By: Wayne Brown
There are so many arguments heard today over the concept of “rights”. I have the right to do this or that. We know our rights! You have no right! Back and forth, ying and yang, over a subject which all point towards as something given them under the Constitution when the United States was officially founded. Since we just celebrated the 4th of July, the celebration of American Independence, what could be better than a good discussion than to consider the concept of “rights“?
If one consults the Oxford Dictionary, there are many uses of the term, “right”. Those uses range from adjectives which describe something as “morally good or justified” in “you are doing the right thing” to nouns describing a position or direction such as, “the door was on his right”. While those are all nice uses of the word, they do not represent the true spirit of what we are considering in this discussion of “right”.
From the perspective of this discussion, Oxford defines the word “right” to be, “moral or legal entitlement to have or do something”. This seems to be the definition which we need upon which to base our discussion. It would seem that we could all agree that something obtained in either the moral or legal sense would be something worthy of our values so let’s go with it.
The opening statement of the Declaration of Independence reads as follows: “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to separation.” That statement becomes the basis for the declaration…to declare the causes which impel them to separation. And what follows then is a discourse which describes those causes or reasons.
Directly following that statement of justification comes this reasoning, “We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” This statement then becomes the primary basis for the declared separation and also the basis by which we declare that in order to gain those rights, we, the people, are forming a government based in just powers and consented to by those to be governed. In other words, in light of the basis of our reasoning, we, the people, are willing to be governed by those we appoint to do so.
The importance of the Declaration of Independence was to convey the message that we, as “one” people have decided our future fate as it pertains to being governed and that fate rest on the belief that each and every one of us has the right given at birth by the Creator to life, liberty, and the pursuit of happiness. If one understands nothing else about the document, it is essential to know this is the case.
By birth, we believe that mankind has the right to life to be lived in its natural course of events. We believe that mankind has the right to liberty or freedom; that mankind is not property of any government or other human being. By birth, we also believe that mankind possess the right to pursue happiness. Note that there is nothing to state that mankind is guaranteed happiness in any form…merely the right to pursue it under the Declaration.
With the Declaration of Independence, we, the people, declared our right, our desire, and our intent to be free from other forms of government. While this was a big step, it was really just a first step in a journey to develop guiding principles which we, as one people, could live by beyond the present and into the future. In order to form a government for those who had consented to be governed, a constitution was a necessity. This document would define the framework and relationship of the government and also define the duties and powers thereof. This document would be the “handbook” of government operation as it applied to those people who had consented to be governed. The purpose of the Constitution is clearly stated in the Preamble as follows: We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. The intentions were quite clear. The Constitution then goes on to form the structure and limits of the government through a series of Articles defining the various elements of the government.
Along with the Constitution came a group of amendments to it which specifically defined the rights under this document. This group of the first ten amendments to the Constitution is commonly referred to as “The Bill of Rights”. Amendments are defined in the Constitution as the process by which the document is changed or amended. These first ten amendments were ratified in 1791 as one body and became known as the “Bill of Rights.” Currently, there are 27 total amendments to the Constitution. The remaining 17 were added over the period of time encompassing the next two centuries after the Constitution was adopted. Up to this point in our existence as a nation, amending the Constitution for any reason is an act requiring much forethought and examination. At this point, the Constitution stands as the oldest written document still in use in the governance of a nation. This fact alone upholds the solid foundation upon which the document was written and should always be considered prior to any change. Yes, it is a living document of sorts but not one to be changes every time the winds blow in a different direction.
Article I of the Constitution describes the Congress and defines the powers associated with each element of that body, the qualifications of each elected or appointed members and the limits by which this legislative body is to function in carrying out its sworn duties under the Constitution.
Article II of the Constitution describes the Executive branch of the government, essential the Office of the President and those who provide his/her staff and cabinet. It also defines the powers and limits of powers assigned to the executive branch along with specifically defining the requirements of any individual seeking the high office. Under the provisions of this article comes the requirement for the President to take an oath to preserve, protect, and defend the Constitution. The article goes on to define the relationship between the Presidency and the Legislative branch as to controls and limits imposed by one upon the other in a system of checks and balances.
Article Three of the Constitution defines the Judicial Branch of the federal government in describing the system of courts up to and including the Supreme Court. The article speaks to how Congress may create lower courts. The article also establishes a citizens right to trial by jury in all criminal cases. Treason is defined and the responsibility for prosecuting it assigned to the Congress.
