Reaction to SCOTUS Gay Marriage Ruling Vindicates Hamilton’s Bill of Rights Warning

In the COMMENT section of the New Jersey Star-Ledger’s editorial on the Supreme Court’s ruling (Historic gay marriage ruling means 'love is equal' now), a correspondent calling himself speaktruthtopower wrote, with my emphasis added:

If the author [of the aforementioned editorial] had any integrity or intellectual honesty, he would be lamenting this decision as an attack on constitutional democracy in this country.

The Supreme Court only has the authority to interpret constitutional rights that the American voters give them the authority to interpret, when the American voters write them into the Constitution.

Whatever your feelings are about gay marriage, what is clear is that in 1868, when the 14th Amendment was added to the Constitution, the American voters never put anything in the Constitution about gay marriage (or marriage at all, for that matter). That means the Supreme Court had no authority to decide this issue.

Five judges on the Supreme Court took for themselves the power – found nowhere in the Constitution - to impose on the rest of us their personal opinion about gay marriage. It’s a move worthy of history’s great dictatorships.

Read the decision. There is nothing in the decision with even the pretense of legal reasoning. It’s full of the judges’ personal opinions and philosophies on life. It’s nothing short of an outrage.

But, to the author, none of this matters. Only the results (he wants) do. The Supreme Court can trample on the Constitution, so long as they come out with a result that the author likes. That’s a position consistent with a dictatorship, not a democracy. It’s also a fitting tribute to the decayed state of the media in this country.

Here are the chickens of Hamilton’s opponents coming home to roost.

Speaktruthtopower and all those who hold his view are wrong on multiple counts. American voters don’t “write [rights] into the Constitution.” That “American voters never put anything in the Constitution about gay marriage” is all the court needed to uphold gay marriage as a right. The Supreme Court most definitely had the authority to decide as they did. Speaktruthtopower has it exactly backwards. The Constitution doesn’t grant government the power to infringe our liberties, because no proper government can infringe or deny our rights, so long as in exercising our rights we don’t infringe on the same rights of others—in which case the rights-violator would have forfeited certain of his rights. The government would have done its job of protecting rights by denying the rights-violator his rights—by incarceration, fines, or other penalties.

The specific rights enumerated in the constitution are only a sampling and an unnecessary redundancy. We have a government of enumerated powers, not enumerated rights. Since the government was not granted any power to deny any marriage to any consenting adults, it clearly has no power to deny the rights of same-sex couples to marry. When it comes to rights, the burden of proof rests not with supporters of rights, but with opponents, who—to justify the denial of rights—must show how the exercise of the right in question violated the rights of others by initiating force or fraud against them.

The constitution grants no power to regulate or forbid marriage, as speaktruthtopower observes. Yet he is claiming that, because the constitution does not expressly allow gay marriage, that no such right exists. Furthermore, since the constitution does not expressly authorize the power to interpret rights, the Supreme Court has no power to rule on gay marriage, a ruling which he asserts is the mere “personal opinion of five justices,” not grounded in sound constitutional principles. This, despite the Ninth Amendment, which clearly states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and which speaktruthtopower conveniently ignores.

Furthermore, because the amendments require voter approval, the implication can be drawn that rights are granted only by your neighbors’ approval at the ballot box—and speaktruthtopower draws on that implication. But, contrary to speaktruthtopower’s assertion, a democracy is a dictatorship, albeit one based on a succession of elected dictators. Rather than a King with unlimited powers, a democracy features an electoral majority with unlimited powers. Just as Hamilton warned could happen, speaktruthtopower portrays America’s constitutional rights—paraphrasing Hamilton—as “stipulations between the majority and its subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the majority.” To paraphrase speaktruthtopower, “If a majority could take for themselves the power – found nowhere in the Constitution - to impose on the rest of us their personal opinion about gay marriage, it’s a move worthy of history’s great dictatorships.” If a nation whose people’s “rights” are mere privileges granted by a majority is not a dictatorship, then what is?

If rights depend on votes, then they are nothing more than tribal privileges, which the collective can trample at any time, for any reason, through its rulers, be they a King, cleric, dictator, or elected representative.

America is not a constitutional democracy based on enumerated rights granted by the people, as speaktruthtopower and many others believe. America is a constitutional republic based on inalienable individual rights with a government charged with the task of protecting those rights through enumerated powers granted to the government by the people for that purpose only. Since the government’s only purpose is to protect rights, and rights are unalienable, it stands to reason and principle—and the Declaration of Independence—that America is not a democracy; the majority has no power to either grant rights nor grant the state the power to violate rights.

