Inalienable Rights and the Constitution (guest essay) (October 5, 2009)
By: Eric Andrews
From oftwominds.com Readers Journal-Inalienable Rights and the Constitution (guest essay)
Correspondent Eric Andrews provides an insightful overview of our constitutional rights--which may differ from what you remember from school.
I am please to present this thought-provoking guest essay by Correspondent Eric Andrews on the rights of citizens as laid out by the U.S. Constitution.
Today I'd like to do a little Constitution. You see, the Constitution is not only a legal document, it's a representation of human philosophy, hammered out among strong-willed and widely disagreeing men, and toughest of all, brought down from the Ivory Towers to be a practical system, one that, because it is most true, will work most accurately when applied to the real world.
I'm talking about the word "inalienable". "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Okay, maybe some of you have heard this before. Maybe so long ago you forgot or so much so that you no longer pay any attention. So what are these old guys nattering on about? Listen carefully, for they were lawyers, very precise, and had a specific purpose for every word. "We hold these truths to be self-evident" is a way to say, "This is obvious to us, and beyond the scope of this document to argue in detail." In fact, any fact which is "self-evident" is probably a religious or philosophical world view. In any case, British and American thought was representational of the thinkers of the Enlightenment—Burke, Gibbon, Hobbes, Hume, Locke, Montesquieu, Rousseau, Voltaire, and although concurrent to this document, Adam Smith. A series of thinkers stretching from Sir Isaac Newton to Emerson, 200 years long, and basing itself on the principles of Science, of Reason, and Virtue, based on, as Emmanuel Kant said simply as 'freedom to use one's own intelligence.' A movement 100 years old even in the early date of 1776, when the use of the table fork at Colonial homes was still a radical advancement. Thought, based on reason, backed by 100 years of success, by the thinkers most respected by the King, is the root of their pass-over words "Self-Evident".
"That all men are created equal..." this is a core Enlightenment belief. It's roughly a kick in the teeth to the King and Lords of England, but not only that. It says "you're no better than us", no better than un-titled men, no better than backwater Colonials, but something far more vital: It proposes the radical idea that there is ONE law for all men. That there is no special favoritism for the rich and well-connected, for those that have "special access" to the Executive and Legal branch.
For what are today's lobbyists but modern courtiers? And what are banks, corporations, Billionaires that are able to lobby, but the new Lords and Ladies? They are not saying you can't BE a Lord, you can't BE rich in the way that Communism desires to make us all "equal"; they are simply saying, when it comes to Natural Law and thus Legal Procedure, there is ONE rule for all men, and one JUSTICE for all men, without special privilege or favoritism. This is important, as this phrase has been badly maligned. All men are clearly NOT equal, in ability, in influence, in wealth and it's foolish to ignore the differences. Nor is it saying we should MAKE all men equal, cripple the strong, hamper the smart, or impoverish the rich. But it is saying that when it comes to the LAW, and legal rights, there can only be one Law, applied equally to all. That is the core definition of Justice. Not special favoritism according to wealth, power, and political influence.
Now to the core phrase, "...That they have certain unalienable rights..." What's that? I missed a word? They claim that men have rights. But we all know that, lacking civilization, the only Law is the Law of the Jungle, that is, of raw force and violence. So if the only primal reality is force and violence, how can men have rights? Maybe rights under the Law, perhaps?
No. No no no and no. These rights do NOT come from the Law, they do NOT come from Government. Where do they come from then? They specifically tell us. From their "Creator", and whether that is God almighty or some long-evolving fact of science and nature they do not say. What they DO say is that man is Endowed from his very Creation with these rights. So? So Violence and the Law of the Jungle runs them over and take them away. This "Life, Liberty, and--worst of all--Happiness" are a fantasy. You have no human right to be made happy.
No. That's not what they're saying. What they're saying is by the very fact of being human, we must and will always struggle to a) survive and defend our lives b) struggle to be free to think and act on our notions, and c) meet and fill our needs as we and only we perceive them, to create a life for ourselves we are satisfied with. Regardless of whether we are in the worst situation--prisoners, refugees of war, starving masses downtrodden by tyrants; or if we are in the best situation, rich, influential, striving to bring into being our ever-larger dreams—we will always, always fight for our lives, our freedoms, and our hopes for our future. Why? We dunno--humans are just built that way. By their "Creator", whoever that is.
Does this force come from the King, from the Law, from Government, from civilization? No. Can it be granted and taken back? No. Can it be suspended, can you get people to NOT fight for their lives and their freedom to think and act for themselves? No. THAT'S what they mean by "Inalienable". They are "Unable to be alienated", removed, suspended. That is, they are inherent to life itself.
