Replacing Scalia and Replacing “Constitutional” Rights

By | 2017-03-07T11:44:50+00:00 January 6th, 2017|

Mitch McConnell’s bold and sagacious gamble last year in refusing to allow a vote on the replacement of Supreme Court Justice Antonin Scalia during the remainder of Obama’s term surely helped Donald Trump get elected. The specter of Hillary Clinton nominating a replacement for Scalia genuinely frightened many voters, and brought them around to voting for Trump. The senate majority leader’s decision to keep Scalia’s seat open until after the election applied a constant and perhaps decisive pressure on the electorate.

Clinton’s defeat, however, has assured that whomever Trump nominates to the High Court is in for a ferocious confirmation fight. To recall the treatment of that good man and great jurist Clarence Thomas at the hands of senators and the media is to weep. But we are soon to witness more of the disgraceful same.

Even worse than the personal injustice any Trump nominee is likely to face, American citizens soon will endure senators and “experts” pontificating about the meaning of the Constitution in terms that would break the Founders’ hearts to hear. Worst of all, Americans once again will be left with the impression that the Constitution is a mystery difficult to understand, a thicket of problems about which the experts heatedly disagree and about which mere citizens cannot hope to hold reasonable or important opinions.

But this was not the Founders’ view. The Constitution is ours, yours and mine. The Founders wrote it for us and intended for us to understand it. That is why it is brief and clearly written. Their meaning and their intent is available to anyone who can read. Understanding it requires common sense, not advanced study in emanations and penumbras.

Where does the lack of clarity come from then? Beyond the raw politics involved, fundamentally it results from the fact that we have abandoned the language of the Founders in favor of the language of the Administrative State. It is a remarkable fact, though one little noticed, that we no longer conduct our politics in their language. What that means is that we no longer think politically at all, but are only expected to act as passive consumers of what the “experts” dispense. That makes it difficult for us to understand the Founders, though they are not in reality difficult to understand.

Take for example the Founders on our rights. George Washington wrote that the American Founding occurred during a time “when the rights of mankind were better understood and more clearly defined than at any former period.” That new understanding of our rights is what the Founding is all about.

The Declaration of Independence states we have “unalienable rights.” It challenged the legitimacy of every government then in existence, declaring that to secure these rights is the very purpose of government (“…to secure these rights, Governments are instituted among Men…”).

Unalienable rights are at the core of the Founding. Yet except for ritual observances on special occasions, have you noticed that references to unalienable rights have largely disappeared from American politics? Constitutional rights are often invoked, but very rarely or almost never are they described as unalienable rights. Though familiar in one sense, the term “unalienable rights” has the unfamiliarity of a special item only brought out for special occasions.

Recently, a popular talk radio host was discussing the question of rights. The topic had to do with billboards bearing the words: “In the beginning, God created…” Evidently, some atheists and others were objecting to the message, even claiming it needed to be suppressed because it was “hate speech.” The host of the show defended the people who had posted the message, claiming they had a “constitutional right” to post the message. Because he believed he was fighting the good fight, we can appreciate his good intentions. But was he fighting for our rights on the right ground?

No. Not according to the Founders.

If the talk show host had been Thomas Jefferson he would have said they had an unalienable right to post their message. The host’s loose language actually cheapened the truth of this matter and made it seem as though the people behind that billboard were free to speak of God’s creation only by virtue of the fact that the Constitution said they could.

We do not derive our right to freedom of speech from the Constitution. More specifically, it does not “come from” the First Amendment.

To understand this question rightly, we need to remember what the Constitution does. It defines how the federal government is to function—and the very purpose of government, according to the Founders, is to secure our unalienable rights. Consequently, unalienable rights are senior to, on a higher level than, even the Constitution itself. The sequence in logic goes like this:

  1. Unalienable Rights
  2. The Constitution (the Founders’ brilliant design for securing those unalienable rights)

The Constitution is all about defining and dispersing the powers of government. It is fundamentally a design for limiting the government, limiting it precisely in order to secure our unalienable rights from people in government who would try to violate our rights. As Jefferson said, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Now look at the First Amendment. Notice how it begins: “Congress shall make no law…abridging the freedom of speech, or of the press…” No right is here granted to the citizen. The First Amendment, carefully written by James Madison, follows the logic of the Constitution as a whole; it restricts what government, in this case Congress, can do.

The Constitution is not the source of our right to freedom of speech because freedom of speech is an unalienable right. What the First Amendment can do is recognize that already existing unalienable right by forbidding the government from abridging it. And that is precisely what it does.

Consequently, according to the Founders, the people who posted the message on the billboards do not have a constitutional right to freedom of speech. They have, and we have, an unalienable right to freedom of speech which is specially protected by a specific constitutional limitation on the power of government.

I hope that remembering this most fundamental fact about the Founding may help you navigate the blizzard of nonsense which will soon sweep across the federal city and the media.  And pray that our new justice is another Clarence Thomas—possessing both the courage to endure an often cruel and unjust confirmation process and the wisdom to grasp the Founders’ intent.

About the Author:

Robert Curry
Robert Curry is the author of Common Sense Nation: Unlocking the Forgotten Power of the American Idea from Encounter Books. You can preview the book at: http://www.amazon.com/Common-Sense-Nation-Unlocking-Forgotten/dp/1594038252
  • ADM64

    These are good points but some appear to be in dispute on this very website.
    A couple of days back a well-written article argued that what the author called the libertarian view of rights i.e. that anything that doesn’t harm another person is a right is in danger of swamping both popular sovereignty (consent of the governed) and proper conservative jurisprudence. The article asserts no fundamental relationship between the Declaration and the Constitution. That said, the author was in favor of liberty and of broad limits on government. I wrote a long reply to this, the gist of which is that while libertarians and Objectivists have some flaws in their theory of rights, the notion that our rights are very broad, and that the scope of government (and therefore popular sovereignty) is very limited is essentially correct. Rights – or what are thought of as rights – can be restricted in our system of government only through amending the constitution. Courts that get out of line can be dealt with that way, via the restrictions the Constitution allows Congress to place on jurisdiction, and impeachment of judges.

