Real Rights vs. Fake Rights

Good stuff from Roger Pilon at Cato:

It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limitedgovernment, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document....

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kindof rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.


  1. Gil:

    The key to that rant is in the name of that organisation "The Tenth Amendment Center" - they want the U.S. Constitution to be made up of the first ten Amendments and want to ignore the unLiberarian seventeen further Amendments ("the original meaning in the 18th century").

  2. morganovich:

    well, these same idiots are the ones lamenting that out constitution is outdated because it fails to guarantee rights to food, shelter, and healthcare.

    this demonstrates unequivocally that they have no idea what rights are.

    if you cannot have it alone on a desert island, it is not a right.

    a "right" to healthcare is preposterous. it means you have a right to abridge the self determination of others. someone is going to have to provide it. thus your "right" FORCES someone else to provide service to you. that violates a more basic right they posses. doing it through tax and spend is just the same thing with a layer of abstraction. you forcibly take the fruits of my labor.

    no real right works this way.

    you have the right to free speech, but that requires nothing of me. i do not have to listen. you have the right to bear arms. nope, nothing from me again. you have the right to be secure in your person and effects. again, there is nothing i have to do for you.

    our framers were possessed of excellent foresight in not creating "rights" that require the actions of others. it is the only consistent system. a "right" to healthcare is completely inconsistent with a right to self determination.

    far from being outmoded, our constitution is the one the remains valid. these others are fraught with inconsistency. they push democracy, not rights.

    democracy is NOT liberty. it's a particularly nasty form of tyranny, especially bolstered by contrived "rights" that require it to subject some citizens to the needs of others.

    the fact that so few actually understand where our liberty comes from is precisely why we are seeing it erode so badly.

  3. me:

    Well, the constitution was an amazing document written by pretty skilled and well intentioned folks.

    That said, it suffers from a number of flaws - it's a bit dated, and it's being interpreted through the lense of a vast apparatus of self-serving power mongers.

    The first is the reason why it is ominously silent about how intellectual property rights should work or how to treat video in the context of the internet (which shouldn't be an issue, really, however...) the second is the reason why lending your neighbor a cup of sugar is actually interstate commerce and why "freedom from search and seizure" really means that you might get your door kicked down in the middle of the night, your dog shot, your face ground into the rubble while you're being dragged off to dentention and your property ransacked and disappeared into evidence collection bags because someone got the wrong address. And don't get me started on what "State secrets" did to the right to a speedy trial by your peers.

    As morganovitch States, that doesn't mean that there should be more rights, but there's a lot of "this piece of paper means whatever we want it to mean" by subsequent administrations. My position on why there ought to be free base level healthcare is in another thread, but making it a "right" is highly impractical. A society might choose to offer it as a service (and I strongly advocate this one should, because it'd be way cheaper than the current mess), but if that ever broke down, really, the situation would be such that suing for access to it would be utterly pointless.

  4. Septagon49:

    The flaw is that it was written in plain simple english that the average reader could understand. This required leftist to performance extreme parsing and mental gymnastics to make it say what they wish it said. Wickard v Filburn (1942) is a prime example. Nothing "me" has identified in his thrid paragraph is a flaw with the USC but rather the muddled interpretations our country has suffered with during the 20th century.

    The USC establishes a government of limited and enumerated powers with all powers not granted to the US Federal government are retain either by the States or by the people. Simply, if it is not listed in Article I section 8 it is unconstitutional for Congress to pay for it.

    Nothing is free. To offer something for free it either has to be donated, coerced, or stolen. "me" is free to donate all the healthcare he wants, but it is immoral to coerce or steal heathcare from one person to give it to another for free. That is the very tyranny we fought independence from Britain. Laundering money, ie taxes, through the government to pay for other people's healtcare does not make it any more moral.

  5. Mark:

    In nature, you have the "right" to do anything you want. THe mere establishment of government of any form takes away some of those "rights".

    The problem with the "libertarian" arguments usually presented in this blog is that there are very few rights that do not conflict with other people's rights. For example, you have the natural right to buy and sell any gun you want. On the other hand, I have the natural right to safety. These two rights conflict in obvious ways.

    When there is this conflict, government needs to work in a way that minimizes its intrusion into the individual's rights while enhancing the other person's rights. The best concept to balance these conflicts is that there should be a preponderance of evidence that demonstrates the value of limited a person's rights. Using the gun control example, any rule or statute that limits a person's right to buy and sell a gun better be demonstrably effective in improving public safety. I do not claim that governments always do this and it might not always be possible. But that should be the standard.

  6. Ted Rado:


    I question your statement that my right to buy a gun conflicts with your right to safety.

