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

The purpose of the Ninth Amendment was to confirm that while there were individual rights specifically named in the Constitution and the rest of the Bill of Rights, nobody should conclude that our rights were limited to those mentioned.  In other words, there are many other rights that are retained by the people in addition to those mentioned.

What’s both troubling and amazing about the wording here is that because those “other” rights aren’t enumerated, it’s left up to succeeding generations to declare, argue over and defend those rights.  The Ninth Amendment gives us a great deal of flexibility to adapt to the times and incorporate new human knowledge and understanding, as well as to continue to debate ideas that are important to us.

But that’s not really what it’s all about.  It was “self-evident” to the signers of Declaration of Independence that there are “unalienable rights, among these are Life, Liberty and the Pursuit of Happiness.”  That “among these…” part means that there are others that must have been so obvious and universal to the writers that they didn’t need to be comprehensively listed.  The conclusion therefore must be that they weren’t setting up a system where new rights could be interpreted or legislated into being.  They were simply making sure that the God-given rights all men were born with would be acknowledged and defended from meddling by the federal government.

In a time when modern liberals and progressives are finding new “rights” in the Constitution (such as rights to abort pregnancies, or rights to health insurance, or rights to fundamentally redefine words, etc.), it’s useful to understand what the people who gave us this country considered obvious at the time.

First of all, unalienable rights are rights that come directly from God that no government can infringe upon without being subject to His justice.  They are natural rights, in that we are inherently born with them.  An individual can forfeit his or her natural rights, but they cannot be taken away.

Some of the natural rights that every individual has that weren’t enumerated in the Declaration or the Constitution include:

The right to bear arms for self-defense.
The right to own, develop and dispose of property.
The right to make personal choices.
The right to free conscience.
The right to choose a profession.
The right to choose a spouse.
The right to produce children.
The right to assemble.
The right to petition.
The right to free speech.
The right to a free press.
The right to enjoy the fruits of one’s labors.
The right to improve one’s position through barter and sale.
The right to contrive and invent.
The right to explore the natural resources of the earth.
The right to privacy.
The right to provide personal security.
The right to provide nature’s necessities–air, food water, clothing, and shelter.
The right to a fair trial.
The right of free association.
The right to contract.

*List borrowed from The 5000-Year Leap, pp125-126

There are two things that all of these have in common.  The first is that they all make sense.  They all appeal to our fundamental idea of fairness.  Nobody who isn’t an authoritarian oligarch or Marxist ideologue will look at any of those and think that they’re bad or unfair.  We know instinctively that there’s truth here.

The second thing that they have in common is their reinforcement of the “unalienable rights” that were mentioned in the Declaration: Life, Liberty and the Pursuit of Happiness.  We have the right to live our lives, and to procreate to continue life.  We have liberty to use our God-given faculties of reason and creativity, as well as the God-given resources of the Earth, to improve our lives and make ourselves happier.  Frederic Bastiat, a French liberal theorist, wrote, “Life, liberty and property do not exist because men have made laws.  On the contrary, it was the fact that life, liberty and property existed before that caused men to make laws for the protection of them in the first place.”

In the context of the time and understanding of the founders, the Ninth Amendment doesn’t represent a source of any rights at all.  As Harvard constitutional law professor Laurence Tribe stated, “it is simply a rule about how to read the Constitution.”  Judges and politicians should not leverage its vagueness to create new rights and laws, such as a “right” to abortion or anything else.  Instead, it should be acknowledged as it was intended:  each individual human being was created equally, with individual rights and individual responsibilities, that were given to us by none other than God Himself.  And no government can be considered just that takes those rights away.

More Information:
The 5000-Year Leap by W. Cleon Skousen
Ninth Amendment Wikipedia Page
The Law by Frederic Bastiat

Today’s post was inspired by the following video:

This video, in turn, was probably inspired by Part 1 of The 5000 Year Leap: A Miracle That Changed the World.  The gist of the chapter in the book and the first part of the video is that the common understanding of “left” versus “right” is that it pits Communism and Socialism on one end of the political spectrum versus fascism and dictatorships on the other.  The problem here is that totalitarianism is the end result for both sides.  A more useful spectrum, as both sources point out, would be totalitarianism in all forms on the left versus no government—anarchy—on the right.