This is what they called a "Right" in those days, and "Inalienable" Rights are somewhat different from legal rights. You have a right to sue, but the King can suspend it. That's a legal right. On the other hand, you have an "Inalienable Right" to TRY to sue. No one has yet found a way to remove one's internal desire. Thus these rights predate civilization and have absolute precedence over legal rights. On last thing: there was a sizable debate over the use of the platitude "Pursuit of Happiness". This was the word settled on by Congressional committeeand you know how that is. The original, very nearly chosen, was "Life, Liberty, and PROPERTY." Property. That is, one has an inalienable right to one's own possessions, including one's labor, because "alienating" his property by theft and confiscation, could cause his death. In addition, if a man is his own, he owns himself, then it stands to reason that the things he creates are his own. However, this ran into a host of legal problems, taxation, possession, and later on involuntary conscription into military service, etc, and was scrapped in favor of one having the right to TRY to achieve his dreams without interference. Considering how mercantile the nation was, perhaps this was better not enshrined into law. On the other hand, we now lack a quick phrase to turn to when property rights are under the most mortal attack—in taxation, eminent domain, environmental or other laws dictating every aspect of how one can use one's own property, and many more. "Life, Liberty, and Property." Think about it.
Can governments TRY to suspend "Inalienable" rights, change minds with propaganda, incarcerate thousands, starve and kill millions? Of course. What this document says is that mankind will innately and automatically oppose any such action, thus governments are running counter to natural law, and like running counter to gravity, will ultimately fail. However, as you can see, the Framers has something far more specific in mind: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..." That is, WE, using our Inalienable Rights, CHOOSE to create Governments as a way to insure that we can keep using our rights without having to fight for them all the time. The Government is supposed to fight for those rights for us, keeping them safe for US at our request. Also the Government has no legal authority to do so except that the people request it. No king, handed a magic sword by a watery tart, suddenly has the right to claim dominion over all mankind. The power comes FROM the people TO the government, not the all-powerful government GRANTS some special favors TO the people.
This is the direct opposite of Kings, who own everything and dispenses special favors to his supporters, able to snatch them back when he's not getting proper service, obedience, and cash. This says that the power is a collective AGREEMENT, a compact, a contract, between the Government and the Governed. So much so that there is a written legal contract called a Constitution, that defines the rights, duties, and privileges of each party. It's a free CONTRACT between men, not a document authorized by force. This too is a radical idea.
So, being "Inalienable" man's side is therefore unchanging; so what happens if the other, changeable side doesn't keep up their end? “...whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
Uh-oh, can I say this on the Internet? That when a government tramples your Inalienable Rights, the rights you must and will always fight for whether you want to or not, then that government is legally illegitimate, has breached its contract, its compact, its Consititution, and is it the Right of the People to alter it back to a usable, acceptable form, or failing that, to "abolish" it; that is to overthrow it, by violent Revolution if necessary.
This follows from those "Inalienable" rights: if the government "becomes destructive" of Life by killing people; of Liberty by wrongly imprisoning people; and Property by confiscating everything via taxation and usage laws—whoops, I mean if they get into your personal business by telling everyone how to live their lives, ordering them to do this and that, be this way and that way in contradiction of their own pursuit of, and personal idea of, Happiness, then men will try to overthrow the force that is trampling them.
Why? Is it a duty? No. They will do it because they can't help themselves; they will HAVE to overthrow that government, or die trying. The Soviet system, for example, trampled people's Inalienable rights to survive, to think and to act, and to move around and try what they thought best for themselves. And over the entire life of the Soviet Union--and all other Totalitarian States like it, be they Communist or Fascist--people fought against them every day, to alter them, overturn them, or escape them. One can wait until things are very bad, or one can start early, but either way, men were given by creation the unending need and desire to have these few simple requirements, and to fight endlessly for them where they lack.
Now I said I was going to talk about the Constitution but some of you may recognize the quote above as coming from the Declaration of Independence. The Declaration was an idea, a statement, a system of thought and reason. However, it was not a body of law establishing a government. Later, far later, after the grinding 8-year War of Independence, after the Articles of Confederation, after the ineptness of the State and Shay's Rebellion, only then did many of the same people meet "To form a more perfect Union" of independent States, and "establish Justice, insure domestic tranquility, provide for the common defense, and promote the general welfare" of the governed. However, this Document carefully enshrined all the same ideas of the Revolution and the Enlightenment: freedom of thought, of action, and equal Justice for all, regardless of position. It was written as a free Contract between the people and the government they established, and carefully established limitations on the GOVERNMENT, not the People, for the Government was the hired servant, and the people were free and pre-eminent.
The problems of government, the fears of the Founders that there would be a Democracy, and thus mob rule run by the wealthy via control of the Press, were well hashed-out in the extensive "Federalist Papers"--a long-running series of anonymous newspaper articles--with all their prospective checks to prevent that potential problem--most of which have been removed today with the very consequences they feared. Although that Contract, that Compact, delineates the shape of government, scientifically proven to be most likely to follow Natural Law and thus be successful and long-lasting, the one part of mention are those few troublesome remaining "Rights": the First Ten Amendments we call "The Bill of Rights."
What sparked the idea of a "Bill [i.e. List] of Rights"? The fear that, unless otherwise specifically stated, the Government would claim all power to itself, and thereby immediately trample one's "Inalienable" rights. This was so feared, and seen by the people to be so certain, that it was immediately impossible to pass a Constitution having a capable central government without specifically delineating these rights.
