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

On the Constitutionality of Religious Expression in the United States

For many years I was opposed to any kind of public sponsored religious display because I thought of myself as a strict Constitutionalist and accepted as fact the commonly held assumption that such displays are unconstitutional.  I’ve subsequently discovered by actually reading the Constitution and studying the history of early America that contrary to what I once believed, and to the stand taken by our federal government, the ACLU, and most American liberals, the Constitution has very little to say about religion or “Separation of Church and State”.  The main body of The U.S. Constitution only mentions religion once at the end of Article VI where we find, “… no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  Then the First Amendment includes the simple statement: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The first of these statements means that one needn’t be of any particular religion to hold public office or a government job; the second could be interpreted as supporting religion in public forums as much as the contrary view because what it says is that the federal government will keep its nose out of religion, and be neither prohibitive nor supportive. 

More importantly, nothing in the U.S. Constitution affects the rights of State or local governments regarding religion.  The term “Congress” in the context “Congress shall make no law…” refers to the legislative branch of the Central Government in this and in every such passage in the Constitution. The First Amendment has no authority over State or local governments.  We know this because for more than forty years after ratification of the Bill of Rights, including the First Amendment, Massachusetts, in its constitution made provisions for Protestant Christian worship and teachers at public expense. In addition to this specific, official doctrine in the Massachusetts Constitution*, virtually every classroom in America engaged in prayer and other displays of religion as did virtually every community.

It’s well established that Thomas Jefferson was strongly opposed to State sponsored religion.  To cite just one example, he wrote in The Virginia Act For Establishing Religious Freedom:  “Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.”

Yet for eight years as President, sworn to uphold the Constitution, Jefferson did not invoke the First Amendment or any other part of the Constitution to enforce a separation of church and State in Massachusetts or anywhere else in the United States.

Jefferson’s Act for Establishing Religious Freedom did not pass in the Virginia legislature when he introduced it in 1779. It had to wait to be championed by James Madison in 1786 while Jefferson was serving as ambassador to France. Madison blew the dust off of Jefferson’s Act after he led the fight to defeat a bill sponsored by Patrick Henry to levy religious taxes.  Madison was no less opposed to State sponsored religion than Jefferson.  It’s also worth noting that Madison was considered the foremost authority on the Constitution that he was so involved in creating, and was the author of The First Amendment that is so widely invoked in modern times to challenge any hint of religious activity in public forums in the United States.

Yet for eight years as President, sworn to uphold the Constitution, Madison did not invoke the First Amendment or any other part of the Constitution to enforce a separation of church and State in Massachusetts or anywhere else in the United States.

Why did these two Presidents who were so opposed to state sponsored religion and so dedicated to the United States Constitution suffer to allow so much intermingling of church and State during their Presidencies if the First Amendment forbade it and gave them not only the authority but the duty to put an end to it?  The answer is that the First Amendment did no such thing; they recognized that the central government had no authority to oppose State sponsored religion at the State or local level. 

This seems to have been understood by every President for at least the first hundred years of American history.  All of these Presidents were sworn to uphold the Constitution; none saw a duty to oppose religious expression at the State or local level based on that Constitution.

Moderns who invoke the Constitution to oppose all displays of religious expression in the public forum are either ignorant of our history or contemptuous of it.  Knowledge and respect of the Constitution, our early history, and the men involved eliminates any notion that there exists in the U.S. Constitution, including the Bill of Rights, anything that prohibits any expression of religion by State or local governments.  The central government has acquired the power to prohibit the States from allowing religion in schools and other public places by taxing the citizens and then doling the money back to the States with massive stipulations, and by backdoor Constitutional Amendment in the courts. 

Following the Civil War the Fourteenth Amendment was added to the Constitution; its obvious purpose being to guarantee the rights of newly freed slaves within the States where they resided.  One sentence from Section 1 of the Fourteenth Amendment** states, “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.“ 

This statement, known as the “due process” clause of the Fourteenth Amendment, sounds pretty reasonable and straightforward, but somehow, through a series of Supreme Court decisions beginning in 1925, these simple straightforward words were twisted and  distorted to mean that all of the limitations placed on the central government by the Bill of Rights and Constitution in general also apply to the States.  These decisions provided finality in the process of eliminating the sovereignty of the individual States in the United States of America; by such methods the federal government has usurped the sovereignty of the States on every front, including freedom of religion. 