    There is much evidence that the ownership of guns by law-abiding citizens reduces crime. When Florida passed the right-to-carry law many years ago, there were those who argued that we would turn the State into the OK corral. Nothing of the sort happened. Most other states have since followed Florida. The fact that I have a gun indirectly protects those who choose not to own one. The bad guys don't know who is armed. Thus I see no conflict between my owning a gun and your safety. In fact the opposite no doubt obtains.

  7. Mark:

    1. With gun control issues, what the "evidence" suggests depends upon which position you side with. If you are "pro-gun" you believe every statistical study done by John Lott and the like. If you are "anti-gun" you believe in the just as numerous equivalent statistical studies that show the opposite.

    2. I do not want your "protection". I believe that you having a gun puts me at more risk than you not having a gun. Even trained police officers cannot shoot straight when they are called upon to use their weapon, and, in fact, I do not even think all police officers should be armed because the ability to use a firearm in a crowd to "protect" people is a skill very few people have.

    3. The claim that having guns around limits crime because criminals do not want to take the risk of confronting an armed citizen is pretty limited in my opinion. If this was the case, then it should be taken to the extreme and you should advertise that you are armed. Clearly, if there is a 50-50 chance that if I rob your house I might run into a gun, if you said "GUNS ON PREMISES" then you would be completely safe from robbery. But, the sad fact is, that the reason no one makes such a claim is that if you advertised that you had guns in your house you would be robbed over and over and over again. Criminals WANT guns to steal, you would be just giving them advertisement were to stock up. ANd, since I doubt you spend 100% of your time in your house, you are at risk.

    4. AS far as how that conflicts with my safety, most of the violent crime is committed with guns that were originally purchased legally. The ease that people can acquire firearms in the US to commit crimes is enhanced by the availability of guns.

  8. gavin:

    the gun itself has no intent. assault is do not have a right to assault.

  9. Mark:

    "the gun itself has no intent. assault is do not have a right to assault."

    And the point is?

    I believe there are some reasonable gun control laws out there. One I support is to raise the age required to purchase a firearm to 21. I believe that a reasonable waiting period to buy a gun is a rational policy. I also believe that thorough criminal checks on gun buyers is a legitimate public policy and would extend all of these rules to private gun sales.

    Further, I believe that criminals using guns in crimes should receive significantly enhanced sentences when they are convicted and I am a major supported of incarceration of all criminals.

    These are common sense, only minimally infringe on the gun owner, and have/would have very tangible benefits.

  10. Gil:

    Democracy is bad? Shame the later Framers enshrined the right to vote in the Constitution.

  11. Mark:

    "Democracy is bad? Shame the later Framers enshrined the right to vote in the Constitution."

    Not really. The Framers specified that US Senators would be chosen by state legislatures and allowed the state legislatures to determine how they would select electors to teh Electoral College to choose the President of the United States.

    Only the House of Representatives was specified to be chosen by "The People", and "The People" were a very specific group that was eligible for voting. And, "The People" were not everyone. To start with, women, free blacks and other undesirables were not part of "The People". The Framers anticipated a relatively high degree of property requirements to obtain voting rights, and thus become part of the "People".

    Notice, then, the usage of the term "The People" here and also in several clauses of the Bill of Rights, namely the 2nd and 4th amendments, means that these amendments applied to very specific groups. In modern day, voting requirements are almost meaningless so this group has expanded but in the early days these rights, particualrly gun rights, were not extended to everyone. But, other rights were and you can see how the amendments reflect that. For example, women could not vote nor were they protected to own guns. But they did have rights to jury trials and free speech.

  12. Ted Rado:


    Whether you want my indirect protection via my gun ownership is irrelevant. Almost all states have adopted the right to carry laws.

    You are right. The zealots on both sides can cherry pick their info. The wide experience with right-to-carry laws is positive. The Constitution gives us the right to have guns. Why do some want to upset all the gun owners when there is no evidence that eliminating guns from the law abiding citizens would deter crime?

    Since guns originally are purchased from licensed gun stores, you are correct that that is where guns originated. Most guns in the hands of criminals are stolen or otherwise illegally obtained.

    Mexico virtually prohibits gun ownership, but guns are widely used by criminals. A gun is a small item and can be easily smuggled.

    When the 1968 gun controls came into effect, I studied the matter carefully. Perhaps the day had come when guns in the hands of citizens was a bad idea. After much study, and following the Florida (and subsequently other States) experience, I concluded that there was no evidence that private gun ownership was bad. In fact, if anything, the opposite.

    You certainly have the right to your views. However, there is too much zealotry and too little calm thought applied to public issues. (see the climate and alternative energy debate for example). We seem to be becoming a nation of hysterical zealots incapable of careful study.

