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.
—–Declaration of Independence
The Declaration of Independence asserted that these rights were not granted to us by government, but were inherent in our humanity. The terms life, liberty and the pursuit of happiness are not specific. Nor is the Constitution specific in detailing the rights of citizens. The Bill of Rights spells out some rights in a bit more detail, but the framers of the Constitution were intentionally vague. They expected our society to change over time, and the rights, privileges and responsibilities of citizenship would change accordingly.
When I hear so-called “Constitutional originalists” claim that we have no rights that are not specifically defined in the Constitution, and that we must interpret them in the context of the “intent” of the writers, I have to laugh. We have been interpreting the Constitution throughout our history and much has changed in the past 200+ years. As our society changes, we will continue to alter the interactions between our government and We the People…just as those original writers envisioned and intended.
A recent comment by C Peterson in one of the comment threads here described a guiding principle of how our government should deal with the rights of citizens I have paraphrased it slightly but retained his meaning:
We should err always on the side of protecting freedoms over limiting them. We should have a low threshold on creating or expanding rights where nobody else loses anything, and a high threshold on restricting them without objective reasons (that is, on nothing more than moral attitudes).
The second sentence is the crux of the problem. Expanding rights is easy if nobody is harmed. But giving one group more rights can result in other groups being harmed. How can government decide whether the benefits outweigh the costs or vice versa?
An example is the famous baker in Colorado who refused to bake a wedding cake for a gay couple, saying that it violated his religious beliefs. It went to court, and the baker won. Let’s review briefly how that came about.
The Civil Rights Act (CRA) of 1964 and the Fair Housing Act of 1968 prohibited discrimination against “protected groups.” Initially, LGBTQ was not included as a protected group, but many states, including Colorado, amended the list to include it.
But in 1993, Congress enacted the Religious Freedom Restoration Act (RFRA). The original intent of the RFRA was primarily to protect Native American religious groups by limiting government projects that encroached on sacred lands, and to allow the use of Peyote, a prohibited drug, in their traditional religious ceremonies. The measure was passed with nearly unanimous bipartisan support in Congress, including enthusiastic advocacy by many liberal Democrats. But some crafty Religious Right nasties saw a loophole that they could slink through that would allow them to discriminate against gay marriage. Whether this was part of an original plan to hoodwink the liberals or the result of “unintended consequences,” is hard to determine. But it enabled a number of discriminatory actions by religious believers that harmed various groups. States dominated by religious influence passed laws to “protect” pharmacists who refused to dispense “morning after” pills, or even contraceptives to customers.
Clearly, these “rights” that religious believers were granted caused harm to others. But so far, most of them have remained in place.
The recent firestorm on abortion is another example of the zero-sum game of rights. Religious-based groups have launched a nationwide campaign to enact laws restricting the rights of women to have an abortion. In this case, the “rights” of the fetus are promoted to outweigh the rights of the woman carrying it. Since Roe v. Wade was decided in 1973, women have had the right to a legal abortion. Religious groups have fought this tooth and nail, and until recently, had employed an incremental approach, whittling down the time interval after conception when an abortion could be performed. They also tried to shut down as many clinics as possible, with unreasonable licensing requirements. The pro-choice community has fought back and won some court cases, but overall, the incremental effort has been quite successful.
With the recent Republican political victories, and replacement of a somewhat moderate justice on the Supreme Court, the abortion foes have doubled down, intending to overturn Roe so that states can enact outright bans on abortion. They declare that the fetus has those unalienable rights that all citizens have. One of the arguments they offer is that the Constitution does not grant women the right to have an abortion.
Neither does it grant human rights to a blob of protoplasm in a woman’s womb. But all of that is really irrelevant. Our society must find a way to resolve this, regardless of the “original intent” of the men (no women were involved) who wrote the Constitution. This is not a moral issue or a philosophical issue or a metaphysical issue, despite the gallons of ink that have flowed from the pens of mental masturbators. None of that is going to change any minds. This is a political issue. We need to find a solution that both sides can accept, even if grudgingly. We don’t need total agreement. We need a workable consensus. We need leaders, not only in government, but also in churches and advocacy groups, who are willing to discuss compromise instead of feeding red meat to their followers.
AFTERWORD
On the other hand, rights are a moral issue if we use the definition offered by my old and valued friend, Ambrose.
MORAL, adj. Conforming to a local and mutable standard of right. Having the quality of general expediency.
——Ambrose Bierce (from The Devil’s Dictionary)
But that puts morality right back into politics. I have no doubt that the perpetrators of the atrocities of the Crusades and the Inquisition were admired and revered for their deeds, and considered highly moral individuals, as were the owners of slaves less than two hundred years ago in this country. A hundred years from now, our secular society may consider indoctrinating impressionable young children with religious belief, including the fear of Hellfire and Damnation, as profoundly immoral, or even criminal child abuse.
What goes around, comes around.