Positive Rights
For people who believe that we need a new constitution, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of “negative liberties” into a charter of “affirmative government,” guaranteeing an array of “positive” rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”
President Obama is correct. The original Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.
Proponents of constitutional change would like to change the document’s requirements into a document that requires many positive rights for the benefit of the people, rights such as those listed in the above paragraph, i.e., housing, education, etc. And, for today, that specifically refers to health care, which many people are claiming as a basic right that ought to be guaranteed under the Constitution or, at least, under statute law. For them, lack of universal health care abridges and limits the “privileges and immunities” of our citizens. Therefore, these changers of the Constitution like to use the “privileges and immunities” clause of the Fourteenth Amendment as their springboard into a new constitutional understanding.
As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new “rights,” and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution will become as ingrained a principle as federalism and the separation of powers. If this happens, a succession of new “rights” will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.
Much of this post was excerpted from Imprimis April 2010.
Monday, May 17, 2010
Wednesday, May 12, 2010
Constitutional Changes of the Future—Part 2
Privileges or Immunities Clause of the 14th Amendment
The text of the “privileges or immunities clause” of the 14th Amendment reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Since shortly after the Civil War, the privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited array of rights that are a function of American federal citizenship, such as the right to be heard in courts of justice and the right to diplomatic protection. In defining the protections of the privileges or immunities clause in this manner, the Supreme Court has rejected the argument that the clause also protects rights that are a function of state citizenship, asserting that this would lead to federal courts serving as a “perpetual censor” of state and local governments. This decision has served as a bulwark of American federalism.
Although a considerable amount of federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a “living and changing Constitution” seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. Whatever modicum of federalism remains extant at the outset of this century, considerably less would remain tomorrow.
Changes such as the one outlined above would be another strike in favor of more and more power for the Federal Government and less power for the people to act through their elected representatives.
Much of this post was excerpted from IMPRIMIS April 2010.
The text of the “privileges or immunities clause” of the 14th Amendment reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Since shortly after the Civil War, the privileges or immunities clause of the 14th Amendment has been understood as protecting a relatively limited array of rights that are a function of American federal citizenship, such as the right to be heard in courts of justice and the right to diplomatic protection. In defining the protections of the privileges or immunities clause in this manner, the Supreme Court has rejected the argument that the clause also protects rights that are a function of state citizenship, asserting that this would lead to federal courts serving as a “perpetual censor” of state and local governments. This decision has served as a bulwark of American federalism.
Although a considerable amount of federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a “living and changing Constitution” seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. Whatever modicum of federalism remains extant at the outset of this century, considerably less would remain tomorrow.
Changes such as the one outlined above would be another strike in favor of more and more power for the Federal Government and less power for the people to act through their elected representatives.
Much of this post was excerpted from IMPRIMIS April 2010.
Tuesday, May 11, 2010
Constitutional Changes of the Future—Part 1
As you look at our America, do you ever get the impression that we are living in a country that has drastically changed from the old America you studied in school—the America of ethics, morals, and true religion? Well, if you have that impression, you are exactly right. The America of today does not have the moral anchors that were plainly expressed by our founders.
George Washington said on October 3, 1789 as he proclaimed a national day of prayer, “It is the duty of all nations to acknowledge the Providence of Almighty God, to obey His will, to be grateful for His benefits, and to humbly implore His protection and favor.”
Daniel Webster wrote in 1821, “If we abide by the principles taught in the Bible, our country will go on prospering and to prosper; but if we and our posterity neglect its instructions and authority, no man can tell how sudden a catastrophe may overwhelm us and bury all our glory in profound obscurity.”
The U.S. Supreme Court wrote in 1892, “Our laws and our institutions must necessarily be based upon the teachings of the Redeemer of Mankind. It is impossible that it should be otherwise; and in this sense and to this extent, our civilization and our institutions are emphatically Christian.”
On the other hand, modern thinking is characterized by such statements as this one by John Dewey (often called the father of modern education) in the early 20th Century: “…faith in the prayer-hearing God is an unproved and outmoded faith. There is no God and there is no soul. Hence, there are no needs for the props of traditional religion. With dogma and creed excluded, the immutable is also dead and buried. There is no room for fixed, natural law or moral absolutes.”