I’m not a religious person and I’m glad that I’m not forced to pay taxes to support a church that I wouldn’t attend.  I’m glad that I’m not compelled by government to support or send my children to schools that teach a religious creed that I or my neighbor might disagree with.  But I now understand that the United States Constitution was not meant to give the Federal Government jurisdiction over these issues; that by the nature of The Constitution, our Federal Republican System, the obvious intentions of the Framers, and as assured by the Tenth Amendment***, the power to control these things should be held by the States and ought to be addressed in the State Constitutions or by State and local legislatures.

http://www.loc.gov/exhibits/religion/rel05.html
http://religiousfreedom.lib.virginia.edu/sacred/vaact.html
http://www.usconstitution.net/consttop_reli.html

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
http://www.apsanet.org/imgtest/Nationalization_Bill.pdf

* From Article III of “Part the First” of the Constitution of the Commonwealth of Massachusetts:

As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.

**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.

***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.

Natural Rights, Social Rights, and Social Privileges

 

Natural Rights:

As I've written elsewhere, Inalienable rights are rights that cannot be taken away. They may be violated, but they cannot be morally eliminated.  A criminal person or despotic government might imprison an individual or even kill the person, but that does not diminish the person’s right to freedom or to life, even if death renders that right to the past tense.  Inalienable rights are perpetual except when forfeited due to criminal activity – violating the Natural Rights of another.  A religious person might say that such rights are a gift from God and only God can take them away; a secular person might think of them as rights that every person has by nature of being human. 

Thomas Jefferson stated in the Declaration of Independence that “Life, Liberty, and The Pursuit of Happiness” are among the inalienable rights.  Going back to John Locke who was the inspiration for that famous passage we read of “Natural Rights” including “Life, Liberty, and Property”, with property in its broader sense including the other two – that is, each of us owns his or her life and liberty as well as our possessions and land.  “Natural Rights”, “God given rights” and “inalienable rights” are synonymous and they exist in what Locke called a “State of Nature” as well as in society.

 

Imagine a person alone on an island; that person possesses his Natural Rights no more or less than in the middle of New York City.  That person has the right to his life and the fruits of his labor.  If he gathers coconuts from wild trees and stores them away, he owns those coconuts and has a right to them.  If other people show up on the island they do not have the right to take his coconuts; he has the right to protect them and to defend his life, even at the extreme of taking theirs.  By attempting to steal coconuts or kill the owner of them, an aggressor puts himself and his intended victim into a “State of War”.  The aggressor in a State of War forfeits his inalienable right to life.   It may seem harsh that a person forfeits his right to life for attempting to steal coconuts, but such is life in the State of Nature where it is impractical for an individual to imprison an aggressor, and unfair for him to live under constant threat of aggression.  Of course in a State of Nature the victim is in danger of being overwhelmed or even killed and his coconuts stolen.  Mutual protection is one reason why people band together in society; another is that humans are naturally social and are likely to be willing to share coconuts along with the labor required to gather more.

In the second of his “Two Treatises of Civil Government” Locke discusses how societies form when people in a State of Nature voluntarily transfer their political power to a government in exchange for protection of their Natural Rights.  Along with Thomas Hobbes, his contemporary, and Jean-Jacques Rousseau who followed in the next century, Locke referred to this arrangement as a “Social Contract” (sometimes referred to as “Social Compact”).  Hobbes* published his “Leviathan” almost forty years before Locke’s “Two Treatises of Civil Government” and is sometimes given credit for Social Contract theory in western philosophy, but the concept was not new, it dates back at least as far as Socrates.  In any case it was Locke’s writings on Natural Rights and The Social Contract that provided the moral justification for the American Revolution and inspired its leaders in the founding of a great nation. Yet when modern scholars think of the State of Nature and Social Contract, they are more likely to be thinking of Rousseau because his version was a wonderfully idealist and romantic one that appeals to most modern academics.  **

Social Rights:

Social rights are not natural, not inalienable – these are rights provided by government and are derived from a Natural Right.  The most obvious example of a Social Right is the equal right to police protection held by every citizen who adheres to the Social Contract of a society.  On the island each person has the Natural Right to defend himself as best he can, in society each person has the Social Right to police protection.  If attacked and in immediate danger a person in society retains the right to self defense or defense of his property and other persons, because waiting for society’s police to provide protection might mean irreparable loss of life or property.  But other than such cases of immediate danger people in society turn their Natural Right to self defense over to a law enforcement organization and receive in return the Social Right of police protection. 

