White Paper: Launching a “Bill of Rights II”

E-commerce links for hardcopy of book containing this chapter (DADT 2002).  

Part 1: Overview

            At my (doaskdotell) (High Productivity Publishing) website (was http://www.hppub.com/), I present a collection of writings which argue that it may be time to enhance or add to the (United States) federal Bill of Rights. In two books[1] I present my case that the firewall between people and government (federal, state and local) in several areas may need to be strengthened.  Individual rights in such areas as sexual privacy, substance use, self-defense, potential conscription, free speech, religion, marriage law, freedom from discrimination because of government preferences, and freedom from inappropriate confiscation or takings of property by government all arguably might need to be strengthened.

            My own libertarian approach is inductive; I rely heavily upon my experiences as a gay man particularly in dealing with the military, and then added considerable research to my own personal account. But one could live a very different life from mine and ultimately compose a narrative that comes to similar conclusions.

            The libertarian paradigm for individual rights is simple. Government should interfere with an individual's choices only to the extent necessary to prohibit one individual from harming another, or to compel one individual to keep contractual promises. As a corollary, an individual is held to be absolutely responsible for himself or herself.

            Of course, defining “harm” is not so simple in practice.  Furthermore, a free society has to deal with community external threats (military, environmental), with pervasive social injustice inherited from the past, and with obvious inequalities among and vulnerabilities in the capabilities of individuals.  Persons are called upon to make personal sacrifices to meet these needs, and these ukases rise to the level of moral imperatives. “Morals” laws, as well as forced redistribution of wealth, are seen as essential ways to make civilization fairer for vulnerable people (and not just children); democratic political process (majority rule?), balanced by separation of powers, is supposed to keep these laws fair and evenhanded.  All of this fits into a notion that the courts refer to as ordered liberty. A paradigm based on “personal responsibility fundamentalism” (becoming more popular today as evidenced in tougher mandatory sentences for crime) may have to be tempered by the observation that many people do not have the same opportunity to execute personal choices as, say, I have had.

            If these more collective concerns about the general welfare must drive policy, the problem is how do you draw the line in some principled way when you must encroach upon individual rights?  Freedom in a gigantic pluralistic society does incur some risk; how does one determine (other than pragmatic political consensus) to what extent we will be held accountable as our brothers' keepers?

Very often, legislative attempts to draw these lines seem to express more a sense of political barter than moral thinking.  One could suggest, however, that the line should be drawn when the capacity for the individual to express or actualize himself as distinct from others is materially jeopardized.  One may also say that government should have the authority to tax in order to supply “basic services” (which in theory benefit all citizens equally but still provide general welfare to all individuals) but not to entrench itself politically by providing spoils for one interest group at the expense to everyone else; this (like pornography) is a difficult distinction (“a distinction with a difference”) to define, but perhaps you know it when you see it.

On the other hand, when collectivism and state-forced “equality” determine what is permissible, everyone is impoverished. Freedom works; cultural communism does not.  Government in a “libertarian” democracy could set out to minimize the number of people who need help rather than help people who already need help (often because of past group injustices, especially those abetted by government).

            Underneath all of this lies the moral discomfort over the whole concept of “self ownership,” a notion well supported by writings about “natural rights” for centuries in Western Culture[2].  Indeed, various philosophers have characterized “natural rights” as those which must exist for individuals before any government can legitimately operate.  Self-ownership has become a more influential notion in the past few decades as individuals become more likely to define their own personal objectives without the prerequisite approval of others or obvious social or familial utility.

In times of great public distress over some calamity (perhaps now after 9-11), some people will talk as if they were ashamed of their own individual rights, or at least unaware that if they trade away the rights of others they are endangering their own.  Even among progressive thinkers, there is a growing awareness that people need to factor properly the meeting of the real needs of others (most often through a family structure) in setting their own priorities, and that this needs to be made clear especially to young adults.  One sees this kind of thinking, of course, in religion, where there is often a mistrust of the capacity for individuals to analyze moral choices on their own and in the psychological growth movement, as I noted in my discussions of the Ninth Street Center.[3]   People who fail to do this may not always face legal sanction, but they find their interpersonal effectiveness compromised, especially as they grow older.  No one is completely autonomous.

            The paradox of our interdependence among one another in an open “advanced” society has been underscored by the calamitous terrorist attacks upon our country in late 2001.  Indeed, it sometimes seems as if the attacks were intended to punish us as individuals for what we stand for, rather than just blackmail our government for its foreign policies, controversial as they may seem to some people.  The underlying and shocking threat of asymmetric warfare, that it could suddenly inflict damage and casualties so massive as to make our current society unworkable for a long time, raises first the question of what kinds of liberties might be compromised in the effort to detect and prevent larger terrorist attacks, and also raises the issue of how liberty could function in a post-apocalyptic society, perhaps subject to martial law if civil authority is still in place.

To some extent, this second question has always been with us, during World War II and also the Cold War (“duck and cover”), and poses a scenario so unacceptable as to be outside the bounds of discussion here.  But prevention of attacks against the homeland, whether conventional or terroristic in nature, should be achievable without surrendering our constitutional civil liberties; national defense and security have always been factored into discussions about civil liberties in principled ways.   Libertarians are correct to point out that in some cases our overly interventionist foreign policies may have future unintended consequences, inviting hatred and aggression, even when these policies seem to have succeeded at first.  We do have to look at a number of issues in technical detail, and that is done in a later chapter in this book.  The underlying question remains the same: balancing, with some psychological subtlety, individual freedom and self-expression with obligations to others.  This balance should be the focus of future debate.          

Part 2: Some Terminology and Facts about Rights

            The federal Bill of Rights became law in 1791 (over 200 years ago), and in 1833 (over 160 years ago) the Supreme Court ruled that the Bill of Rights constrained only the federal government, not the states.  But with the 14th Amendment in 1865, it became possible for the Supreme Court to gradually apply (“incorporate”) many provisions in the Bill of Rights to the states.

            There was originally a lot of resistance to the notion of a federal Bill of Rights. It was felt that the enumeration of specific rights could imply that no other rights than those enumerated were protected. Therefore, the Bill of Rights included a 9th Amendment reserving unenumerated rights to the states and the people, and the 10th Amendment reserving unenumerated powers to the states.

            In fact, many libertarians feel that the most appropriate focus of political efforts should be to confine the activities of the federal government (especially in regulation) to those powers explicitly given to it in the Constitution.  Economic competition would then force states and localities to maintain a hands-off approach in their own public policies.  However, state and local laws can be as oppressive as federal, and it is unlikely, given constitutional jurisprudence to date, that the 9th Amendment alone can be counted on to restrain these governments since the Courts have never really regarded it as “incorporated.”  Most legal scholars still regard the “penumbra” of rights in the 9th Amendment as applying specifically to limitations of federal government regulation.