Article Four establishes the powers and limits to be retained by each individual State that together make up the Union. It establishes the relationship between federal and state government. It establishes the requirement for one state to recognize the legal requirements of other states. This article guarantees that the federal government will provide the states with a republican form of government and provide the necessary protection from violence or invasion.
Article Five establishes the requirements set forth for the Congress as it applies to amending the existing Constitution. It sets the minimum requirements for this legislation to pass through the hall of Congress as well as the minimum requirements the amend must pass in terms of approval by a majority of the member States.
Article Six defines “Federal Power” or the power of the federal government. This article establishes the Constitution along with the laws and treaties of the USA to be the supreme law of the land and establishes the requirement that all judges sitting in judgment shall be bound these factors. In other words, no judge will legislate law from the bench to suit the needs of the court. The article also requires the States to stay below the limits of the Constitution in making state and local laws in order to avoid legal conflicts. The article includes a very important element in that it requires that no “religious test” can be used as a requirement for any office or public entity under the government of the United States. In effect this requirement is defining a separation between church and state.
Article Seven addresses the requirements for ratification of the Constitution. It basically defines when the Constitution becomes the legal guiding document and the point at which it begins to cover the states that ratify it into existence as the governing principle document of the land.
In these seven articles we have the framework of a national government, a judicial system and an established relationship between the states and the federal government in implementing the document.
The Bill of Rights aims more toward defining the relationship between the citizens who have approved and accepted governance with that entity, the federal government, in determining the “rights” afforded to those under governance by the articles set forth in the Constitution. As stated earlier, these rights are defined in the first ten amendments to the Constitution which were approved in 1891. In defining these amendments, the framers made it clear that this Bill of Rights was not designed to govern the states nor the states relationship with its citizens but rather provide that “no state shall make or enforce” laws which shall abridge or override the rights and privileges afforded each citizen under the amendments known as the Bill of Rights. Nor shall this Bill of Rights constitute the relationship between the state and federal government which continues to this day to be one of dynamic judicial conflict.
The First Amendment of the Bill of Rights establishes freedom of religion, freedom of assembly, and freedom of petition, freedom of speech, freedom of the press and affirms that Congress shall make no laws which hinder any of these freedoms under the Constitution. The fact that the framers of the Constitution recognized the importance of these particular freedoms speaks volumes even today.
The Second Amendment of the Bill of Rights guarantees the right of individual citizens to possess weapons. The amendment addressed the practical need for weapons in the home for use in hunting, etc. as well as the element of protection of the household by violent efforts of others. Certainly this is a quite controversial right today in that weapons have become quite more complex and prolific in this day and time. There is considerable political pressure to retain the right and significant effort to muzzle it in today’s society. As it stands, until those changes take place, the right is guaranteed to each citizen.
The Third Amendment imposes a prohibition on the government mandating that no military troops or armies will be quartered in a civilian household in peace time unless the owner of that property has specifically approved the act. Little thought is given to this right by most people as it has not been a point of controversy in recent times and likely will not be yet this is not a basis for eliminating the mandate.
The Fourth Amendment guards the citizens against improper search, seizures of property, or arrests. The amendment requires that proper warrants must be issued on the basis of probable cause in committing the criminal act. Essentially, the government and its representatives cannot go around accusing any and everyone of criminal acts without probable cause to suspect that person.
The Fifth Amendment guarantees that a citizen will not be tried for a crime until the evidence is given due consideration by a grand jury and an indictment is handed down. It goes further to prevent those who have been tried from double jeopardy and essentially describes a person’s rights not to incriminate themselves with their own testimony leading to the familiar courtroom reference, “Your Honor, I plead the fifth”. The Miranda Act was established as an extension of those rights under this amendment requiring that all suspects be read their rights under the law and be informed of their rights to an attorney prior to offering any testimony.
The Sixth Amendment affords the citizen a speed trial process. This amendment keeps the individual accused of the act from basically rotting in jail without due process or efficiency as might have been the case in the days of anarchy. The amendment also guarantees that anyone accused will know what acts they are suspected of committing. This amendment also led to support in establishing the requirements of the Miranda Act.
The Seventh Amendment assures that citizens will receive a trial by jury in any civil case.
The Eighth Amendment assures that a citizen will not be held pending excessive fines or bails nor will they be the victim of cruel or unusual punishment in that process. It reaffirms that all citizens have the right to due process in matters concerning the law and the legal system.