Communism, Nazism and Fascism are all authoritarian forms of government

One of the ways the common misunderstanding came about was due to rivalry between Germany and the USSR during World War II.  The Nazis were Socialists.  The Russians were Socialists.  They were both authoritarian, murderous regimes that stripped natural rights from individuals in favor of centralizing power in the state.  Philosophically, they were no different, but they both had the goal of controlling Europe.  The rivalry was about which nation would achieve control, not about how they would rule or the treatment of individual rights.  Casting the Nazis on one end of the political spectrum and the Communists on the other end was a clever way of distorting the issue and presenting a false choice.

The fact is that new deal progressives were fans of both.  They admired the central management, the consolidation of control in the hands of intellectuals, and the power of the cults of personality that were built up around Josef Stalin and Benito “Men are tired of liberty” Moussolini in particular.

Progressives and liberals have used this false interpretation of the spectrum with great success.  They cast big-government Democrats in the US as a happy-face, “were here to help” form of government that’s just looking out for the little guy.  They’re supposedly just left-of-center moderates who want just enough socialism to keep the disaffected and forgotten safe from the greedy capitalists.  On the other end, they cast Republicans as Hitler-like fascists, without bothering to actually define fascism.  Along with that came all the baggage that went along with Nazism:  racism, anti-semitism, and jack-booted thuggery that terrorized people with the idea that government enforcers could break down your doors at night and arrest you if you were doing something that wasn’t approved of.  In fact, this interpretation couldn’t be any further from the truth.

The Founders Were Right Wingers

The spirit of the American revolution was built around the idea that people should be governed not by a centralized authority, but by a diverse, distributed form of government.  (Actually, that’s a massive oversimplification, but it suits the general thinking of the political leadership of the time.)  The first political framework that developed, the Articles of Confederation, clearly was an experiment that erred on the side of implementing as weak of a centralized government as possible—there was a ingrained mistrust of government authority.  Under the Articles, the federal government was able to pass legislation, but had no power to enforce it.  The federal government could not levy taxes, and could only request funding from the states (the states tended to not comply with those requests).  It had no power to regulate interstate commerce, so all lawmaking was left up to the states and there was no process for standardizing anything on a national basis.

The eventual development of the Constitution was basically an acknowledgement that the government set in place under the Articles was completely unworkable, and that the federal government had to be granted some power and authority.  But even then, the founders continued to carefully to limit that authority as much as possible.  The ninth and tenth amendments illustrate the idea that, when in doubt, the government should err on the side of individual rights, and that the federal government should defer to states in all cases except when its power and authority were specifically called out in the Constitution.

“Right Wingers” Are Continuing the Founders’ Legacy

So where does that leave us today?  Today’s leftists bristle at the the restrictions placed on the government by the Constitution.  The New Deal was an all-out assault on our founding principles, and its principle advocates believed that they could deliver a more “efficient” government if elite academic “dictators” (sort of like Barack Obama’s czars) were able to implement policy and “manage” the economy without oversight or approval.  FDR outright rejected the idea of limited government, and launched us down the road to socialism through Social Security.  He set out to undermine and nationalize private industries, particular utility companies.  He enforced price controls, production limits and set up the Federal Reserve System. 

The marginalization of the Constitution continues to this day, with a noble personage no less than Al Gore famously describing the Constitution as a “living, breathing document,” the implication being that nothing that’s written in it is set in stone, and whatever it says should be reinterpreted at the whims and fancies of the political elites of the day.  Barack Obama has whined that the Supreme Court hasn’t broken us free from the “essential constraints in the Constitution” and that issues of redistribution of wealth and “economic justice” haven’t been interpreted into the Constitution yet.  So you have the left wanting to expand the role of the federal government and centralize control of the country in Washington, DC, in spite of the essential Constitutional restrictions.

People on the political right, then, are the ones who believe in the timelessness of the individual rights enumerated in the Constitution, who believe in restoring limited government, and believe in inalienable individual rights as opposed to surrendering personal responsibility to centralize authoritarianism.  The Republican party and its leadership, however, are not the font of conservative thought or the motor behind the advancement of the philosophy, as the Democrat party is for its constituents’ ideas.  Rather, the Republican leadership rarely seems to have a coherent agenda or message.

Instead, the motor of conservative thought and action lies, as it always has, with the people, who to this day still hold certain truths to be self-evident.  People who believe that that we are endowed by our creator with inalienable rights are the ones who must stand up and lead, and not ever consent to being ruled.  The government is simply a body.  We must be its thinking, sensing, acting brain.