Natural Rights exist on our island that lacks government; Social Rights do not.  Consider the examples in what are called Miranda Rights: “You have the right to remain silent… You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you…”  What could be more fundamental and natural than the right to remain silent – that is, the right to not incriminate oneself?  Certainly a person isolated on an island has the right to remain silent.  However, the right to speak to an attorney is not a Natural Right, for there are no guarantees of an attorney being available on the island, or if there is one that the attorney will choose to cooperate, but our society has established rules such that even those accused of the most heinous of crimes has guaranteed access to representation by an attorney.  The right to speak to an attorney is a right given by society based on the right of every accused person to have his side of the story heard, this derived from the Natural Right to defend oneself.  In effect Americans include in their Social Contract the agreement that each individual will give up his right to physically defend himself when accused in return for society providing him with a fair hearing.

Suppose I own some coconuts on the island and some other people show up.  They need food.   I’m a nice fellow, and am happy to see other people, so I show them where coconuts grow and even help them gather some, perhaps taking a fair share for myself.  That night they camp near my camp and the next morning I discover that my coconuts are gone, and I suspect one particularly nasty, ugly fellow of stealing them, so I accuse him.  What are my Natural Rights, and what are his?  I have the right to recover my coconuts and punish the perpetrator, but when we analyze the Natural Rights of accused and accuser we can assume neither guilt nor innocence.  I do not have the Natural Right to assume his guilt or to exercise my Natural Rights meant to be exercised against a perpetrator on one only suspected.  He on the other hand clearly has the Natural Right to defend himself, verbally if possible, physically if I initiate the use of force.

In giving the Social Right to speak to an attorney society is saying in effect, “The Natural Right of an accused person to defend himself in a fair hearing is paramount, and in modern society it’s necessary that the accused have access to an attorney to receive a fair hearing. Therefore we will give the accused a Social Right to an attorney by arranging a legal system such that there will always be a willing attorney available in order to preserve that natural right.” As demonstrated in this example, valid Social Rights are not rights on their own merit; they are derived from Natural Rights and exist to fulfill the society’s obligation under the Social Contract to protect the Natural Rights of its citizens.

What about the provision of an attorney at public expense if the accused cannot afford one?  This is obviously not a Natural Right, because no one can have a natural right to something that must be provided by someone else; that someone else may not exist on the island, and it cannot be considered a Social Right because someone must pay for the attorney which is in conflict with the Natural Right to property, and a valid Social Right cannot be in conflict with a Natural Right.  No one can have the “right” to something that must be provided by someone else.  Provision of an attorney at public expense might be called a “Social Privilege”. 

Social Privileges: 

The Department of Motor Vehicles makes the point that driving is not a right; it’s a privilege.  Of course this refers to driving on public roads because one certainly has the Natural Right to drive his own car on his own road, but the point is that many of the services provided to citizens by government and thought of as ours by rights, are actually privileges – gifts given by society for the good of the whole and justifiable to the degree that the whole of society benefits.  Another example is education.  Society may choose to invest in its future by educating its youth.  In The United States society has determined that it benefits society as a whole for young people to be educated at public expense through what we commonly call high school, and society also provides institutions of higher education though attendance is not usually free.  Cutting off free education at twelfth grade is arbitrary and someday the privilege of free education might be extended by society to include a college degree, but whatever the level, this is a social investment that provides the student with a privilege, not a right to education.  On our island one has the Natural Right to educate oneself with whatever means available, but not the right to teachers, classrooms, and study materials.  Further, education cannot be considered a Social Right because there is no Natural Right from which it can be derived and because it would be in conflict with the Natural Right to property; it is a socially sponsored privilege.

