Author, Speaker, Instructor, Radio Host
John Locke, an English philosopher and physician of the 17th Century who was regarded as one of the most influential of Enlightenment thinkers and an important influence on "Classical Liberalism*," wrote that we have "Natural Rights." In the Declaration of Independence our rights are defined as being of the "Laws of Nature and of Nature's God." In short, our rights are God-given. We are born with certain unalienable rights that are self-evident to a virtuous society. They are inherent to us because we are alive, created by our Creator. Our rights belong to us no matter what, regardless of whether or not they are enumerated in the Bill of Rights, regardless of whether or not a judge deems if the rights exist, and whether or not culture blesses or disallows them. Your rights belong to you. They are yours to utilize, defend, demand, and possess. Since they are God-given, our rights are also God-defined.
Western Culture, over the last couple hundred years, has developed another definition of what a right is, which also possesses a certain level of credence. Your rights extend to, but may not infringe upon, the next person's rights. In short, my right to swing my arms stops at the tip of your nose. I have the right to swing my arms, but I don't have the right to punch you in the nose in the process. I can't say that it's your nose's fault for getting in the way, either. I am supposed to be responsible enough with my right to swing my arms that I see beforehand if my fist will connect with your nose, and take actions to ensure that it won't happen. You have the same responsibility when it comes to swinging your arms. Swing them. I'm good with it. Just don't punch me in the nose in the process.
With freedom comes responsibility.
It's why we have stop signs and signal lights. I may have the right to go through an intersection, but to protect others who are also exercising that right, our right has certain necessary limits which includes waiting until the other person has a chance to go through the intersection. . . you know, to protect one's right not to be killed in a nasty accident if it can be helped. I suppose you could say my right to go through an intersection stops at the tip of your bumper.
Any limits by law that may be passed regarding our rights, however, must be locally determined. The federal government has no authority to infringe in any way upon any right at any time. Or, as James Madison wrote in Federalist #45, "The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States."** Therefore, the determination on where to put the stop signs or signal lights sit with the local government. If the swinging of my arms punches you in the nose, the case is to be taken care of by local police, and local courts. The federal government has no business getting involved. They have external things to worry about. The U.S. Constitution says so.
In the First Amendment five rights are enumerated. Religion, Speech, Press, Assembly, and the right to petition the government for a redress of grievances. Those rights don't exist because they are listed in the First Amendment, but those rights were considered to be so important that the Founding Fathers believed it to be necessary to write them down after the words "Congress shall make no law."
Without getting into the semantics and details of what freedom of religion entails, I want to address an observation I've made. Throughout the history of the United States, except during the early decades of eleven of the thirteen original States, there has been no established church. Religious rights have not been about religion forcing through the force of law its will upon those who wish not to partake in religion, or forcing unbelievers to convert. The original purpose of enumerating religious rights in the First Amendment was to keep government from forcing its will against religious institutions, and the personal religious practices of individuals. It's about having the right to worship as one would like, as long as it does not interfere with the rights of others (goes back to that swinging arms thing). It is not legal for religion to force a non-religious institution to bake a cake with a religious message on it, and sue that baker for discrimination. It is not legal for a religious group to legally force a non-religious caterer to cater a religious wedding, despite the fact that the owners of the potential caterers may be, let's say, atheists - or Muslim. It is not legal for a religious person to force any business to serve them based on their religion, or vice versa.
I remember a sign (that I still see occasionally) in businesses reading, "We reserve the right to refuse service to anyone." It's their business. They have a right to run it as they desire. If they don't want to serve a trouble maker with no shirt or shoes on, that's their entitlement.
One may argue, "Okay, Doug, I see where you are going with this, but when it comes to homosexuality or transgenderism, it is illegal to discriminate."
Not necessarily.
The 14th Amendment's Due Process Clause and Equal Protection Clause address government. Government cannot make laws treating any person differently than other people under the law, unless the due process of law has been followed. In that case, those found guilty of a crime may be treated differently because they are convicted criminals. The 14th Amendment was not designed to force individuals to do anything. It was designed to ensure that the laws of States treated all citizens equally in terms of "privileges and immunities." However, the Civil Rights Movement changed all that.
Bear with me, here. Understand where I am going with this before you formulate your own conclusions regarding what I am saying.