For conservatives, this is the fundamental concept of the role of the federal government:

"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."

 

That’s the Tenth Amendment to the Constitution.  If observed and respected to the same extent that the First Amendment is, for example, it alone would go most of the way to guaranteeing our basic freedoms, including those enumerated in all of the other Amendments.

The Tenth Amendment effectively cast the Constitution as a "Default Deny" policy against a large and oppressive government.  Default Deny is a term used in computer networking to describe a set of firewall rules that deny all network communication from anywhere and to anywhere unless it’s specifically allowed by an administrator.  Similarly, the Tenth Amendment clearly disallows the government from exercising or granting itself powers not specifically granted to it by the Constitution itself.  Those powers instead lie with the state governments and individuals.

The founders believed in distributed government.  They expressed the idea that wherever possible, problems and disputes should be addressed locally.  If a family had a dispute, the family should resolve it.  If a town had a local issue that needed to be addressed, it should be addressed locally, and so on from the county to the state and finally to the federal level.  Those most familiar with the ideals, values, morals and habits of the locality and people who are affected by the problem should be the ones to fix it.  A bureaucrat in Washington, DC is ill-equipped to rule effectively on issues affecting Forks, WA.  A problem should only be elevated to the next level if a conflict arises between two or more families, towns or states.  This is bottom-up government.  This is a form of government that empowers individuals as much as any form of government ever has.  This is the most effective way to manage a geographically and demographically diverse country while maintaining universal freedom and property rights.

Since it was written, all of the branches of government have worked to find ways around Constitutional limitations, to justify its violation, and to extend the power and influence of government in our lives.  It’s often done with the blessing of the people.  The problem is that even if an idea is popular, it’s completely illegal if the Constitution disallows it.  There are specific methods described in the Constitution itself which would allow for changing it, but these are constantly ignored out of political expediency, ignorance and pure malice.  Those who most favor a "living" interpretation of the Constitution, one in which the Constitution should be ignored or bent or broken are the ones who’ve driven the country to its current state of lawlessness and unsustainability.  These people are a class of elites that believe they can truly govern best from the top down, dictating to states, towns and families how best to live their lives.  This class of elites were originally known as the Progressives.

Most of the damage done against the 10th amendment was done, unsurprisingly, by New Deal progressives under FDR.  At that time, the Roosevelt administration was attempting to centrally manage resources and control prices of commodities.  In one case, the Supreme Court ruled that, "although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control."  Basically, they’re saying that even if you, say, operate a mining business in a single state, the stuff you mine may have a substantial impact on commerce in other states, and therefore the Congress can regulate your ass.  That might seem like a stretch, since after all, once you sell what you’ve mined, it’s not really any of your concern anymore.  And yet, because of this interpretation, the federal government became dictator to the individual.  But it gets better.

In an attempt to control wheat prices, the New Dealers sought to restrict the amount of land that farmers could devote to wheat production in order to stabilize the price of wheat.  In one case, a farmer named Roscoe Filburn was allotted 11 acres of his own land to use for wheat production.  Filburn instead planted about 22 acres, intending to sell the output from the allowed 11 acres, and use the extra he produced on the other acreage for himself.  And so it went to court.  In the Supreme Court case, Wickard v. Filburn, the justices ruled that had Filburn not used his own home-produced wheat for himself, he would have had to purchase it on the open market, and therefore he was affecting interstate commerce.  Yes, that’s right.  Growing your own food is an interstate commerce issue.  Thank you, progressivism!

So if something as simple as growing your own wheat on your own farm (or by extension, growing your own tomatoes in your back yard) can be regulated by the federal government under the commerce clause, then the commerce clause can pretty much be used to regulate anything.  The 10th amendment is virtually dead.  The federal government controls all.  If one amendment can be interpreted beyond it’s intentions in such a way that it becomes meaninglessness, then really any amendment is meaningless.  The end result is that the federal government can dictate what an individual can and cannot do with his own personal property.  Whether that power is ultimately used for good or for bad doesn’t matter.  It is tyranny.

Progressive statism is a slow, incremental disease.  But little moves can have massive consequences.  Even letting defenses down temporarily for “emergency” purposes invites permanent, unwelcome change.  If you believe in conservatism, then always trust conservatism.  When in doubt, always stay true to what the founders tried to leave for us.

