First, we must understand that the Constitution does not give rights, and it does not guarantee rights. We institute government to protect our rights from being infringed upon by other individuals, groups, organizations, and from the government itself that has been put into place to safeguard those rights by following the rule of law. In the end, our rights belong to us, so it is really our own responsibility to guarantee our rights. The Bill of Rights was not written to give the federal government the job to even having anything to do with our rights. If you read the amendments, what you find is that they were designed to tell the federal government "hands off!" Amendment I begins, "Congress shall make no law. . . " Amendment II ends with "shall not be infringed." Amendment III says, "No soldier shall. . . " Unlike the First Seven Articles of the Constitution, the Bill of Rights is not about granting limited authorities, but simply telling the federal government, "Oh, by the way, these things you aren't authorized to stomp on already, based on the foregoing articles, are so important that now we are going to list a few of them, and tell you again to leave them alone. Our rights are none of your business."
For originalists, everything is about specifics, State sovereignty, and the rule of law. Originalists tend to reject the leftist concept of the Incorporation of the Bill of Rights to the States, and believe that the Bill of Rights were specifically written to tell the federal government "hands off our rights." Pragmatists take a more, well, pragmatic path to their understanding of the Bill of Rights, believing in "the spirit" of the language and the Constitution, and of course they believe that the definitions involved sway with the whims of a changing society.
This also means that the definition of a right, and the definition of the rule of law, differs between the two groups. You see, part of the reason we have so hard of a time debating with the Left is because their ideas are based on a premise that is foreign to us. If we don't take their premise into consideration, we can lose the argument simply because we don't know how to respond.
That all said, let's break it all down.
Amendment IV is often the launching point for those that believe in a general right to privacy. The clause states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
First, we are told that what is following in that clause after the first few words is all tied up into a "right of the people." For an originalist, a right is a natural thing, a God-given endowment, and when we are a virtuous society, rights are "self-evident." So, though this right we are looking at in the 4th Amendment is written down, by virtue of being a free individual, we know that it is our right without it needing to be written down. It is self-evident. We don't have to be told, we don't have to ask government, and we know that God sanctions our rights so we have Him to use as a defining principle.
A pragmatist (statist) does not believe rights to be God-given, and though they will never say it directly, they believe rights are government given, and government defined. The way they will put it is that it will be determined by the needs of society, or the good of the community. I am sure you've heard that kind of language before.
The list of things enumerated in the 4th Amendment that the federal government cannot unreasonably search and seize are specific, yet cover a wide array of things. "Persons," means your body. In, on, and around. Internally, parts, in your pockets, and so forth. "Houses" is pretty obvious, but stems from when the British were ransacking homes searching for contraband. Remember, to ensure taxes were paid and the colonists remained in control, the British launched mercantilist measures mandating that the colonists only purchased British goods, or goods that the British approved, and processed, so that the taxes were paid. People would smuggle French goods, or sugar from Bermuda that had not been sent to England first to be stamped for taxation, and hide these goods in their homes, often under the floor boards, for use, or to barter. The British troops would show up with general warrants (Writs of Assistance) and ransack the homes in search of these items, not having any proof the people may even have illegal items, and definitely not having warrants that were specific about what they were searching for, or where in the home they might find these contraband items.
"Papers." That could be bank records, personal records, deeds, bills, letters, and so forth. It is "self-evident" to you and I, because we have a moral code and live in a virtuous society, that things like emails, phone records, and the like would also be included in that.
"Effects" is sort of like saying "and everything else that belongs to that person." Effects were largely considered to be personal property, especially items that could be moved.
Now, would a Pragmatist see all of that in the same way? Remember, the rule of law is not self-evident to someone that refuses to hold moral virtues.
The Rule of Law, a concept we often solely contribute to John Locke, is a concept that even Aristotle entertained. John Locke called it Natural Law. These are laws that are "self-evident" in a moral and virtuous society. They are a set of rules that are predetermined by nature, rather than the rule of man by some king that thinks he is above the law, or some judge that thinks he can dictate the law. All people are subject equally to the privileges and penalties of the law, in a system under the rule of law because government governs based on the laws, not the whims of society, nor entertains laws that allow for the preferential treatment of a protected class. What that also means, though, is that the judiciary and the executive are required to act only according to what the law is, not in a manner that adjusts to their own beliefs of what is justice. The law ought to be clear to the common folk, and visible for all to access.
The Constitution is our instrument of law in our system under the rule of law.
Due process is also an important part to a system under the rule of law. Due process, in such a system, must be afforded to all of those before the law, and our legal system is supposed to follow the letter of the law. Which brings us back to the premise.