    What I would add here is that absent the principles in the Declaration of Independence, our system of government does not make sense and there is no basis for a view of rights as anything but conditional privileges. It makes not a whit of difference whether those “rights” are defined by courts independent of popular will or via laws imposed by popular will. Recognizing and protecting what rights we have may, as an operational and practical matter, require popular support/definition, but conceding an administrative view of law = justice = anything passed by a duly constituted government is the very view the Founders opposed.

    • Severn

      the libertarian view of rights i.e. that anything that doesn’t harm another person is a right

      The Founders believed nothing of the sort, and wrote nothing of the sort in the Declaration, the Constitution, the Federalist Papers, or their voluminous correspondence.

      • ADM64

        You should try and read what I actually wrote. I noted the libertarian view of rights. I did not say that the Founders exactly agreed with it.
        I’d suggest you explain then what is the correct view of rights and thus what are the parameters of our government and its legitimate powers. I ask because I can quote you chapter and verse on things the Founders said about popular government (i.e. democracy) and rights that are greatly at odds what I think you’re claiming. What do we do with those writings? And yes, I have actually read extensively of their writings.
        One other thought: arguments from authority are inherently flawed, mostly because they eschew truth. The Founders were right but not perfect – if they were, we wouldn’t be in the mess we are. The contradictions in some of their positions and philosophy created the gaps through which progressives proceeded to drive their entire agenda

    • Robert Curry

      Thank you for your thoughtful reply.
      And I stand with you on the principles of the Declaration.
      The chapter in my book on the Declaration is my favorite part of the book. How I enjoyed writing it!

  • Charles Dickerson

    I had forgotten the true meaning of inalienable rights. The Founders ascribed to them sacredness and the most permanently high pedestal possible. I had also forgotten that our purpose is not so much defining our Constitution with many times endless obfuscation but again realizing that the singular overarching purpose of the Constitution is to defend and protect that permanently highest of pedestals upon which our God-given rights reside. Seems simple that way.

    • Robert Curry

      Thanks for your friendly note.
      A reminder can accomplish much. That is so because the citizen and the patriot already have a common sense understanding of the Founders. After all, we live in the world they envisioned.

    • Hominid

      How dare you claim my unalienable rights are “god-given”!!!!

      • tedshepherd

        I see no reason to assert that our unalienable rights are “god-given”, whatever that might mean and however someone might determine it to be so. It is enough, I believe, if we agree with theists that human rights are in fact unalienable without arguing about the source of those rights.

        • Hominid

          That’s right. But, I would say that what we should agree on (through a binding contract [a Constitution]) is that we will BEHAVE (pretend) as though we possess unalienable rights (they do not exist in reality) and define clearly what principle(s) underlie the concept of an unalienable right.

  • ricocat1

    That was a well-written article that deserves to be read by every American. Thank you.

    • Specifically by the incoming Chief Executive Officer. Which should have to go without saying.

    • Robert Curry

      Thank you for your kind comment. All the best.

    • Hominid

      It sounds good until you get into the reality that societies MUST have standards of behavior compelled by law and that people will disagree on those standards.

      Perhaps the great mistake the Framers made was to incorporate the Bill of Rights into the Constitution. It gave – gives – the impression that our rights are limited to that list, even though the (disregarded) 9th and 10th Amendments clearly state otherwise.

      The Framers are to be revered for their heroic attempt to create a guiding compact that would insure a government dedicated solely to individual freedom, self-reliance, competition, and morality. They tried to protect it from power concentration, fraud, and the inevitable failure of popular democracy. Not surprisingly, all those safeguards were gradually eroded and Americanism has been tossed into the dustbin of history.

      • The Bill of Rights was not a mistake, it simply identified the rights the government could reasonably be expected to protect…. The out going President had no regard for the Constution as a whole, along with the Bill of Rights. And it is reasonable to expect that Trump will try to restore the Constitution. The farmers knew that the republic would be hard to defend, The Electoral College was establisned to protects the states from dominance of the larger states, but as Hominid pointed out the 9th and 10th Amendments need to be defended and defined by the Supreme Court, which Trump will help build with his appointments.

  • themaskedblogger

    Well said. But I fear in vain. While this is plainly true, especially the part about the purpose of the Constitution being to define and limit the power of the Government, it is exactly this fact to which the political left objects. The only thing they hate worse than Separation of Powers is their inability to define free speech in their own terms.

    • Robert Curry

      In vain? But that which is “plainly true” has a power all its own. The left wins only by keeping what is plainly true forgotten. Because it is plainly true, it can always be recovered.
      It is up to us, to you & me & all of us who understand what the left is up to. It is the citizen’s duty and the patriot’s joyful obligation. Wishing you the best.

      • themaskedblogger

        There is some hope, I think. It was the media who were the left’s enforcers on this. But they’ve slipped a bit lately.

        • Robert Curry

          Thanks for your reply.
          You are so right about the media. They have slipped a bit lately, haven’t they?–and we have to give much credit to Trump who shoved ’em good and hard.

          • themaskedblogger

            Amen and amen and amen; I tell you three times.