Nonetheless, the Bill of Rights is a danger to rights not expressly listed, as Hamilton observed. It has created a lot of legal confusion, even with the Ninth Amendment. In the absence of a Bill of a limited number of Enumerated Rights, liberty advocates must ask, in cases like the gay marriage issue: Where in the constitution is government granted the power to usurp that right? As Hamilton screams to us from across the centuries, the door would not be open to the plausible counter-argument, Where in the constitution is there a right to gay marriage?, to confuse us and undermine that and numerous other rights.

But the Bill of Rights is here to stay. Fortunately, we have a powerful weapon with which to protect all of our liberties all of the time—the Ninth Amendment. The Ninth Amendment was an attempt by James Madison to mitigate the fears of people like Alexander Hamilton. Even Madison, a Bill of Rights supporter, called Hamilton’s argument “one of the most plausible arguments I have ever heard against the admission of a bill of rights into” the constitution. We should point out that, contrary to speaktruthtopower’s assertion, rights not listed in the constitution such as gay marriage are not rights created by the Supreme Court, but rights upheld by the Supreme Court—by virtue of the Ninth Amendment.

On gay marriage, the question is not: Where in the constitution does one find gay marriage rights? The question is: How does the marriage of consenting adults of the same sex violate the rights of others? Opponents of gay marriage have not passed that test. Therefor, gay marriage, though not enumerated in the constitution, can not be denied or disparaged—as per the Ninth Amendment—because, the fact is, we the people don’t need any explicit constitutional authority to exercise any of our individual rights.

Related Reading:

In Gay Marriage Decision, the Court Upheld the Founders' Vision

Rights are Inalienable, not an Electoral Privilege

On This Constitution Day, Remember the Declaration of Independence

SCOTUS Gay Marriage Ruling and Hamilton’s Bill of Rights Warning

The Supreme Court’s June 2015 ruling sweeping away legal restrictions on gay marriage nationwide once again raised fundamental questions about the proper role of government regarding the relationship between the people’s individual rights and their government. The ruling brought to my mind Alexander Hamilton’s warning during the debate over the propriety of inserting a Bill of Rights into the U.S. Constitution. In Federalist 84, Alexander Hamilton explains why inserting a Bill of Rights into the constitution was not only unnecessary, but could even be dangerous to America. I quote Hamilton at length, with my emphasis added, followed by my understanding of his observations as relates to marriage rights specifically, and individual rights generally:

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

Hamilton is reiterating that the people’s liberty pre-exists government, and that the people create governments “to secure the blessings of liberty” (as the constitution says)—or, as the Declaration of Independence states, “to secure these [unalienable] rights.” The people grant to government only powers necessary to do that job. A Bill of Rights listing the rights of individuals in a constitution that does not grant the government the power to violate rights is not only unneeded: It carries the dangerous implication that the people are naturally “subjects” (servants) of the government whose liberties are only those expressly granted by the government as privileged exceptions to that servitude. Besides, one cannot possibly list, in “minute detail,” all rights—”volumes of those aphorism”—not surrendered by the people in the first place. After all, the constitution of the United States is not intended to regulate “every species of personal and private concerns.” The U.S. Constitution “is merely intended to regulate the general political interests of the nation”; i.e., to regulate the means by which the government goes about “secur[ing] the blessings of liberty.” (Think of that when you observe today’s regulatory welfare state running amok.)

Then comes Hamilton’s warning, again with my emphasis:

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. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

Hamilton warns that, since America is a nation with a government of enumerated powers, not enumerated rights, any implication to the contrary could subvert the very purpose of the Constitution. As he explains, a Bill of Rights could lead to the inference that individual rights are nothing more that privileges granted by the state, not actually inalienable rights that precede government and which “governments are instituted . . . to secure,” as the Declaration of Independence so clearly establishes. “To men disposed to usurp,” Hamilton feared, a Bill of Rights could serve as a “plausible pretense” supported by “a semblance of reason” that America is a nation of unlimited government ruling over a people who are free to act only by permission, rather than by unalienable right.

Hamilton lost the debate, as the Bill of Rights was eventually added to the Constitution as the first eight amendments. It wasn’t a total defeat, however. James Madison, to allay Hamilton’s fears, added the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But the Ninth Amendment, often called the forgotten amendment, didn’t completely neutralize Hamilton’s fears. Even Madison acknowledged Hamilton’s concern to be “one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system.” Hamilton’s warning continues relevant and prescient to this day, and the response by some to the gay marriage ruling demonstrates this, as we’ll see in my next post.