However, when an adult decides to include himself or herself in a Social Contract and be part of a given society, which each adult does in a free society whether we think about it or not, it’s done with the implied understanding of full rights and privileges of citizenship.  Therefore, while no citizen has a right to a free education, each citizen has the Social Right, derived from his Natural Right to choose a society to live in and therefore full citizenship in the one chosen, of having the privilege of education be applied equally to his children along with the children of all citizens of that society.  For the Social Contract that binds people together in a society to be valid, all laws, rights and privileges must be applied equally.  Unfortunately, not all societies meet this criterion nor do all societies allow choice regarding belonging or not belonging to the society; not all societies apply a valid Social Contract.  To the degree that a society does not apply a valid Social Contract its citizens are in a state of slavery.

Being a Social Privilege and not a right, society may disperse the gift of free education as it sees fit as long as the child of each citizen is given equal treatment, but that might mean that each child is given the same entrance exam, not that each child is included regardless of capability.  Perhaps the example of driving privileges better illustrates this concept: Every citizen has the Social Right to equal application of the requirements for driving on public roads, but not every citizen will qualify.  The visually impaired will not qualify; the habitual drunk driver will hopefully lose his qualification.  Both are treated equally with their fellow citizens, but neither meets the criteria required by society for the privilege of driving on public roads.  (Each retains the Natural Right to drive his own car on his own road.)

In a just society Social Privileges are applied equally to all citizens regardless of social standing.  Returning to the example of the Social Privilege of public education, one might argue that Mr. Smith’s child has a greater right to the privilege of education than Mr. Johnson’s because Mr. Smith pays more taxes than Mr. Johnson, but while Mr. Smith may have a legitimate beef against the tax code, he has no greater claim to the privilege of education for his children.  Both choose to be citizens of a society that has decided to invest in educating its youth. Even Mr. Jones, who has no children at all, must help to pay the price of education if he chooses to be part of a society that has determined that it benefits from educating youth at public expense.

So Natural Rights exist in society and also in a state of nature; Social Rights exist only in society and are derivatives of Natural Rights, they exist to fulfill society’s obligation to protect its citizens’ Natural Rights; and Social Privileges are not rights, but gifts given by society ostensibly for the good of the whole of that society.  Natural Rights are as eternal as humankind; Social Rights are at the mercy of society but an existing one should exist as long as the social condition that makes it necessary to fulfill the society’s obligation to protect a Natural Right exists; Social Privileges are at the mercy of society’s whim but an existing one is likely to exist as long as society as a whole perceives its benefits.  The line between Social Privileges and Social Rights may sometimes be hazy, but the test between either of these and Natural Rights is very clear. 

No philosopher has attempted to compile a complete list of Natural Rights, but we have a definition so that any proposed Natural Right can be tested for validity.  Simply put, if a right cannot exist on our island without a society to provide it, then it is not a Natural Right.  Further, a Natural Right can never be in conflict with another; that would be, well… unnatural.  If a conflict exists between two concepts considered to be rights then one or both of them is not a Natural Right and if there’s a conflict between a Natural Right and a Social Right, then the Social Right is invalid as a right, but may still exist as a Social Privilege.

The Natural Right to Life:

Philosophers that think in terms of Natural Rights agree that one of them is the right to one’s life, but what does that mean?  Obviously it doesn’t mean that we all have the right to live forever.  It’s not a valid argument against a death penalty; virtually every philosopher that ever wrote of Natural Rights also wrote of forfeiture of an individual’s right to life for acts against other humans.  It’s not an argument for the Natural or Social Right to free universal healthcare – that obviously couldn’t exist on our island, and forcing society to pay the cost of healthcare for everyone is clearly in conflict with the Natural Right to property that philosophers also agree upon.  Universal healthcare, if provided by society, would be a Social Privilege – a gift given for the good of the whole of society, and it would be justified only if the whole of society benefitted.