            The accepted term for rights very explicitly enumerated in the Constitution and its amendments is original rights. I used to use the term affirmative rights but this term has been used in other ways.[4] Another term, fundamental rights, is more inclusive, and this term generally refers to rights extended to protect individuals from the states as well as federal government. It refers to rights that the federal courts (and especially the Supreme Court) are willing to “derive” from existing rights and a cultural tradition concerning these rights.  Fundamental rights often deal with objectives of self-expression and, therefore, self-ownership.  The substantive due process clause of the 14th Amendment (applied to natural rights of “life, liberty, or property”), which generally means that laws must be "fair" to individuals, is often regarded as the source of these “rights," as may be other provisions, such as the 3rd Amendment (quartering of soldiers), which has been used to bolster a right to privacy, and the 5th and 9th Amendments.  (Technically, the 5th Amendment had established the idea of “substantive due process” with respect to the federal government, and the 14th applied the concept—somewhat more rhetorically—to the states.)  The notion of fundamental rights has been used to affirm the right to contraception and (in a limited way) abortion, but not, for example, to sodomy or drug use or, in many circumstances, concealed-carry of weapons by an individual.  Generally, fundamental rights will invoke strict scrutiny from the courts; the state must show a compelling interest in compromising a fundamental right. 

            There is a rough correlation between the distinction separating a procedural right to privacy (from unreasonable search and seizure of private property, as guaranteed by the 4th Amendment) from private choices (such as sexual choice or reproductive choices), and the difference between affirmative and fundamental rights, as outlined by Amitai Etzioni in Chapter 6, “A Contemporary Conception of Privacy,” The Limits of Privacy (1999)[5].  The notion that one has a right to a “private life” without McCartyistic interventions from society didn’t take hold until the 1890’s, perhaps with a famous Harvard Law Journal essay “The Right to Privacy” by Bandeis and Warren.[6] (The essay was more influential in the tort system, with invasion of privacy lawsuits against publishers, authors and the press at first than it was against government; but it did instantiate the idea that privacy could be a fundamental right separate from property.)  

Private choice comports with self-ownership and the setting of personal goals; yet only the first two of the Bill of Rights seem to affirm such choice as a right; the remainder of affirmative rights (or original rights) indeed have more to do with procedural protections against federal government intrusions.  Indeed, “substantive due process” does not require that the fact that the public may not observe a behavior (say, bomb making or drug cultivation) means that the state may not prohibit it; the clause does not mean that government may not rebuttably presume that prohibited acts are likely to take place in some circumstances.  (Here, we could analyze the comparison between the spread of computer viruses from “private” activity with the spread of real ones from sexual activity, and the reader can determine where the analogy breaks down.)

Private choices, arguably, may be tempered by their unseen collective effects on others; so more traditional political theory would maintain that the checks and balances of constitutional government should prevent government prohibitions or disincentives of preferences regarding certain behaviors from becoming truly invasive (and from interfering with more subtle community and family pressures to channel individual motivation and behavior in to being able to take responsibility for others).         

            Another concept is social rights, which grow out of legislation intended to provide a safety net (such as welfare and Medicaid) and to ensure social justice: freedom from discrimination by private institutions (discrimination by government is supposed to be prohibited by the 14th Amendment, but it took until 1954 in the Brown case to establish convincingly this limitation this even with respect to race).  Social rights generally do not invoke constitutional questions but they do require thinking about what seems to be fair treatment by government in a civil society. 

In Our Fundamental Rights I provided a general (not necessarily legal) discussion of the ethical framework for all of these categories of rights.  Social rights may be created (by political process and consent although not by the Constitution itself), whereas fundamental rights may (conceptually speaking) only be protected and not created.  Sometimes social rights can be established only by forcibly compromising the rights of some for the benefit of others whom the political process determines to be "needier."[7]

Social rights might be invoked indirectly in a libertarian society by encouraging a lifetime plan of financial responsibility. The "social rights" concept brings up, for some people, a notion of egalitarianism. A market economy (capitalism) assumes that when people act with their own resources in their own “enlightened” self-interest and produce wealth, others will gradually benefit (although, especially at first, not “equally”); the inequality (and, sometimes, personal failure) that results is not acceptable to some people and is confused with “exploitation.”

A political system based on individual rights and responsibilities (and individual or private production initiatives ¾ “self-ownership”) must still grapple with questions of fairness, proper respect for the real needs of others, loyalty, and other moral notions fundamental to civil society. See also note[8]  regarding a proposal by Bruce Ackerman. A “social right” to guaranteed health care (mentioned as an unquestionable right in Michael Moore’s film Bowling for Columbine), or to freedom from unreasonable overtime in the workplace, or even to paid maternity leave, could, in the minds of some people, be derived from a affirmative or fundamental right to life. Some people will carry social rights further. For example, attempts to force welfare mothers back to work are seen as violating a right to a safety net or especially the rights of children. Such a claimed right would have to be weighed against the responsibility of the beneficiary for his or her own actions or of others connected (such as “deadbeat dads”) connected to the person, but such conservative arguments are seen angrily by many as mean-spirited, divisive and as intended to blame victims of social injustice

             There can occur a good debate when two apparently “essential” rights come into legitimate conflict. For example, the property rights of one person or entity (inasmuch as “libertarian rights theory” treats businesses and persons equally, although a “bill of rights” would concern only individuals) may be compared to the right of an individual to be free from irrational discrimination. If property rights are fundamental and freedom from discrimination is “social,” then property rights would prevail. But perhaps the right to choose a consenting adult significant other could be perceived (in a manner similar to practicing religious faith or no faith) as fundamental, too, and set up a really interesting (at least on paper) contest.

            Part 3: Methods of Amending the Constitution

            The Constitution (in Article V) provides two methods of amendment. It also preemptively prohibited constitutional amendment for a couple of special issues relating to slave trade (before 1808) and a state's right to representation. The Constitution has been amended 17 times since 1791, with one of the amendments (Prohibition, Amendment 18) repealed (by Amendment 21).

Method 1: Congress must pass the proposed amendment by a 2/3 majority in both House and Senate; the amendment must then be ratified by 3/4 of the states, either by state legislatures or state conventions (as specified by Congress). The state convention ratification method has been used only once, for the 21st Amendment, to repeal prohibition. Congress does have the right to stipulate a time limit for ratification, which can make ratification difficult in practice.

            This method has been tried recently without success for some controversial issues, including an equal rights amendment (for women). So a constitutional amendment protecting, say, consensual sex from state legislation would have prevail in debate and a floor vote in both houses of Congress before submission to ratification. Sounds unlikely?

Method 2: An amendment(s) can be proposed by a convention called by 2/3 of the state legislatures and then be ratified by 3/4 of the state legislatures (Congress could require ratifications by state conventions).

            The method has never actually been used. However, during the 1970s and 1980s, 32 states (two short of the required 34) passed resolutions calling for a constitutional convention to pass a balanced budget amendment. Some states have since retracted these resolutions, and some resolutions may have expired by now.

