Category Archives: The Bill Of Rights

The Right To Privacy

One of the most contentious bits of Constitutional jurisprudence in history has been the “Right to Privacy”. Some say it’s not there at all, as the word “privacy” never even appears in the document. Some say it flows out of penumbras, formed by emanations. I wish I had a clue what the heck that means. The real answer is much, much simpler, but if followed, throws the whole system on its ear. That answer flows straight out of the idea of Natural Rights, and is expressed by a portion of the Constitution that is roundly ignored, the Ninth Amendment:

Amendment IX – Construction of Constitution. Ratified 12/15/1791.

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

Of course, without an enumeration, it is difficult to understand exactly what sort of rights are protected by the Ninth Amendment. Is a “Right to Privacy” hiding in there? How about a “Right to Polygamy”? Perhaps a “Right to Animal Sacrafice”? Who knows what we might find in there? Could this possibly have been what the Founders intended?

I think it is. The Ninth Amendment, coupled with the Tenth, the Constitutional framework of listing enumerated governmental powers, and later the inclusion of the Fourteenth Amendment, is meant to convey a very specific idea. Where the Constitution has given the government the power to act, it may act, within certain limits. Where the government does not have the power to act, the people are free to exercise their liberty without intrusion.

Perhaps it would be best to start at the beginning. The Ninth Amendment was written as a part of the Bill of Rights in general. At the time of the Founding, many suggested that we did not need a bill of rights, in that the government’s powers were limited. But James Madison, father of the Constitution, did not agree:

It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments.

Would it be right for our government, in response to the enumerated power of punishing counterfeiting of currency, to ban freedom of the press? It would not be necessary, but if Congress is both the writer of the laws and the judge of necessity, the protection against Congressional overreach is not there. The Bill of Rights is intended as a second line of defense against the evisceration of the necessary and proper clause. But there is a problem whenever you enumerate a specific bill of rights, which Madison clearly understood:

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 urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

The clause he mentions, which clearly was the precursor to the Ninth.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

It is clear that the Constitution was written with several lines of defense against giving the government wide powers. It is also clear that the constitution was written to further restrict the latitude of government’s action even when performing their enumerated powers. The Ninth Amendment was intended as one of these second lines of defense to protect individual liberties (natural rights) not expressed in the previous amendments.

Every one of those lines of defense have been breached, and the government has stopped considering most limits on its power. The Supreme Court has been complicit, and instead of acting to guard our rights, has granted the government the benefit of the doubt, or a presumption of constitutionality, to its actions. The presumption of constitutionality means that instead of requiring the government to prove that restricting our liberties is required to enforce a law is “necessary and proper” to the operation of an enumerated power, it is the citizen’s responsibility to show that the legislation encroaches upon an enumerated right in the Bill of Rights, or encroaching on one of those penumbras, formed by emanations, that the Supreme Court has deemed a “fundamental” right. The Ninth Amendment is ignored.

The Supreme Court has become the arbiter to pick and choose which rights are fundamental, and considers only those rights to be safe from government’s power. Even so, they have eviscerated some enumerated rights, by not striking down certain portions of McCain-Feingold, by holding the 2nd Amendment to be “non-incorporated” by the 14th, and in their decision to ignore private property rights against the abuse of eminent domain in Kelo. Kelo is a key example of the presumption of constitutionality, in that the Court simply take the local government’s word for the fact that the takings met the standard of “public use”.

The Right to Privacy is something that the current court has considered as an exception to the presumption of constitutionality. Due to current jurisprudence, however, to affirm the Ninth Amendment, and the reasoning behind its inception, would be affirming a much wider level of liberty and a much more narrow grant of government power than our current government recognizes. Thus, they must rest on the idea of “penumbras, formed by emanations”, resting on the first, third, fourth, fifth, ninth, and fourteenth amendments. They cannot claim that the government doesn’t have the power to make an infringement of liberty in this sense, they must craft a “new” fundamental right to protect a liberty they support. Their desire to maintain the presumption of constitutionality while still enforcing their desired social goals puts them in a very precarious position, and the house of cards that is our Constitutional jurisprudence gets one story taller.