This story is a few weeks old, but I’ve been pondering the ramifications of it for a while now.

BOAO, China – Action star Jackie Chan said Saturday he’s not sure if a free society is a good thing for China and that he’s starting to think "we Chinese need to be controlled."

Chan’s comments drew applause from a predominantly Chinese audience of business leaders in China’s southern island province of Hainan.

The 55-year-old Hong Kong actor was participating in a panel at the annual Boao Forum when he was asked to discuss censorship and restrictions on filmmakers in China. He expanded his comments to include society.

"I’m not sure if it’s good to have freedom or not," Chan said. "I’m really confused now. If you’re too free, you’re like the way Hong Kong is now. It’s very chaotic. Taiwan is also chaotic."

Chan added: "I’m gradually beginning to feel that we Chinese need to be controlled. If we’re not being controlled, we’ll just do what we want."

Yeah, well, I’m gradually beginning to feel that there’s a deep psychosis that runs throughout humanity that causes us to simultaneously yearn for and loathe the idea of freedom.  People who live under tyranny want to be free.  But as they start to taste freedom, as people China are beginning to at least economically, they want to crawl back under the rock.  The Russian people had never been free until about 15 years ago.  Their cultural response was alcoholism, crime, a collapse of the family and birthrate, and a subtle yearning for the authoritarian good ol’ days.

In America, we were blessed with a small group of incredibly selfless, forward-thinking, open-minded, deeply flawed and yet deeply moral men who came together to create the first free country in 2000 years.  And yet, we as a people either actively cheer or apathetically yawn as those blessings disappear every day.

Psychotic.

It’s tough to speak convincingly on a subject when the person you’d like to convince doesn’t speak the same language.  Technically you may both speak English, but the definitions of words can mean something significantly different to each of you.

Freedom (in the American sense) means that I’m free to live, worship, work, and pursue my own happiness with the fruits of my own labor.  Freedom to some apparently means being able to do whatever they want, whenever they want, without regard to any common concept of morality, or effect on society.  It would be impossible for me to discuss freedom with someone who holds this point of view.

Compassion to me means that I, as an individual, acknowledge the struggles that other people face, and that I should work to help them overcome their obstacles in pursuit of a better life.  Compassion to some means convincing groups of people that they’re being exploited through no fault of their own, and confiscating the property of another group and giving it to this favored group to pay for their basic needs and keep them dependent on the government.  Objecting to having my property stolen and given to someone else against my will is considered mean-spirited, uncharitable, and lacking compassion.  It’s hard to have a discussion about compassion with such divergent understanding of what it means.

Equal rights to me means that every individual has the same opportunity and access in society.  It’s a framework, a “level playing field”, where each person can succeed or fail based on their own abilities and effort.  Equal rights to others means that outcome and results should be equal.  If you don’t define your terms and agree to them, you can’t have a discussion about it.

Which brings me to this:  Unanimous ruling: Iowa marriage no longer limited to one man, one woman

In our culture and society, marriage is and has always been a union of a man and a woman.  Marriage between two men or two women is not marriage.  It’s contradictory.  Gay marriage is at best an oxymoron, but at least it’s a redefinition of a word that’s always meant something else.

Courts are deciding that gay marriage is legitimate based on an “equal rights” argument.  A handful of attorneys in black robes are deciding against the majority of the populations they represent, in most cases against the duly elected representatives of those populations, in favor or a fundamental redefinition of a fundamental moral and societal institution.  But beyond that, the equal rights argument in itself is a reach.  Every man and every woman has an equal right to marry someone of the opposite sex.  There is NO discrimination.  In order to claim that gay marriage bans are discriminatory, a court has to throw out tradition, historical definition, the moral sensibility of the citizenry, and the principles of representative government in order to make up a new “right” out of whole cloth.

And those of us who dare to disagree with the dangerous imprudence of the courts and the radical refashioning of our society and the (originally) limited government that we’ve consented to rule over us are marginalized as hateful, homophobic, bible-thumping religious extremists.

It is impossible to have a rational discussion about marriage when you don’t share definitions, when all morality is relative, when opinions are based on emotion instead of reason.  Our Republic can’t survive if we continue to marginalize the majority by skipping public debate and permitting an oligarchy of eggheaded lawyers to dictate to us.

Anyway, congratulations to those who fought for this in Iowa.  But your victory was won in the worst possible way.  You won very few hearts and changed very few minds.