  • odys

    Good article, and I agree completely, the Bill of rights was written not to give us those rights but to specifically spell them out so that people (we’re looking at you Hillary) could not claim these were not our inalienable rights.

    We should appoint justices to the Supreme Court that are just regular folk without a law degree. I could easily be a justice on SCOTUS and so could most American citizens. How hard is it to read and understand the meaning of the constitution? If you do a word search and it is not in the constitution, the 10th amendment says it belongs to the states or the people.

    The only time we hear long-winded complicated rulings from SCOTUS is when they are trying to justify a ruling that is not based on the words in the constitution. Homosexual marriage, for example required twisting and torturing the 14th amendment to come up with some rationale. Obviously, the constitution is silent on marriage so it belongs solely to the states.

    • Robert Curry

      Common sense!

      • Hominid

        Common sense is wrong more often than it is right.

        • tedshepherd

          Further, the Constitution protects the rights of people against the “common sense” the majority sometimes asserts and wishes to process into law. The United States is not a pure democracy, nor would you and I wish it to be. (I’m always glad to agree with you, my hairy friend.)

    • Barrett

      If the states have sole authority to regulate marriage, it would seem Loving vs Virginia was wrongly decided. Do you think states have the constitutional authority to ban interracial marriages? I don’t. The gay marriage decision (Obergefell) seems to me well-supported by the precedent of Loving vs Virginia, absent a fairly absurd conclusion that homosexuality is a mere lifestyle choice.

      • AnyGivenSaturday

        “If the states have sole authority to regulate marriage, it would seem Loving vs Virginia was wrongly decided.”

        I may have but very subjective.

        “Do you think states have the constitutional authority to ban interracial marriages?”

        Possibly. See above

        “I don’t. “

        Very heroic of you. How about a woman and her mother so the daughter can avoid estate taxes just like Windsor? Or a bisexual to a man and a woman? Or between 13 year olds (already allowed in at least two states)? Or first cousins (already allowed in six states)? Or an uncle/aunt to a nephew/niece (already allowed in several states)?

        “The gay marriage decision (Obergefell) seems to me well-supported by the precedent of Loving vs Virginia,….”

        The operate words are “seems to me” which reveals your ignorance of the subject. Loving v Virginia is not a precedent because it was a segregation case which Hodges was not. It was also based on subjective, arbitrary and variant criteria which Hodges was not. It was not based on a behavior, feelings or a lifestyle. It was not about rejecting an entire class for marriage partnership. It did not affect a union of the conjugal genders, the foundation of a family, the representation of a family, broken homes, illegitimacy, deprivation of a father or mother or a limiting principle.

        “…absent a fairly absurd conclusion that homosexuality is a mere lifestyle choice.”

        Hypocritical and more blatant ignorance (“absurd” is also an appropriate term). Homosexual behavior is a choice. Pursuing, establishing, maintaining and living a homosexual lifestyle is a “mere” choice. Jim McGreevey is proof, as are many “gay Americans” who life heterosexual lifestyle choices and rotate between straight and gay relationships whenever they like. There is no constitutional “right” to have “mere” feelings accommodated; whether it be in groups, groups of two, sanctioning by a state government, issuance of a license or government perks.

        • Joe Blow

          Marriage is a religious ceremony, and as such the government has no business recognizing it, at all. Marriage should be between whomever your church believes can be married in the eyes of your God. Civil partnerships should be recognized contracts between any consenting adults.

          • AnyGivenSaturday

            “Marriage is a religious ceremony,…”

            Says who? People get married in homes, hotels, outdoors, courthouses, etc. without any religion involved.

            “…and as such the government has no
            business recognizing it, at all.”

            So you imply no marriage license or financial benefits from the state or federal government?

            “Marriage should be between whomever
            your church believes can be married in the eyes of your God.”

            See above regarding religion. Open ended “marriage” to suit any configuration one can invent fails to provide a limiting principle and undermines the purpose and meaning of a profound and indispensable social institution. Besides, what you seem to imply is already available since anyone can call their customized grouping a “marriage” anytime, anywhere and with anyone they like.

            “Civil partnerships should be recognized contracts between any consenting adults.”

            Now you seem to imply the government should recognize, sanction and license certain groupings while bestowing them with financial benefits. Why limit to consenting adults? What is the definition of an adult if some states allow 13 year olds to marry along with the other configurations I cited in my previous post? What is the definition and limit of consent? Why not “marry” an inanimate object or pet? What is the limiting principle? Hint: there isn’t one.

          • Hominid

            Nonsense! Marriage is the foundation of civilization; society and the government has a huge interest in it.

        • Barrett

          That’s a pretty insulting post, considering you don’t know anything about me. I suspect if you did know me, you would not think me ignorant. The tone of your post speaks more to your inadequacies, than mine. I will leave it at that.

          Homosexuality is much different than the lifestyle choices you list. I don’t think you would suggest heterosexuality is a choice. So if homosexuality is a mere lifestyle choice, are you suggesting that homosexuals are really heterosexuals like you and me, but who choose same sex relationships? I think a much more common sense and unbiased conclusion is that homosexuality is an immutable trait, not as obvious as race, but immutable nonetheless. Thus, gay marriage, like interracial marriage, is also deserving of protection under the Equal Protection Clause. And regarding interracial marriage, your waffling on the merits of the Loving decision is very unusual and anachronistic, to say the least.

          • Hominid

            Just because a trait is “immutable” doesn’t imply it should be protected. Pedophilia is as “immutable” as homosexuality; so is serial murdering. Your argument is fallacious.

          • AnyGivenSaturday

            “Just because a trait is “immutable” doesn’t imply it should be protected.”