The purpose of government is to help us maintain an orderly society, but not for it to help us maintain a virtuous society. Virtues and values are things we must determine for ourselves, and those things may vary from culture to culture, community to community, and State to State. Laws are established to protect us against those who would cause us harm, but not necessarily against those who may be offensive to us. In other words, laws are not in place because we may worry about the virtuous nature of society, but because in a virtuous society those who are willing to betray virtue exist. However, the law, and the enforcers of the law, are incapable of "fairly" preventing crime, so their job is to address crime after it occurs. It is the job of government, and the law enforcement in place, to take reports, investigate, and if the evidence is strong enough, indict. There are exceptions, like during a riot it is their job to prevent property damage or injury to persons, but for the most part, their job is to come in after a crime was committed. On top of all that, in our society, so as to protect individualism, we also embrace the concept of "innocent until proven guilty."
The prevention of crime is really, generally, our own responsibility. It is my responsibility to lock my car, roll up the windows, set the alarm, and park my vehicle in an area where I believe it will be safe in order to prevent it from being broken into and/or stolen. The police are not capable of being everywhere to prevent the theft, nor would we want them to be. A police state in that manner would cause more problems than good. However, if the car is stolen, then it is the job of the police to collect and examine the evidence, investigate, and make a determination on if any suspect can be arrested. Then, even after all of that, the suspect remains innocent until proven guilty, and must still be convicted by a jury of his or her peers before any punishment may be applied.
In the case of discrimination, that is a social issue that cannot be proven beyond the shadow of any doubt by any evidence, nor should it. We all discriminate. We have the friends we have because we have determined those people are who we wish to hang out with, and we have discriminated against those who we would not want to hang out with for whatever reason we may have. That is fine. That is our decision, and our prerogative. Government has no authority to force me to be friends with anyone they deem I should be friends with. It's not their call. It's mine, based on my own personal discriminatory decisions and preferences.
The problem is, some people in a position of government power believe that society should operate in a particular manner, which may or may not be in agreement with how you think it should operate. So, they engage in social engineering, to get us to be more socially just in our interactions, or more fair in our day to day dealings with people. Except, it's not their call to make.
Sure, some people in the opinion of other people, are jerks. They have associations with people who may not be good for society in the opinion of this person, or that person. They have their own gang, or assembly, of associates. Perhaps they belong to a certain church, or follow a certain ideology, or are a member of some group like a political club, or a certain political party, or an activist group. Perhaps the individual doesn't want to hang out with Hispanics, or blacks, or Asians, or whites. That's their decision. If they are a racist, society will notice, and the culture will deal with it as it always has. The racists will hang out with each other, and probably be treated as outsiders. That's fine. That's what society does.
It's not government's job to make us diverse, or tolerant, or truthful. Sure, we ought to be those things, but in the end, it is our own decisions that matter. And, based on how we act, and who we are, society will respond.
I remember when there was a case where certain persons were impersonating military veterans, and, unfortunately, that kind of garbage still goes on today. Anyway, there was this one individual prancing around in a uniform he never wore as a member of the military with medals and ribbons all over his left breast, and it caught the attention of a number of military veterans, and eventually, the mainstream media. By the time the news networks got a hold of the story, pretty much everyone knew about it, and I wondered if it would be wise to outlaw the activity of impersonating military veterans. After all, as a military veteran myself, it drove me nuts that someone was making such claims without impunity. My friend, and constitutional mentor, the late Tim "Loki" Kerlin, said to me that would be very dangerous. As long as they aren't using their deception to break the law, like to gain veteran's benefits, they have a right to be deceptive. It's not government's job to force them to be truthful about whether or not they had served in the military. It was wrong what they were doing, but that's not for government to decide. The court of public opinion, if necessary, would take care of it.
What wound up happening was that the person was exposed, the court of public opinion was largely bothered by the deception, and the deception stopped when it came to that person because of the continuous flood of negativity coming at that person from upset citizens. The deceivers were essentially shamed into cutting it out. The people made a decision at the societal level, and government did not have any need to interfere.
Okay, now let's go back to the Civil Rights Movement. It was unjust how blacks were being treated. Stores who refused to allow blacks into their establishment, or restaurants who disallowed blacks from sitting down inside or at the counter, were wrong. The individuals behind that kind of treatment of blacks were being unjust. While the laws were supposed to be written in a manner to treat blacks equally, the racists who ran around in society were not treating them equally. Should government, then, step in to force the businesses and other entities to treat blacks equally as they did?