There is another way, though. I was recently reading— a major impetus for this post, actually— Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty. In it, he argues that through the evisceration of the necessary and proper clause, the privileges and immunities clause, the interstate commerce clause, and then the Ninth Amendment, we have strayed far from the original intent of the Constitution, and have found ourselves with a toothless document filled with holes. The suggest to reverse course would be to return to the days when we presume that the government cannot infringe upon liberty UNLESS they demonstrate that to do so is both necessary (not “convenient” but necessary) and proper (in the service of an enumerated power). Instead of a presumption of constitutionality, we should return to a Presumption of Liberty.

The Founding Fathers certainly believed in a Right to Privacy, insofar as they didn’t believe the government had a legitimate purpose to be doing anything which might infringe upon it. In our current Constitutional jurisprudence, the Right to Privacy is an exception to unlimited government power. If we returned to a Presumption of Liberty, the Right to Privacy, along with a host of other rights and liberties, wouldn’t be an exception at all, it would be would be the standard.

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Stadium Searches

If I wish to pat you down before entering my home, to ensure you’re not carrying a weapon, it’s my property, and I have a right to do so (and you have a choice to consent to a search, or leave). If I own a store, and you have a backpack with you, I have a right to know what’s in that backpack before you enter, or you can refuse to consent to a search (and thus I turn you away).

But at some point, a judge has decided that the NFL, as the governing body of professional football, doesn’t have the same property rights with the stadiums its games are played in:

A federal judge has upheld a ban on security pat-downs outside Raymond James Stadium before Tampa Bay Buccaneers games, ruling Friday the practice violates the constitutional rights of fans.

“A generalized fear of terrorism should not diminish the fundamental Fourth Amendment protection envisioned by our Founding Fathers,” U.S. District Judge James Whittemore wrote in his 26-page order. “Our Constitution requires more.”

The ruling is a victory for Valrico civics teacher Gordon Johnston, 60, a Bucs season ticket-holder who filed suit against the Tampa Sports Authority in October 2005.

I can see some potential reasons why the judge would find this way. First, Raymond James stadium was partially taxpayer-funded, so under one reading, the government has a role in its policies and thus this is a government infringement on the Fourth Amendment. Another potential reason is that the Tampa Sports Authority, which administers the stadium’s operations, is a government agency, and thus this is government infringement on the Fourth Amendment. Since the suit was brought directly against the Tampa Sports Authority, this is where I think the reasoning must have come (having not read the ruling myself).

But I think both arguments fail due to one crucial fact. It is not the government who is setting these policies or ensuring their compliance. It is the NFL. The NFL, as the governing body of a VOLUNTARY league, have decided that their fans might feel more secure in a stadium if fellow fans are searched before they are allowed to enter the stadium. This is the NFL’s decision, not the government’s.

That being said, I think it’s a stupid decision. Given the ineffectiveness of the “search” they perform, it’s nothing more than an annoyance. It will take very little ingenuity to smuggle something past this “search”. In fact, I think it’s much more likely that the real result of this policy will be to find contraband (such as outside food and drinks), not to actually improve the safety of fans.

But I realize that it’s my choice to attend an NFL football game, and that should I determine that I want to enter the NFL’s stadium and view the game, I might have to submit to the policies that they have set. Anything else is a violation of the NFL’s right to set the conditions under which their games are played.

Never Again

On July 4th, the United Nations will convene a conference on “the international trafficking and trade in small arms”; which is essentially shorthand for U.N. gun control.

For some time now the U.N. has promulgated treaties which would effectively ban private firearms ownership in signatory states. They have also attempted (thus far unsuccessfully) to add such provisions to their charter, and the universal declaration of human rights; which all U.N members are required to be signatory to.

The various gun rights organizations in this country (and to a lesser extent around the world), are making a very big public relations deal about this; and they have been for quite some time (since the 1970s in fact, but especially since Wayne LaPierre became president of the NRA. He’s even written a book on the subject which a kind reader is sending me to review). Conversely the statist media around the world are using these groups opposition, and sometimes seemingly paranoid rantings (believe me there are just as many whack jobs on our side as on theirs) of these groups supporters as their own public relations bonanza.

Which, in the U.S., is all this is; public relations.

