Constitutional Originalism And… Whatever

There is nothing important I disagree with in Comrade PhysioProf’s essay — Constitutional Originalism, Natural Law, and the Ninth Amendment, except an apparent inability (or unwillingness) to discern whose ox is being gored.

He is arguing that “textual originalism” is a convenient tool for conservatives:

This provides a theoretical basis for conservative claims that there is no Constitutionally protected right to many things they despise: gay marriage, abortion, health care, housing, food, etc.

As far as marriage is concerned, the government should be involved only so far as it is a contract between two people. The states have defined this contract differently, some are community property states, some are not. Divorce is the legal dissolution of that contract. That’s as far as the government has any say in marriage as far as I’m concerned. It should in no way be involved in defining who can get married beyond setting an age limit, as it already does, of who can legally be a party to a contract.

That some people wish to have their marriage recognized by their church and are willing to accept further constraints due to religion are outside the realm of government. Government should not enforce a doctrine of religion. I believe that’s covered in the 1st Amendment.

Abortion is a bit different because it involves death of living tissue and pits the rights of one against another. Some will argue that it is only the death of a living tissue which, if such life were protected would mean it would be illegal to kill a mosquito. Others argue that because the tissue is human it has special status and protection. Government, especially the federal government should not be involved in defining where life begins.

I see a role for government only after the fetus is capable of survival outside the mother’s body. After that point, to me at least, it is obviously murder of a helpless individual and the government should and must protect that individual. This is not representative of my personal moral preference (no abortion ever unless the mother will die because of the pregnancy) but my view of where government has the authority to intervene.

Now I address whether there is a protected right to health care under the 9th Amendment. The idea that government cannot make a law denying health care to any group or individual is certainly protected. Does this mean that government has a duty to make laws mandating health care for every individual? Frankly, can anyone define what health care actually is?

Is it possible that mandating health care of certain types violates some of the enumerated rights? Why, yes it is. While I personally advocate for mandated vaccinations to increase herd immunity, I do not think that government should be able to force anyone to inject something into their body that they do not wish to. On the other hand, I can see where government has a right to refuse some services to people who wish to exercise this right.

Left out of Comrade PhysioProf’s list is whether there is a right to education. Most states (not necessarily the federal government) mandate education for their citizens to a great degree. Parents are punished for not sending their children to school or otherwise providing a state-sanctioned education. When public tax dollars are used to provide education, I see no problem with requiring vaccinations in order to partake of publically funded education.

Housing. Is there a natural right to housing? Further, is there a natural right to a certain standard of housing? What is this standard? Must this standard include ownership? Do SROs meet this standard? Damn, this is almost as sticky as abortion, is it not? Or… perhaps it is stickier. Should the federal government require the Amish have electricity? Some of my most idyllic memories of childhood are living in a place with no electricity and no running water. I realize now how much work my mother put into taking care of me in such circumstances, but in no way do I feel deprived for having experienced them. Rather, I feel privileged.

I once worked for a social service agency that perceived its continuing existence in providing housing. The working motto for the agency’s CEO was that any housing she would not be comfortable in was inacceptable for any of her clients. That is truly unrealistic, IMHO, although it is understandable. 

It is an unfortunate fact that federal government mandated housing has not been a success. I’m enough of an idealist to wish it had, but enough of a realist to realize it’s failed. There is no natural right to a defined standard of housing, however much I wish it to be so.

Food. Calories, to be exact. Should the federal government concern itself with providing a given number of calories to every citizen? Should the federal government concern itself with providing a certain quality of calories to every citizen? Should access to vitamins be a right? See above, where I  comment on the mandating of vaccinations, and then consider whether government is empowered by natural law to limit or mandate the consumption of any substance.

It should be obvious by now that I favor little intervention in our lives by government. It’s also imperative that I address the 2nd Amendment, which was not addressed by our dear Comrade, but was by one of the commenters,  Dr Jekyll and Mrs. Hyde:

(Ignore the social conservative agenda of gays and abortions here; I’m talking about guns, unemployment assistance, business regulations, etc.)

Let’s address this parenthetical comment in a backwards manner. I’m not adverse to business regulations. Multiple posts could be generated on how I think business should be regulated and these matters are not addressed by the first ten amendments. Secondly, I’m going to address unemployment assistance separately.

But… guns……. ah, the 2nd Amendment. I personally think it addresses the right of individuals acting collectively to prevent a tyrannical government – ie, one which espouses taxation without representation, one which imposes limits on personal freedoms, one which mandates behavior, etc. It hails the idea that government should not control violence. If government is the only wielder of violence, what recourse does the citizen have? None…?

What the 2nd Amendment does not explicitly cover is the right to self-defense. This is, IMHO, covered by the 9th Amendment. Between the two, guns and their cousins (knives, blunt objects, baseball bats, mace, and tasers) are implements that are covered by both.

It is, to me, obnoxious, that humans do not have a right to self-defense, either of their corporal body or their form of government.

Let us not forget that icon of privacy, the 3rd Amendment. This is, IMHO, along with the 4th Amendment that a man’s or woman’s… ie, a citizen’s house is their castle.

Unemployment assistance — is there a right to a job and/or an income? hmm… This is actually a question of insurance, because that is what unemployment assistance is. It is insurance against a downturn of business success. It does not guarantee assistance if the employee was fired because he stole from the business or failed to perform in a way that assisted the maintenance or growth of the business.

Businesses pay premiums, generally based on their unemployment claims statistics, to a state insurance fund. Where is there a right to a job or to unemployment compensation? It is a monetary decision on the part of both the state and the business, is it not?

Is there a right to employment? Can the federal government compel you to hire any given individual? If not, there is not federal mandate for unemployment assistance. It is strictly the business of insurance, is it not?

Now… really… don’t get me started on insurance. Really. It is, IMHO (as so much of this essay is) a protection racket. No… don’t encourage me!!

While I maintain that Comrade PhysioProf is not necessarily wrong, I also maintain that there is no evidence of a definitive answer in the essay. Progressive is a noun as meaningless as Conservative. Neither offers an answer that should be written in stone. Or law.

Dr. Isis pointed me to Comrade PhysioProf… and I suggest that everyone read Dr. Isis because she wears really hot shoes and does really hot science.

6 thoughts on “Constitutional Originalism And… Whatever

  1. I, too, have been thoroughly enjoying Dr. Isis’s blog. And damn, she’s got herself some hot hot shoes.

    This was quite interesting. Especially the thoughts about the government’s involvement within business and what’s required. Quite a bit to think about. Luckily, I have a sun beam on a lazy Sunday afternoon.

  2. Natural rights are what you have if no one meddles with you: life, liberty, property. The right to possess weapons for self-defense falls into that category. There can be no “natural right” to housing, education, or health care, which in general must be provided by someone else. One can define a right to the liberty to acquire these goods, that is, not to be arbitrarily barred from acquiring them, but that is not what welfare-state advocates mean by “right to “.

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