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April 2017 Policy Study, Number 17-6

   

A Commentary on the Bill of Rights

   

Part 21

   

 

Amendment IX:

 

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

 

This amendment was included in the Bill of Rights because, at the time the Bill of Rights was written, a good many of our Founders were extremely leery of enumerating our rights and committing them to any formal document.  They felt this way not because they had any less commitment to our rights, but because they were afraid that if we had a list of rights, there might be a tendency by government to downplay or undermine any of our rights that were not contained in the list.  They rightly considered the number of our rights as entirely too numerous to mention, much less be contained in any manageable list.  With this being the case, they considered it an absolute probability that less used, though equally important, rights would be unintentionally omitted from such a list.

 

This amendment was their attempt to ensure that the number of our unalienable, God-given rights would remain all-inclusive — that none would be lost from non-inclusion in the listing.  In all likelihood, the Bill of Rights would not have been ratified if this amendment and the one following it were not included in it.  Though these amendments are the last two included in the Bill of Rights, it does not diminish their critical importance.  At the present time, we seem to pay relatively little attention to these final two inclusions; but we do so at our own peril.  If only we would demand that the national government honor them, they would again become the strong bulwark for the protection of the liberties that our Founders intended us to have.

 

Their concerns seem to have been well-founded, as we are having a very hard time maintaining even some of those rights that were specifically listed.  Many examples of this phenomenon have already been examined prior to this point, so it should be unnecessary to do so here.  However, this does seem to be an appropriate area to discuss the meaning of the word “rights” from, at least what I perceive to be, the perspective of our Founding Fathers. 

 

Hearken back to the second sentence 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.”  There was no equivocation as to where they perceived our rights as human individuals were derived.  We were“endowed by [our] Creator.”  This means they believed that our rights were a gift to us from our Creator.  In fact, the word "endow" carries more than just the meaning of “gift.”  It also carries the connotation of permanence.  The gift of our rights is ours, as individuals, as long as we continue to breathe.  Even though, through the use of sheer force, we are denied the ability to exercise these rights, neither another individual nor government can take our rights from us.  Our rights, themselves, remain intact.

 

It is also worthy to note that our Founders never so much as intimated that any of our rights were derived from, or granted by, government.  In the sense that our Founders spoke of "rights," governments have no power whatsoever to grant them because governments cannot grant that which they themselves do not possess.  Legitimate governments receive their authority from the governed.  The governed cannot grant government any authority they themselves do not possess.  As individuals, we possess no power whatsoever to either create or destroy rights.  Our Founders were well aware that the best any government could do would be to help secure our individual rights“That to secure these rights, Governments are instituted among Men . . . ”  This is the overriding principle of legitimate government, and this is what they proposed.

 

But what are “rights?”  Today, the word is thrown around quite blithely, with little apparent regard as to what its true foundation might be.  Everyone seems to be demanding this, that, and the next thing as their “right.”  Is our present-day concept of rights anywhere near what our Founders conceived “rights” to be?  It is doubtful either of these questions can be answered with any degree of certainty.  Still, it would certainly behoove us to examine the qualities of a right.  What follows are my personal opinions of what such qualities might be.  My intent is not to settle the question once and for all because that capacity does not lie within me.  It is to cause you to think about the issue and then discuss it with others.  If we don’t soon come to at least a general and accepted understanding of what a “right” is, the quagmire in which we presently find ourselves will only deepen.

 

A “right” is an abstract concept.  Thus, it is necessary to approach this examination of a right through its qualities because, as nearly as I can tell, a right is entirely intangible.  We can perceive the results of having, or not having, the use of a right; but the right itself is beyond the capacity of our senses.  Our Founders did not set down an absolute, ironclad definition of a right; however, they did leave us examples:  the right to life, liberty, and the pursuit of happiness, found in the Declaration of Independence, and all those listed in the Bill of Rights.  Quite possibly, we can learn the qualities of a right if we work to discern the common qualities these examples exhibit.