President Obama has made his position clear in a group of interesting quotes: “We are not a Christian nation. …therefore, the Bible isn’t common ground for all Americans. …therefore, the Bible can’t be the template for how we govern.”
At one time we had a constitution that embodied very different values than the ones which are espoused today by American society, as a whole. And these days, we are seeing that our Constitution is considered outdated and unfit for continued use as a guide for our government. The court system is continually finding new and liberal ideas hidden in its words, so that its precepts are hardly recognizable as the words of its writers. As we will see in the next six blog posts, our Constitution is in the process of drastic change that will very probably take place within the next fifty years. These ideas will be excerpted from IMPRIMIS, April 2010.
George Washington said on October 3, 1789 as he proclaimed a national day of prayer, “It is the duty of all nations to acknowledge the Providence of Almighty God, to obey His will, to be grateful for His benefits, and to humbly implore His protection and favor.”
Daniel Webster wrote in 1821, “If we abide by the principles taught in the Bible, our country will go on prospering and to prosper; but if we and our posterity neglect its instructions and authority, no man can tell how sudden a catastrophe may overwhelm us and bury all our glory in profound obscurity.”
The U.S. Supreme Court wrote in 1892, “Our laws and our institutions must necessarily be based upon the teachings of the Redeemer of Mankind. It is impossible that it should be otherwise; and in this sense and to this extent, our civilization and our institutions are emphatically Christian.”
On the other hand, modern thinking is characterized by such statements as this one by John Dewey (often called the father of modern education) in the early 20th Century: “…faith in the prayer-hearing God is an unproved and outmoded faith. There is no God and there is no soul. Hence, there are no needs for the props of traditional religion. With dogma and creed excluded, the immutable is also dead and buried. There is no room for fixed, natural law or moral absolutes.”
President Obama has made his position clear in a group of interesting quotes: “We are not a Christian nation. …therefore, the Bible isn’t common ground for all Americans. …therefore, the Bible can’t be the template for how we govern.”
At one time we had a constitution that embodied very different values than the ones which are espoused today by American society, as a whole. And these days, we are seeing that our Constitution is considered outdated and unfit for continued use as a guide for our government. The court system is continually finding new and liberal ideas hidden in its words, so that its precepts are hardly recognizable as the words of its writers. As we will see in the next six blog posts, our Constitution is in the process of drastic change that will very probably take place within the next fifty years. These ideas will be excerpted from IMPRIMIS, April 2010.
Wednesday, May 5, 2010
Oral Contraceptives: Blessing or Curse?
Oral contraceptives have been on the American market for the past 50 years. Have they done more good than bad? An April issue of TIME Magazine examined this question.
Oral contraceptives were the first medicines ever designed to be taken regularly by people who were not sick. Its main inventor was a conservative Catholic who was looking for a treatment for infertility and instead found a guarantee of it. It was blamed for unleashing the sexual revolution among suddenly swinging singles, despite the fact that throughout the 1960s, women usually had to be married to get it. Its supporters hoped it would strengthen marriage by easing the strain of unwanted children; its critics still charge that the Pill gave rise to promiscuity, adultery and the breakdown of the family. In 1999 the Economist named it the most important scientific advance of the 20th century. One of the world's largest studies of the Pill — 46,000 women followed for nearly 40 years — was released this March. It found that women who take the Pill are less likely to die prematurely from any cause, including cancer and heart disease, yet many women still question whether the health risks outweigh the benefits.
The big change the pill has wreaked on the American people has been the social changes that have taken place. In 1960 the typical American woman had 3.6 children; by 1980 the number had dropped below 2. For the first time, more women identified themselves as workers than as homemakers. "There is a straight line between the Pill and the changes in family structure we now see," says National Organization for Women (NOW) president Terry O'Neill, " with 22% of women earning more than their husbands. In 1970, 70% of women with children under 6 were at home; 30% worked. Now that's roughly reversed.
The pill has seemingly forever separated the sex act from reproduction for many people. Women who use the pill for recreational sex say that it has liberated them for competition in the work place and from the necessity of taking care of children in the home! The pursuit of pleasure has seemed to replace the pursuit of integrity in family life.
In the early days of pill use, there was a strong tendency and even legislative force behind the prohibition of pill use, except for married women. But in 1960, the Supreme Court “discovered” a right to privacy implicit in the Constitution. That occurred in the case of Griswold v. Connecticut; and the doors swung wide open for widespread use of contraceptive pills.