            There is a particular controversy over this method. If such a convention took place, it is possible that any issue could be raised, and that conceivably the whole Constitution could be rewritten. Legal scholars differ on whether this is the case.  However in his 1990 confirmation hearings Justice David Souter remarked that such a possibility could not be ruled out since, after all, the Constitution grew out of an intent to rewrite the Articles of Confederation. Another controversy is the idea that citizens of a state might be able to substitute themselves for the state legislature and propose a convention by referendum.

            Were enough of the 32 resolutions (for the balanced budget amendment) still active and were some states to propose a convention over some other issue (perhaps even abortion), then a pressure group or even a private citizen conceivably (theoretically) could take legal action to force a convention, which according to some theorists could be forced to address any issue. Were this to happen, the instance could appear quite suddenly and throw financial markets and political institutions into chaos. Earlier during my adulthood, I would often hear left-wing groups like “The People's Party” throw around talk of forcing another constitutional convention as if it were as easy as the “second Russian revolution” of 1991.

            There is one advantage to the “runaway convention,” however. Since one issue alone would probably not be presented, we would not have the problem of debating an emotional issue (like abortion) out of context, out of principled relationships to other issues. A few scholars (Charles Black at Yale in the 1960s) have argued that Article V (as interpreted historically and textually) would allow only “unlimited” conventions (Article V reads verbatim, "shall call a convention for proposing amendments"), but most mainstream legal observers believe that the Constitutional Convention Implementation Act of 1991 (or at least the powers designated to Congress and the states) makes a “revolutionary convention” as opposed to a “limited” convention unlikely. (But may the Congress or may the states themselves "interpret" Article V, or is this up to the judiciary? See Vile in note 8 above.)

            There is not a lot written on this method, but this site (doaskdotell.com) will present more material as it finds it. Some sources are listed below.[9] See the list of states that have called for a constitutional convention (current as of 1994) at (doaskdotell.com/content/states.htm). The “threat” of the convention method is more one of psychological subterfuge; conservatives could assemble some hot-button issues (like abortion, school religious displays or prayer, flag burning or guns) into a package and over a period of time surreptitiously lobby states (starting with those who called for the balanced budget amendment) into authorizing a convention without forcing a roll call vote in Congress ¾ if they thought they had a warrant, let’s say, from a right-to-life president and Congress. The end result of such a convention could be the cultural interpretation process in my next section.[10]  Or perhaps pressure to pass a specific amendment proposal (like the balanced budget or, as desired by 2000 Republican presidential candidate George W. Bush, overturning Roe v. Wade) by the “safer” first method in Congress. In May 2002 Rep. Bob Barr from Florida (Rep), with the backing of the socially conservative Alliance for Marriage, introduced a Federal Marriage Amendment (FMA) in the House of Representatives that limited the only acceptable definition of marriage to be between a male and female. It is unclear to me whether this would apply only at the federal level or whether it would wipe out all domestic partnership laws in benefits passed by states and local governments. See my “Amendment 29” in Chapter 6 of Do Ask, Do Tell. 

The text of the amendment reads: “Marriage in the United  States shall consist only of the union of a man and a woman.  Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Other specific scenarios that could conceivably attract interest in constitutional amendment include reparations for slavery, and a victim’s rights amendment.    

Part 4: Changing the Cultural Interpretation of the Bill of Rights (a "Virtual" Bill of Rights II)

            But there is still another way!

            There may exist an opportunity to mediate the way the courts view the extraction of new “fundamental rights” from already established rights. This notion has to do with the controversy over “original intent,” “interpretivism” and “textualism,” as represented by the opposing points of view of Justice Anthony Scalia on the one hand and liberal Harvard law professor Lawrence Tribe on the other. Morton Kaplan (normally perceived as a social conservative) recently covered this controversy with an excellent essay[11] in which he outlines the proper middle ground in interpreting the notion of "fundamental right" (particularly as associated with the [substantive] due process clause of the 14th Amendment and "life, liberty, or property" interests) in the "modern" world.[12]

For example, "original meaning, even if already known, should not prevail over durably changed culture; and judicial recognition of change ought not to occur until it is durable change, especially in the face of evidence to the contrary." Mr. Kaplan's ideas would not apply to the "creation" of social rights or entitlements, which are generally accomplished legislatively or through political process.

            Essentially, it may be proper to extract a new "fundamental right" when there is ample evidence that the social culture has already evolved to the point that most people believe that they have this putative right. It is essential that the social thought has already "changed" and is not merely still "changing." In some way, Mr. Kaplan's theory comports with the British idea of an informal, organic constitution as a growing collection of public documents taking positions on critical political process and scope issues.

            Actually, we have seen this process of appealing to public tradition already in various cases (Griswold, Roe v. Wade, and [as failed] Bowers v. Hardwick).  In these cases the Court has tried to establish and then bound a fundamental right to privacy (at least a limited fundamental right). But in Hardwick, the Court majority refused to accept that there was such a thing as a “fundamental right to engage in homosexual sodomy.” Tradition (the kind that Dr. Robert Schuler talks about in his “Hour of Power”) only fully protects sexual activity when it is somehow (even loosely) connected to marriage, family, and possible procreation (and complementarity). Justice Burger reinforced this notion with a tirade about how antipathy towards homosexuality has "ancient roots."

 Apparently, in the mind of the Court in 1986, individual rights assume more legitimacy when exercised in the context of the traditional family or in some sort of "altruistic" activity than when carried out by a person simply serving his own immediate ends. This point will be an important overriding concern in some of the questions below.

             A good conceptual example of a fundamental right extracted from existing rights is the “right to travel” (between states), which the Supreme Court has held to be understood as a fundamental right from the principles of federalism. This right has been used to strike down laws limiting state welfare benefits to newly arrived residents (from states with lower benefits).

            Is there a systematic way to establish and document that a change in public attitude has actually occurred?

            My proposal would be to take up Ross Perot on his suggestion in the 1992 presidential campaign, that there be staged a series of national "town meetings" ¾ a minimum of four, in different cities (I like starting in Williamsburg) ¾ to draw up a consensus document on individual fundamental rights.  Such a document would have to document in great detail evidence for its positions.  This evidence could consist of a lot of sources, such as published materials (I guess my own effort to document this in Do Ask, Do Tell counts in the numbers) and the record of how various disputes may have been settled outside of the court system (such as conflict of interest problems in the workplace).  It would not be directly legally binding, but it would help provide the cultural evidence that the courts need in interpreting text in the context of changed culture.  It would provide a bridge between "accepted" moral or ethical culture (particularly with respect to motivational and values issues) and actual common law.

            In Do Ask, Do Tell, I provided some historical documentation of a process like this, called “The Area of Mutual Agreement,” as was attempted in the late 1970s.[13]  This debate, which will structure basic moral values and map government's relationships to these values, is fundamentally different from the traditionally liberal democratic political process in that moral values are not taken simultaneously by “fuzzy logic” both as an irreducible given and as the product of majoritarian political barter.  This approach tends to become intolerant of individual moral or scientific inquiry if it gets in the way of the apparently necessarily adversarial political coalitions.

