banded together to win a major war, they had never fought a war amongst themselves, they shared a common heritage, and all spoke a common language. All of the ingredients existed to form a united nation, but regional and home-state loyalties persisted among a large percentage of the citizens of the various states. However, within a few years some prominent citizens realized that the extremely weak central government under the Articles of Confederation was too impotent to hold the confederation together. Near chaos and the very real possibility of war among the States became, for some, a fear greater than the fear of central government. The most prominent, revered citizen of all was George Washington who had witnessed the deprivation suffered by the Continental Army during the Revolutionary War due to the inability of Congress to levy taxes, so when he was approached by James Madison and Alexander Hamilton, the principle early advocates for a new constitution, he agreed to preside over a convention to address the inadequacies of the Articles of Confederation. His participation, along with that of an aging Benjamin Franklin in what became known as the Constitutional Convention legitimized the proceedings in public opinion.

Every State except Rhode Island sent delegates to the convention, but the delegates from many of the States were authorized only to patch up the Articles of Confederation as necessary, and were specifically instructed by the legislative bodies that delegated them NOT to create a new document giving the central government additional powers. Nevertheless the Convention gave up on the Articles and slowly hammered out a Constitution that bound the States more tightly together and defined greater authority for the central government while retaining a large measure of sovereignty in the individual States. The scope and purpose of the Constitution was to define the branches of the central government, the authority of that government, the relationship between it and the States, and place some limitations on the authority of the States. It was assumed at the Constitutional Convention and later explicitly stated in the Tenth Amendment that any powers not specifically granted to the central government in the Constitution would remain with the States unless specifically denied the States. This point is worthy of clarification: The central government was only to have the powers specifically granted it by the Constitution; the States were to retain all powers not specifically denied them by the Constitution, subject to the individual State constitutions.
 
Most of the Constitutional delegates were lawyers and when lawyers create a written document they habitually use very precise language so that the meaning cannot be questioned, yet we find passage after passage in the Constitution that is vague and subject to interpretation because precise language could not be agreed upon. During the summer of the Constitutional Convention the delegates became determined to succeed in creating a Constitution that nearly all of them could sign. They would compromise as necessary to make that happen, and where necessary use vague language to allow for agreement - leaving it to later generations to clarify. (Almost immediately following ratification of the Constitution legislators, administrators, and the Supreme Court began the two century long process of clarifying on the side of more power for the central government.)
 

It was agreed at the Convention that ratification by nine of the thirteen States would be enough to consider the Constitution as being adopted, but it was also understood that the bigger, richer States like Virginia , New York, Pennsylvania, and Massachusetts must be among those in agreement or the Constitution would fail, and that universal ratification was highly desirable. James Madison and Alexander Hamilton, the same two men who had lobbied for the Constitutional Convention, now led the effort for ratification – especially in their respective States, Virginia and New York. This effort produced the series of essays supporting ratification known as The Federalist Papers published in New York newspapers, and indirectly to the Bill of Rights (the first 10 amendments to the Constitution). 

The lack of a Bill of Rights in the Constitution was thought by many to be a major omission. The English Bill of Rights had been considered a sacred document by many of these recent British subjects, so in spite of misgivings on Hamilton’s and Madison’s part, those in favor of ratification, known as Federalists, agreed in principle to the addition of a Bill of Rights following ratification. It’s worth noting why such lovers of liberty as Madison and Hamilton* opposed an American Bill of Rights while other patriots pointed to the British Bill of Rights as a sacred document. The difference is one of both philosophy and history. In England all power and prerogative had once been held in the hands of the King and individual rights and liberties had been wrested from him bit by bit, document by document over centuries, and were still considered to have come from the monarch. In America, as stated in the Declaration of Independence, individual rights were assumed to be endowed upon men by their Creator or, synonymously, be “natural” - belonging to every human by the nature of being human, and subject to no man’s whim. In the minds of such philosophical Founders and Framers, it was not necessary to specifically protect any rights in the Constitution because the central government had no power over individual’s rights except as specifically stated in the Constitution and agreed to by representatives of the people in the ratification process. It was feared that picking out certain rights to be specifically protected by the Constitution would weaken this concept of God Given or Natural Rights, and put all rights not specifically mentioned in jeopardy and those mentioned open to debate. (See the Ninth Amendment for Madison’s attempt to alleviate these concerns)

Nevertheless, once the new government was in place Congressman James Madison, being true to his word, introduced 12 Amendments to the Constitution into Congress. Ten of these were ultimately adopted and ratified by the States and are called the Bill of Rights. Subject to less time pressure, less compromise, and no doubt due to the brilliance of the author, the language of the Bill of Rights is more concise than much of the main body of the Constitution, and while the wording was somewhat edited by Congress, the text can primarily be credited to Madison who was considered to be the foremost authority on the Constitution by all except his political enemies, with Hamilton moving to the top of that list while he was Secretary of the Treasury and virtual leader of the Federalist Party.

