Wednesday, July 25, 2012

Unalienable Rights...and Ultrarunning

Jill at Brilliant at Breakfast on 22 July linked to a great post by blogger physioprof in which he masterfully points out the existence of the important but oft-overlooked 9th amendment to the U.S. Constitution:

The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.

physioprof builds a strong case for the concept of unalienable rights being totally misinterpreted to further the conservative agenda:

Conservative legal theorists spend a lot of time talking about how the text of the Constitution should be construed only as it was understood at the time of the Founding and Ratification. Building on this idea, they rail against “judicial activism” and the “creation of new rights” that are not “found in the text” of the Constitution. This provides a theoretical basis for conservative claims that there is no Constitutionally protected right to many things they despise: gay marriage, abortion, health care, housing, food, etc.

The fundamental problem with textual originalism is that it considers individual rights to be things that are created by the Constitution and Bill of Rights. Once you accept this, it is perfectly reasonable to conclude that any rights not explicitly enumerated in the text of the Constitution and Bill of Rights do not exist. But this interpretation of the origin of individual rights is total nonsense.

The Founders were children of the Enlightenment, disciples of Locke, who manifestly believed in a natural law origin for individual rights. They considered individual rights arising out of natural law to be prior to, and independent of, any government. Indeed, they considered any government that did not respect and defer to the natural rights of individuals to be illegitimate.

This conception of natural rights is embodied in the most famous line of the Declaration of Independence:

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.

Unalienable rights are those rights that exist independently of any government, and that must be respected by any government, or that government is illegitimate and deserves to be overthrown.

This line also foreshadows the arguments over the drafting and ratification of the Constitution and Bill of Rights, where it prepends “among these” to the enumerated unalienable rights: life, liberty, and the pursuit of happiness. While the existence or non-existence of any particular unalienable natural right does not depend on enumeration, or lack of enumeration, in any founding document, the addition of “among these” was meant to clearly and explicitly emphasize that there may be other unalienable rights besides those mentioned, and the list was not meant to be exhaustive, only illustrative.

Madison argued strenuously in the Convention against the inclusion of any Bill of Rights in the Constitution. His concern was exactly that illustrative enumeration of particular individual rights would be misconstrued as being exhaustive, and thus allow illegitimate incursions by the Federal Government on the unalienable natural rights of the individual. He believed that there was no need to specifically address the existence of natural rights of the individual, precisely because they are prior to any government, and any government that didn’t respect them automatically rendered itself illegitimate. And there was, of course, no Bill of Rights in the Constitution as presented for ratification.

Go ahead and read the whole thing. It's not constitutional law, it's a common-sense essay that's pretty darned easy to follow.

Oh, and the link to Ultrarunning? I like to think of myself as a born Ultrarunner who was lucky enough to discover that fact. It's me, it's part of my makeup. And thankfully the conservative powers that be have no problem with that activity.

But, playing devil's advocate...since the Constitution does not specifically mention Ultrarunning, this type of conservative reasoning would say that it'd be OK to not recognize a right to pursue Ultrarunning.

Not to belabor the point too much, but what if I were gay, or believe that a woman's right to bodily autonomy always trumps the rights of a fetus, or that "the people," embodied in the federal government, have a moral obligation to help those in our midst who need help (housing, health care, etc.). Those things are not specifically enumerated in the Constitution.

Suddenly the lack of specific enumeration of unalienable rights bites us. That's the connection.

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