            But the development of  “shadow conventions” (to tag along the Republican and Democratic 2000 conventions in Philadephia and Los Angeles respectively) were a good start. Arianna Huffington described these on ABC’s “Good Morning America” on July 28, 2000.  The Philadelphia convention  featured Jesse Jackson and John McCain as speakers and dealt with issues such as campaign finance reform, the war on drugs (and whether it targets African-Americans), and the presence of so much child poverty in a booming economy—all of these practical rather than constitutional questions, yet they could anchor the kind of consensus that Kaplan is talking about.   

              It is worth noting that at the state constitutional level, the recognition of “fundamental rights” is sometimes stronger and more encompassing and not so dependent on “traditionalism” as perhaps it is at the federal level. See Selland.[14]

Part 5: Questions for a Town-Hall Convention

Questions that have potential immediate constitutional significance are marked with an asterisk (*). I am trying to focus on the aspects of the debate that don't usually get enough deliberate attention.

General Questions

(A1) Can individuals derive principles of ethical or moral behavior without blindly following religious precepts or authority?

(A2)* Is it ever acceptable for the state to suspend civil liberties (affirmative and fundamental rights) in a time of dire national emergency (as with declaring martial law) from external environmental, public health, military threats, or internal terrorist threats? For example, may persons be held without formal charge as “unlawful combatants?” May the 4th Amendment prohibition against unreasonable search and seizure be abrogated for special eavesdropping to intercept weapons of mass destruction?

(A3) Libertarians maintain that everyone should be able to keep everything he or she earns. The left will claim that no one earns all that he has, that everyone depends upon a social infrastructure and this must be fair.  Is the redistribution of wealth or opportunity to rectify unfairness an appropriate function of democratic government? [15]

(A4) Should the state be allowed to suspend a certain civil liberty because of the inability of some people to control themselves when everyone has that liberty?

(A5) Assume an “enlightened” legislature (representing a well-publicly-educated and vigilant electorate) is trying to weigh whether the following individual rights should be protected from intrusion by society's collective concerns: (A5.1) A man living in the inner city wants to own a machine gun to defend his large family. (A5.2) A homosexual wants to choose a same-sex marriage partner or sexual partner without interference from the state and without discrimination. (A5.3) A small businessman owning a small publishing company wants to present moderately adult gay materials at his internet site to attract traffic. (A5.4) Another web operator wants to offer bomb-making instructions at his site. (A5.5) A duplex homeowner does not want to rent the other apartment to a same-sex couple because of his personal religious convictions. By what principles does the legislature decide when someone's fundamental rights are abridged or when society's interest in “general welfare” or equality overrides this objection?

(A6) Should the law (positive or common) be the only repository of societal judgments about right and wrong? Should some moral notions be left for people to decide on their own?

(A7) What constitutional principles should limit the application of the incorporation doctrine?

(A8) Should states enjoy sovereign immunity, particularly with respect to lawsuits demanding monetary damages for discrimination in violation of the 14th Amendment or federal law?

(A9) Should the Constitution limit the acts which federal government may regard as crimes (in accordance with the 9th and 10th Amendments)? Some scholars maintain that the federal government is authorized to criminalize only treason, counterfeiting, and piracy; all other criminal wrongs are to be left to states and local governments.

(A10) May government, through a democratic process, rightfully force citizens to compromise their private expressive choices as an indirect result of implementing common good?  

(A11) Would the “double jeopardy” clause of the 5th Amendment prevent two different prosecutions against different defendants for the same crime for different theories of guilt (the King case in Pensacola, Fl., 2002)?

(A12) Will America be able to maintain an open society with practical civil liberties and self-ownership if an enemy through asymmetric warfare is sufficiently determined to force our society to implement in our legal system its religious or moralistic vision?

(A13) Are there any circumstances during the war on terror when Posse Comitatus (1878) should be overruled in the course of homeland defense? A web reference is http://www.dojgov.net/posse_comitatus_act.htm

Preferences and Discrimination

(B1)* Does a legal mandate prohibiting discrimination against members of a perceived class mean that affirmative steps must be taken to benefit this class at the expense to persons not in the class? Examine in the context of the 14th Amendment.

(B2) Are burdens on families with children so great that affirmative steps must be taken that would result in persons without dependents being forced to help support them to an extent much greater than today?

(B3) Do laws prohibiting discrimination improperly intrude upon property rights?

(B4) If the state should prohibit discrimination, should it treat individuals, small businesses and large organizations, as possible agents of discrimination, differently?

(B5) Does one have a fundamental right not to be the “victim” of reverse discrimination because of a retroactively corrective advantage given to a class?

(B6) Should some discrimination categories (age, disability, even sexual orientation) be left to the states to regulate (and left alone by the federal government)? Is the “libertarian paradigm” more appropriate for some categories than for others (like race)? May states discriminate on the basis, say, of age or disability even though the federal government may not? What does the 14th Amendment mean when it refers to “any person?”

(B7)  Suppose a government entity passes a law requiring employers to pay a “family wage”—that is, to pay married people with children more than others, or to protect such persons from layoff.  Or suppose the entity passes a law forbidding this.  Would either of these measures be constitutional? Should they be?  Is this kind of judgment the proper use of the “democratic” political process?

(B8) Suppose that evidence that fossil fuels contribute to global warming really does become convincing and Congress or a state wants to pass a law allowing people to drive gasoline-powered vehicles only when there are two or more occupants in a car, or only on certain days of the week, possibly considering a person’s family status or having dependents.  Would this be constitutional? Should it be?  Is it an appropriate use of democratic political process?  

 Right to Life/Right to Die

(C1)* The debate on when human life begins is familiar. One can be glib and say that a mother who does not want to protect unborn life from conception need not have engaged in sexual intercourse to begin with. But does the obligation to protect human life mean that all arguably human life must be protected regardless of the personal cost to others? This is more of an issue with an aging population.

(C2)* Do prospective parents have the right to manipulate the genes of the child that they intend to bear, in order to have the perfect son or daughter ("My Boy Bill" from the show Carousel)?[16]

Sexual Privacy

(D1)* Is it improper for a state to pass a law (like a sodomy law) that it knows has little chance of direct enforcement but that sets up a “rebuttable presumption” situation that the state can then use for discrimination (as in gay adoption or child custody cases)? Should this now be understood to violate substantive due process?

(D2)* Do public health concerns (HIV or future undiscovered viruses) justify state prohibition against certain sexual practices?

(D3)* To what extent does commercial intent (prostitution) undermine a claim of sexual privacy if it otherwise is found to exist?

(D4)* To what extent are members of the military entitled to sexual privacy (from members of the opposite sex and even from homosexuals)?

(D5)* Does a “what if everybody did it?” argument apply to a debate about a fundamental right to private adult homosexual conduct?

(D6) Should we establish a fundamental right to choice of consenting adult partner(s)? If we did, would there be a fundamental right of any two competent adults to marry and have legal recognition (including certain privileges) for their relationship, particularly if established as a covenant? What about a right for a man to cohabit with more than one female partner (and let's even assume that the law recognizes only the first marriage, or that the man divorces before each additional marriage)? Ref: CBS “48 Hours” story on polygamy, Nov. 18, 1999.

