Sunday, June 2, 2013

Rights are Inalienable, not an Electoral Privilege

Libertarian columnist Paul Mulshine recently penned an op-ed exposing what he called the hypocracy of New Jersey "liberals" and conservatives on the issue of same-sex marriage. The nature of that hypocracy is not the essential point I want to zero in on. It's this statement that got me thinking:

   The counterargument from his fellow Democrats is less a line of reasoning than a mantra: You don’t put civil rights up to a vote.   Nonsense. All of the rights in the federal Constitution were added as amendments, and that Constitution is amended by the vote of state legislatures. Our state constitution is amended by a vote of the people. The Democrats are not shy about seeking such a vote when it’s in their interests. They’re even putting an amendment before voters this year to raise the minimum wage.   Why not same-sex marriage?

I left these comments:

I fully agree that there is hypocracy on both sides. Neither side has any business talking about rights--which are guarantees to freedom of action only--considering the massive violations of individual rights that "liberals" support in the economic sphere, and the massive violations of rights that conservatives support in the social sphere. 

But I couldn't disagree more regarding rights and voting. The constitution can not be understood outside of the context of the Declaration of Independence, which is the philosophic blueprint for the constitution. The Declaration recognizes rights as "unalienable." If rights can be granted or rescinded by any electoral majority, then the Declaration is irrelevant and so is the overarching principle that defines America--inalienable individual rights.

Mr. Mulshine is wrong that "All of the rights in the federal Constitution were added as amendments."  Yes, the amendments were added to the constitution by vote. But, as thebullhorn points out below, the amendments didn't add any rights. The amendments are superfluous. As the Ninth Amendment explicitly makes clear, the people retain their rights whether or not they are enumerated. Rights are inalienable. If the amendments were never added, the enumerated powers granted to government does not authorize it to restrict freedom of religion, association, speech, property, etc. Hamilton, in arguing about the dangers of adding a Bill of Rights in the constitution, makes this point in Federalist 84

In Federalist 84, Alexander Hamilton explains why inserting a Bill of Rights into the constitution was not only unnecessary, but could even be dangerous. He wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. 

If rights depend on votes, then they are nothing more than tribal privileges, which the collective can trample at any time, for any reason.

Related Reading:

Notes, and Myths, on American History - 2

On This Constitution Day, Remember the Declaration of Independence

Iraqi Democracy vs. Freedom

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