So if we are to respect Madison’s scholarship, his abilities, and his knowledge of the Constitution, it’s a worthy exercise to analyze his wording in the Bill of Rights.  For example, the First Amendment places specific restrictions on a specific entity, the central government: “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.”; the word “Congress” clearly referring to the Congress of the United States. Note that this language places no restrictions on the States.
 
But the language in the Second Amendment is all encompassing: “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.” It doesn’t specify any particular entity or list of entities that may not infringe on the right to bear arms; instead it appears to state that the right to bear arms “shall not be infringed” in the United States of America. ** Similar blanket language can be found in the other Amendments in the Bill of Rights; only the First Amendment uses language exclusive to the central government.

At the time, however, no thought was given to these nuances of language; instead it was assumed that The Bill of Rights only restricted the central government and had no authority over the States.  States were free to stifle free speech, control firearms, or sponsor religion. *** This is not to say that the Framers believed that free speech or the right to bear arms should be usurped by the State governments, but it was left to State constitutions and laws to protect the rights of citizens from the State governments while the Bill of Rights protected them from the central government. This assumption was accepted without concern at the time because people were not afraid of their State governments; the central government was the entity of suspicion.  We find no objection in Madison’s writings to a lack of adherence to his language in the Bill of Rights. If we assume that the differences in language were intentional on his part then perhaps he was content with an interpretation that gave maximum power to the States and maximum restriction on the central government.  We know that as the Federalists evolved from a group supporting the Constitution into a political party that favored more central power, Madison became a champion for States Rights and a staunch Jeffersonian Republican.

The Bill of Rights applied only to the central government until 1925 when the Supreme Court, again ignoring the precise language of the First Amendment stating that it only applies to “Congress”, decided that the guarantee of Freedom of Speech applied to the States as well as the central government by virtue of Section 1 of the Fourteenth Amendment which was ratified 57 years earlier and had not previously been interpreted that way. History ignores the irony that made the one Amendment that by its language applies only to the central government be the first to be interpreted by the Supreme Court as applying to the States as well.  (The entire Bill of Rights and the Fourteenth Amendment are included below for reference)

Since that decision in 1925 nearly every Amendment in the Bill of Rights has been applied to the State governments by court decisions referencing the Fourteenth Amendment and the 1925 precedent in a process called “Incorporation of the Bill of Rights”.  These decisions have had both positive and negative ramifications for American liberty: they have prevented State governments from usurping the rights of their citizens, but they have also blurred and dimmed the lines between the federal and State governments and helped to eliminate the concept of State soverency so important to the Founders and Framers, and to the citizens of the post Revolutionary era.  One result of “incorporation” is that religious expression within State institutions has been deemed unconstitutional; another is that no State can infringe on a citizen’s right to bear arms.



We can point to many sources of controversy in the Constitution. The “Commerce” clause, the “Necessary and Proper” clause, and the lacking of a definition of “Natural born citizen” in the list of requirements for the Presidency are just three obvious examples. Even those two great architects of the Constitution, Hamilton and Madison, argued over the meaning of the Necessary and Proper clause, a vague, catch-all passage that seems designed for abuse. How then can moderns be expected to know what was in the minds of those who created the Constitution, or more fundamentally, should we even care what all of those old, rich, chauvinistic, white men thought so long ago?



If we desire that the Constitution continue to be a defining document for the United States of America, then we should indeed care about the thoughts and opinions of those that created it.  And in order to gather such information we can study other things that they wrote or helped write – letters, State constitutions, resolutions and laws, legal briefs, and all other written works that are available.  In the case of Madison and Hamilton we can also study the Federalist Papers, once considered the primary written authority on the Constitution. But more important than any of this, we can read and study the Constitution itself, and understand that the language there is as precise as was possible under the circumstances, and we can accept that what is written there is what was agreed upon, even if that included uncomfortable compromises, rather than contorting our minds and their words to make those words mean what we’d like.  If we owe the Founders of the nation and the Framers of the Constitution nothing else, we owe them that.







* Giving Hamilton the benefit of the doubt here; his subsequent efforts as Washington’s Secretary of the Treasury and virtual leader of the Federalist Party to accumulate power for the central government suggest the possibility of less innocent motives for opposing a Bill of Rights.



** For “Thoughts on the Second Amendment” see: http://thoughtofasecularconservative.blogspot.com/2010/10/thoughts-on-second-amendment.html



*** For elaboration on the First Amendment and the separation of church and state see: http://thoughtofasecularconservative.blogspot.com/2011/12/on-constitutionality-of-religious.html

*******************************  The Bill of Rights  ****************************

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 a 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 offense 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 wherein 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.

************************************************************************************

The Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

References:



“Two Treatises on Government” by John Locke (second treatise)

“The Radicalism of the American Revolution” by Gordon S. Wood

“Founding Brothers” by Joseph J. Ellis

“Alexander Hamilton, American” by Richard Brookhiser

“Young Patriots” by Charles Cerami

“Alexander Hamilton” by Ron Chernow

“The Federalist Papers” Hamilton, Madison, Jay

The Articles of Confederation of the United States of America

The Constitution of the United States of America

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights