Sunday, August 9, 2009

I Know My Rights—Do You?: Toward a Catalog of Unalienable Rights and Duties

The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are the constitutional rights secure.
(Albert Einstein)

"I know my rights." We have all heard it. But what does it mean? What are the rights that are invoked but unlisted in the Constitution and the Bill of Rights? You know the ones.

Article the eleventh [9th Amendment] .... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth [10th Amendment] ... 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.

Right. Those ones.

What might be the rights and duties of a free people that were such common knowledge in the days of the founders that they declined to write them down? They were well-known rights from English history and common law, but were not listed because the founders didn't want a prescriptive list of rights to deny or disparage other rights: the rights, duties, and powers that were mentioned in passing in the Constitution and the Bill of Rights. Three of the rights were listed in the most important passage of the Declaration of Independence. This passage which powered the American Revolution and spurred America to greatness goes like this.
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—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute a new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.


The question under consideration is what are the rights I emphasized with bolding and underlines that are mentioned in the Preamble and guaranteed in the 10th Amendment?

Obviously, three of these rights are Life, Liberty, and the pursuit of Happiness. The key characteristic of unalienable rights is that, with the exceptions of defense and self-protection, an unalienable right for one person should not trespass on an unalienable right for another person. What are the other rights, hinted at in the Declaration's Preamble (underlined above)? W. Cleon Skousen lists the following unalienable rights in The 5000 Year Leap.

  • The right of self-government

  • The right to bear arms for self-defense

  • The right to own, develop, obtain, and dispose of property

  • The right to make personal choices

  • The right of free conscience (freedom of religion)

  • The right to choose a profession

  • The right to choose a mate

  • The right to beget one's kind

  • The right to assemble

  • The right to petition

  • The right to free speech

  • The right to a free press

  • The right to enjoy the fruit of one's labors

  • The right to improve one's position through barter and sale

  • The right to contrive and invent

  • The right to explore the natural resources of the earth

  • The right to privacy

  • The right to provide personal security

  • The right to provide nature's necessities—air, food, water, clothing, and shelter

  • The right to a fair trial

  • The right of free association

  • The right to contract

To which I would add these

  • The right to know the law

  • The right to cooperate with others to mutually provide personal security

  • The right to educate one's self or others

And as a capstone to these unalienable rights add the big three from the Declaration

  • The right to life (Meaning life and limb. Upon which all the other rights depend)

  • The right to liberty (The right to travel and relocate one's home. And the right not to be kidnapped, enslaved, or falsely imprisoned. This is also foundational)

  • The right to pursue happiness (as John Adams wrote, this really means property rights. "All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine [i.e. in other words], that of seeking and obtaining their safety [first clause] and happiness [second clause]." Brackets mine.)

This group of three rights (Life, Liberty, and Property) were identified by the great jurist Sir William Blackstone eleven years before the Declaration as the three most fundamental rights from which the others sprang. His Commentaries were widely circulated in the Colonies, for the people were very concerned with the systematic violations of their rights that had been going on for years. To me, the fact that the greatest legal mind of the time had previously identified them as central, in a wildly popular work that was broadly available in the Colonies, explains why they were placed so prominently in the Declaration of Independence.

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
(George Washington, from his Farewell Address)

It is impossible to avoid responsibilities for a person's own actions. That is the nature of the Creator's plan. But in addition to responsibilities for one's own actions, a person can take on obligations. Obligations are like responsibilities, but they are assumed voluntarily rather than involuntarily. And then there are duties, lawful but more basic than laws, that fall on persons who choose to live within the structure of a lawful society, or an ordered liberty. Within the ordered liberty envisioned by Madison, Jefferson, and the other founders, unalienable rights carry with them duties to prevent people from trespassing on the rights of others.
Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
(John Adams)

And so we come to the Duties of lawful free people in a free society under the rule of law. These are voluntary like all obligations, but they are mandatory, like all laws required for the orderly function of a free society. They cannot be passed off to the government, but are individual duties, just like the individual rights. These duties descend from the Divine laws followed by the ancient Anglo-Saxons and the ancient Israelites when they were free peoples, before their representative governments were replaced with kingships. Skousen lists the duties as follows.

  • The duty to honor the supremacy of the Creator and his laws.

  • The duty not to take the life of another except in self-defense (Justified only by being falsely imprisoned, kidnapped, or under threat of loss of life or limb. Assault and battery are not sufficient cause unless there is a reasonable fear of loss of life. Nor is loss of property, though one is able to protect property short of homicide).

  • The duty not to steal or destroy the property of another.

  • The duty to be honest in all transactions with others.

  • The duty of children to honor and obey their parents and elders.

  • The duty of parents and elders to protect, teach, feed, clothe, and provide shelter for children.

  • The duty to support law and order and keep the peace.

  • The duty not to contrive through a covetous heart to despoil another.

  • The duty to provide insofar as possible for the needs of the helpless—the sick, the crippled, the injured, the poverty-stricken.

  • The duty to honorably perform contracts and covenants both with God and man.

  • The duty to be temperate [prudent].

  • The duty to become economically self-sufficient.

  • The duty not to trespass on the property or privacy of another.

  • The duty to maintain the integrity of the family structure.

  • The duty to perpetuate the [human] race.

  • The duty not to promote or participate in the vices which destroy personal and community life.

  • The duty to perform civic responsibilities—vote, assist public officials, serve in official capacities when called upon, stay informed on public issues, volunteer where needed.

  • The duty not to aid or abet those involved in criminal or anti-social activities.

  • The duty to follow rules of moral rectitude.

The duties (to be enforced by law) of those who have criminally flouted these duties, wrongly trespassed on the rights of another, and caused damages to the life, liberty, or property of another, or by committing treason, are (from Blackstone):

  • The duty to equally recompense all those whom one has injured or falsely imprisoned or whose property one has damaged or taken with force or fraud, plus pay a penalty.

  • The duty to suffer physical or civil death as the rightful penalty for homicide, treason, or causing loss of limb (or sight) to another. The meaning of physical death is self-evident. Civil death is loss of property and banishment from the country (or to a monastery, in the ancestral English law).

Together this is a good start to a list of unalienable rights and the duties with which the Creator endowed all free humans. It would be useful and clarifying to expand upon each one of them. But it would undoubtedly be the work of many pages to do it.

I thank God that I have lived to see my country independent and free. She may long enjoy her independence and freedom if she will. It depends on her virtue.
(Sam Adams)

In this time of government-caused crisis it is the virtue of every American that will be called upon. Let us be strong enough to face and overcome the circumstances in which we find ourselves.
I have lived, sir, a long time, and the longer I live, the more convincing proofs I see of this truth,—that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, sir, in the sacred writings, that 'Except the Lord build the house they labor in vain that build it.' I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the builders of Babel. We shall be divided by our little, partial, local interests; our projects will be confounded, and we ourselves become a reproach and by-word down to future ages. And, what is worse, mankind may hereafter, from this unfortunate circumstance, despair of establishing governments by human wisdom, and leave it to chance, war, and conquest.

I therefore beg leave to move that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service.
(Benjamin Franklin, address to the Constitutional Convention on 28th June 1787)

Let us do as the Constitutional Convention did, and before we act, let us pray.


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