It becomes clear when reading the philosophers that they consider the Natural Right to one’s life as the right to live it as one sees fit; to pursue happiness as one sees fit; to labor at obtaining the necessities of life as one desires, to own the fruits of that labor because a piece of one’s life was spent in the laboring – all of these as long as the rights of others are not diminished.  The Natural Right to life includes the right to property and the Natural Right to property includes the right to own one’s life.  Perhaps this Yin and Yang of Natural Rights is in fact THE INALIENABLE NATURAL RIGHT and all others derive from it.

* Hobbes wrote “Leviathan” during the turmoil of the British Civil war at least partially in support of the monarchy.  In his vision the State of Nature was a perpetual State of War with every human at war with every other and every one in a constant state of fear. He tells of a Social Contract based on the theory that men just naturally kill each other unless there’s a powerful government to prevent it, and then men settle down and enjoy being both restrained from killing and protected from being killed.  He wrote of the evils of a monarchy, but justifies it because it’s better than the alternative. He ridiculed religion and drew accusations of atheism.  He managed to anger everyone.

**These philosophers thought and wrote before Darwin suggested, and science for all practical purposes demonstrated, that humans evolved from a series of less sophisticated species.  This concept must certainly affect ones thinking about the State of Nature and especially the Social Contract, making it likely that human society evolved along with the species and virtually no thought processes or deal making was involved, but the theory continues to be a valid tool for analyzing humans in society just as the Conservation of Energy theory continues to be used by physicists in appropriate situations in spite of its absolute truth being disproven by Einstein.

Our Paternal Government

Unrest in England and friction between King Charles I and Parliament that culminated in the English Civil War in mid seventeenth century inspired Sir Robert Filmer, a supporter of the King and member of England’s “Divine Right” party, to write a book defending the Divine Right of Kings based on Christian scriptures.  The book titled “Patriarcha, or the Natural Power of Kings” was based on the Biblical account of Adam being given dominion over the lands and inhabitants of earth by God.  Filmer argued that this absolute power of Adam was derived from his position as the father of all men and passed down through Adam’s heirs generation after generation giving existing kings absolute, unquestioned authority over the lives of their subjects. He argued that the king’s power was patriarchal, and that his relationship to his subjects was like that of a father over his children.

Patriarcha was published in 1680, long after Filmer’s death and it sparked a number of rebuttals.  The best known of these was “Two Treatises on Government” written by John Locke and published anonymously in 1689.  In the first treatise Locke effectively destroys Filmer’s Biblical arguments with what appears to be superior knowledge of the scriptures, and then he employs the obvious arguments regarding the impossibility of identifying Adam’s true heirs in the seventeenth century to demolish any bits of credibility left to the Biblical derivation or justification of the Divine Right of Kings.  In the second treatise Locke goes on to define the origins and purposes of government and eliminate any similarity between government and paternity. 

Now, more than three hundred years later, many are attempting to reverse Locke’s arguments and once again equate government with paternity – or rather its gender neutral version, parenthood.  These people want to be taken care of by government as a child by its parents and even in adulthood have the inalienable rights of a child to the care and nutriment owed to an infant.  Thousands of people of this mindset are currently engaged in demonstrations in Europe and America.  Here in the United States these demonstrations originated in New York City and are called “Occupy Wall Street”.

Like spoiled teenagers the Occupy Wall Street crowd refuses to respect their parental figure, the government they make demands upon.  They refuse to abide by its rules, yet demand that it provide for them not only the necessities of life but also many of the luxuries.  They claim these demands as their “rights” as if it were not contrary to logic that any adult could have a right to something that someone else must provide, when in fact such a claim can only be made by a dependent child claiming the necessities of life from its parents.

If confronted by the question of payment for the goods and services demanded as their rightful due, the demanders shrug off the question like a boy demanding new designer jeans from his parents who always seem to have money even if they claim poverty. The money will come from “someplace”.  It always has, it always will. 

The “someplace” for our Occupy Wall Street mob is from the “Rich”.  As long as there is anyone that has more money than required for survival there is a source of funds that can be confiscated by the government to satisfy the needs and desires of its children.  No one seems to think beyond that; they believe that for some reason the rich will continue to sow while others reap; and for a delusional few, the answer is to eliminate the concept of money altogether and just have everyone share everything produced by the producers who will continue to produce for the benefit of the non-producers for some unknown and unknowable reason. 