Related Reading:

In Gay Marriage Decision, the Court Upheld the Founders' Vision

Rights are Inalienable, not an Electoral Privilege

Marine Who Fought for Our Freedom Fights to Diminish it at Home

The New Jersey Death with Dignity Act, a law that would legalize assisted suicide in some circumstances, is currently working its way through the state legislature. In a New Jersey Star-Ledger guest column, former marine J.J. Hanson argued against the bill, claiming that his own near-death experience qualifies him to speak for everyone else. Hanson wrote, in part:

I am a 30-something Marine Corps veteran who was given four months to live 20 months ago — diagnosed with glioblastoma brain cancer. I fought for treatment that was so difficult there were times when I questioned if the struggle was worth the pain.

. . . When I was at my physical and emotional worst, I became aware of a young California woman named Brittany Maynard who faced the same horrible diagnosis as mine. She took her cancer story public, and it was used to headline a national effort to "normalize" assisted suicide; a notion that had previously been rejected by dozens of states. The message sent to patients across the country, who, like me, wanted to fight and live was now — "assisted suicide may be the best option for you." I recognized this as a huge danger.

My experience has provided me perspective and made me a strong opponent of S382, the legislation currently in the New Jersey Senate to legalize assisted suicide. My personal story is a clear example to why vulnerable and very sick people like me should not be offered suicide as a medical treatment.

. . . My cancer is now in remission. My experience led me to join the national organization Patients Rights Action Fund as its president to help counter assisted suicide, and so that my story can serve as an example of hope to those who may feel hopeless due to a terminal diagnosis. I urge the New Jersey Legislature with every fiber of my being to reject the idea that lethal drugs are an answer to serious illness or terminal diagnoses. Without a doubt, people similar to me facing desperate situations will feel like assisted suicide is their only option. In our society we should be focused on giving hope to the vulnerable and the sick at their greatest time of need, not taking hope away.

I left these comments:

The issue here is: Who has the right to dictate end-of-life decisions for other people? Put another way, what right does Hanson have to force his values on everyone else at the point of a governmental gun? The answer to the first question is, nobody; to the second, none.

S382, the “New Jersey Death with Dignity Act,” is not complete. It restricts our right to seek a humane end through medically assisted suicide to terminally ill situations. But it’s a step in the right direction, from a freedom—i.e., moral—perspective. Every adult of sound mind has the moral right, and should have the legal right, to have the same choice that Brittany Maynard found in Oregon and that Christina Symanski was denied in NJ.

The New Jersey Legislature is not advancing “the idea that lethal drugs are an answer to serious illness or terminal diagnoses.” It is recognizing people facing this dire situation the right to decide for themselves the best answer. People who deny other people their freedom of choice have no business claiming “giving hope to the vulnerable and the sick” as a motive.

It’s very ironic. The purpose of the military is to protect our freedom, which means the inalienable individual right to act on our own reasoned judgement. That fundamental human right extends throughout our lives, right up to its inevitable end, whenever that may be. The irony is that someone who spent 30 years as a marine, whose purpose is defending our freedom from foreign aggressors, would fight to deny a piece of that freedom here at home.

--------------------------------------------

At 67 years old, I’m heading into the back segment of my life. It is sure to end in death. I severely resent the people who presume to be justified in taking away my right to manage my own demise, should I choose exercise that option. Who has a right to force me or any other able-minded person to remain in a life that I no longer believe is worth living? Anyone who claims that “right” cannot claim the banner of compassion, hope, or concern for the suffering of others.

Related Reading:

Assisted suicide: Who are we to judge others’ choices? Rebuttal letter in the Star-Ledger

Excerpt:

“Who are we to judge that one person’s fight and choice to die by assisted suicide is the hopeless one and that another person’s fight to stay alive, if lucky enough, is the more courageous one?”—Doug Brandt, Verona

The Role of Rights in the Assisted Suicide Debate

Diane Coleman's Opposition to Assisted Suicide Ignores Rights - PART 1

Diane Coleman's Opposition to Assisted Suicide Ignores Rights - PART 2

The ‘Liberal’ Collectivist Case Against Doctor-Assisted Suicide

Conservatives’ Collectivist Case Against Assisted Suicide—Ari Armstrong for The Objective Standard

Remembering Martin Luther King Jr. For His Moral Ideals Rather Than His Politics

In commemoration of Martin Luther King Jr. Day, Peniel E. Joseph, the founding director of the Center for the Study of Race and Democracy at Tufts University, said in a 2014 article:

King emerges as a talented individual whose rhetorical genius at the March on Washington helped elevate an entire nation through his moral power and sheer force of will.

