The “General Welfare” Clause

There are those that insist that what is sometimes called the “General Welfare Clause” in the United States Constitution justifies and even mandates that America be a cradle to grave welfare state, that it lends Constitutional sanction to our government taking from some in order to give to others.  But no honest student of American history could possibly hold this erroneous notion.

To clear up a misconception held by some, the General Welfare Clause is found in Article I, Section 8 of the Constitution, not in the Preamble which also mentions the general welfare, and reads, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”.  This statement is the justification for a new defining document to replace the anemic Articles of Confederation and lists the purpose and goals of the Constitution; it is not part of the Constitution proper and has no legal standing.  Nevertheless, the analysis of the term “general welfare” below applies to its use in the Preamble as well as in the General Welfare Clause.

Article I of the Constitution defines the legislative branch of our central government.  The first seven sections of Article I lay out the structure of the legislature, the qualification requirements for Senators and Congressmen, the apportionment of representation of the States, and other defining statements.  Article I, Section 8 enumerates the powers and responsibilities of Congress and begins with the “Taxing and Spending Clause” which includes the “General Welfare” clause: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;…”  This statement fulfills the primary purpose of the Constitutional Convention which was convened to correct the inadequacies in the Articles of Confederation, the most blatant being the lack of congressional authority to tax. 

But what does that part about the general welfare mean?  Obviously it’s mentioned along with providing for the common defense as justification for giving the central government the power to tax, but again – what does it mean?  The key is in the word “general” which means, according to Webster’s primary definition: “Of, for, or from the whole or all; neither particular nor local.”  From the time of the Mayflower Compact that bound the Pilgrims into “a civil body politic” with authority “to enact, constitute, and frame, such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony;”, the word “general” was used in colonial charters and State constitutions to mean ALL citizens.  Also worth noting is the definition of “welfare”: “The state of being or doing well; condition of health, happiness and comfort; well-being; prosperity.”

 In other words, in addition to providing for the common defense, the central government, with appropriation authority held by Congress and administration in the realm of the President, can spend tax money on things that promote the well-being of all of American society, but this clause specifically DOES NOT authorize Congress to appropriate or the President to spend money to benefit any subset of society; such appropriations would be beneficial to the welfare of some, but not to the general welfare. General Welfare cannot mean to harm some in order to benefit others or to take from some in order to give to others.

Obviously many of the ways that Congress chooses to spend taxpayer money do not provide for the common defense or promote the general welfare, but rather promote the welfare of some at the expense of others, but looking for a legitimate example of government promotion of the general welfare, few will argue against government support of public education.  An uneducated citizenry unable to compete in a complex world and unable to understand the fundamental benefits and responsibilities of citizenship is detrimental to the nation as a whole - to every citizen, and to the degree that public education eliminates such ignorance it indeed promotes the general welfare as intended by the Framers of the Constitution.  We may debate about whether or not our current education system accomplishes this goal, but the desirability of the goal, and the fact that it indeed promotes the general welfare of the United States should be universally accepted.  On the other hand appropriations for studying the effect of marijuana consumption on the mating habits of chimpanzees benefit only those being paid to do the research (and, of course, the chimpanzees).  Those favoring such appropriations must look elsewhere in the Constitution for justification.  These examples are used merely to illustrate the meaning of “general welfare”, chosen because few, other than chimpanzees, will argue with them.  Others may debate additional examples of government expenditure and whether or not they legitimately promote the General Welfare.

Thomas Jefferson and James Madison both weighed in on the General Welfare Clause and warned about its use to justify bigger government.  Madison wrote, “If Congress can do whatever in their discretion can be done by money and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions”. Jefferson said much the same thing using less than half the words, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” These statements stress that the General Welfare Clause does not give congress additional powers over those specifically listed (enumerated) in the Constitution, it is simply mentioned as justification for giving the central government in general, and congress specifically, the authority to tax.

It was understood by our Founders and Framers that in its most fundamental definition the only purpose of government is to promote the general welfare of its citizens – this is the foundation of the Social Compact, the agreement of all citizens to give to a governing body reasonable power and means to protect the lives and property of those that choose to live under its jurisdiction. A wonderful, literal example is the Mayflower Compact mentioned above.  All legitimate functions of government promote the general welfare: defending citizens from outside aggression, passing just and equitable laws, and punishing those that break those laws all promote the general welfare.  If government does not protect the lives and property of its citizens, then there is no reason, purpose, or justification for government, and to be legitimate the social compact must apply equally to all; justification of government is eroded any time one segment of society is benefited at the expense of another. 

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