The bald fact is that the U.N.; and the various NGO’s who support this initiative; have the stated and trumpeted goal of banning all private firearm ownership. This is not even an open question, it is their stated goal. It may not be their short term goal for today; but it is what they want in the long term, and universally; and they will stop at nothing to achieve their goal.

So what.

No treaty may take precedence over the U.S. constitution. It’ written right into the document itself; the constitution is the supreme law of this land. The constitution protects the right of the people to keep and bear arms (note: it does not GRANT that right, it recognizes and protects the pre-existing right). This is incontrovertible.

We in America are safe from the U.N. and other NGOs manipulations in this matter; until such time as our constitution is amended; or forcibly ignored (but that’s another topic entirely). The rest of the bleating from the NRA and other organizations is essentially fundraising, and consciousness raising. They are using this issue to alarm folks who might otherwise not be paying attention (and god knows there are millions of gun owners who don’t); into understanding that there are organized, well funded, and even extranational (or transnational) efforts to abrogate their rights.

That part of the effort, or at least that purpose attached to it, I applaud greatly; but screaming “The UN is going to take your guns” to Americans is both untrue, and crass.

This is not to say that the UN’s efforts in this regard should not be opposed; they should; and not simply because the U.N. is a corrupt, criminal, and fundamentally unsound organization (though that is a sufficient reason, it isn’t the only one).

This reason alone is both sufficient, and necessary: The only effective long term tool to combat genocide and democide, is an armed and educated populace.

Please note it takes both components.

An educated unarmed population will still be slaughtered by those intent on enforcing their will on them; or in effecting their destruction.

An armed, uneducated population, is nothing more than a tool for a dictator to effect such genocide and democide.

Some would cry “but what can private individuals do against an army, or a government?“.

Let me tell you right now, it is amazing what an armed and educated population can do; even when their arms are limited, scrounged, and inferior; and their numbers seemingly too small to matter.

I could give you many examples, but I believe one is sufficient: our nation was founded by such men.

Even when victory is remote, one can choose to fight; fight for the chance to be free; and choose to be free in fighting rather than to be a slave, or to be slaughtered.

In 1943, no more than 200 Polish, Hungarian, and Lithuanian Jews held two divisions of NAZIs at bay for two months, using only captured and scrounged weapons; with which they had no training or experience (before the fighting ended another 750 men joined them). None of these men were soldiers, they were tailors, and scholars, and jewelers… but they had intelligence, and a will to survive.

Yes, they were eventually slaughtered; as the NAZIs did to so many others; but they died defending themselves and their families.. or what was left of their families. They were not simply mown under like wheat.

Even if one cannot prevail; it is sometimes better to fight and die, than to be led to the slaughter.

They had a choice, and they fought, and they were free for at least a time. They chose death fighting, over being slaughtered like cattle, or made to be slaves in the concentration camps.

In 72 AD another group of Jews; this one perhaps 1000 strong, but 2/3 of them women and children; made a similar choice. They withdrew themselves to the fortress at Masada, where they were besieged by perhaps 10,000 Romans. For two years they held the Romans at bay; but they received no support from their disarmed brethren; who were content to live under the heel of Rome.

Without outside assistance, they did not have the arms sufficient to resist the Romans; but rather than be enslaved or executed by them, thy chose to die; poisoning each other, and slitting each others throats.

“Since we long ago resolved never to be servants to the Romans, nor to any other than to God Himself, Who alone is the true and just Lord of mankind, the time is now come that obliges us to make that resolution true in practice…We were the very first that revolted, and we are the last to fight against them; and I cannot but esteem it as a favor that God has granted us, that it is still in our power to die bravely, and in a state of freedom.”

— Elazar ben Yair, Patriarch of Masada

An armed man need not choose to die at the hand of his persecutors; he may fight them, and he may win; he may fight them, and he may die; or he may be overwhelmed by them, and he may take his own life; but an armed man has a choice.

Leonidas held the pass at Thermopylae with 300 spartans, (along with 700 thespians, and 400 thebans); against many thousands (anywhere from 800,000 to several million) of Persians under Xerxes. He knew the battle was lost, but he would not submit. When Xerxes petitioned the Spartans to lay down their arms, and they would be spared; Leonidas responded “?O??? ????“… “Come and take them!”