As the pill became more popular, the birth rate dropped; and employers became more willing to hire women, knowing that they would probably not become pregnant. For the first time, women were admitted to professional schools on an equal basis with men.
Of course, the TIME article presented all this information in a very positive light—apparently seeing nothing derogatory about the widespread use of birth control pills. However, I think that there can be no argument about the fact that birth control pills have facilitated lots of sexual promiscuity outside of marriage (and probably inside marriage, too). We are witnessing the advancing deterioration of the family; and birth control pills are playing a large part in that effect.
Oral contraceptives were the first medicines ever designed to be taken regularly by people who were not sick. Its main inventor was a conservative Catholic who was looking for a treatment for infertility and instead found a guarantee of it. It was blamed for unleashing the sexual revolution among suddenly swinging singles, despite the fact that throughout the 1960s, women usually had to be married to get it. Its supporters hoped it would strengthen marriage by easing the strain of unwanted children; its critics still charge that the Pill gave rise to promiscuity, adultery and the breakdown of the family. In 1999 the Economist named it the most important scientific advance of the 20th century. One of the world's largest studies of the Pill — 46,000 women followed for nearly 40 years — was released this March. It found that women who take the Pill are less likely to die prematurely from any cause, including cancer and heart disease, yet many women still question whether the health risks outweigh the benefits.
The big change the pill has wreaked on the American people has been the social changes that have taken place. In 1960 the typical American woman had 3.6 children; by 1980 the number had dropped below 2. For the first time, more women identified themselves as workers than as homemakers. "There is a straight line between the Pill and the changes in family structure we now see," says National Organization for Women (NOW) president Terry O'Neill, " with 22% of women earning more than their husbands. In 1970, 70% of women with children under 6 were at home; 30% worked. Now that's roughly reversed.
The pill has seemingly forever separated the sex act from reproduction for many people. Women who use the pill for recreational sex say that it has liberated them for competition in the work place and from the necessity of taking care of children in the home! The pursuit of pleasure has seemed to replace the pursuit of integrity in family life.
In the early days of pill use, there was a strong tendency and even legislative force behind the prohibition of pill use, except for married women. But in 1960, the Supreme Court “discovered” a right to privacy implicit in the Constitution. That occurred in the case of Griswold v. Connecticut; and the doors swung wide open for widespread use of contraceptive pills.
As the pill became more popular, the birth rate dropped; and employers became more willing to hire women, knowing that they would probably not become pregnant. For the first time, women were admitted to professional schools on an equal basis with men.
Of course, the TIME article presented all this information in a very positive light—apparently seeing nothing derogatory about the widespread use of birth control pills. However, I think that there can be no argument about the fact that birth control pills have facilitated lots of sexual promiscuity outside of marriage (and probably inside marriage, too). We are witnessing the advancing deterioration of the family; and birth control pills are playing a large part in that effect.
Monday, April 26, 2010
Drug Trafficking
The United States is the world's largest market for illegal drugs, with some 13 million Americans spending about $60 billion each year. In the past, marijuana, cocaine, and heroin were the most heavily abused drugs, but synthetic drugs such as amphetamines and "designer" drugs such as Ecstasy are claiming a larger share of the market. Methamphetamine is the cause of the fastest-growing drug problem in the United States.
Societies have tried to prohibit the sale and use of harmful drugs by prohibition laws, but these prohibition laws have been problematic in the past because often the targets of these laws are the only ones who are harmed; and the laws produce a perceived conflict between violation of statute and violation of free will. The use of addictive drugs by individuals is seen as enjoyable, and enforcement of the anti-drug laws is seen as more harmful to the individual law-breaker.
The difficulty of enforcing prohibitionist laws has been criticized as resulting in selective enforcement, wherein the enforcers select the people they wish to prosecute based on other criteria, resulting in discrimination based on race, culture, nationality, or financial status. Drug prohibition has been criticized as being a technique of social control of the "so-called dangerous classes."[ The first laws against the use of opium in the United States were enacted in San Francisco in 1875 when smoking opium was outlawed for Chinese immigrants; but taking liquid opium by mouth for white Americans was considered legal. Thus, the laws were based on the form in which the drug was ingested. This obvious discrepancy led many to think that the laws were basically a racist measure.