            Precisely. Weak, narrow minded and self appointed moralists don’t want to accept this and the lack of a limiting principle.

          • Barrett

            A focus on immutable traits with respect to the Equal Protection Clause is not fallacious, but it is only the first part of the inquiry. With respect to fundamental individual rights, governments can discriminate based on immutable traits, but must show a compelling state interest. That was basically the holding of Obergefell — marriage is a fundamental human right (inalienable?), and the states failed to show a compelling interest for the discrimination. I am not a psychologist, but I would question whether pedophilia or sociopathic behavior would be considered immutable. Seems rather a red herring to raise them; obviously, states do have an extraordinarily compelling interest in prohibiting such behavior. But the expressions of state interest in discriminating against gay marriage are not very compelling. Baseless, divorced from facts, and hyperbolic would be better descriptions.

          • AnyGivenSaturday

            “With respect to fundamental individual rights, governments can
            discriminate based on immutable traits, but must show a compelling state
            interest.”

            You’re not a lawyer, never went to law school and have no experience in the legal profession. Your continued and overused obsession with “immutable traits” is just one example of your ignorance, as is claiming compelling interest as the only criteria for state’s interests.

            “That was basically the holding of Obergefell — marriage is a fundamental human right (inalienable?),…”

            No it wasn’t. The phony “right” to marriage was invented decades ago. Gays have always had the “right” to marry the opposite sex; as proven by Jim McGreevey….twice.

            “I am not a psychologist, but I would question whether pedophilia or sociopathic behavior would be considered immutable.”

            Why? Desires and urges are immutable traits whether they be for children, relatives, money, lying, cheating, both sexes, multiple partners, etc. Homosexual desires for one partner above a certain age, unmarried and unrelated is hardly worthy of any special status as a marital configuration.

            “Seems rather a red herring to raise them; obviously, states do have an extraordinarily compelling interest in prohibiting such behavior.”

            Two states allow 13 year olds to marry. Six states allow first cousins to marry. Several more allow uncles/aunts to marry a nephew or niece. A polygamy lawsuit was initiated shortly after the Hodges ruling. Look for more variations to follow. As I said above, compelling interest is not the only standard a state needs to prove their case. If it reaches that level, they’ll have a hard time preventing additional combinations now that arbitrary groupings have a newly invented “right” to force a state to issue them a “marriage” license.

            “But the expressions of state interest in discriminating against gay
            marriage are not very compelling. Baseless, divorced from facts, and
            hyperbolic would be better descriptions.”

            Another self comforting declaration. States “discriminate” against all arbitrary groupings, including same sex heterosexuals that want to “marry” but would be turned down just the same regardless of their orientation.

          • Hominid

            You’re a garden variety, illogical Lib-thinker — you confuse your baseless opinions with “facts.”

            First, you redefine marriage to include an absurdity – “gay marriage.” Then, you claim that marriage is an inalienable right – it is not – for instance, a daughter is proscribed by force of law from “marrying” her father and one cannot marry more than one other spouse at a time. The states do NOT “discriminate” regarding marriage – gays are free to marry anyone of the opposite sex JUST LIKE EVERYONE ELSE (with the exceptions regarding incest & polygamy).

            Unlike you who offers his ignorant opinions as “fact,” I AM a brain scientist and clinical neurologist of more than 30 years experience – I can assure you there is as much or more evidence for “immutability” of several if not all sociopathic behaviors as there is for homosexuality. I can also assure you that homosexuals suffer from more cognitive and emotional abnormalities than just a “preference” for same-sex gratification.

          • tedshepherd

            You wrote this: “The states do NOT “discriminate” regarding marriage – gays are free to marry anyone of the opposite sex JUST LIKE EVERYONE ELSE (with the exceptions regarding incest & polygamy).” I have read that before. It seems far too clever since it ignores the issue of whom someone loves. Here is my willful distortion of what you said, for your calm and reasoned response if you wish: Prior to the Loving v. Virginia decision, the states did NOT “discriminate” regarding marriage – each of us was free to marry anyone of his same race JUST LIKE EVERYONE ELSE (with the exceptions regarding incest & polygamy).

          • AnyGivenSaturday

            “It seems far too clever since it ignores the issue of whom someone loves.”

            Put your money where your mouth is and show the same support for the “right” of a woman to marry her mother to avoid estate taxes; inspired by the Windsor ruling. After all, they love each other and that’s your only criteria. At least two states allow 13 year olds to marry. Six states allow first cousins, at least four states allow uncle/aunt to nephew niece marriage. A bisexual should also have the “right” to marry a man and a woman, etc.

            “Prior to the Loving v. Virginia decision, the states did NOT “discriminate” regarding marriage – each of us was free to marry anyone of his same race…”

            Irrelevant since the Loving case was one of segregation which does not apply here. It was also based on subjective, arbitrary and variant criteria. Hodges was not. Loving was not based on a behavior, feelings or a lifestyle. It was not about rejecting an entire class for marriage partnership. It did not affect a union of the conjugal genders, the foundation of a family, the representation of a family, broken homes, illegitimacy, deprivation of a father or mother or a limiting principle. Pursuing, establishing and maintaining a relationship is a mere lifestyle choice; one that can be changed, terminated or restarted at any time. This does not apply to segregation or skin color.

          • Hominid

            Apples & oranges. BTW, why do you except incest & polygamy? How ’bout interspecies “marriage”?

            Marriage is a special partnership that requires a member from each of the two sexes to bond into a complete human unit (men and women are complementary in our species) – it can only occur between a man and a woman. Only the sex of the partners is relevant, not their race, not whether they love one another, not the kind of sex acts that gratify them.