In short, the answer is no. I am not in favor of what was going on, but social issues are for the most part none of government's business. . . especially the federal government. Now, if locally, folks got together in their city, or their State, to pass a law to outlaw that kind of discrimination, that's fine. Internal issues are the job of local government. But, it's not the job of the federal government to force local governments to comply with their centrally determined demands of collective justice, because the federal government was created to handle external issues (like war, trade, and maritime issues) and disputes between the States (over things like border claims and commerce).
I can hear it now. "Doug, that's horrible. So you think the South should have been left alone to continue their racist ways."
Not at all.
Like the way society dealt with the guy posing as a military veteran, it's up to the people to resolve their local issues. The federal government should not be able to force a business to do a certain thing, or even force a State to do a certain thing. That's where We the People are supposed to come in. If a State continues to allow racial discrimination, for example, then people will vote with their feet and leave, or quit shopping at the stores practicing racism, and eventually, society will work it out. The State will lose tax dollars and representation in Congress, and the businesses will lose profit. That's one of the ways the people keep the republic.
We are seeing an example of such a thing right now, where the people are performing their duty, without government interference. "Target" stores have decided to side with transgenderism. The government has been trying to interfere, trying to force businesses to make their bathrooms "genderless." In truth, that's none of government's business. The place of business, or corporation, should be able to make those decisions themselves, and then let the court of public opinion decide if it likes it. In Target's case, the people have spoken, and those who have a problem with Target giving in to the transgender agenda have decided to boycott the store. Target has been losing huge in the profit column, as a result of the decision of the people. Now, it is Target's move. The corporation may continue with their policy, or abandon it. The hit they are receiving to the pocketbook may be an influential factor in that decision.
Same thing with the baker who refused to bake a cake for a homosexual wedding. If it was such a problem, the law and government should have had no bearing on it. The bakery would have gone out of business if the court of public opinion was against such a move - or do fine if public opinion either agreed with them, or didn't care. It would then be the job of the gay couple to find a baker that agreed with their demands, and would accommodate them. I should no more demand that a Muslim baker bake a cake for me with a Christian Cross on it than a gay couple should be able to force a Christian baker to bake a cake with two men on the top of it holding hands in preparation for marriage.
We can even take this to the level of churches. Why should pastors be forced by law to conduct gay weddings? Let the church decide, and let the success of the church be determined by the consequences of their decision. It's none of government's business.
"We Reserve The Right To Refuse Service To Anyone."
My right to swing my arms stops at the tip of your nose. I have the right to swing my arms, but I don't have the right to punch you in the nose in the process. I can't say that it's your nose's fault for getting in the way, either. I am supposed to be responsible enough with my right to swing my arms that I see beforehand if my fist will connect with your nose, and take actions to ensure that it won't happen. You have the same responsibility when it comes to swinging your arms. Swing them. I'm good with it. Just don't punch me in the nose in the process. Swing your arms. Date who you want. Marry who you want. Just don't force my church, or my baker, to follow you in that direction. Find your own dang church or baker that fits your needs. No legal action needed. No laws needed. In an orderly society we are supposed to have enough common sense to know it's not right to punch each other in the nose.
-- Political Pistachio Conservative News and Commentary
* Classical Liberalism: A political ideology based on individualism, freedom, inherent rights, a free market system, and limited government. The development of classical liberalism occurred during the rise and presence of the Saxon system of governance which occurred about the same time as the gradual fall of the Roman Empire, and the eras afterward. The Saxon System valued liberty, and the determination that nobody is above the rule of law, including kings. The values of the Saxon System in Britain lead to the penning of the Magna Carta (1215) and The English Declaration of Rights (1689). The growth of the ideology accelerated in 18th-century Europe, and the English Colonies in North America, drawing on the writings of John Locke, and the economic writings of Adam Smith. In the English Colonies, the ideology was one of the factors that encouraged the Declaration of Independence, and the American Revolutionary War. The United States Constitution was heavily influenced by the principles of classical liberalism.
** Federalist #45 by James Madison was among several essays written to the citizens of New York by Madison, Alexander Hamilton and John Jay to encourage them to accept the new Constitution. http://avalon.law.yale.edu/18th_century/fed45.asp