The March on Washington was when King delivered his famous 1963 "I Have a Dream" speech. Joseph goes on:

Yet missing from many of the annual King celebrations is the portrait of a political revolutionary who, over time, evolved into a radical warrior for peace, justice and the eradication of poverty. During his last three years, King the “Dreamer” turned into one of the most eloquent, powerful and scathing critics of American society. King lent his moral force and power to anti-poverty crusades that questioned the economic system of capitalism and called for an end to the Vietnam War. . . . King’s powerful rage against economic exploitation and war is often overlooked when we think of him as only a race-healer.

The "moral power" of King's famous "Dream" speech in Washington was actually the moral power of the Founding Fathers resurrected. In that speech, King reminded Americans of the ideals laid down in the Declaration of Independence—the philosophic blueprint for the constitution and the new nation—and called on Americans to fully live up to those ideals. “In a sense we've come to our nation's capital to cash a check,” King said.

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the "unalienable Rights" of "Life, Liberty and the pursuit of Happiness." It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked "insufficient funds."

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident, that all men are created equal."

Yet, King's Dream was to be corrupted by an inner contradiction. In his later years, King questioned the legitimacy of capitalism and turned to what he termed "democratic socialism," a hybrid of two evil systems (democracy and socialism) that repudiates the very ideals he espoused in his speech. Therein lies one of the great American paradoxes—the clash between King the moral force and King the political revolutionary.

When the Founders drafted the Declaration of Independence, they laid down the radical principles that would give birth to capitalism. These 55 brilliant words—the opening lines of the second paragraph of the Declaration—sum up the essence of capitalism:

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. . .

When King reaffirmed those ideals—that all men are created equal, possessing inalienable rights to life, liberty, and the pursuit of happiness protected equally and at all times under a government of objective law rather than of men—he was really, though apparently unwittingly, affirming the foundational principles of capitalism.

Capitalism is the system based on individual rights, rights-protecting government and the only kind of equality consistent with justice—equality of individual rights before the law. Because of these principles, Capitalism is the only social system that banishes exploitation and war, because individual rights banishes aggressive or initiatory force from human relationships—particularly aggressive force by government against the people. Under capitalism, exploitation is replaced with voluntary trade to mutual benefit among individuals, a win-win in which individuals trade value-for-value and get better together. Capitalism liberates every individual to think and act on his own judgement and work to lift himself from poverty, and protects those who take up that life-affirming challenge from would-be exploiters who don’t. And under capitalism, war is replaced with peaceful coexistence among nations based on that principle of trade.

So why would King uphold the moral principles of capitalism in his most famous speech while repudiating it in his politics? It's obvious that King didn't understand capitalism or fully grasp the moral implications of the Declaration of Independence that he so eloquently honored.

He undoubtedly viewed the America of the 1960s as capitalist, when in fact what America had was a mixed economy; a mixture of economic freedom and government controls—that is to say, an economy corrupted by heavy political interference, which included the virulently anti-capitalist Jim Crow segrgation laws. America in the 1960s was just emerging from a time when large segments of blacks were legally oppressed and hence unable to enjoy “the riches of freedom and the security of justice” that is capitalism. Blacks, King failed to understand, were not victims of capitalism but of statism.

King’s legacy includes an end to state-sponsored segregation and oppression—a monumental achievement. But his democratic socialist political policies also “succeeded,” strengthening and entrenching the mixed economy in America, which he mistakenly perceived as capitalism—the result being, in turn, to reduce economic opportunities for many poor but ambitious people, including African-Americans.

To his credit, King explicitly opposed full-blown socialism, which he believed leads to communism, a system that he correctly understood "forgets that life is individual." But he wrongly believed that "Capitalism forgets that life is social," leading him to his hybrid democratic socialism. He failed to see that capitalism, by leaving individuals free to pursue their own values in the absence of physical coercion, provides the only proper moral foundation for both individual flourishing and robust benevolent social interaction—the moral foundation implicit in the Declaration of Independence, rational egoism.

Thus is the paradox of Martin Luther King.

Commentators like Joseph urge us to elevate his politics to at least the level of his ideals. That, of course, would be an impossible contradictions. But ideas are where the real power lies. Since ideas are the driving force of human events, Martin Luther King, despite his politics, remains one of my heroes. Standing in a line that includes John Locke, the Founding Fathers, Abraham Lincoln, and Ayn Rand, among others, King reaffirmed America's Founding ideals at a crucial point in American history. That, to me, is his real legacy contribution to America. For that, I am grateful to Dr. Martin Luther King Jr.

HAPPY MARTIN LUTHER KING JR. DAY!!

Related Reading:

Martin Luther King Jr. and the Fundamental Principle of America

“I Have a Dream”: Martin Luther King Urges Consistency to Founding Principles

On This Constitution Day, Remember the Declaration of Independence

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty—Timothy Sandefur

Capitalism: The Unknown Ideal—Ayn Rand


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