    One other point. You seem to be pushing the idea that the 2nd ammendment does not grant gun rights to each person. Constitutional scholars and the Supreme Court have ruled against your view. This twisted interpretation of the Constitution is a dangerous thing. Once that approach is accepted, everything in it can be parsed. If you think guns should be outlawed, get the Constitution ammended, not subverted.

  13. Ted Rado:


    You advocate the idea that if the preponderance of evidence shows it to be a good idea, that individual rights should be subverted for the common good. This has always been the battle cry of dictatorships: give up your rights for the common good. This is EXACLTY what the Constitution was designed to prevent. There are certain rights that are "inalienable" that the government cannot infringe. The Constitution is for the purpose of LIMITING government power.

    The interstate commerce clause is already used to give the USG unlimited power. Since the air I breathe crosses state lines, the USG has power over everything I do.

    I have a question for you. If you push for government intrusion into my life in ways that you think are good, are you prepared to have the USG also intrude into your life in ways that you think are bad? Once the notion of unlimited government intrusion into our lives is accepted, there is no reason to believe only your approved views will be foisted off on the public.

  14. caseyboy:

    The Constitution is just fine, its the people who have failed the test.

    “Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other.” John Adams

    "Righteousness alone can exalt America as a nation, Virtue, Morality, and Religion are the armor that renders us invincible." Patrick Henry

    “It is impossible to rightly govern without God and Bible” George Washington

    “Let us consider--that for the sins of a people God may suffer the best government to be corrupted, or entirely dissolved; and that nothing but a general reformation can give ground to hope that the public happiness will be restored, by the recovery of the strength and perfection of the state, and that Divine Providence will interpose to fill every department with wise and good men.” Samuel Langdon First President Harvard University

  15. Mark:

    "that individual rights should be subverted for the common good"

    That is a perverse way of stating it. I believe that MY RIGHTS are just as valuable as yours. There are often times when individual rights clash. Gun control is just one of them.

    Lets use a more simple example. You have the "individual right" to play music as loud as you want in your house or to paint your house whatever color you want or to drive as fast as you want on the highway. I, on the other hand, have the right to tranquility, the right to ensure that my property value is not damaged by your absurdities, and that when I am driving on the highway I am as safe as possible. These "individual rights' clash, and one role of government is to reconcile the situation when rights clash. One way of reconciliation is the tort system, but it is expensive to adjudicate all of these potential issues in court. Therefore, we give up certain levels of individual rights to governments who create laws or statutes that balance these rights out and therefore regulate some behavior. So, therefore we have statutes relating to noise ordinances, zoning laws, and speed limits. THey are the proper (for the most part) balancing of one individual's rights versus another.

    "If you push for government intrusion into my life in ways that you think are good, are you prepared to have the USG also intrude into your life in ways that you think are bad?

    I am not pushing anything. When The People created the Consitution of the United States and the Constitution of the various states of the union, they ceded certain powers away from individuals to the government. One of the most important aspects of our federal constitutional system was that it was THE PEOPLE themselves that made these decisions (the Founders were very careful in designing this ratification system). One of the aspects of this federalism was that it still left significant police powers in the hands of the states and lower levels of government, and allowed them the power to regulate the behavior of individuals.

    Therefore, one of the consequences that I as a citizen of this country must accept is that in many cases there will be political decisions made that are adverse to my own interest. At some point, a situation could arise were an individual needs to decide if the benefits of living in that country/society are worth these adverse interest. Many people vote with their feet, the most recent mass event of this sort(not that recent in reality though) would be Viet Nam draft protesters moving to Canada, although individuals leave the country every year (probably every day) because of these reasons.

    But the wonderful thing about the political power strucure of our country is that we are very sensitive to negative results, and the electorate is prime on holding the current office holders responsible for these results. So, the political history of the United States is a history of ebbs and flows, as one power group seemingly gains total control of government, only to have bitter voters change course and give power to other groups.

    "You seem to be pushing the idea that the 2nd ammendment does not grant gun rights to each person"

    The 2nd Amendment PROTECTS the gun rights (the Consitution does not grant ANY RIGHTS) of "THE PEOPLE". Again, you seem to miss that point. Not all individuals are in "The People" and not even all citizens are part of "The People". "The People" are a much more "exclusive" group and essentially are the individual citizens that are voter eligible. This is an important distinction that you miss and this amendment is much more exclusive than others. For example, all individuals are protected by the 1st Amendment, and several others particularly the amendments relating to jury trials and capital punishment. A 12 year old's free speech is protected by the FIrst Amendment, BUT, they are NOT protected in the 2nd. An illegal immigrant, or even a legal immigrant, is not protected by the 2nd Amendment. A convicted felon is a citizen, but they are not part of the People and they are not protected by the 2nd Amendment.