            I love my best friend, but I can’t marry my friend because we are both men. We can have close friendship, we can live together, we can even engage in deviant sex acts, but we can’t marry. Why is that not sufficient? Why is it necessary to redefine marriage to encompass a different set of relationships? Marriage not only inheres in the species, it is essential to the stability of a society. Turning that around, society has a serious stake in marriage. Society has much less of a stake in other human relationships. Those relationships may exist and be tolerated, but society should not be concerned with them to the extent it is concerned with the regulation and stability of marriage.

            Why obliterate the age-old, special, essential human bond of marriage unless you despise our species?

          • Hominid

            You are illogical.

          • AnyGivenSaturday

            “That’s a pretty insulting post, considering you don’t know anything about me.”

            No, it’s a pretty accurate post. If the truth insults you, get the counseling needed, especially when it’s due to a discussion forum post. I don’t need to know anything about you. I know what you wrote which was ignorant and false.

            “The tone of your post speaks more to your inadequacies, than mine. I will leave it at that.”

            The tone of my post was accurate, objective and factual. Your silly attempt to comfort yourself referencing “inadequacies” is amusing and hypocritical. Inadequacies are common in those who support absurd causes like this one. I’ll leave it at that.

            “Homosexuality is much different than the lifestyle choices you list.”

            No it isn’t. Personal desire is the issue. Some will only desire someone of a certain age, family relation, financial benefits, both sexes, multiple partners, etc.

            “So if homosexuality is a mere lifestyle choice, are you suggesting that homosexuals are really heterosexuals like you and me, but who choose same sex relationships?”

            Now you’re demonstrating reading comprehension problems. Relationships are voluntary behavioral choices. Many “gay Americans” have (and continue to engage in) heterosexual relationships. Some have gay relationships exclusively. Regardless of which, pursuing, establishing and maintaining a relationship is a mere lifestyle choice; one that can be changed, terminated or restarted at any time.

            ” I think a much more common sense and unbiased conclusion is that homosexuality is an immutable trait,…”

            So what? You reference a mere feeling, nothing more. What is the limiting principle on an “immutable trait”? What is the limiting principle on feelings, desires or urges? There aren’t any and underscores my other examples. The other poster “Hominid” is correct. Lying, cheating, stealing, coveting multiple partners, teenagers, relatives or financial perks are just some of an infinite array of desires (i.e. “immutable traits”) but none have any constitutional relevance.

            “…not as obvious as race, but immutable nonetheless.”

            Not as obvious? As I explained in my previous post, it has nothing to do with race. As an intangible, it’s not obvious at all. Your obsession with “immutable” is amusing, but irrelevant with respect to Loving and the Constitution.

            “Thus, gay marriage, like interracial marriage, is also deserving of protection under the Equal Protection Clause.”

            “Thus”??? Thanks for the laugh! Declaring something as a constitutionally relevant correlation with the term “thus” doesn’t validate anything except in your own confused mind. The information in my previous post debunking your absurd narrative went completely over your head. Instead of repeating it here, please go back and read it again.

            “And regarding interracial marriage, your waffling on the merits of the Loving decision is very unusual and anachronistic, to say the least.”

            Since the “merits” of Loving don’t apply here, your remarks are worthless. Your use of “anachronistic” may make you feel enlightened, but only embarrasses you. There is nothing unusual to imply the word “marriage” does not appear anywhere in the Constitution, hence state autonomy and authority over the institution. Debating the contents of the Constitution is hardly “anachronistic” and very hypocritical since you fabricate phony equivalences and non-existent constitutional criteria….to say the least.

          • Barrett

            You have a bad case of obnoxious jack ass. Hopefully, that is not an immutable trait. Nothing you said went over my head, other than maybe your misuse and overuse of the word hypocritical. Generally, I find discussions with people I disagree with make me smarter, so long as the disagreements are expressed in a civil and decent manner. I may change my mind on some things. I may find I need to sharpen my arguments. Or I may end up feeling more confident in my positions. All are valuable learning experiences. But unfortunately, a civil and respectful discussion of opposing viewpoints does not appear possible with you, and I doubt I am the first person to think so.

          • AnyGivenSaturday

            “You have a bad case of obnoxious jack ass. Hopefully, that is not an immutable trait.”

            You have a bad case of ignorance, poor comprehension, hypocrisy and being easily offended. Hopefully that is not an immutable trait, but unlikely since your pathetically whiny post was entirely non-responsive and hypocritically obnoxious jack ass commentary.

            “Nothing you said went over my head,…”

            Sure it did. You were unable to provide any response or counter argument to the facts you don’t want to accept. I doubt I’m the first person to point that out.

            “…other than maybe your misuse and overuse of the word hypocritical.”

            It seems you have a coping mechanism of denial to make yourself feel better and knowledgeable. I’ve illustrated your hypocrisy quite easily whether you want to believe it or not.

            “Generally, I find discussions with people I disagree with make me smarter,…”

            No they don’t. You’ve proven the opposite on this thread.

            “…so long as the disagreements are expressed in a civil and decent manner.”

            Really? With “obnoxious jackass” remarks, your hypocrisy is laugh out loud hilarious! In a civil and decent manner, I presented a multitude of undeniable facts and clearly articulated why your Loving reference is bogus, along with your hypocritically “overused” immutable trait canard. You’re unable to accept being proven wrong.

            “I may change my mind on some things. I may find I need to sharpen my arguments. Or I may end up feeling more confident in my positions.”

            You’ve demonstrated the precise opposite, but keep trying.

            ” All are valuable learning experiences.”