And what are these "Rights"? These are the list of things the Government may NOT do. That is, it's not a list of YOUR rights, it's a list of the Government's LIMITATIONS, who must obey as your legal servant on point of legal contract, or else be fought, fired, and overturned, as stated in the Declaration of Independence.
Get that? These are not YOUR rights, they are the Limits of Government, the 10 Commandments of the Federal Law. "Thou shalt not..." Each and every one is written as a limitation on Government encroachment and power-grabbing. Nevertheless, they are called "Rights" as all follow as a natural consequence of one's "Inalienable" Inherent "Rights".
1. "Thou shalt not establish a state religion, nor prevent people from practicing their own religions, nor prevent people from speaking their beliefs and point of view, nor prevent them from meeting with each other to share their views, nor punish them for criticizing government and trying to change it."
2. "Thou shalt not prevent people from owning and using guns and other arms which they can use to overthrow an illegitimate government, thereby defending their Inalienable Rights"
3. "Thou shalt not house soldiers in people houses and make them feed and clothe them at their own expense."
4. "Thou shalt not invade people's houses to try to find wrongdoing, nor take their things, except that a Witness shall specifically name the suspected wrongdoing, confirmed by a Judge, and limited to the specific crime and location named."
5. "Thou shalt not imprison people on suspicion of a crime or without trial, except that in impartial Grand Jury says they think the crime is real and justified; a person cannot be tried again and again for the same crime until you get a verdict you like; a person cannot be made to confess to crimes against their will via torture or any other means, and if anyone's rights to "Life, Liberty or Property" are infringed, they are to be fully compensated via full process of law."
6. "Thou shalt not hold people indefinitely without trial, and that trial shall be of an impartial jury not rigged by the State prosecution, in one's home district and not across the world, and not with some hidden hearsay evidence, but knowing one's accusers, the charge, and the evidence. Thou shalt provide a means to force favorable witnesses to testify, even if they are partial, scared, or don't want to, and a credible lawyer to present the case properly."
7. "Thou shalt not have a trial by Judge for any case over $20 (a dollar is elsewhere described as 371 grains of silver, .77 Troy ounces and therefore about $250 modern dollars.)"
8. "Thou shalt not torture, nor line your pockets by charging punishing amounts for bail on petty crimes." (that's twice now)
9. "Thou shalt not pretend that if we didn't specifically name a right here, that it doesn't exist and try to steal it for yourself."
10. "Thou shalt not take other people's rights, and in fact, if we didn't specifically authorize some power here, it's not only not authorized, but specifically denied to you, because it's a right of the States or the People. How'd you like them apples?"
What do all of these specific "Rights" have in common? They all limit the Government, not you, and they are various specific ways to uphold your "Inalienable" Rights against the hundreds of weaselly ways governments attempt to trample them. These rights follow your Inalienable Rights, but they are your Legal Rights under the People's free contract to establish a Government to serve them, not your Inalienable ones.
Note which rights they didn't list, and under article 9 and 10 (twice) specifically forebid the Federal Government from having anything to do with: Education, Health Care, Housing, Energy, Agriculture, Commerce, and Labor. That is, seven out of our 15 cabinet positions, specifically forbidden by law.
Note the only other ones they forbade twice: Torture, in 5 and 8, and Property rights, in 4 and 5.
Okay, those are your "Rights" as defined by some old guys who used outhouses and drove horses to work. Are they actually "inalienable"? Are they actually universal to man and still true today? You decide. The flip side is not debatable. The Bill of Rights was never repealed or amended, so the Contract as written in them remains the highest law of the land.
If you see anything in there that is counter to Federal law and practice today, it is illegal, and any laws contrary to it are null and void as if they had never been. The people who are enforcing such laws are therefore in violation of their duty and oath and by law are required to be fired, impeached, removed, or arrested.
"[Government] deriv[e] their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."
But maybe they were wrong about the whole thing. Maybe we don't have rights and all power comes by force from the State, granted to the people however they please. Maybe these guys didn't know what they were talking about and these papers mean nothinglaws can be written or re-written, interpreted and enforced however they please. You decide.
Thank you, Eric. Pundits talk about a "re-set" of the economy. Maybe what we really need is a re-set to the Constitution.
Permanent link: Our Rights and the Constitution (guest essay)
Check out my article in American Conservative Magazine No Easy Money: The case for raising interest rates. I've been invited to join the writers contributing to Seeking Alpha. You can also find my work on AOL's Daily Finance.
If you want more troubling/revolutionary/annoying analysis, please read Free eBook now available: HTML version: Survival+: Structuring Prosperity for Yourself and the Nation (PDF version (111 pages): Survival+) "Your book is truly a revolutionary act." Kenneth R.
Of Two Minds is now available via Kindle: Of Two Minds blog-Kindle For more on a wide array of other topics, please visit the oftwominds.com weblog.
The views of the contributor authors are their own, and do not reflect the views of Charles Hugh Smith. All errors and errors of omission in the above essay are the sole responsibility of the essay's author.
The writer(s) would be honored if you linked this Readers Journal essay to your site, or printed a copy for your own use.
oftwominds.com Readers Journal-Inalienable Rights and the Constitution (guest essay)