If a Pragmatists view of what the rule of law is, or what the definitions regarding the law should be, are based on an ever-changing "living and breathing" view of the law, how can they accurately apply the law? How can you even debate someone who has views that stem from a completely different foundational premise based on the concept that the law is set, and unchanging, unless the process of law (amendment process) is appropriately pursued?
Which brings us to the general right to privacy.
A "general" right to privacy views the foregoing explanations in a "general" manner. There are no specifics, which means the details can be decided upon by each person that decides they are a member of the ruling elite, and that it is there job to "interpret the law."
By interpreting the law based on their ideological whims, rather than the letter of the law based on the original intent of the law by the writers, have the pragmatists not abandoned the rule of law, and replaced it with the rule of man? And what about things like social media? Does that fall under the right to privacy, even though the wielder of the technology has used it to spit their privacy all over the internet?
In a system where there is a "general right to privacy" in place, the answers to what those rights are, or what the law says, depends upon the interpretation of the law. And if the ruling class has convinced society that only the ruling elite are capable for interpreting the definitions of the law, and therefore determining what rights fall under the general right to privacy, where does that leave "We the People?"
The specifics of the law tell us that our rights are largely enumerated in the Bill of Rights. The specifics also say that in the 9th Amendment we are advised that not all rights are enumerated, and therefore we are to use our own mental faculties to determine what rights are indeed rights, and then make sure the government leaves those rights alone, too. But if the pragmatists are calling everything a right so as to ensure certain groups receive special privileges in the name of protecting those pseudo-rights, how do we determine which rights are rights, and which ones aren't? Where is the yard stick we can use as a standard to base our definitions?
If we are to follow the rule of law, we need something specific, otherwise, we are following the rule of man - and as I like to say, "When we abandon the rule of law, and embrace the rule of man, it doesn't take long before we are dancing around a golden calf."
The specifics go back to the first two paragraphs of the Declaration of Independence. Our rights are from the laws of nature of nature's God. Our rights are self-evident, and we are endowed with them by our Creator. So, that means rights are God-given, not man-given or government-given, therefore, the rule of thumb regarding whether or not a right is a right is simply to ask, "would God endow me with that right?" The answer is self-evident.
In the case of a right to privacy, there are specific rights to privacy, many of which are listed in the 4th Amendment. But, there is not a general right to privacy, just as there should be no general warrants like the ones the British used during the American Revolution. We are looking for specifics. Do you have a right to privacy regarding your bank records? Yes. Do you have a right to privacy from being searched on the street for no apparent reason, or with no warrant, by police? Absolutely. Do you have a right to privacy to abort a baby? God would never sanction that type of activity, so no, it is not a right by the definition we have available. The baby's right to life supersedes the "want" by the parent or doctor to terminate that baby's life.
Originalists are about specifics, the rule of law, a moral code, and individualism. Pragmatists are about the convolution of specifics into "general" definitions, the rule of man, their own man-made moral code, and collectivism. Or as we have been told by a few of them, "It takes a village."
This also means that the definition of a right, and the definition of the rule of law, differs between the two groups. You see, part of the reason we have so hard of a time debating with the Left is because their ideas are based on a premise that is foreign to us. If we don't take their premise into consideration, we can lose the argument simply because we don't know how to respond.
That all said, let's break it all down.
Amendment IV is often the launching point for those that believe in a general right to privacy. The clause states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
First, we are told that what is following in that clause after the first few words is all tied up into a "right of the people." For an originalist, a right is a natural thing, a God-given endowment, and when we are a virtuous society, rights are "self-evident." So, though this right we are looking at in the 4th Amendment is written down, by virtue of being a free individual, we know that it is our right without it needing to be written down. It is self-evident. We don't have to be told, we don't have to ask government, and we know that God sanctions our rights so we have Him to use as a defining principle.
A pragmatist (statist) does not believe rights to be God-given, and though they will never say it directly, they believe rights are government given, and government defined. The way they will put it is that it will be determined by the needs of society, or the good of the community. I am sure you've heard that kind of language before.
The list of things enumerated in the 4th Amendment that the federal government cannot unreasonably search and seize are specific, yet cover a wide array of things. "Persons," means your body. In, on, and around. Internally, parts, in your pockets, and so forth. "Houses" is pretty obvious, but stems from when the British were ransacking homes searching for contraband. Remember, to ensure taxes were paid and the colonists remained in control, the British launched mercantilist measures mandating that the colonists only purchased British goods, or goods that the British approved, and processed, so that the taxes were paid. People would smuggle French goods, or sugar from Bermuda that had not been sent to England first to be stamped for taxation, and hide these goods in their homes, often under the floor boards, for use, or to barter. The British troops would show up with general warrants (Writs of Assistance) and ransack the homes in search of these items, not having any proof the people may even have illegal items, and definitely not having warrants that were specific about what they were searching for, or where in the home they might find these contraband items.