(D7) Is it reasonable to presume that sodomy refers particularly to certain male homosexual behavior (and not to certain behaviors in opposite-sex intimacies?)

Drugs and Substance Abuse

(E1)* Why is it necessary to deny cancer and AIDS patients medical marijuana? (Consider that such patients may have difficulty taking oral medications.)

(E2)* Are controlled substances harmful to everyone who uses them or only to some people? Should a behavior be illegal for everyone if only some people are predisposed to harm from it?

(E3)* Would a right to privacy apply to drug use in the way it applies (if it indeed does) to consensual sexual behavior?

(E4) Would crime rates go down if we eliminated the war on drugs? What would happen with actual drug abuse?

(E5) May the government prosecute or penalize citizens for drug activity discovered in unrelated government operations (such as HUD inspections of apartment residences)?


(F1) Who is liable for a crime committed with a weapon? The person who commits the crime? The person who unknowingly makes the weapons available? The manufacturers of weapons?

(F2)* Is self-defense partly a personal responsibility (for the head of a family), or should it belong entirely to recognized law enforcement?

(F3)* Was the 2nd Amendment intended as an individual right or only to protect the rights of states and localities to have their own militias?

(F4)* Is the possibility of oppressive government or ineffective law enforcement legally a justification for gun ownership?  Is the idea that government might have to be overthrown in a revolutionary movement a valid justification for the right to bear arms?

(F5)* Should property owners be allowed to use deadly force or retaliatory devices (such as man-traps) to protect their property when life itself is not in jeopardy?

(F6)* May government constitutionally determine that there are certain weapons of a size or destructiveness that no individual should be able to obtain or own them, even in the privacy of his own home?

(F7)* Does the phrase “a well-regulated militia” in the 2nd Amendment imply (according to the changed culture idea mentioned above) that weapons ownership for self-defense is an affirmative right only when exercised with some degree of community supervision?

(F8) Suppose a legislature limits the number of guns a person can buy to one a month, to hinder "parking lot car trunk" sales. Is this a reasonable and legitimate limitation on gun ownership for public safety?

(F9) Would gun fingerprinting comply with due process requirements?

Free Speech, Freedom of Religion, and other First Amendment Issues

(G1)* Is there a principled way in which society can draw the line in prohibiting certain materials (sexually explicit or weapons related) from being available to children or mentally unstable people through the Internet? What is the least restrictive means" available to protect minors from harmful materials? Similar questions can be posed about other media (print, magazines, movies and especially, in the light of the Littleton, Colorado tragedy, video games). To play devils's advocate, visit selected court testimony on the “Hitman” case at the (doaskdotell.com) site (file hitman.htm). Could very violent speech be regarded as "obscenity"? (doaskdotell.com/content/hitman.htm).

(G2)* Do commercial enterprises (including individual self-publishers) have the same free speech rights as individuals engaging in personal speech? If the answer is (sometimes) “no,” then does the size or corporate structure or non-profit status of the entity affect the result? (Consider the example set by the fair use provision of federal copyright law.) Consider, however, freedom of the press (many presses are commercial and this site is arguably a press); consider free speech limitations of advertising and whether Internet teasers and free content amount to advertising.  See also the June 1999 casino ruling on commercial advertising at chrono. (doaskdotell.com/refer/chrono.htm). Does a formal established press sometimes have stronger free speech rights than an individual speaker with commercial motives?

(G3) Is self-publishing (the “village-square soap box”) an effective and legitimate way to influence debate? Or does it tend to unfairly drag others in? Some commentators have called (extremist) Internet self-publishing a tactic of wimps!

(G4) Is the absence of supervision for self-publishing (especially on the Internet) a public safety concern? If so, wouldn't bureaucratic review hinder legitimate free speech?

(G5)* Do non-verbal acts of defiance such as flag-burning or draft-card burning constitute legitimate free speech? Is flag-burning essentially a form of cultural obscenity?

(G6)* If private consensual sodomy may be made illegal, may speech (such as on public areas of the Internet) which encourages such behavior be made illegal? Or would this be an unconstitutional form of circularity? What if the behavior is "especially egregious" (murder, terrorism) to "reasonable people"?

(G7)* Should the 1st Amendment protect religious organizations from laws against employment discrimination or sexual harassment? If so, does this amount to government preference for religious activity?

(G8)* Do public-property displays of religion-associated art (nativity scenes) really violate separation of church and state?

(G9)* The Supreme Court has ruled that freedom of association (though not explicitly mentioned) is a fundamental right because political action is usually more effective when carried out by groups than by individuals alone. (Hence the restrictions against employment loyalty oaths, for example.) What about the converse? Is group-sponsored speech sometimes better protected by the 1st Amendment than individual speech? Or does group-speech tend to stamp out dissenting individual speech and therefore somehow need to be regulated when it is "harmful to minorities"?

(G10)* In American law, truth is a defense to libel (ever since the colonial Peter Zenger trial). Is this of constitutional significance?

(G11)* Regarding freedom of the press, is the Internet part of the press? Will "The Fifth Estate" gain control of dissemination of information and (as Dick Morris said on "Larry King Live") precipitate a more direct democracy?

(G12)* Some groups resisting mandatory student fees at state universities for extracurricular activities are claiming a fundamental right to “not speak,” that is not to be forced to contribute to airing a point of view with which one has a "moral objection." Discuss.

(G13) Is “freedom of (expressive) association” not guaranteed for operators of public accommodations? Consider James Dale v. Boy Scouts (1999). What about those run by religious groups? Is safe-place a legitimate expressive association concern?[17]  May membership groups with a high-leve" expressive idea ever be regarded as public accommodations?

(G14) Should social association come under the 1st Amendment penumbra? (It doesn't now, because of a 1989 Supreme Court decision.) Do gay meeting places (such as bars or coffee shops) need constitutional protection of freedom of association?

(G15) Should government be able to pass laws protecting groups from offensive public speech? By race?  Sexual orientation? Religion?  How far should the law go in preventing bad mannered speech?

(G16) Is speech more “protected” if it is from an elected official?

(G17) Do persons who self-publish on the Internet belong to the press for the purposes of freedom of the press?

(G18) Should those in publicly owned spaces (including schools) be compelled to listen to the religious prayers of others?  What about a moment of silence?


(H1)* Is federal government going beyond its constitutionally-delegated powers in establishing “Profiles in Learning” and “School to Work” (as under implementation in Minnesota)?

(H2)* Should parents or students be forced to pay (through school taxes or public university tuition) for politically charged, religious (such as creation science) or sexually explicit curricula that they find objectionable?

Commerce (‘I’ was deliberately omitted)

(J1) How do we know when a zoning or licensing regulation of business achieves a legitimate consumer protection aim and when it instead simply protects an existing economic interest (or labor union)?

(J2) May some kinds of commerce (gambling, weapons sales) be prohibited on the Internet but allowed elsewhere?

(J3) Should there be a "free market" in transplantable organs?

