Dreck on the Constitution

Mindles H. Dreck has a follow-up post to an earlier entry on the Constitution, the nature of rights, and the too easily forgotten Ninth Amendment. Like Mindles, I see rights as being 'freedom from' rather than 'right to', i.e., a right of property does not mean that you can do whatever you want to with your property, but rather that others may not interfere with your property.

I also agree that the definition of freedom is much broader than has been interpreted from the Constitution. Rights are a consequence of man's nature, existing prior to the state, and prior to culture. The Bill of Rights simply enumerates certain rights for emphasis so they are not forgotten with the passing of time, and the Ninth Amendment acknowledges that not being listed does not preclude a right's existence. The Constitution, for all its clarity and balance, is a very flawed document. Most of the Founders were men of great wisdom who in their time more than two centuries ago, made a great leap forward in human interaction by trying to limit government power, but ultimately created a blemished document.

If rights are indeed natural, then the courts have no business enumerating rights.

The problem here is who gets to define non-enumerated rights? We would not agree on what those rights are. I might argue that I have the "natural" right to my property and that the government taxation of income or wealth is a violation of my natural freedom to use my own property as I see fit (I might indeed!). Does the Ninth amendment defend my position, or is it silent? You might argue that the Ninth gives the power to accept or deny this 'natural right' to the courts (some do and some vehemently object to that idea in the comment thread) but I'm saying I'm not entirely comfortable with the courts doing the enumerating, regardless of the constitutional merits.

A simple rule of thumb with regard to who gets to decide what are rights and what are not rights is: voluntary relationship among individuals and their property delineate rights. The state's role only proper role should be to make voluntary relations possible, and mediate involuntary relations.

Finally, at the risk of being excommunicated by my more conservative readers, I don't think the state should have any say in consensual relationships. Thus, the State should restrain itself from subsidizing such relationships and therefore have no say in polygamous relationships or even in non-reproductive adult incest, as repulsive as you may find that. Animals and children don't provide informed consent. Off we go down the slippery slope, end of society as we know it, etc.

Lots of good stuff in those two posts.

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