They made their choices to die fighting, to die free. The unarmed man has no choice but to submit.

An unarmed populace, with an enemy bent on their genocide: Germany, Poland, Hungary, Lithuania, Romania Serbia, Bosnia, Armenia, Rwanda, Congo, Sudan, Kurdistan, Cambodia…

Hundreds of Millions dead in the 20th century alone… HUNDREDS OF MILLIONS

The U.N. must be stopped in this; if for no other reason than to prevent these horrible things from happening once more.

Never Again

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

When did they stop?

When I was a kid, and that isn’t exactly a geological age ago; there was a U.S. Flag in every single classrom. Most were on angled jackstaffs flying on the wall next to the P.A. speaker, over the chlakboard, or maybe over the main door.

This didnt warrant notice, any more than desks or chalkboards would.

A bill has just been introduced in the Arizona state house to require that all educational institutions that recieve public funding display the flag in every classroom. Current regulations (as pursuant to U.S. Flag code) only state that a flag must be flown somewhere on campus while school is in session.

My question is, when did they change? When and why did they stop?

The ed-stablishment is complaining that they don’t have the budget, and that they don’t have the personell trained in U.S. Flag code, to do so.

You have got to be kidding me.

Every day at my school, the teacher or the custodian would go around at night and roll the flags up on their jackstaffs. I (or my wife) do it every night to OUR flag. It’s not all that hard. Not only that, but if a flag is permanently mounted, it is acceptable to leave that flag flying at all times, so long as that flag is “properly illuminated” or so long as that flag is indoors.

The flag code is not difficult. Here’s a well illustrated guide, and the annotated code.

Not only that, but I guarantee you they could ask for and recieve enough donations for a proper flag in every classroom in a heartbeat. A decent small indoor flag, U.S. made, only costs about $20. Even a beautiful embroidered presentation flag is only about $100 for a small classroom size model.

Even better to my mind, an ammendment has been added to the bill that would require the concurrent display of the constitution, bill of rights and other ammendments, and declaration of independence as well.

Again, the ed-stablishment says they don’t have the budget; but I ask why isn’t this done alreayd/ Why hasnt this ALWAYS been done? When I was a kid every general ed classrom and history classroom had all of the above prominently displayed.

And still they protest?

No, I believe they are unwilling, because they do not beleive in our nation, our greatness, our exceptional position in this world as the true bastion of freedom and liberty (however it may now be compromised); and they do not wish to be associated with our symbol.

If this legislation passes, and is funded or volunteers fund it; I can assure you the ed-stablishment will find some other excuse to refuse to display our flag. I can guarnatee you that there will be protests by hispanic and native American groups. I guarantee you there will be teachers who refuse to display the flag in their classrooms, or who refuse to teach or assemble in a room where the flag is displayed.

They do this because they are the enemies of our country, and of our children; no more, no less.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

What Justifies the Constitution

A commenter over at Kims blog left this comment:

— What justifies the Constitution in the first place? — John T. Kennedy

It is a very important question, and one that people don’t ofetn think about. Even constitutionally minded folks who should know better havent really thought this one through.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The constitution is justified, because that, was ratified by the folks referred to, and contructed by the principles laid out in this:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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.

Importantly, these documents, and the structure they create, are valid only because they re-affirm and limit what governments instituted among man can do to abrogate or limit those rights inherently posessed by the sovreign man.

The constituion is imperfect; any document is, any government is. Imperfect as it is however, it is the single greatest, and most important political document in modern history. It has established the form and structure of governance, for the greatest nation that has ever existed.

If we the people should ever decide that necessary change cannot be accomplished from within the structure defined by the constitution; it is our right as men to change it from without.

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.

That is the safety valve. That’s what says “Ok, if this doesnt work, we get a do-over”.

But how does one fight against a government? How do you abolish the entrenched powers, and institute a new form of government as shall seem most likely to effect your safety and happiness?

Well the folks who wrote those documents above thought about that two, so they wrote this as well:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

As so many have said before me, the reason we have the second ammendment to the constitution is in case the government should ever decide to ignore the rest of the document.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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