(J4) Should women be allowed to carry babies for hire?

(J5) What power is implied in the Constitution by the commerce clause or similar clauses to prohibit discrimination?

(J6)  To what extent must small, entrepreneurial business owners without a lot of capital for infrastructure protect the public from criminal or wantonly negligent misuse of their products or properties?  Examples: owners of moderately adult web sites, small ISPs whose servers could be hijacked as zombies for denial-of- service attacks?   

(J7)  What powers does the commerce clause give to federal government to limit what it perceives as unfair competition?


(K1)* Should the federal government continue to have the contingent power to conscript? If so, should this power still apply to men only?  What about a future draft and gays in the military (don't ask, don't tell)?  Could this set gays up for future Cold-War-style government-sponsored discrimination?

(K2)*   Do servicemembers have a constitutional right to a zone of privacy when they are stateside, off-duty and off-base, and out-of-sight from their unit mates?

Civil Asset Forfeiture

(L1)* Does it violate the due process clause of the 14th Amendment for government to seize property and be able to keep it without gaining conviction for a crime? Is the "preponderance of the evidence" standard in civil trials fundamentally unfair if the government is the plaintiff and is using civil forfeiture as a way around the higher standard of proof required for criminal prosecution? (Examples: drug-related seizures, obscenity seizures.)


(M1)* Why should gambling be permissible on sovereign native-American lands but not elsewhere, in many states?

(M2)* Is the fact that some adults have difficulty with compulsive gambling a good reason to regulate it for everybody?


(N1) Should juries have the right to “jury nullification” of laws that they find offensive?

(N2) Should the penalty for a crime depend upon the identity of the victim as in hate crimes legislation?

(N3) Does a “don't ask, don't tell” approach (whether by the military or by organizations such as the Boy Scouts) really respect personal privacy?

(N4) Should the age of adulthood be consistent across issues? (Examples: drinking, military service eligibility, contract signing, accountability for crimes as an adult.)

(N5) Do victims of crimes need more constitutional protection in the criminal justice process? Examples: right to a court-appointed lawyer, right to speed up the trial, right to intervene in plea bargain or the decision to try a juvenile as an adult. There are arguments against this kind of proposal. See http://www.aclu.org/action/vra106.html

(N6) To what extent do immigrants here (in the United States) illegally enjoy constitutional protections? Does the libertarian proposal of completely open immigration encourage egalitarianism (or at least equal opportunity)?

(N7) Does civil psychiatric commitment violate due process? (Look at what is done to some gay teens by religious parents.) May sex offenders be incarcerated for treatment indefinitely after completing their sentences?

(N8) Suppose the eldercare and nursing home crisis worsens and Congress passes a law requiring that any unmarried adult child with assets but without other dependents stop working and care personally for an aging parent or live in the same residence. Perhaps the law could be couched in terms of eligibility of the parent’s care for Medicare or Medicaid reimbursement.  Here would be a case of infringement upon the rights of some supposedly privileged individuals for social good (for “family values”)?  Would this be constitutional?  Compare to the involuntary servitude problems with conscription (and look at Rostker v. Goldberg, 1981). Would filial responsibility laws (laws in previous generations that held adult children responsible for economically dependent parents such as those in nursing homes) be constitutional if they considered marital status? Include same-sex marriage in the discussion. See section C above. 

(N9) If government can no longer be involved in mediating private choices, just what are the powers of government under checks and balances in a democracy?  Which of the explicit powers in the Constitution really require informed consensus of the people?

(N10) Suppose, in the attempt to provide health care, government passes a law requiring that anyone who employs an outside consultant for more than three months in order to outsource work must pay health insurance premiums for that consultant.  Or suppose that a local government requires that anyone with a home based business must rent commercial office space.  Would these measures be constitutional? 

(N11) Should juries have the right do decide that a law is unfair (according to the due process clause) or that it does not apply? This is the jury nullification problem. 


As a closing remark, I want to note how important the principle of personal accountability is to me as a gay man. Let me reiterate: society should principally hold people responsible for their own personal (and visibly or directly harmful and aggressive) actions, and not do too much else.  I am not confident of how gay men and lesbians will fare, in the long run, if permissible conduct is determined first by the general welfare (as is definitely the case with drugs, some other "vices" and perhaps gun control) or by a vaguely construed common good. 

A behavior is, on its face, either permissible or not permissible. What traditional activism has done is to partially concede that, perhaps, homosexuality has a questionable effect on the larger society but that, for some people (ideally in this rhetoric a “protected class”) it must be permitted or even celebrated because gay people are in some indeterminate way essentially and immutably different.  At best, this presents homosexuality as a disability, an insulting idea. I want no part of it. 

The proper debate (Hardwick notwithstanding) is not about whether gay people are a distinctly vulnerable group but about whether the choice of an adult intimate partner should be regarded as a fundamental right.  A private choice of a same-sex partner, while carried out in private under reasonable expectations of privacy, putatively has indirect public effects¾perhaps public health and competitive imbalance, but more relevantly, the pervasiveness of knowledge of a person’s choice, the values behind that choice, what that communicates to others and how it might impact the self-image of others. So “gay rights” in the “do ask do tell” age, migrates from a privacy issue more to a free speech one, which understandably concerns some segments of society, most of all the military.   

So, I personally would frame the whole discussion of a Bill of Rights 2 around these assertions:

  1. A definite line must be drawn to prevent government from encroaching upon the fundamental rights of its citizens. It may well be the case that the constitutional protections of individual rights should be improved.
  2. Individual rights (especially private choices) should be tied to personal accountability and responsibility. There indeed exist controversial areas of moral debate on social justice, “initial place in line,” “deservedness,” social obligations and the setting of personal priorities (family values). Some of these may have a bearing on affirmative rights like the right to life.  But it may be better to resolve these in private, voluntary arrangements than through the force of the state (even in a democracy, even given “checks and balances”).  The notion of a “bill of responsibilities”—that one should show that one can take care of others besides oneself and fulfill generic social obligations (community service) comes into consideration, as do the informal mechanisms that assess when individuals have paid their dues without corrupting the system. (Competition among volunteer organizations is part of the answer.) Positive law comes into play when the moral case (in terms of the individual rights v. responsibilities paradigm) for a proposed public policy is overwhelming and the debate is essentially non-political.
  3. Full and open discussion is essential. It has to be possible to put practically all ideas on the table, for the record. People should understand that there is a difference between moral choices as they are generally expressed in the law (including case law) today and how they should be expressed in our culture in the future. People should understand how others think. Determining who has standing to be heard may become an interesting derivative issue.


           Orlando Patterson weighs in on point 3 when he writes that liberalism evokes “moral neutralism, the idea that liberty is exclusively about the rules of right conduct and is scrupulously neutral about what is good…. The idea that people can continue truly to believe in their beliefs without believing them to be true may make sense to academics and philosophers, but for most people ¾ contrary to Nagel's optimistic wish ¾ it amounts to skepticism, if not cynicism.”[18]  Indeed, we must learn to live with the paradoxes involved in political moral neutrality; the 1st Amendment, especially freedom of religion and separation of church and state (however imperfect in practice) demands it. The political process cannot create what is good; it can mainly ratify what the majority wants and perhaps believes (however wrongly) to be good .