            For others maybe, buy as far as this thread is concerned, not you.

            “But unfortunately, a civil and respectful discussion of opposing
            viewpoints does not appear possible with you, and I doubt I am the first
            person to think so.”

            Say that to a mirror and you’ll finally be on to something.

          • Barrett

            Not sure what are the causes of your various personality disorders (abusive childhood, being a 400 pounder living in your parents’ basement, small genitalia, etc.). But that is of no import to me.Your MO is to exaggerate the intelligence of your own posts, say they are “over the head” of anyone who disagrees, and disparage any opposing viewpoint. Those tactics never lead to more knowledge for anyone. So communicating with you is a waste of time. Proceed to your usual obnoxious, repetitive response that does nothing but advertise your personality defects. Time is too precious to waste, so I will not be reading it.

          • AnyGivenSaturday

            “Not sure what are the causes of your various personality disorders
            (abusive childhood, being a 400 pounder living in your parents’
            basement, small genitalia, etc.). But that is of no import to me.”

            Actually it seems of great import to you to write more hypocritically “obnoxious jackass” comments.

            “Your MO is to exaggerate the intelligence of your own posts,…”

            How? You’ve failed to defeat any of them.

            “…say they are “over the head” of anyone who disagrees,and disparage any opposing viewpoint.

            Ignorant generalization. Since I did not say that to the other poster here and you have no idea what I’ve said to others, you continue to defeat your own position. I welcome opposing viewpoints. Absurd arguments like yours deserve are easily debunked. In your case, what I’ve said is over your head because you fail to grasp that feelings are not “protected” as an immutable trait, especially in groups, groups of two, same sex groupings, forcing a state to recognize, sanction and issue a marriage license for it.

            “Those tactics never lead to more knowledge for anyone.”

            Hardly a “tactic”, but simply demolishing your argument can lead to more knowledge for those who wish to be open to being wrong. You don’t seem to have reached that point yet.

            “So communicating with you is a waste of time.”

            Only so long as you cling to your silly “immutable traits” canard. If you allow yourself to become enlightened, your time and mine would be better spent.

            “Proceed to your usual obnoxious, repetitive response that does nothing but advertise your personality defects.”

            More non responsive “obnoxious, jackass” hypocrisy. You really don’t get it.

            “Time is too precious to waste, so I will not be reading it.”

            Yes you will. You’re doing so right now.

    • Hominid

      The Framers claimed to believe there should be little to prevent changing the structure of government and even tearing up the Constitution and creating a new one in order to cope with the future changes in the world and desires of the people.

    • tedshepherd

      You wrote, and I disagree with both assertions: “Homosexual marriage, for example required twisting and torturing the 14th amendment to come up with some rationale. Obviously, the constitution is silent on marriage so it belongs solely to the states.” The notion that states have SOLE authority in marriage law has been untenable at least since Loving v. Virginia, SCOTUS,1967. That established as American law that mixed race marriage between American citizens is a right that states must not infringe. By itself, this is ample precedent for Obergefell on same sex marriage. Further, the Constitution is silent on all manner of technological advancements.

      • AnyGivenSaturday

        ” By itself, this is ample precedent for Obergefell on same sex marriage.”

        No there isn’t a precedent. See my reply above.

        “Further, the Constitution is silent on all manner of technological advancements.”

        1- Many constitutional provisions stand the test of time and are not effected by technological advancements. One example is the post office and post roads.

        2- If a technological advancement does not comport with the Constitution, the nation must ratify an amendment. That is why the authors allowed amendments; to accommodate technological advancement they could not predict. The document does not allow judges to invent absurdities like “emanations and penumbras” out of thin air.

  • The Truth Fairy

    This was a wonderful and timely piece. Thank you! So many people of so many backgrounds could really get behind the classic foundation of American politics if only they weren’t lied to as children.

    I remember being taught we had a “living Constitution” with not even lip service paid to the massive group of people who know otherwise. It’s a concept that makes no sense when you look at the history and purpose of a constitution such as ours. But the lie continues for exactly the reason that the Constitution is needed so badly..power-hungry people seek power.

    • Robert Curry

      You are very welcome!
      And by George you’ve got it–“power-hungry people seek power”.

  • chatmandu002

    Too bad our young people are not being taught the Constitution in school, instead they are subjected to years of liberal/progressive indoctrination.

    • Robert Curry

      They need to read my book.

    • Spencer Klopfer

      In AP Government they teach us about John Locke, Federalist Papers, etc. Unfortunately even a lot of my fellow conservatives don’t understand the classic liberalism that our founders lived by. It can alos be tough with a biased teacher.

    • Scott Carlisle

      I am currently prepping to start a unit on the Constitution with my 8th grade students starting Monday. There are a lot of us out here trying to do the right thing

  • TrustbutVerify

    People are so badly schooled in history now, especially the specifics of the Founding/Founders (except they are all dead white guys to be reviled), that this discussion falls on deaf ears with the young. They have been indoctrinated and the only way for this country to survive, as the old guard passes, is to make this argument and push it home. While we have the chance, we must get the whole truth back into our class rooms and not Zinn’s perverted history or similar tropes on all the negatives about the US with its sidekick of moral equivalency between governmental systems.

    • Robert Curry

      Yes, yes, and yes. I wrote my book simple and clear so you would have it to reach those in your world who need to understand the Founders.

    • Captain Mann

      Dead white guys who owned slaves. /

      • Peterg123

        So what? Everyone owned slaves, or permanent indentured servants, in those days.

  • chatmandu002

    Unalienable rights has now been transformed to mean illegal alien rights.