The Ninth Amendment establishes the limits of the rights defined under the original eight amendments and recognizes the fact that not all rights are defined under those amendments. In recognizing that fact, the amendment leaves those unstated rights to be retained by the people and not limited by the government.
The Tenth Amendment reminds the federal government entities that any powers not specifically assigned to the federal government by the Constitution is reserved to the states or the people and that the federal government will not attempt to limit the exercise thereof.
So, given the Constitution and the associated first ten amendments, otherwise known as the Bill of Rights, do we have a clear picture of what our “rights” actually are or is the lens fogged to a greater degree. Given the fact that many “rights” are specifically addressed, can we actually say that the Constitution and The Bill of Rights are outdated in their intention as it applies to the citizens of this country and their relationship with the government and the legal justice system?
Some folks might say “yes” to those questions and normally it is the crowd who tend to define the Constitution as a living document and demands that it be altered at every turn of the crank when certain restricts arise. Never mind that under both Amendments Nine and Ten, the Bill of Rights clearly points out the recognition of other unnamed rights and reserves them to the citizens control. What document could offer the average citizen more power than that becomes the question?
One might even conclude that the Ninth and Tenth Amendments to the Constitution have absolutely thrown a sticky wicket into the entire equation of Constitutional law. One might conclude that the existence of these two amendments basically ignore the first eight and give those citizens demanding it whatever they claim as “their rights” in the eyes of the law. One might jump to that conclusion if they did not give it proper thought and consideration which quickly shows the wisdom of the framers in this respect.
Go back to the definitions which I covered in the early portion of this discussion and look to the definition of the word “right” as it is used in this context. Once you have taken this step, I think it becomes apparent that we have to recognize the limits of the word when we use the term, “rights”. The definition reminds us that a right is defined a legal or morally obligated entitlement. The legal aspect is defined under the Constitution and the existing laws of the land. The moral aspect is essentially defined by the people, a majority of the people in fact, which represents society in terms of it’s mores and actions. On that basis, an individual certainly may claim to have “legal or moral entitlements” but it is up to that individual to proved that fact not only to the legal system but also to those making up the population of our society. If that argument does not hold water, then the action or need does not rise to the level of being a “right” under any aspect of our society, the Constitution, or the laws of this nation. Those in positions of power who elect to attempt to ignore this fact are simply ignoring the very items they were sworn to preserve, protect, and defend.
In the United States today, we are faced with these arguments more than ever. We have factions within our own citizenship who want to apply the Constitution to every person standing within our borders whether they are here legally or illegally. They want to extend the rights afford the citizens under the Constitution and its associated documents to everyone…regardless of their status in terms of citizenship. Forget about the fact that the individuals may be here illegally and have no knowledge of the Constitution. Forget about the fact that most of them have little or no desire to obtain that knowledge or to conform to the requirements of citizenship in this country. Just forget all that and hand them the papers, and under the terms of the “Dream Act” invite all their illegal cousins to come and joint them here in America.
The Constitution is set forth on the assumption that like-minded people agreed to be governed as one nation. In doing so, we approved as a nation the guiding principles which we were willing to preserve, protect, and defend. As a result, we extended the arms of that document to establish laws and legal requirements for most transactions carried out in the operation of this great nation. One example of that is the requirements for citizenship in this country. Those requirements were established with the mindset that those who applied for citizenship under those guidelines and legal requirements would also become “like-minded” as they earned their citizenship in America. Their allegiance would come to America first and foremost and they would subscribe to and believe in the documents which governed our land from the beginning.
Now, as a nation, we are faced with those factions of our population who say, “to hell with the Constitution; to hell with citizenship processes and requirements; to hell with history and the past, we have ten million plus people here illegally who have the right to become citizens of this country by exception merely because they have managed to arrive here illegally…how dare you deny them that right!” That is the path this thought process follows in the end. The reference to “rights” is being played like some kind of race card in an attempt to ease the requirements and open the borders of the nation. That is what is taking place whether those who are pushing it choose to admit it or not.
Let’s not be too quick to let the reference to the term “rights” arouse our guilt or convince us that anyone is being treated harshly when the laws of our nation are invoked to preserve, protect, and defend the Constitution of this country. That would be a mistake on our part as responsible citizens and certainly would be a disappointment to the framers of the Constitution. Solutions exist under the auspices of our current legal system and the requirements defined therein. The problem is that does not suit the expediency of the political process in the end and therein lies the essence of the entire problem in the first place.
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