"Papers." That could be bank records, personal records, deeds, bills, letters, and so forth. It is "self-evident" to you and I, because we have a moral code and live in a virtuous society, that things like emails, phone records, and the like would also be included in that.
"Effects" is sort of like saying "and everything else that belongs to that person." Effects were largely considered to be personal property, especially items that could be moved.
Now, would a Pragmatist see all of that in the same way? Remember, the rule of law is not self-evident to someone that refuses to hold moral virtues.
The Rule of Law, a concept we often solely contribute to John Locke, is a concept that even Aristotle entertained. John Locke called it Natural Law. These are laws that are "self-evident" in a moral and virtuous society. They are a set of rules that are predetermined by nature, rather than the rule of man by some king that thinks he is above the law, or some judge that thinks he can dictate the law. All people are subject equally to the privileges and penalties of the law, in a system under the rule of law because government governs based on the laws, not the whims of society, nor entertains laws that allow for the preferential treatment of a protected class. What that also means, though, is that the judiciary and the executive are required to act only according to what the law is, not in a manner that adjusts to their own beliefs of what is justice. The law ought to be clear to the common folk, and visible for all to access.
The Constitution is our instrument of law in our system under the rule of law.
Due process is also an important part to a system under the rule of law. Due process, in such a system, must be afforded to all of those before the law, and our legal system is supposed to follow the letter of the law. Which brings us back to the premise.
If a Pragmatists view of what the rule of law is, or what the definitions regarding the law should be, are based on an ever-changing "living and breathing" view of the law, how can they accurately apply the law? How can you even debate someone who has views that stem from a completely different foundational premise based on the concept that the law is set, and unchanging, unless the process of law (amendment process) is appropriately pursued?
Which brings us to the general right to privacy.
A "general" right to privacy views the foregoing explanations in a "general" manner. There are no specifics, which means the details can be decided upon by each person that decides they are a member of the ruling elite, and that it is there job to "interpret the law."
By interpreting the law based on their ideological whims, rather than the letter of the law based on the original intent of the law by the writers, have the pragmatists not abandoned the rule of law, and replaced it with the rule of man? And what about things like social media? Does that fall under the right to privacy, even though the wielder of the technology has used it to spit their privacy all over the internet?
In a system where there is a "general right to privacy" in place, the answers to what those rights are, or what the law says, depends upon the interpretation of the law. And if the ruling class has convinced society that only the ruling elite are capable for interpreting the definitions of the law, and therefore determining what rights fall under the general right to privacy, where does that leave "We the People?"
The specifics of the law tell us that our rights are largely enumerated in the Bill of Rights. The specifics also say that in the 9th Amendment we are advised that not all rights are enumerated, and therefore we are to use our own mental faculties to determine what rights are indeed rights, and then make sure the government leaves those rights alone, too. But if the pragmatists are calling everything a right so as to ensure certain groups receive special privileges in the name of protecting those pseudo-rights, how do we determine which rights are rights, and which ones aren't? Where is the yard stick we can use as a standard to base our definitions?
If we are to follow the rule of law, we need something specific, otherwise, we are following the rule of man - and as I like to say, "When we abandon the rule of law, and embrace the rule of man, it doesn't take long before we are dancing around a golden calf."
The specifics go back to the first two paragraphs of the Declaration of Independence. Our rights are from the laws of nature of nature's God. Our rights are self-evident, and we are endowed with them by our Creator. So, that means rights are God-given, not man-given or government-given, therefore, the rule of thumb regarding whether or not a right is a right is simply to ask, "would God endow me with that right?" The answer is self-evident.
In the case of a right to privacy, there are specific rights to privacy, many of which are listed in the 4th Amendment. But, there is not a general right to privacy, just as there should be no general warrants like the ones the British used during the American Revolution. We are looking for specifics. Do you have a right to privacy regarding your bank records? Yes. Do you have a right to privacy from being searched on the street for no apparent reason, or with no warrant, by police? Absolutely. Do you have a right to privacy to abort a baby? God would never sanction that type of activity, so no, it is not a right by the definition we have available. The baby's right to life supersedes the "want" by the parent or doctor to terminate that baby's life.
Originalists are about specifics, the rule of law, a moral code, and individualism. Pragmatists are about the convolution of specifics into "general" definitions, the rule of man, their own man-made moral code, and collectivism. Or as we have been told by a few of them, "It takes a village."
-- Political Pistachio Conservative News and Commentary
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