- n. A subtle or slight degree of difference, as in meaning, feeling, or tone; a gradation.
- n. Expression or appreciation of subtle shades of meaning, feeling, or tone
Over many years, I have heard something from my liberal friends that I had always merely glossed over. What they told me was that, even though they could appreciate my arguments, they found it odd that the same arguments were coming from liberals. Not so much in the content of an issue, but in the sentiment and attitude. For example, when I make the argument that conservatives love their country and respect the constitution they say their friends say the same exact thing. When I argue that conservatives believe in the rule of law and support our law enforcement….they say…..same here! When the case is made to support our military and ensure equal opportunity for all…..they retort that they here that from all their friends. So even though I blew it off as “yeah, right”, I’ve heard it from so many, I stopped to ponder how this could be? Could liberals actually believe those things? Are we more the same than different? After much introspection, I concluded there is a nuanced difference in the way we understand the constitution. After all, American culture is integrated into the constitution. If culture is to change, then the constitution has to change. Which brings me to the understanding of rights. Before the constitution was written, rights were a second thought. Almost everyone understood that they had certain rights that they…well…..just had! Natural rights….rights from God…..from birth….just being alive came with rights. The right to live…..the right to breathe air….to defend that life….to work for a living….to have a family…and to respect those things in other people. When the founders sat down to write a constitution, many took for granted that these and other natural rights would always be respected. But there was a smaller group of founders that were mistrusting of any government and demanded that merely enumerating the government’s power and duties wasn’t enough to stop that government from infringing on those natural rights…they demanded that those natural rights be spelled out and formally protected…those founders gave us the Bill of Rights….the first 10 amendments to the constitution:
Amendment 1 – Freedom of Religion, Speech, and the Press
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Amendment 2 – The Right to Bear Arms
A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
Amendment 3 – The Housing of Soldiers
No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law.
Amendment 4 – Protection from Unreasonable Searches and Seizures
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Amendment 5 – Protection of Rights to Life, Liberty, and Property
No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.
Amendment 6 – Rights of Accused Persons in Criminal Cases
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.
Amendment 7 – Rights in Civil Cases
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.
Amendment 8 – Excessive Bail, Fines, and Punishments Forbidden
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment 9 – Other Rights Kept by the People
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Amendment 10 – Undelegated Powers Kept by the States and the People
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
These rights were given to the people by virtue of being born….these rights came from their creator…not from government and the proper role of government is to protect those rights. In the course of protecting those rights, the states set up a government to do that, ceding that government certain powers in order to carry out that responsibility. This was called enumeration….spelling out exactly what the national government could do.
Here is the nuance…..those on the left tell me they know all that….and they respect the constitution, as we do. They also see rights the government has created as being natural rights. They’re not! For over ten decades, natural rights have been bumping into government created rights and this all came about due to interpretations of the text by the Supreme Court. Now…disclaimer…..I am no constitutional scholar, but I can read. I have read the constitution, (many times) I have read many of the federalist papers, and I have read the notes of Madison he made during the constitutional convention, as well as countless other writings and letters of the framers. When I studied scripture for 13 years I learned there were two things you had to know to make a correct interpretation of the text: What was the historic meaning of the words chosen in the original language, and what did the people of the time understand those words to mean. Interpreting the constitution demands one understand the meaning of the words selected and what did the people involved understand those words to mean. For example, we struggle constantly with the word “militia”. What it means today is irrelevant to what it was understood to mean in 1787. The court in recent decisions interpreted the word correctly when deciding what natural right was held by the people with the second amendment. But even the conservative Justice, Antonin Scalia went too far when he said it was “reasonable” to assume the government had the power to provide “some” regulation on arms. The second amendment is very clear when it says “shall not be infringed”. This means that the states could provide some regulation, but the federal government had no power to regulate arms.