           I can recapitulate a bit more with a certain emphasis on gay issues. “Gay activism” is accustomed to conventional political workings, where change occurs only through collective ("democratic") action. Libertarians like me have been critical of almost all conventionally collective political establishments as being morally "unprincipled." (Two wrongs don't make a right!) One could conjecture, however, that introspective moral development should occur in personal lives and be discussed in scenarios like Laura Schlessinger talk shows (before she became “Dr. Laura” and started her name-calling), Ninth Street Center psychological discussion groups, or Minnesota PrideAlive café chats ¾ but not in public policy debate or in the voting booth.

 If self-ownership really should be circumscribed by moral and social obligations (particularly by observing “family first” values) to meet the needs of others, then what principle (besides immutability) still allows choice of an intimate partner to become a proposed fundamental right?  Perhaps the psychological principle is that one does not really learn well without focusing somewhat on others, but this is very possible within gay and lesbian relationships. The political principle still is that we ought to protect individual rights and choices as much as possible while maintaining a stable, ordered liberty.  It does seem to me that if society could wake up and willingly allow gays and lesbians (by choice or not) to assume social obligations (like marriage, parenting, and “half-open” (to borrow from chess opening theory+ military service), then collective solutions to basic questions of social justice could be proposed with much less partisanship and political adversarialism.

At the same time, we must recognize that a society that maximizes individual personal choices faces some risks, as in health care where older persons without sufficient savings and without individually competitive job skills may well literally face shortened life spans.

"Extermism in defense of liberty is no vice, and moderation in defense of liberty is no virtue." Barry Goldwater (1964) ("...you have to shoot straight" [1993]). Liberty is the "one true thing" that you have to protect for others in order to secure it for yourself.

Link to Do Ask, Do Tell: When Liberty Is Stressed

Consolidated footnote file

“Bill of Rights II” has also been called “Bill of Rights 2.”  See this link for Franklin Roosevelt’s “Second Bill of Rights” and “Economic Bill of Rights”.

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[1] Do Ask, Do Tell and Our Fundamental Rights. For hardcopy orders, visit http://www.doaskdotell.com/content/obtain.htm. (or amazon.com, bn.com, or for DADT iuniverse.com) . My own original proposal for a constitutional amendment appears at http://www.doaskdotell.com/refer/rights.htm and my original argument for this proposal, dating back to the August 1996 Quill (published by Gays and Lesbians for Individual Liberty, http://www.glil.org/) appears at http://www.doaskdotell.com/hppub/3rdparty/glil3.htm. That essay was the very first essay of mine to be posted on the World Wide Web, then on home.aol.com in 1996, as this was one of AOL’s first formats for personal publisher.

[2] David Boaz, Libertarianism, A Primer and The Libertarian Reader (New York, The Free Press, 1997).

[3] Bill Boushka, Do Ask, Do Tell, Chapter 3, Section 04.

[4] These terms,  affirmative rights, social rights and entitlements  are all loaded words that have been used in various ways.  Harold Spaeth and Edward Conrad Smith, in the Harper College Outline The Constitution of the United States (1991) provide a slightly different flavor to these terms.  An “affirmative right” is supposed to be a right to have something from the government (or a right “received from government”). By comparison, most “constitutional rights are negative in that they protect persons from government action.” (P. 47.)  An example would be Medicare benefits. Generally, Spaeth uses the term “affirmative right” to be synonymous with entitlement, with a few additional cases, such as a constitutional right for an indigent person to be represented by counsel. Generally, the constitutional constraint upon entitlements is that they may not be implemented in a discriminatory manner by either the federal or by state or local governments (the states being constrained by the 14th Amendment).  Even the right to vote is not “technically” a constitutional right in Spaeth’s view; it is granted and controlled by states—an observation which may well prove relevant in the Bush appeal to the Supreme Court of the actions by the Florida Supreme Court in November 2000. I think that a good word for a right granted by government through legislation would be simply legislated right, or even“statutory right.  (And original right could be used in place of affirmative right; also the term preordained right has been used and, after all, the Declaration of Independence had used the term inalienable right.) In Chapter 4 of DADT I coined the term substantive right as a synonym for a fundamental right particularly when largely established through statute.   

    I think that you still can talk about free speech and self-defense as “affirmative rights” in that they are rights to “do something,” although these are supposed to come from the Bill of Rights and not from government (and this gets sticky with the gun control issue).  When I used the term, I felt that we needed a word that differentiates between liberty interests directly implied by the federal Bill of Rights and those liberty interests subsequently incorporated to the states by the 14th Amendment. The accepted term for the right to “do something” without interference from government seems, however, to be fundamental right, as the Supreme Court used the term in Bowers v. Hardwick (1986).

   Spaeth is pointing out a very important notion.  Certain capabilities and protections that we usually take for granted as rights really do have to be established by legislation, often at the state and local level.  The right of a child to an education is established when a county sets up public schools and levies school taxes.  Police protection is thought of as a right but technically is not and this observation is often used to emphasize the original (affirmative) right of an individual to defend himself, his family and property by bearing arms. Even freedom from de facto segregation is not itself a constitutional right, although courts (guided by the 14th Amendment) may generally prevent state and local governments from adopting legislation that actually causes de facto segregation.

   Spaeth’s comments explain the wording of constitutional amendments related to suffrage (15th for race and previous servitude, 19th for gender, 24th for not paying or inability to pay poll tax and 26th for age [if over 18]).  These amendments provide that an already existing right to vote may not be infringed upon but the original right must be legislated by the state in which the individual resides (and in practice always is).  Of  course, this kind of reasoning has its own Catch-22. In the Bush v. Gore 2000 election before the Supreme Court, the issue of recounting after the date established in state law for a presidential election was held to violate the 14th Amendment equal protection clause, both in terms of changing a deadline after the fact but particularly in terms of differing subjective manual voting methods within a state. The local discretion in vote counting and recounting had not in and of itself been considered violate equal protection in the past. 

   Maybe a better example of a truly legislated right (or even a social right) is the right to organize (form labor unions) in the workplace, which must be established by federal and state laws (and may be limited by state and federal laws in some cases). This legislated right incorporates the right of labor to collective bargaining. However, some of these rights (like collective bargaining) are well established in human rights tradition, as declared in the 1948 Universal Declaration of Human Rights. On the other hand, collective bargaining, in particular, may be offset by state right-to- work laws. 


   Another example is a public education;  the right to it must be established by the state or local legislation and government (and there could be state constitutions that guarantee this, but the federal Constitution does not; it would hold that equal protection may not be violated in providing it).  One wonders if Bush v. Gore will some day cause uneven funding of public education (by local property taxes) to be seen as violating equal protection (this has been argued in the context of some state constitutions) as had once segregation.  Far-fetched but not impossible. 