    • Robert Curry

      Wow! I am impressed, chatmandu002–funny & also not funny!
      You’ve got me thinking…

      • Dave Litheveder

        As it should. The Declaration does not say that God limits unalienable rights to American citizens. While the government can determine who qualifies as a citizen, it cannot restrict their unalienable rights. Sorry, I haven’t thought this through. You, and inadvertently chatman, have shaken my thinking on treatment of those here illegally. It may take a while to restore how all this should work.

        • Robert Curry

          Dear Dave Litheveder,
          I am concerned that chatman & I have inadvertently got you headed toward a thicket. If so, I regret it. Please consider reading my book carefully–and avoid those thickets!

    • “Unalienable Rights” are what makes the USA difference from most other countries, we understand that GOD has given people certain Rights, and that it is the funtion of government to protect thos rights. The Bill of Rights ID those rights we as a people can resonablely expect the government to defend. This is want makes our Government different from others. Most governments do not believe in “Unalienable Rights”, hence they can grant and withhold what they will from the People.

      • Hominid

        You’re a clueless muddle-head.

        • You choose your image correctly, it is a good reflection of your mental abilities ….. I feel sorry for you .

  • bilahn

    This article is so wrong and awful on every level is it absolutely blinding.

    • Johannessen

      care to give any examples? Or just an overarching statement to show that you, of course, are smarter than Mr. Curry?

    • JSirko

      You must be one of those Russian hackers hired by Putin to retire Hillary.

    • RonRonDoRon

      So easy to say. Much harder to defend that bald assertion. I’m guessing you are incapable of doing so.

    • icwydt

      Well, you certainly convinced me.

  • Done With It

    The single best explanation I’ve read in years, and I’ve read numerous books on the topic:

    “The Constitution is ours, yours and mine. The Founders wrote it for us and intended for us to understand it. That is why it is brief and clearly written. Their meaning and their intent is available to anyone who can read. Understanding it requires common sense, not advanced study in emanations and penumbras.

    Where does the lack of clarity come from then? Beyond the raw politics involved, fundamentally it results from the fact that we have abandoned the language of the Founders in favor of the language of the Administrative State. It is a remarkable fact, though one little noticed, that we no longer conduct our politics in their language. What that means is that we no longer think politically at all, but are only expected to act as passive consumers of what the “experts” dispense. That makes it difficult for us to understand the Founders, though they are not in reality difficult to understand.”

    • Robert Curry

      Thank you kindly.
      The Founders are a wonder and a delight. The best part of writing the book was spending time with them.

      • Done With It

        Just ordered the hard-cover from Amazon. S/B here Monday, and I look forward to reading it!

        • Robert Curry

          Thanks for the heads-up! I’ve got a feeling you are going to like it. It turned out great. Enjoy it!
          Wishing you all the best.

          • Done With It

            Thank you for your work, it’s greatly needed. After reading it, presuming it’s great, I’ll do what I always do…buy a half-dozen for family to read.

            Good luck to us all!

  • Fred Friedman

    I do not want a living constitution. I want a living legislature and an engaged all well informed citizen.

    • Robert Curry

      “I do not want a living constitution.”
      Nor should you. The “living constitution” like “affordable health care” means something other than what it claims. The living constitution is the name of the process of murdering the Constitution.

      • captain psychedelic

        Living document = no document

        • Robert Curry

          Precisely!!
          Nicely phrased.
          Those who promote the living Constitution are working to get rid of the Constitution.

  • Paladin13

    Good article. Those rights in the Bill of Rights are constitutionally protected rights. You will find so-called experts on Constitutional law who say that the phrase :”separation of church and state” (which in their minds runs one way only) is stated in the First Amendment. It’s not.

    One big problem we have is an unfettered SCOTUS which can imposed edicts (not laws) on us with no opposition. The Congress has the right to pass legislation that exempts it from the jurisdiction of the federal courts but they won’t do that. SCOTUS once ruled that the federal government has the authority under the interstate commerce clause to prohibit you from growing food in a private garden. The actual wording of the interstate commerce clause is regulate commerce among the several states and not among the people. But SCOTUS has given totalitarian power to the federal government, a power never intended by the Founders, who would be appalled. SCOTUS needs to reigned in. I am tired of our leaders saying that the courts have ruled, nothing we can do about it. After the recent gay marriage ruling, they should have passed a law, saying that states regulate the definition of marriage and not the federal government (which we previously were told by Democrats, John McCain and Jusice Kennedy who then switched his opinion). We had a single judge throw out Proposition 8 in California, upheld by a corrupt and the move overturned Circuit Court in the country (9th) and then sustained by Justice Roberts as the 5th vote on procedural grounds (the plaintiffs did not have standing).

    No court or government should have this power. But since Lincoln’s War was won by the feds, the feds have been accumulating power since the states are no longer sovereign and have no right to secede from the Union (a position supported by people like “conservative” Michael Medved and one that contradicts what the Founders said). And people wonder why public schools, universities, colleges and other learning institutions no longer teach American history or about the Constitution.

    • Robert Curry

      Clearly you have thought long & hard about these issues. I would like to help. Would you please consider reading my book? If it helps you, would you also consider helping it? All the best.

  • Mike 3/505

    Nicely done! Say it again…louder!

    • Robert Curry

      Thank you!
      Please help me ‘say it louder’ by spreading the word.
      With best wishes.

  • icwydt

    After trudging through many inscrutable other articles, you have made my day.

    • Robert Curry

      Thank you!
      You have made my day!!
      Wishing you all the best.