 

First and foremost, because our Creator endows us with our rights, all true rights are in conformity with “the Laws of Nature and of Nature’s God.”  We have no right to perform evil deeds.  Please do not confuse the right or authority to pursue a given act with the power or ability to do so.  Merely having the ability (power) to do something does not confer a right to do so.  An example should help clarify my point.  Let us examine the act that can be more evil than any other:  the act of taking a human life.  We have no right to wantonly or unjustifiably take the life of another.  This would be an act of murder.  In fact, we have a moral obligation to ensure that our actions do not cause the death of another, even by accident.  However, we do have a right to self-defense.  If, in our actions to defend ourselves against mortal danger, we should cause the death of another, we would be within our rights to do so, and the death would not be murder because our motive for taking the action would be justifiable.  Perhaps Abraham Lincoln captured the essence of this point best when he said, “No man has the right to do what is wrong.”

 

A right, that with which we are endowed by our Creator, is our due.  It is our due for one, and only one, reason — because we possess the quality of being human.  That is, simply because we are men (in the generic sense), a part of mankind, a member of the human race.  Because the source of our rights is our Creator, no government decision or action is necessary.  Man had rights long before any civil government was formed, and he would continue to have them if all government was abolished tomorrow.  Therefore, a true right is not contingent on government.

 

However, government can and does grant political privilege; but bear in mind that rights and privileges are not synonymous.  And, although we now tend to use the words interchangeably, neither are “unalienable rights” and “civil rights.”  Some civil rights fall in the category of unalienable; but not all do.  The civil rights that are enforced and which are in conflict with true unalienable rights are not really rights at all.  They are government-endorsed political privileges.

 

If “all men are endowed” with the same rights, logic would then seem to dictate that no right that I possess can detract from any right that you possess.  If it is otherwise, when I exercise my right, you would lose your right; in which case it apparently would not be a right, and we were not equally endowed to begin with.  It is doubtful that the concept of “true rights” can contain a paradox of this nature.  It is more likely that one of the qualities of a true right is its limitation of scope.  The procurement of the fruit of a true right does not come at the expense of the true rights of another.  True rights cannot be in conflict one with another, nor impinge one on another.  One of our former “supreme (sic) Court” justices commented, “My right to swing my fist ends at the tip of your nose.”

 

A right is a grant of equality.  One man’s claim to any given right is exactly equal to any other man’s claim.  Each man has a God-given right to have exactly the same opportunity to enforce that claim.  Even so, it is up to the individual to enforce the claim for himself.  No man has the right to demand that others make good on that claim for him in the least, much less to demand that others service his claim at the level the others have achieved.  For example, we all have a right to the standard of living to which we aspire; but it is up to each individual to make good on the claim.  If I am unwilling to exert the effort to obtain the education and work the hours necessary, or through just plain bad luck I am unable to make good on the claim, I have no right to demand that anyone else provide me with my chosen standard.  In the event I am able to enforce this last claim, it is certainly the case that I encroach upon your rights.  It would mean that I would have at least some preemptory claim on the fruits of your labor and could use them for my own benefit.  I have no legitimate justification to do this; therefore, this cannot be a right.  True rights do not carry with them a grant of equality of outcome.

 

True rights have another quality that is often overlooked.  They contain their own seeds of reciprocity.  There are both intangible and physical aspects.  (Again, it is necessary at this point to keep in mind the distinction between rights and authority on one hand, and privileges and power on the other.)  The quality of reciprocity is inherent in rights themselves.  Because all men have an equal claim to any and all unalienable rights, it simply cannot be otherwise.  Thus, when you abridge the rights of others, your own rights are abridged.  If you have found this discussion of rights something less than satisfying, you are not alone.  After much thought and frustration, the author has a much greater appreciation for what our Founders must have struggled with when they were establishing our founding precepts.  It is my hope that someone with keener insight than I will hone this topic to a finer edge.

 

   

 

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