August 11, 2005

Those Darn Unenumerated Rights

Today SayUncle asks "What is a right?" Specifically, what are the rights that fall under the 9th Amendment. I had been meaning to write some on this, so I think that at SayUncle's prompting, it makes for a perfect time.

The 9th Amendment

First, the 9th Amendment states the following...

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

During the time period that the Constitution was ratified, there was a large group who didn't want to see a Bill of Rights added to the Constitution. At first it's hard to imagine who could possibly be against the creation of a list of protected rights (from government usurpation). However, their reasoning actually made sense.

If you put forward a list of enumerated rights, the government may take that as the only rights that the people have. If it's not listed in the list of rights, then it must not exist...at least in the eyes of the government. In fact, it was the contention of many that it would be impossible to list all of the rights that a person has. In other words, there are rights that exist that are not listed in the Bill of Rights which should still be respected by the government.

James Madison addressed this issue in front of the House of Representatives when presenting the proposed amendments to the Constitution (the Bill of Rights)...

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

That clause would be the 9th Amendment.

Unenumerated Rights

So then...just how many rights does a person have? If someone were to list out 20 rights that a person has, another could easily add 20 more...the next person 20 more...ad infinitum. I have an individual right to sit out in my garage and smoke a cigar while working on my British car. I also have a right to wear cargo pants on Thursday. If you think about it, an individual's rights are almost limitless as long as those rights don't infringe upon another's rights, and that's the key element. Your "rights" are no longer rights when and if you are infringing upon someone else's rights. The exception could be that if I am smoking my cigar and it is infringing upon someone else's right of smoke-free air, they always have the freedom to leave the area. If a choice exists to easily remove yourself from the area of infringement, then there shouldn't be an issue and I can continue on in my smoke-filled area as I please.

These supposed minor rights may seem trivial, but such things were on the minds of people when the Bill of Rights was introduced. If I prefer to wear my hat a certain way and it's not enumerated in the Bill of Rights then what's to stop the government from deciding that I have no right to wear my hat a certain way thus regulating the "proper" wearing of hats? The way I wear my hat is not infringing upon another's rights, so it is an unenumerated right under the 9th Amendment. What about the proper wearing of arms? If I decide to wear a rifle strapped across my back, is that really infringing upon someone else's unenumerated rights? Why then can't I wear a rifle strapped across my back in downtown Nashville? Hmmm.

The Origin of Rights

Many people have asked the question, "Where do our rights come from?" For a religious believer the answer is simple: God. For a non-religious person (or non-believer), it's not as clear of an answer. The founding fathers were themselves believers in a higher power and they were secure in pointing to the Creator as the origin of all rights of man.

The Declaration of Independence points directly to the Creator as the source of our rights:

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.

I hate to ask it, but without a belief in a Creator can an atheist even fathom the fact that a person has rights that exist outside of what a government grants them? How can a person try to explain the idea of "unalienable rights" to a person who doesn't believe in a Creator (yes, an atheist has asked me how can someone believe in natural rights if they apparently came from a Creator that they don't believe in)?

Before the idea of governments and living in a society came about, man could do as he pleased. He did what he wanted, when he wanted. It could be considered the ultimate in individualism. When man moved to living in society, he had to agree to a set of rules that kept things bearable for the others around him. He still, however, was an individual. Governments came and went along with individual rights, but the man still had natural rights that existed prior to government.

This prior existence can be used as a means for justifying the existence of rights that are not enumerated in the Bill of Rights and thus fall under the 9th Amendment. They can include (but are not limited to) Life, Liberty, and the Pursuit of Happiness. The Pursuit of Happiness is itself a limitless phrase which specifies that there are natural rights which an individual can exert, literally, in the pursuit of one's happiness, again, as long as that exertion doesn't encroach upon another's rights.

In short, for a believer, rights come from the Creator. For an atheist, rights existed prior to the existence of governments so they should be respected by governments. (*Note: It may not be the best explanation, so if anyone would like to take another stab at it, let me know.)

Unenumerated Rights...Forgotten

Unfortunately, today, we (especially those in power) have forgotten what rights really are. Rights are not something that is granted by the government. As I have shown above, rights existed before government thus they can not be granted. However, the government seems to believe, along with a willing populace, that they are the final authority when it comes to what rights you, as a citizen, can have.