But these childlike demands on government are not unique to the Wall Street occupiers, and they are not a new phenomenon. These protesters are merely naive enough or blatant enough to state their demands explicitly; they are merely expressing out loud what they’ve been taught by parents, professors, and politicians for decades.  For more than a century American citizens and corporations have become increasingly dependent on government and have been willing to trade liberty for a secure place in its parental lap.  Increasingly we depend on the government to educate us, to nurture us, to coddle us, and to protect us from ourselves.  Increasingly we have turned our lives over to government to escape the responsibilities of providing for ourselves and thinking for ourselves. Yet, like adolescents, we rebel when asked to control our desires or contribute to the family.

Ironically, the nominal cause of the Occupy Wall Street protests is the same as the original spark that fired the Tea Party Movement – the bailout of massive corporations with taxpayer dollars.  Both groups are incensed by corporate welfare, but the Tea Party Movement, perhaps with a more mature view of history, sees a return to constitutionally limited government as the answer, while the Occupy Wall Street protesters prefer to destroy the corporations, or tax them to the brink of insolvency, leaving a powerful government to take care of its children. 

A government as envisioned and created by the Founders and Framers of the United States of America, as inspired by John Locke among others, is not powerful enough to hold all of society against its breast and provide security and insurance from failure.  The government defined by our Constitution is not parental; its functions are limited; its entanglements few; its maintenance minimal; its citizens, and corporations of citizens, free – free to succeed and free to fail.

In Response to Elizabeth Warren

Elizabeth Warren of Massachusetts is on the campaign trail with the Senate seat once virtually owned by Ted Kennedy and currently occupied by Scott Brown as her goal.  She’s a good speaker, and knows her liberal audience well.  Recent comments in support of higher taxes for the wealthy have gone viral on the internet and are quoted here for purposes of rebuttal:

“You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did.

“Now look, you built a factory and it turned into something terrific, or a great idea? God bless. Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”

All good propaganda falls into one of two categories. One is the lie so big and bold that it’s difficult to imagine someone making such a claim if it weren’t true. An example might be, “The Tea Party is a direct spinoff of the KKK.” This type of propaganda is mostly meant to inspire those that already believe or want to believe rather than to convince skeptics.  It might be thought of as inspirational preaching to the choir.

The second type of propaganda is based on enough truth to sound believable and is designed to convince those unaccustomed to critical thinking.  Ms. Warren’s comments are a very nice example of this type, but they also contain an element of the first type with the implied Big Lie that her audience wants to believe, “The rich pay no taxes”.  She delivers the lie not explicitly, but by repeating over and over that “the rest of us” pay, implying that the evil rich being addressed do not. This double approach propaganda is very effective and was well delivered and has liberals posting her comments all over the internet. An informed response is needed.

It’s true that no industrialist or rich business tycoon did his or her work in a vacuum; since earliest times societies have advanced together and have established and paid for governments meant to protect citizens from violence, and provide essential services that are impractical for private entities to provide.  But it’s also true that in every era there have been a small minority that stood out as doing more, creating more, inventing more, pulling harder on the cart of progress than their fellows.  There have also been those that hindered progress – clinging to the status quo and throwing obstacles into the path of the innovators.


During centuries of western civilization clearly drawn class lines made education and opportunity available only to the aristocracy intermingled with the clergy. With rare exceptions both the innovators and the hinderers were members of these elite estates while common society was simply along for the ride, but was never-the-less important as workers, consumers, and taxpayers – in some countries practically the only taxpayers. Those class lines were blurred in England by the English Civil War and the Glorious Revolution in the seventeenth century, and virtually eliminated on this continent by the founding of The United States of America a hundred years later, but Ms. Warren seems to think she’s in pre-revolutionary France where clergy and nobility were exempt from most taxes. She seems to stand shoulder to shoulder with Jean-Jacques Rousseau, the left’s favorite advocate of the “Social Contract” that she mentions, but Rousseau had valid reason to oppose hereditary aristocracy; Ms. Warren has no such reasons and no aristocracy to oppose, yet chastises an imagined one to impress her audience.  