  16. Ted Rado:


    Individual rights are indeed limited by common sense. My right to own a gun does not give me the right to have pistol practise in Times Square on New Years eve. I cannot cry out "fire" in a crowded theatre. I cannot play Beethoven's fifth symphony at 3 AM full blast with the windows open. There are endless common sense restrictions on our freedoms. You are merely stating the obvious.

    You are confusing a potential problem with a real problem. My owning a gun does not create a risk. My misusing a gun may indeed do so. There are many laws against misuse of a gun. Every man is a potential rapist. Do you recommend having all our private parts removed? (Yes, this is as rediculous as some of your arguments). Should I destroy my classical music collection becuse I may play Beethoven loudly at night? Yes, this is absurd, but no more so than your worry about POTENTIAL problems with gun ownership.

    The bottom line is a philosophical one. Should the government control everything for the "common good" or should we accept some bad results in the interest of individual freedom? Autocracies always push the former. The USG's performance does not encourage me to favor them running my life. We have zillions of laws, rules, and regs that stifle us at huge expense, and they have spent us into huge debt. I don't see how anyone can argue that we need MORE government. Very much the opposite. Interestingly, the founding fathers foresaw this. Hence the Constitution.

    There are all sorts of laws re misuse of second ammendment (as well as other) rights. If I privately sell a gun to a bad guy and it is traced back to me, I am in trouble. No gun owner has a problem with this. We understand our responsibilities. (Most of the training class re carry permit is devoted to legal issues).

    This discussion reminds me of a quote I saw awhile back: "The most frightening three words are Compelling Public Interest". This as an excuse for dictatorial government.

    On a personal note, I don't complain if my neighbors have a party on Sat night, or if their dog barks, etc. I try to be a good neighbor. Some folks make a career of fussing at their neighbors about everything. A great way to have no friends. We should all try to live and let live rather than foisting our views off on others via the USG or otherwise.

    You haven't answered my question about accepting government intrusion into your pet areas rather than just mine.

  17. Ted Rado:


    One other point re elections determining public policy. The founding fathers recognized the dangers in majority rule. The Constitution prevents the majority from infringing our individual rights. In a pure democracy, without a constitution, the majority could create a dictatorship if they so wished. Thus, elected officials can do whatever they want within the limts of the Constitution, but no more.

    Unfortunately, there will always be those who push the envelope to promote their own views at the expense of the rest of us.

  18. Mark:

    'You are merely stating the obvious."

    No, you are merely ignoring the obvious.

    'My owning a gun does not create a risk"

    And nor have I said that. However, there are very certain risks that exist. To control these risks might, or might not, involve limiting or reducing the freedom of an individual. For example, consider a waiting period to purchase a gun. Creating a statute that requires a 72 hour waiting period to purchase a firearm reduces the "rights" of an individual. To determine if this is an appropriate measure and "worth" depriving an individual of liberty we must look at the value of the law with respect to these rights. In my view, a waiting period is well merited. The value of preventing people who are in a rage from acquiring a gun far outweighs any loss of rights to the purchaser of the firearm. A legitimate purchase of a firearm is not predicated on such timeliness and any outliers to the situation can have a proper emergency outlet. Now, I would argue that if hours were changed to days, that would be an improper waiting period that unjustly infringed on the legitimate purchase of a firearm and served no purpose.

    'Should the government control everything for the “common good” or should we accept some bad results in the interest of individual freedom? "

    Again, that all depends. I am making absolutely no argument that there should be "more government" or "less government" (which, especially in economic matters I think there should be less). I am instead arguing that laws that are EFFECTIVE in reducing or eliminating bad results that can be done with limited intrusion on individual freedoms are valid exercises of governmental power. If "infringing" on individual freedoms is the only issue then we should have NO GOVERNMENT.

    ' I don’t see how anyone can argue that we need MORE government. Very much the opposite. Interestingly, the founding fathers foresaw this. Hence the Constitution."

    I think your understanding of this process is not fully developed. The Founding Fathers OBVIOUSLY SAW THE NEED FOR MORE GOVERNMENT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! They saw that the Articles of the Confederation were very impotent and were severely hindering the development, particularly the economic development, of the United States. Under the previous system the government could not levy taxes or create tariff imposts so it could not raise revenues, and could not pay back the debt incurred by Congress during the War. Nor could Congress control the often violent eruptions of commerce wars between the states, and was such an IMPOTENT entity that they could not raise armies to protect the frontier from Indian attacks.