So what do I mean when I say “natural rights bumping into government created rights”? The founders gave us a means to fix the constitution when the culture agreed a change was necessary. It is the amendment process and has been used 17 times beyond the Bill of Rights. But, purposely, it is a long, deliberate and tedious process, that ultimately requires the approval of 38 of the 50 state governments to become part of the constitution….a tall hurdle to be sure. I say purposeful, because the framers recognized that changes should be hard to make. The governing document should not be changed willy-nilly at the whim of activists or minority groups that feel aggrieved. In the late 1850s, America was greatly divided as we are today. Then, however, the issue was slavery not abortion or immigration. The constitution, in order to be ratified by the then existing colonies, had to accept slavery. Blacks would be codified and counted as 3/5 of a person. The country was coming to a decision that slavery was wrong and should be abandoned…..but many in the south didn’t believe that. We went to war over what then was called states rights. I bring this up, because after the civil war was fought and won by the North, an amendment to the constitution was proposed and passed to right this wrong that had been codified in the constitution The 13th amendment was passed in 1864 and ratified in 1865. It abolished slavery. Shortly after that the 14th and 15th amendments were added, providing equal protection of the law to all citizens, due process to all persons within the jurisdiction of the United States, and equal voting rights.
I’m sorry I had to explain all that, but here’s why: These three amendments specifically addressed the ramifications of slavery. They corrected the constitution to provide equal protection of the rights I spoke of earlier to blacks and former slaves. That was their “intent”. But today we have 8 protected classes of Americans that, by statute, are not to be discriminated against.
They are: Age; Race; National origin; Religious beliefs; Gender; Disability; Pregnancy; and Veteran status
These statutes….laws written by congress….have been justified by the Supreme Court, using the 14th amendment to justify their existence. But the intent of the 14th amendment was only for race discrimination. So as harsh as it sounds the federal government has taken power where no power exists and given rights to certain groups of citizens where no natural right exists. This is how government given rights bump into natural rights. The best example is when it comes to faith and religious freedom. Religious freedom is a natural right protected by the first amendment. The government created right of a gay person to be served using the skill or talents of a person of deep religious conviction, bumps into the natural right of freedom of religion, which is to be protected by the federal government. Folks, this is unequivocal. The federal government must protect the freedom of religion…it is their duty. This is not to say that states can’t make laws that stop or promote discrimination. However those state laws cannot overshadow our natural rights. This, my friends, is called strict construction or originalism and why we need judges that understand their role. Part of originalism, is to understand that America is a republic. That means that states and individuals are sovereign, and the federal government has limited powers that are enumerated by the constitution. That means the states agreed (by ratifying the constitution) to cede certain tasks to a central government that could better be done collectively. Congress was given 18 powers, provided in article 1, section 8 of the constitution….18! Eleven of the 18 deal with national defense, the others which you can read below cover a variety of things such as taxes, money, post office, arts and sciences, and commerce. Each power is fairly specific, but again, it has come down to how those powers are interpreted by the Supreme Court. Take just one: the power to regulate commerce. This had a very different meaning in 1787 than what we think it means today. Before we were a country, individual colonies had their own rules for commerce. For example southern states shipped a lot of cotton to England, but had no ship building. They relied on Northeastern colonies to ship their cotton to England. However, for manufacturers in the Northern Colonies that could build or buy their own ships, this was not the case. So the cost to ship for southern states was always higher than for northern states. Congress was to make commerce “regular” between states. That meant shipping rates were to be “regulated” so that each state paid similar rates. Today, regulating commerce means something totally different. The commerce clause in article one has been interpreted to allow the federal government to control everything from fuel mileage to ladder safety, food safety to smoking. Nothing is out of the reach of the federal government. Absolutely not the intent of the framers or the commerce clause.
Finally, in the mix of all this, the tenth amendment has been cast aside and almost forgotten. Like most of the other first 10 amendments, it is very clear. No power not delegated to the federal government by enumeration is for the individual states to decide. This is why when the court legalized abortion, it had to find the mysterious “right to privacy” you see, because the federal government has no enumerated power to control abortion or Healthcare for that matter. The same reason John Roberts and the Supreme Court had to call the ACA mandate a tax and not a penalty. This stretching and changing the meaning of the words and intent of the framers is why we are where we are……trying desperately to get back to the original meaning of the constitution. So the nuance between right and left is the way the words are interpreted. Should the words be interpreted as the framers intended….changing them only by amendment…..or should the Supreme Court….a part of the federal government that was to be limited by the constitution….be given the power to interpret those words according to the way they believe the people would like to see them interpreted?
So its clear that what I’m saying is true and if you want to know why it matters, watch this three-minute exchange between long time congressman Pete Stark and one of his constituents. I’m sure Mr. Stark is a good and honorable American who loves his country as much as anybody….but he really believes the federal government can do anything it wants to, because they truly believe the federal government has the power to grant rights.
Article I, Section 8
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.