Laws prohibiting alcohol use in the United States were in place between 1920 and 1933. Although these laws resulted in a discernable decrease in alcohol-related diseases, such as cirrhosis of the liver, they were rescinded because they lead to high rates of violent crime, especially among drug runners and their customers.
Prohibitionism based laws have the added problem of calling attention to the behavior that they are attempting to prohibit. This can make the behavior interesting and exciting, and cause its popularity to increase.
In response to rising drug use among young people and the counter-culture movement, government efforts to enforce prohibition of drug use were strengthened in many countries from the 1960s onward. Mandatory jail sentencing laws in the United States have caused prison crowding and have lead many to question the used of jail time to curtail the use of drugs by non-violent drug users.
The former Director of the Office of National Drug Control Policy, The Drug Czar, John P. Walters, has described the drug problem in the United States as a "public health challenge," and he has publicly eschewed the notion of a "war on drugs." He has supported additional resources for substance abuse treatment and has touted random student drug testing as an effective prevention strategy. However, the actions of the Office of National Drug Control Policy continue to belie the rhetoric of a shift away from primarily enforcement-based responses to illegal drug use.
Social conservatives have long advocated illicit drug enforcement laws. I ask my readers: Do you think we need these laws? Are they doing more good than bad? What is the solution to the character disintegration that comes from illicit drug use? Please comment on this blog post.
Societies have tried to prohibit the sale and use of harmful drugs by prohibition laws, but these prohibition laws have been problematic in the past because often the targets of these laws are the only ones who are harmed; and the laws produce a perceived conflict between violation of statute and violation of free will. The use of addictive drugs by individuals is seen as enjoyable, and enforcement of the anti-drug laws is seen as more harmful to the individual law-breaker.
The difficulty of enforcing prohibitionist laws has been criticized as resulting in selective enforcement, wherein the enforcers select the people they wish to prosecute based on other criteria, resulting in discrimination based on race, culture, nationality, or financial status. Drug prohibition has been criticized as being a technique of social control of the "so-called dangerous classes."[ The first laws against the use of opium in the United States were enacted in San Francisco in 1875 when smoking opium was outlawed for Chinese immigrants; but taking liquid opium by mouth for white Americans was considered legal. Thus, the laws were based on the form in which the drug was ingested. This obvious discrepancy led many to think that the laws were basically a racist measure.
Laws prohibiting alcohol use in the United States were in place between 1920 and 1933. Although these laws resulted in a discernable decrease in alcohol-related diseases, such as cirrhosis of the liver, they were rescinded because they lead to high rates of violent crime, especially among drug runners and their customers.
Prohibitionism based laws have the added problem of calling attention to the behavior that they are attempting to prohibit. This can make the behavior interesting and exciting, and cause its popularity to increase.
In response to rising drug use among young people and the counter-culture movement, government efforts to enforce prohibition of drug use were strengthened in many countries from the 1960s onward. Mandatory jail sentencing laws in the United States have caused prison crowding and have lead many to question the used of jail time to curtail the use of drugs by non-violent drug users.
The former Director of the Office of National Drug Control Policy, The Drug Czar, John P. Walters, has described the drug problem in the United States as a "public health challenge," and he has publicly eschewed the notion of a "war on drugs." He has supported additional resources for substance abuse treatment and has touted random student drug testing as an effective prevention strategy. However, the actions of the Office of National Drug Control Policy continue to belie the rhetoric of a shift away from primarily enforcement-based responses to illegal drug use.
Social conservatives have long advocated illicit drug enforcement laws. I ask my readers: Do you think we need these laws? Are they doing more good than bad? What is the solution to the character disintegration that comes from illicit drug use? Please comment on this blog post.
Tuesday, April 20, 2010
Result of the Health Care Bill: My Opinion, Part 2
The alternative to the 1st possibility I outlined in my last blog is that many people will be disenchanted with the new health care deal; and they will revolt. Already we are seeing that companies that insure their employees are revising their health care contracts, preparing for new expenses. It is reported in the Wall Street Journal today that drug companies are raising drug prices 10%--the largest hike in years. The drug companies are anticipating increasing costs mandated by the new bill.