    The Consitution of the United States was a MASSIVE increase in the powers of the National Government designed to fix all of these problems and dangers!!!!!!!!!!!!!!

    Further, by establishing a government that was both NATIONAL and FEDERAL, the Founders left most of the powers to regulate, the so called Police Powers, with the individual states.

    I suggest that you go back and review your history lessons, and when you come to the realization that you have some misperceptions about the Founders then maybe your views will change.

    '“The most frightening three words are Compelling Public Interest”. This as an excuse for dictatorial government."

    NO it isn't. It is an excuse for EVERY GOVERNMENT. All the actions of government should be in the public interest. Otherwise they should not take action. I do not disagree that some of the actions by our bloated governments are not done in the public interest, but for very private interest groups. But, that is not a proper argument that all public actions must lead to dictatorial government.

    'You haven’t answered my question about accepting government intrusion into your pet areas rather than just mine."

    BS. I fully answered. The government does actions that go against my interest constantly. For example, I am fairly well to do and I pay high tax rates. These are obviously against my interests. I would like to see lower tax rates. I not only think it is in my interest but the countries. Therefore, I vote mainly for candidates that want to lower taxes and control government spending.

    I answered even more fully in that when these adverse actions come we have really only one other way of changing it, voting with our feet. If I don't like the abortion laws in North Carolina, where I used to live, I could move to Massachussetts (where I moved from there). That is the beauty of a federal system that I think is almost perfect.

    "The Constitution prevents the majority from infringing our individual rights."

    AGAIN, no it does not. Please, your understanding of the US Constitution is very limited. The US Constitution creates powers and limitations on the federal government, and in some more limited cases, state governments. For example, after the First Amendment was passed there was NOTHING that prohibited the individual states from establishing a church. Many did or maintained their previous established religions.

    Even the Bill of Rights does not prevent the government from "infringing" on individual rights. ANother example, the government is NOT prohibited from invading your privacy. Rather, the Constitution only establishes the minimum level of actions that the government is required to do before they can do so.

    Only in some very limited ways does the Constituiton specifically protect individual rights. For example, even if everyone in the country, except I assume Ted Rado, wanted to pass a Bill of Attainder against Ted Rado that took your property and even your life, they could not do it. Nor could they pass a national religion even if everyone in the country wanted it. These are specifically addressed in the Constitution and its amendments. But, other powers of government can do just that. A military draft can essentially take away your freedom. Taxes can take away your property, as can eminent domain (with proper due process). WIth proper due process you can be jailed or fined. All of these are actions that limit and take away individual liberty, and the Federal government it absolutely empowered to do this, IF THERE IS COMPELLING PUBLIC INTEREST.

  19. Ted Rado:


    You are obviously in favor of all kinds of government intervention. You also seem to believe that the Constition's purpose is to empower the USG rather than limit its intrusiveness. I have very different views. An example is consumer protection. I had bad experiences with a couple of auto dealers a few years ago. I quit patronizing them as did many others and they went out of business. A poorly run or dishonest business fails. We vote with our feet. I certainly don't need the USG to protect me. The system worked fine and punished the bad actors. This notion that the USG should look out for us from womb to tomb is nonsense.

    You are certainly welcome to your interventionist government views. I think there is ample evidence that the USG often does more harm than good (Fannie, Freddie and the "everyone is entitled to a house they can't afford" nonsense).

    There are zillions of pipelines around the US that operate with a minimum of trouble. Now the USG makes laying a pipeline into dragging an elephant through a knothole. Every business activity is getting like that. And I guess you still feel an interventionist government is a good thing. Lots of luck on the freeway!

  20. Mark:

    'You also seem to believe that the Constition’s purpose is to empower the USG rather than limit its intrusiveness."

    And the answer to that is YES. As I explained above the US Constitution's purpose was to empower the US government with the powers it needed to achieve the purposes of the Preamble of the Consitution. The previous version of the US governemtn, the Articles of the Confederation, did not serve the country well. Madison, Hamilton, Washington and many others believed that this was the case.

    It is clear you have a limited understanding of the history of the US Constitution.

    "You are obviously in favor of all kinds of government intervention"

    Versus no "government intervention"? Certainly. Again, I believe the government should use its powers when it is possible and relevant.

    'This notion that the USG should look out for us from womb to tomb is nonsense. '

    Not sure where I claimed this either. Jumping to these conclusions only reveals how limited your arguments are. I mentioned no such thing. I believe no such thing.

    'I think there is ample evidence that the USG often does more harm than good "

    I do not disagree. The US governemtn has made many mistakes. I disagree with much of what is made into law and supported by large majority of the voters. However, that has nothing to do with my arguments at all. The US Governemtn has powers delegated to it by THE PEOPLE and in many cases it also makes the country better by using these powers. Examples are virtually endless, but the protections provided by our military, the protections offered by our courts are just two example of the role of the government, even though each of these activities takes away "individual freedom".