   Even marriage (outside of common-law marriage) could be looked upon as a legislated right (a relevant point to the same-sex marriage debate and the 1996 Defense of Marriage Act). 


    A welfare “safety net” has come to be regarded as a social right, especially by members of the Left who see poorer individuals as powerless against established interests that exploit them.  Tom Palmer of the Cato Institute points out, in the context of opportunity costs, that welfare and public medical programs have pretty much eroded the “mutual aid” societies (like the Eastern Star and the Masons) that used to provide medical care and social services on a low-cost voluntary basis.  Publicly funded health care replaced voluntary aid societies in Britain early in the 20th Century when the medical community say the government as a vehicle for establishing a cartel. A resurrection of “mutual aid” societies could help alleviate the eldercare crisis, and ironically this is now being tried in China!


  Palmer also points out that individual rights imply obligations: individuality implies a personal space that may not be intruded upon without consent and that the obtaining of consent (in conjunction with “responsibility”) is itself an expressive and life-enriching activity. Even some original rights (as used above) imply obligations.  For example, the right to a jury trial (6th and 7th Amendments) implies an obligation for other citizens to serve on juries (although jury duty could be made voluntary).


  It is well to reiterate the fundamental debate over the Bill of Rights in the late 18th Century.  If you limited the powers of the federal government to a specified list, why did you need a “bill of rights” if you ran the risk of implying that unspecified rights were not protected.  That’s why we have a Ninth Amendment (expanding upon unenumerated rights) and  Tenth Amendment (limiting unenumerated powers).  After the Civil War, former Confederacy President Jefferson Davis was eventually released from prison at Fort Monroe when the government was afraid to test his contention, that states had a right to secede inasmuch as the Constitution does not give Congress or the Executive an enumerated power to stop them, in the Supreme Court—after all that carnage.


[5] Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999).


[6]  Harvard Law Review, Dec. 15, 1890, Vol. 4 No. 5.




[7] See note 4, where the development of the concept of “social rights” is welded to Spaeth’s notion of “affirmative rights.”

[8] David Kluge, A People’s Guide to the United States Constitution (Citadel, 1994), pp. 150-155, including Justice David Souter’s remarks.

Also, John R. Vile, “Constitutional Amending Process,” from The Oxford Companion to the Supreme Court, edited by Kermit Hall (Oxford University Press, 1992), pp. 179-181.  Vile has written several books on this topic, as are visible on Amazon.com.  Vile, in Contemporary Questions Surrounding the Constitutional Amending Process (London: Praeger, 1993) summarizes another work, We the People: Foundations, by Bruce Ackerman, in which a third “Article V” style method is proposed: a president in his second term submits and amendment to Congress, which may by a 2/3 majority in each house send the amendment to popular vote in two successive presidential elections where 3/5 majorities would be required.  Ackerman wants to formally expand the Bill of Rights by such a process, probably to include some “social rights” as included among “inalienable rights,” or “fundamental rights.”

[9] See note 8

[10] Michael Y. McLoughlin at the University of Michigan points out that the constitutional amending process can be functionally decomposed into four distinct threads: (1) Congress proposes an amendment by a 2/3 majority; 3/4 of the states ratify by simple majority votes in their state legislatures.  This is the method most commonly used. (2) Congress proposes an amendment by a 2/3 majority; 3/4 of the states ratify by state constitutional conventions.  This method was used to pass the prohibition amendment. (3) An amendment is proposed by a federal constitutional convention and ratified by 3/4 of the legislatures of the several states.  This method was used for the Constitution itself. (4) An amendment is proposed by a federal constitutional convention and ratified by 3/4 of the states through state constitutional conventions. This method has never been used.

[11] Morton Kaplan, “Tribe and Scalia on the Constitution, A Third View,” The World and I, April 1999, pp 311-331. Kaplan provides a lot of discussion on the flag burning amendment and abortion issues. The Oxford Companion to the Supreme Court provides discussions of interpretivism and non-interpretivism (Gary L. McDowell), textualism and constitutional interpretation (Philip Bobbit) and judicial activism (McDowell).

[12] AOL used to run an Academic Assistance Center. It  discussed “the formal and informal ways to amend the Constitution.

Another source here is Eugene W. Hickock, Jr. (editor) The Bill of Rights: Original Meaning and Current Understanding (University of Virginia, 1991), particularly the essays by Charles Cooper and Edward Ehler, “Original Intnet and the Ninth Amendment.” Ehler interrupts an otherwise fine conservative essay with the astonishing statement, “Homosexuality, no less than slavery, is incompatible with the principles of republicanism” when discussing Bowers v. Hardwick and the right to privacy. Many of the founding fathers (even including James Madison at first) resisted the idea of a Bill of Rights on the theory that its existence would imply that non-enumerated rights remain removable at the mercy of federal government. Jacob G. Hornbergerm in “Do Rights Come from the Constitution,” Minnesota Libertarian, July 1999, p. 11, presents the notion of the Bill of Rights as really a “Bill of Prohibitions” upon the federal and state governments. Mr. Hornberger is president of the Future of Freedom foundation. 

[13] Do Ask Do Tell, Chapter 3, Section 05.

[14] Dirk Selland, “Will Maryland Enter the Twenty-First Century in the Right Direction by Rescinding its Ancient Sodomy Statutes,” Tulane University Law Review, p. 688.

[15]  In April 25, 1999 Pastor Paul Graetz at All God’s Children Metropolitan Community Church in Minneapolis commented, “Not everyone has the same opportunity for equality.” Some libertarians maintain that federal income taxes are unconstitutional despite the 16th Amendment (see Irwin Schiff’s The Federal Mafia, Freedom Press, 1994). Along the lines of social rights discussed above, there was in 1999 a proposed Constitutional amendment asserting the right to health care. “All citizens of the United States shall have equal access to basic and essential care.” This would have the effect, at the constitutional level rather than the statutory level, of requiring the forced redistribution of wealth. Of course, an individually competitive society can run up against a stone wall for affording health care for older citizens who, left to their own devices or even their own families, present greater health insurance risks and anti-selection.  In a similar spirit, President Clinton once proposed making parents a “protected class,” which, as a matter of law, would make non-parents effectively second class citizens.

[16] James Q. Wilson and Leon Klass debate, “To Clone or Not to Clone,” The American Enterprise, March/April 1999, p. 67.

[17] Queersoup,  “Boy Scouts: You Can’t Sleep in My Tent” at http://www.queersoup.com/; Gays and Lesbians for Individual Liberty, amicus brief before the Supreme Court in James Dale v. Boy Scouts of America; Richard Sincere, “Pro-Gary Ruling in New Jersey Hurts Gay Rights,” Wall Street Journal, Aug. 11, 1999, p. A18, also various writings by Paul Varnell and Bruce Bawer.

[18] Orlando Patterson. “The Liberal Millennium: What Liberalism Still Needs to Learn about Freedom.” The New Republic, Nov. 8, 1999, p. 54. See also Patterson’s Freedom: Freedom in the Making of Western Culture (New York: Basic Books, 1991).