Additional Notes
for Bill of Rights 2 Paper
Note
1
On
October 12, 2000, the University of Minnesota Youth Vote 2000 and several other
groups held a candidates’ debate forum involving all seven candidates for U.S.
Senate from Minnesota. I asked a
“card quiz” question about “equal rights and equal responsibilities for gays and
lesbians.” The debate was hosted by
Minnesota governor Jesse Ventura.
David Swan, from the
Constitution Party, gave a somewhat challenging answer from the “conservative”
side. Rights, he claimed, were
given to us by God; government could only protect rights, and not invent
them. Monogamous heterosexual
marriage (between man and woman) was held to be a fundamental right. (“Gay
marriage,” on the other hand, was an oxymoron.) There is, he claimed, no fundamental
right to homosexual behaviors. Gay
people were to be respected (“tolerated”) as persons, but, apparently, only have
prima facie equal rights, that is, to enter into heterosexual marriage
also. Government should not
interfere with private choices, but it give persons who do not commit themselves
to heterosexual marriage the benefits it gives to those who do.
Now, in any group of people
that function in a “moral” manner, there will be situations where those who do
not have dependents must defer and make some sacrifices to benefit those who do
have families depending on them.
Gay people, Swan seemed to think (as in a subsequent private discussion
with me), could guarantee themselves equal treatment in the workplace by
negotiating contracts with their employers. A half-truth; this amounts to saying
that the only way to equal pay for equal work is independent contracting.
The
“preferences” to families with children, a subject of emerging controversy (the
book The Baby Boon) is something that can resurrect in bad times, when
government finds itself called upon to expect citizens to make “shared
sacrifices” differentially.
The
Libertarian candidate, Erik Parkheiser, stated that marriage should be a civil
contract, that the state was in the “marriage license” business only as a
vehicle for raising taxes and social control.
A student, Brian Wiedenmeier, asked from the floor why the government would allow prisoners to marry but not gays and lesbians.
______
Note
2
A
note on the terms “affirmative rights, “social rights” and
“entitlements.” 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 discriminated 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 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.
Note
3
Even a well-designed,
“simple” conflict-resolution database (with public participation) could
achieve the “tradition-setting” effects of the town halls or shadow conventions,
as guidelines for courts.
Note 4.
The
idea that “tradition” might establish a due-process “fundamental right” would
not mean that a social right, requiring large public expenditures, could be
construed as a constitutional right (absent legislation codifying it – again,
like the “right” to a public school education) but it could mean that social
rights could not be legislatively implemented in a way that conflicts with equal
protection of the laws.
Note
5.
It’s well to think about how
a shadow convention or town hall event would be marketed to the public, in order
to attract capable participants. My
suggestion would be to bifurcate the event, into a “Bill of Rights 2” session
(to consider assertions proposing further restrictions on the powers of
government at all levels) along with a “Bill of Responsibilities” session, to
deal with questions about cultural values connecting individual freedoms to
accountabilities (for self and for others) and whether voluntary mechanisms
could be effective (in such areas as entertainment violence, eldercare, working
hours, possibly paid parental leave, social investment, conservation, and the
like).
The
public might show a disapproval of some criminal drug laws, but that in itself
(even following the Kaplan “tradition” argument) would not establish drug abuse,
for example, as a due-process fundamental right under the rubric of privacy (a
finding unlikely with the general public today), so it would not
contribute to finding drug laws unconstitutional. A public event would be more
likely to recognize adult sexual or intimate privacy (or choice of consenting
adult significant other) as a “fundamental” and this could undermine sodomy
laws. (As of summer 2000, the number of states with unoverturned sodomy laws is,
I think, 17). Would attendees to an
event like this get beyond preoccupation with their own special problems? I’ve heard the idea that almost everyone
has his own idea of “morality.”
Michael T. McLoughlin
provides some more comments on the constitutional amending process at http://hppub.com/mclough2.htm
Note
6
After point G18. Does the separation of church and state
mean that “Blue Laws” ought to be unconstitutional? Recall that in the 1950’s in New York of
all places, Sunday doubleheaders could not start in Yankee Stadium until 2 PM.
In this spirit, the 2000 Mirimax French/British film Chocolat explored
the issue of “gluttonous” temptations during Lent (when Catholic religion
demands that people give things up), not so much from even a legal perspective
as from a closed of religious culture of social conformity and clerical control
of society.
Again, many people see “free
speech” as a smokescreen for established interests to put “words against
people.” But the idea that individuals join the word wars, at least at the
edges, undermines such leftist contentions.
Note 7 (Military Ban, pp,
39-43
If
one takes the Second Amendment as meaning a “right” to participate in community
defense by bearing arms, then one could possibly build still another argument
against “Don’t Ask, Don’t Tell” regarding gays in the military, on paper at
least.
On
January 13, 2001, the Army dropped its attempt to discharge Steve May for
“telling,” despite the findings in September of the administrative board. The Army claims that Steve May indicated
that he would not renew his service in the Reserves when his current contract
expires in May 2001 and that therefore there was not enough time to discharge
him and process the appeals. Of course. it is possible to maintain that the Army
feared loss in court and possible erosion of the “don’t ask, don’t tell” policy
because of the arguments noted above.
In
January 2001, opponents to the nomination by President George W. Bush of John
Ashcroft as attorney general brought up the opposition by Ashcroft (when
Senator) of the appointment by President Clinton of openly gay James Hormel as
ambassador to Luxembourg. There were reports about the notion of his “lifestyle”
when representing the United States to a Catholic country, although other
conservative soruces claimed that Hormel was just “anti-Catholic” in some
comments over incidents involving art in San Francisco. In any case, the idea that a person’s
publicity over his homosexuality would interfere with official government duties
is disturbing here in a civilian but foreign policy context. What about an appointment to an
ambassadorship in an Islam country?
Note 8: Article V made two exceptions to what
could be amended: first, certain changes regarding slavery before 1808, and
changes regarding representation of states. There has been some controversy over
whether an amendment could be written to be in turn “unamendable” (as if that
had been tried with Prohibition).
However, conservatives should oppose amendments that would constrict
certain prerogatives of states in policy choices, even if social conservatism
(as in a “federal marriage amendment”) motivated the amendment in the first
place.
Note 9: We tend to throw around the term “bill
of rights” loosely sometimes when developing politically-driven statutes, as in
the “patients’ bill of rights” which some people call the “HMO’s bill of
rights.”
Note 10: Libertarian commentators
often remind us that the “Bill of Rights” is deliberately “anti-democratic.” For
example, the First Amendment protects the expressive rights of those whose views
are counter to those of the majority and that might be seen as threatening to
the majority. Other amendments are supposed to protect those who are disliked by
the majority. A good question would be post-sentence-completion incarceration
and public notification of sex-offenders; is this
constitutional?
Back to Bill of Rights 2 and links to other essays in the BOR2 booklet.
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