    But we must recognize that this is what we delegated our governemnt to do. The nasty fact of the matter is that the voters select these representatives and they get the government they deserve.

  21. Gil:

    The last ruling said the 2nd Amendment only protect the individuals' rights in that a person can own firearms on their own private property. Then again the 2nd Amendment is supposed to prohibit the Federal Government but not the State Governments hence gun laws vary from State to State (which sounds like something Ron Paul would support).

    Then again why bother arguing about the Founders' intents about an income tax and Democracy? It Constitutional now just like the right for all adults to vote.

  22. Mark:

    "The last ruling said the 2nd Amendment only protect the individuals’ rights in that a person can own firearms "

    But not all individuals can, as I stated. In my opinion, it is an individual right, not a right of a militia but the language of the 2nd Amendment does restrict those individuals that are protected.

    "is supposed to prohibit the Federal Government but not the State Governments "

    That all depends upon how far you want to follow the "Incorporation Theory" of the 14th Amendment which basically applies the Bill of Rights protections pertaining to individual down to the State level. Incorporation has been a case by case process and so far the 2nd Amendment has not been tested with that respect, mainly because as you point out, prior to the most recent 2nd Amendment ruling the more liberal courts have viewed (incorrectly in my opinon) that the 2nd Amendment does not pertain to individuals but to milita/national guard (dumb). My guess is that there will be a case within the next 2 years that will reach the Court to test incorporation.

  23. me:

    Great discussion :)

    The constitution was a great document at the time it was written, and with a bit of modernization of language could easily be again. And yes, the state by necessity is there to regulate how and when individual freedom ends. However: anyone feeling that the state has too little control and doesn't regulate individual freedoms enough these days? And how about the opposing vote of we live in a society with way too many interferring laws and ridiculous regulation? I think it's pretty clear that it would be time to cut back not transfer more power where explicit enumeration in the founding document doesn't allow it...

    As for "free healthcare": (@Septagon) - I don't want anyone to pay any more for other peoples wellbeing. I want to personally pay much less. What upsets me about the current system is that it is so inefficient that Grandma tramping to the hospital and getting a bandaid because she feels a little lonely takes the better part of a day and results with me being partially on the hook for the resulting bill of multiple specialist hourse, xrays, blood tests and consultations for aromatherapy, not to mention the 250% overhead for administrative costs like, oh, billing medicaid. Multiply by a few million and you can see how "free" health care that allows the outrageous and has people step into a local healthcenter and get a bandaid without any payment involved, administered by folks who're just good enough to do a cast, take blood and maybe prescribe antibiotics and therefore didn't need to go to university and get a doctorate might end up costing much less and result in a lower tax bill for the rest of us.

  24. caseyboy:

    Mark, is your Aunt's name Ruth Bader-Ginsburg by chance? If for some reason the Constitution doesn't speak as clearly as you'd like, take a look at the Founding Father's comments on a subject.

    "No free man shall ever be debarred the use of arms." Thomas Jefferson

    “Americans have the right and advantage of being armed, unlike the people of other countries, whose leaders are afraid to trust them with arms." James Madison

    "A free people ought to be armed” George Washington

    "The people have a right to keep and bear arms." Patrick Henry

    And my favorite - "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!" Benjamin Franklin

  25. Ted Rado:


    Your comments re income tax are way off the mark. Every government needs revenue. This has nothing to do with whether that government is intrusive. Equating taxation to intrusion is nonsense.

    The articles of confederation were so weak that the government was almost nonexistent. You are certainly right that the Constitution provided for a stronger workable government. However, the main purpose was to limit government powers to those clearly enumerated so as to avoid the oppression common in governments at the time. Compared to other governments, it was extremely benign. To extrapolate from the articles of confederation through the constitution to argue that such increase in government power was intended to continue ad infinitum is a real reach. Many of us feel that the continuing increas in USG power is heading us for trouble. Now the USG tells us what kind of light bulb to use. Next, they will mandate how many times to shake it after using the men's room. Is this sort of crap that we really want? Almost everything anyone wants to do has to go through a government bureau at a snails pace. As I pointed out before, the fact that the things the USG is pushing today meets with your your approval does not guarantee that another administration in the future may not push things that are anethema to you. Isn't it better for the USG to mess out altogether? That was certainly the intent of the founding fathers.