These tendencies give more fodder to Republicans who want to win in November; and if voter discontent with the bill is strong enough, they certainly will. When the Republicans recover control of Congress and the Senate, they will most certainly make modifications to the health care bill. Hopefully, they will keep some of the good parts and insert some good things. They will keep the features that allow sale of health care policies across state lines. They may well keep the parts called “rationing” by opponents of this bill, i.e., the committees that supervise distribution of questionable surgeries and treatments. I hope that they will make marked inroads into lowering tort claims, and I hope that they will institute a prohibition against using Federal dollars to fund abortion.
There is no doubt that President Obama will veto most of the changes that Republicans make to the bill, and it is quite likely that the hoped-for Republican take-over will not include a filibuster-proof majority in either house. However, public opinion may be so strong that even President Obama may bend to the wishes of the American people, at last, and do something acceptable to us.
I sincerely hope that this last option will be the one that finally takes place. The present bill is ill-conceived and will be horrendously expensive.
These tendencies give more fodder to Republicans who want to win in November; and if voter discontent with the bill is strong enough, they certainly will. When the Republicans recover control of Congress and the Senate, they will most certainly make modifications to the health care bill. Hopefully, they will keep some of the good parts and insert some good things. They will keep the features that allow sale of health care policies across state lines. They may well keep the parts called “rationing” by opponents of this bill, i.e., the committees that supervise distribution of questionable surgeries and treatments. I hope that they will make marked inroads into lowering tort claims, and I hope that they will institute a prohibition against using Federal dollars to fund abortion.
There is no doubt that President Obama will veto most of the changes that Republicans make to the bill, and it is quite likely that the hoped-for Republican take-over will not include a filibuster-proof majority in either house. However, public opinion may be so strong that even President Obama may bend to the wishes of the American people, at last, and do something acceptable to us.
I sincerely hope that this last option will be the one that finally takes place. The present bill is ill-conceived and will be horrendously expensive.
Saturday, April 17, 2010
Results of the Health Care Bill: My Opinion
I believe that we, in the United States should look carefully at the model of socialized medicine we can see clearly in Great Britain that we can see in their National Health Service. The Brits are now in a great controversy with their elections coming up on May 5. They are seriously considering revamping their health service because their cancer survival rates are lagging behind the rest of Europe and especially far behind those rates in the United States. The Conservative Party is proposing pumping £1 billion into the system to improve access to cutting-edge cancer treatments. The Tories are proposing allocating £200 million to pay for drugs that have been prohibited or controlled by Britain’s’ rationing bureaucracies, thereby giving doctors more latitude in prescribing. The Labour government wants to avoid both of these measures. What does all this mean? The Brits are unhappy with their medical and treatment options for cancer.
So…what can we learn from this? I believe that the new American health care bill will result in one of two likely outcomes. The first, I will outline below; the second I will post on my blog next:
1)There will be a mixture of outcomes in America. Many people will be happy with the new services resulting from the new law. Some will be unhappy, particularly older people; but, overall, the positive effects will override the negative outcomes; and a majority will want to keep the services.
2)The costs of the program will go out the overhead.
3)Republicans will paint the program in such an unfavorable light that they will sweep into control of the government.
4)Then, the Republicans will refuse to fund the services adequately.
5)Services will deteriorate; and controversy will cover the whole program.
6)Democrats will come back into power, raise taxes, and borrow more money from abroad to fund the program.
7)Republicans will return to power.
8)Etc., etc. The cycle will continue.
I believe this is the worst outcome of the new law. Follow the next blog post to see the alternative.
So…what can we learn from this? I believe that the new American health care bill will result in one of two likely outcomes. The first, I will outline below; the second I will post on my blog next:
1)There will be a mixture of outcomes in America. Many people will be happy with the new services resulting from the new law. Some will be unhappy, particularly older people; but, overall, the positive effects will override the negative outcomes; and a majority will want to keep the services.
2)The costs of the program will go out the overhead.
3)Republicans will paint the program in such an unfavorable light that they will sweep into control of the government.
4)Then, the Republicans will refuse to fund the services adequately.
5)Services will deteriorate; and controversy will cover the whole program.
6)Democrats will come back into power, raise taxes, and borrow more money from abroad to fund the program.
7)Republicans will return to power.
8)Etc., etc. The cycle will continue.
I believe this is the worst outcome of the new law. Follow the next blog post to see the alternative.
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