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


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?


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