    In an area that is within my field of expertise (alternative energy), EVERYTHING the USG is sponsoring is utter nonsense. This is not merely an opinion. The most elementary engineering calcs clearly show this. Is there any reason to believe that what they are doing elsewhere is any better? They have completely messed up our society with all sorts of schemes that reward bad behavior. In the 30's the illegitemacy rate among blacks was 15%. Now it is 70%. The abuse of unemployment benefits and other social schemes is well documented. USG intervention in the housing market has been a total disaster. The Europeans, who were the ideal model for the Liberals, have now foundered on their social and economic schemes. We are following close behind.

    If there were lots examples of successful government programs, you might have an argument. The premiere programs, social security and medicare, are heading for bankruptcy. I read that the total unfunded liabilty for these programs is over 100 trillion dollars. If I ran my own finances this way, I would be bankrupt and in jail. Any arguemnt in favor of more USG intervention is based on wishful thinking and not on experience.

  26. Mark:

    "Mark, is your Aunt’s name Ruth Bader-Ginsburg by chance? If for some reason the Constitution doesn’t speak as clearly as you’d like, take a look at the Founding Father’s comments on a subject."

    Whatever. I am a conservative and I think you have to be purposefully stupid not to understand what I am saying. I will repeat a simple example so you can understand.

    DOES THE 2nd AMENDMENT PROTECT THE "GUN RIGHTS" OF A CONVICTED FELON? And the answer, of course, is NO. Laws exist and have existed that prevents felons from buying guns. The reason why is that a FELON has limited civil rights and they are not part of "THE PEOPLE".

    The mistake you are making is that the 2nd Amendment is very specific about who is covered. It is THE PEOPLE. But, THE PEOPLE are not everyone. In general, you can think of THE PEOPLE as the group of individual citizens that have voting rights. THE PEOPLE protected in the 2nd Amenendment were the same PEOPLE who gathered "to create a more perfect union.....". In 1787 this was a much more limited group. Women were not part of THE PEOPLE and could be prohibited from owning guns. Free blacks were the same. Slaves, obviously. Children and immigrant, not part of THE PEOPLE and not protected by the 2nd Amendment.

    I would argue that as the requirements for voting have expanded, that group constituting THE PEOPLE has expanded likewise. But again, certain groups are NOT PROTECTED. These would include minors, immigrants, and felons.

    If you don't believe so, read the language of the 2nd Amendment. It is very specific when it mentions THE PEOPLE. Other amendments talk about individuals, but the 2nd is much different.

  27. Mark:

    "Equating taxation to intrusion is nonsense."

    Taxation is the most intrustive of intrusions the government makes. IT is a coerced taking of property directly from me. No other intrusinons are as robust as that.

    "To extrapolate from the articles of confederation through the constitution to argue that such increase in government power was intended to continue ad infinitum is a real reach"

    What is a real reach is to claim I said any such thing. I did not. However, to claim that the Founders of the Constitution wanted a more limited governemnt is absurd, and I rightfully called you on it.

    "In an area that is within my field of expertise (alternative energy), EVERYTHING the USG is sponsoring is utter nonsense"

    I do not support any government initiatives in alternative energy. I reject these policies for the same reason you do. They are unworkable. Do you have a point?

    "Any arguemnt in favor of more USG intervention is based on wishful thinking and not on experience."

    And such a closed minded position is also comletely absurd.

    "If I ran my own finances this way, I would be bankrupt and in jail. "

    But a government is not an individual. Its finances are different in many ways. For one thing, a government/country never dies. When you die your estate will be settled. Most likely you do not want to saddle your heirs with debts so you manage your fiances accordingly. A government, on the other hand, will never have to settle its accounts. All it needs to do is service its debt.

    Another major difference is that you and the government are nto that different. When the average person takes out a mortgage on their home, if they were the government they would consider that to be a major deficit spending year. The government does not capitalize spendign, it reports every dollar spent the year it is spent. So, an aircraft carrier that has a lifetime fo 50 years and cost $12 billion to build over 6 years recorded $2 billion in expenses in year 1-6, but none in year 7-50. A business would expense some of this capital expense across the whole lifetime of the asset.

    THis is not to argue that I am claiming our deficit is too small. It isn't. We need to reduce fedreal government spending from the 25% of GDP it has risen to under Obama back to the 18-20% it was. Running deficits of 6-8% of GDP is unsustainable because we will reach a level were the government cannot service its debt.

  28. Gil:

    Thomas Jefferson view on the right to keep and bear arms sounds what Mark is trying to say.

  29. Mark:

    "Thomas Jefferson view on the right to keep and bear arms sounds what Mark is trying to say."

    Well, what I say is what the Constitution says. The Right of the People to bear arms shall no be infringed.