Do factory owners use government provided services?  Of course they do - we all do; but while they pay at least their fair share toward the cost of such services, we can’t all say we share in that part of the equation.  Except for the implied Big Lie which she is smart enough to not state explicitly, Ms. Warren’s statements are meaningless bits of truth – she points out that industrialists use government provided services – OK, stipulated.  She demands that they pay a “hunk” of their profits in taxes – OK, what’s the point?  They already are.  

We all use government services; we don’t all “pay forward for the next kid that comes along”, but the “rich” people that Ms. Warren addresses so caustically for the benefit of her liberal audience certainly do, and much more so than most of that audience, the choir to whom she preaches.

"Liberty" - A Speech

On March 23rd, 1775 a tall, awkward looking gentleman stood to address Colonial Virginia’s legislative body, the House of Burgesses.  His topic was treason.  His goal was to convince his fellow delegates to vote for his resolution calling for a militia to oppose British tyranny; to persuade them to join him, if things went wrong, in hanging by the neck until DEAD.

But what could possibly go wrong?  He was only proposing war against the most powerful military in the world…

He spoke in a famously clear, resonant voice that rose toward the end of his speech, “Gentlemen may cry, Peace, Peace, but there is no peace.  The next gale that sweeps from the north will bring to our ears the clash of resounding arms!  Our brethren are already in the field! Why stand we here idle? …”

There was, in fact, much friction, but no fighting going on when Patrick Henry spoke these words, no “clash of resounding arms”, but he spoke as if somehow he knew that four weeks later American and British blood would be spilled at Lexington and Concord in the colony of Massachusetts, triggering the American Revolutionary War.

Nearly shouting, he concluded with the famous lines, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?  Forbid it, Almighty God!  I know not what course others may take; but as for me, give me liberty, or give me death!”

Patrick Henry’s resolution passed that day, narrowly, and he became known as “The Voice of the Revolution”.  One young gentleman who voted “Aye” would be called “The Pen of the Revolution”.  His name was Thomas Jefferson and a year later he was asked to draft a Declaration explaining to the world why those thirteen colonies were declaring themselves to be free and independent. 

The most memorable passage from that most famous document from “The Pen of the Revolution” states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness.”

There’s that word again, “Liberty”… Why not “Freedom”?  “Life, Freedom, and the pursuit of happiness”.  Why not “Give me Freedom, or give me death”? 

Why did Sam Adams and the other troublemakers in Boston call themselves “The Sons of Liberty” Why not……  ”The Fathers of Freedom”? 

The “Voice of the Revolution” and the “Pen of the Revolution”, and other Founders understood the importance of words, of precise meanings.  Freedom is a vaguely defined word; had Jefferson written that freedom was among the inalienable rights there are people today who would insist that that includes freedom from having to get up and go to work in the morning.  Some might argue that Thomas Jefferson himself said that they have the inalienable right to freedom from the obligations of every self sufficient adult. 

Consider how for a government to deliver on such distorted “rights” and “freedoms”, it must actually erode the liberties of responsible, productive citizens. 

Consider how, since September 11, 2001, freedom from fear has become more important to many of us than the United States Constitution that protects our liberties.  Terrorism crashed upon our shores and we began clamoring to trade our liberties for safety – for freedom from fear.

Well uncontrolled government was what our Founding Fathers feared.  They didn’t all agree on the best way to control government, but they agreed on the need to do so.  That’s why we have defining documents like the Declaration of Independence and the United States Constitution – to define the purpose, powers, and limitations of our government and prevent it from trampling on our liberties.

Our Founders repeatedly and, I think deliberately, chose a word that describes a specific and critical kind of freedom.  According to The Random House Unabridged Dictionary of the English Language, liberty means, “Freedom from arbitrary or despotic government or control.”  Webster defines it as, “Freedom from government control, interference, or restriction”.

It’s time modern Americans learned the importance of words, of precise definitions.  It’s time we learned the meaning of “inalienable rights”, the meaning and value of liberty, and the meaningless of life without it.  It’s time we learned the amazing history of our exceptional country and how a man can truly mean it when he stands and shouts, “Give me Liberty, or give me death.”