Now, it doesn't even matter if a right is enumerated in the Bill of Rights. The perverse idea that the government entity is the final authority and grantor of rights has caused us to loose rights that were not only specifically listed but also ones that weren't listed (under the 9th Amendment). When have you ever seen someone under prosecution use the 9th as a defense (and if so, successfully)?

Government exists because the people allows it to exist by the "Consent of the Governed." When the phrase "Consent of the Governed" loses its meaning, the government is given free reign over the lives of its citizens. Free reign to regulate arms, free reign to confiscate property, free reign to regulate morality, free reign to come into your home, free reign to watch your every move...free reign to control every aspect of your life. It wasn't meant to be that way.

How We Got Here

Back in May, I wrote a post entitled "Health Care a Right? Rights are not hand outs" where I pointed out that the definition of a "right" had apparently been twisted into a definition that meant something entirely different that what it used to be, and my finger was pointing directly at the left...

The left can't seem to understand this. In their effort to create a more benevolent government, they are creating a bigger government. They, as well as true Conservatives, cherish their rights (the right to self-defense notwithstanding). Yet, at the same time, they are pushing for more and more government intervention into people's lives. It simply doesn't work. Since the New Deal era, we have created a society that seemingly doesn't care what a bigger government will lead to. All they care about is what the government can provide, and if you stand in their way, then you are apparently standing in their way of happiness.

Life, liberty, and the pursuit of happiness can't be provided by the government. Instead, it should be a personal pursuit that each person can undertake without restriction of government intervention. That is true liberty...that is true happiness.

I will add that it's not entirely the left's fault...it's our fault as a country...as a whole. We have, in our laziness, granted the government too much power. True to form, the government has taken that power and morphed into a giant that we can no longer control. Sure, it feels good to say that "We the People" still means something, but "We the People" apparently don't care anymore...just so long as we get our free healthcare, welfare and social security all courtesy of the government on the backs of our fellow citizens. (Oh, and not to mention our daily dose of soap opera news to keep our minds occupied.) In our selfishness we have, in essence, given away our own rights...both enumerated and unenumerated, and we don't even know it.

We've also used the abominable phrase, "there ought to be a law" in order to use the government to take away other people's rights to do things that we may not necessarily agree with. Last week, Roger Abramson had an excellent article in the Nashville Scene lambasting the government's enforcement of so-called "victimless crimes." It provides excellent examples of how we have given power to the government to do things that it was never intended to do in the first place...thus making it even bigger and more difficult to reign in.

The Modern Reality

Here's the reality of our situation: We've lost control of the government, given up our rights, and "We the People" are too damn lazy to do anything about it. It's that simple. Politicians that promise a true "getting the government out of our lives," Constitutional platform can never get elected.

Is there anything that can be done? Do we make a stand in the name of freedom? Will it be through force or through votes? Will it take a long time? How will people react to such changes? Can we educate them? Will they give up their entitlements for freedom? I don't have those answers, but I am fast becoming a pessimist when it comes to such a change. It may never happen, it will probably get worse, and your children will surely live in bondage...more so than you do today...all because "We the People" decided to do nothing.

Comments:

Please Note! Failure to abide by the following may result in your comments being edited or deleted: Remain on topic. Foul language and/or personal attacks are not permitted. Excessive links (more than three per thread) must be approved first. If you do include a link in your comment, make sure it is a short link (go to tinyurl.com if it is too long). Try to keep comments to 125 words or less. Thank you.

For some reason, I was reminded of this column:
http://tinyurl.com/a953n

Posted by: smantix at August 11, 2005 03:05 PM

Good post Blake. I am not sure I completely agree with everything in it. Still a good post though.

Posted by: Glen Dean at August 11, 2005 07:23 PM

Too.
Much.
Words.

Posted by: brittney at August 12, 2005 01:12 PM

This is, as Bill Hobbs pointed out, an excellent post. It can help us clarify our thinking on a variety of issues. If we keep these amendments foremost, a great many efforts to ban individual behaviors (some of them current, others undoubtedly to come) will certainly show up as tarnished and unthinkable upon scrutiny.

Posted by: joe at August 12, 2005 06:21 PM

Hoo, boy! You have no idea what you just stepped in!

I've had a couple of VERY long-running discussions on "What is a right?" at TSM.

My position: A "right" is what the majority of a society will defend. If they won't defend it, it doesn't matter if it's a "natural right" or not. You can't exercise it.

I catch a lot of flak for that admittedly pragmatic and non-idealistic position.

Posted by: Kevin Baker at August 13, 2005 10:03 PM