    I reject the view that this amendment deals with militia or national guard. That clause, put in front of the action, is a justification for why The People's right to arms must never be infringed upon. Leaves three terms to define: The People, infringe, and bear.

  30. Ted Rado:

    Yes, taxation is intrusive but necessary. Any government, even a bare bones one, has expenses that must be met. The problem is that a bunch of unnecessary intrusions have been imposed on the public. To suggest that taxation for roads, for example, is as intrusive as the light bulb joke is absurd.

    We need to go throught the entire USG budget and remove everything that can be done privately. That would get rid of 99% of the intrusions.

    Some years ago, it was suggested that every proposed piece of legislation be accompanied by an explanation of its constitutional authority. I thought at the time that was a great idea.

  31. Ted Rado:

    And yes, I am closed minded when it comes to massive USG intrusions into my space at my expense. VERY much so!

  32. Mark:

    " To suggest that taxation for roads, for example, is as intrusive as the light bulb joke is absurd."

    ANd I did not. I totally oppose the light bulb restrictions.

    "ome years ago, it was suggested that every proposed piece of legislation be accompanied by an explanation of its constitutional authority."

    So what, they have recently passed this in the House after the GOP took over in 2010. The Democrats believe everything they do is constitutional because they can twist the Commerce or Necessary and Proper Clause into whatever they want. If you combine that with the concept of Substansive Due Process, the Consitution can allow just about anything you want and prohibit just about anything you want.

    I find that to be a problem and I lean more to the school that Scalia presents, that the text of the Constitution is important, and most important. For example, when the text of the Constitution places a minimum age of qualification for US Reps, Senators, and Presidents there isn't any penumbras or wiggle room around it. When the Constitution was amended to protect the right of 18 year olds to vote, there isn't any way that should be misinterpreted. And, I think that the rest of the Constitution should be read the same way.

  33. Gil:

    I meant as in Thomas Jefferson had no interest in arming women, children and Negroes.

  34. Ted Rado:


    We are finally on the same page. The twisting of the Constitution to allow all sorts of USG activities is where the trouble starts. I am a live and let live person. I don't want to foist my views off on anyone (via the government), and I don't want the reverse either. We are all better off if the USG minimizes its presence.

    In the engineering field, there are ASTM, ASME, NEC, and other standards that were established by professional organizations without USG involvement. These are all followed by all engineering companies. The USG need not intervene to see that things are done right. Accountants have similar standards. Left alone, business will regulate itself out of a sense of self preservation. No business wants to go broke and get sued. Whatever benefits, real or imagined, that come from USG intervention are more than offset by the disadvantages. While one can pick out a pet USG rule that they feel does good, there are zillions of them that mire us in a sea of BS that only drags everything to a halt and runs up costs.

  35. Mark:

    " I don’t want to foist my views off on anyone "

    But that is what the political process is for. Sometimes, the majority of people will foist their views on you. That is too bad and you just have to suck it up.

    And, one issue that you seem to concentrate too much on is the USG. We live in a federal system that has state and local governments too. THe incredible "beauty" of a federal system is that it allows an almost infinite number of ways to live your life. If you don't like the state laws in Mississippi move to Minnesota, or vice versa. If you don't like how Ramsey County in Minnesota runs their county, move across the river to Hennepin. If you don't like how the town of HIngham in Massachussets collects the garbage, move to Weymouth.

    In the end, the libertarian model collapses because it cannot recognize the fact that individual rights, as I have demonstrated, most often collapse. YOu may think that you live a totally independent life, but many of your decisions interact with mine, and when they go negative, impact me. There are very few truly personal decisions. Drug use? WHen you are in the emergency room because of your overdose or health problems caused by drug use, who is paying for it? WHen you are drunk or stoned driving on the highway, who is in danger? Sorry, these issues all impact all of us and we need to in many instances to try to prevent these issues. Are all measures effective? NO, but if there is a law designed to benefit society with minimal impact to individual rights, I can support it.

  36. Ted Rado:


    If someone harms you, they go to jail. I object to all sorts of regs concerning what one MIGHT do. I might hit you with a baseball bat. Therefore, regulate baseball bats.

    You seem obsessed with things someone MIGHT do. I don't care what somewhat might do, only what they actually do. Huge difference.

    The idea that the government (all levels) should regulate every facet of our lives is a bad idea. Where does it stop? If the USG had a good track record with their programs (which they do not), I would STILL be against massive government intrusion. If you believe that the majority should run roughshod over the Constitution, it is your priveledge.

    If I push government regs that I agree with and which are inimmical to your interests, and you return the favor, we both lose. Wouldn't it be much better to minimize government intrusion entirely?

    This is my last post on the subject. It is getting tiresome.