  • As Curry state, the Constitution, and for that matter the Declaration of Indepedence, was created for the common man …. as such we have way too many lawyers in Congress (isn’t it a conflick of interest for lawyers to make the law), we need a more representative body, with term limits (12 years each) for both Houses. Also, on the lower courts, we need people trained in the laws passed by various states and congress. However, for the Supreme Court we should have people with experience of living and working in the USA …. that mean, people other than just lawyers, business people, bankers, farmers, etc … people that have demostrate a certain degree of wisdom. After all, the Constitution, is a contrack of the people, for the people, and by the people …. not just for lawyers.

    • Robert Curry

      Dear Rjschundlr,
      Thanks for your reply. The ideal scene is everybody–lawyers, politicians, the rest of us–understanding the Founders and protecting the Constitution.
      The Claremont Institute is hard at work educating the people in politics.
      The Center for Constitutional Jurisprudence is doing the same for people in the law.
      I wrote Common Sense Nation for the rest of us.
      We can turn this thing around–but it is up to us.
      All the best

      • Thank you ….. I will have to check out Claremont Institute …

        • Robert Curry

          You are very welcome.
          I’m guessing you are going to like what you find at Claremont.
          Wishing you the best.

  • harry

    What a refreshing perspective on government power and where it begins and ends. More importantly it speaks to the motivation behind the wording of the constitution. How often we lose sight of that motivation. Hopefully we will pick a Supreme Court Justice who will see that motivation and protect it.

    • Robert Curry

      Dear harry,
      Thanks. I love your use of the word “refreshing” here! Spending time with the Founders is refreshing, profoundly refreshing. They are the always refreshing source of America’s greatness.

  • rwisrael

    This clarifies what has too often been an argument about which words mean what at any time in our history. The key, of course, is ” Unalienable Rights” which makes arguments about the extent of “Constitutional Rights” trivial., especially in the case of the First and Second Amendments.

    • Robert Curry

      Yes, the key is “unalienable rights”–the key to understanding the Founders’ thinking and the key to understanding their creation which is their gift to us.
      It really matters that our “unalienable rights” have been pushed out & kept out of our political discourse.

      • Hominid

        You do not see logical fallacy in reference to “unalienable” rights and the need to safeguard them? There are no “rights” in nature – the concept is delusional – and, rights are whatever society says they are through whatever process it says it (constitutionally, democratically, or dictatorially).

  • David Ball

    Never ever just consider that the Bill of Rights to be a separate document in the first place. As this author and most of you have made the vast mistake of doing. To give you folks a hint here is what your missing on most of your copies of the Constitution in the first place.
    This by the way is from The Commission on the Bicentennial of the United States Constitution copy of the Constitution dated1991.

    The Conventions of a number of the States, having at the time of their adopting the Constitution , expressed a desire, in order to prevent misconstruction or abuse of it’s powers that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government ,will best ensure the beneficent ends of it’s institution:

    Resolved by the Senate and House of Representatives of the United States of America , in Congress assembled ,two -thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States ,as Amendments to the Constitution of the United States, any or all of which Articles, when ratified by three fourths of the said Legislatures , to be valid to all intents and purposes, as part of the said ; Constitution viz.
    Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant too the fifth Article of the Original Constitution.
    So just what parts of the Bill of Rights amended what parts of the Constitution ? As per the intent of the First Congress that the Constitution would and should be changed. So just what was changed and where do the amendments go?
    Okay the first four are easy they limit the power of Congress and belong in Article 1 Section 8 and 9 (and all three branches) are limited not just Congress, after all which branch has the power to make laws ????) That right’s Mr. Obama and the Supreme Court it’s Congress..
    As for the 5th thru 8th are limits on the entire judicial powers of both the Federal Courts and the State Courts.IE Changes to Article 3 Section 2 go right after “the trail of all crimes shall be trail by jury”

  • searcherseeker

    Thank you, sir, for this explanation. I am continually reminding people, on these boards mainly, that the Constitution does not grant any rights. The Constitution does not grant the right of freedom of speech, assembly, worship of a free press. It does not grant an individual the right to self-defense. Not one of the Bill of Rights grants an individual a right. What the Bill of Rights does is prohibit the Federal government from enacting laws which infringe on those “God-given” rights.

    Due to our lack of vigilance over the last 100+ years, We the People have allowed politicians to pass hundreds, if not thousands of laws which infringe upon our unalienable rights. We have allowed politicians to twist our Nation into a pretzel and still call it America.

    We have allowed politicians to take an entire race of people out of the mainstream of American idealism and toss them on the trash heap, to be used as political pawns; much as they are being used today. To these politicians and the Party they call home, usurping power over the citizenry is all that matters.

    Black lives do not matter. Hispanic lives do not matter. Asian lives do not matter. White lives do not matter. And anyone calling themselves an “American” without prefacing that term with some ethnic or national adjective, is a racist.

    The Democrat Party is Anti-Constitutional and a destroyer of peoples and individuals.

    • David Ball

      Who should also understand however that this the true purpose of the 14th Amendment to limit the powers of both the Congress and the legislatures of the several states.IE it puts the 14th and most of the Bill of Rights as restrictions on the powers of all levels and branches of the Government form the city ,countries ,state and the Federal Government !

      • searcherseeker

        I would say these restrictions on lower levels of government than Federal are only in context to the subjects covered in the 14th Amendment. The Constitution does not impose its authority on the States or lower jurisdictions, though I would say the 16th Amendment, as a patronage system, does allow the Federal government to impose, un-Constitutionally, on the States and lower jurisdictions.

        • David Ball

          Um what part of NO State shall do you NOT under stand… Read the damn thing !

    • Robert Curry

      Dear searcherseeker,
      You are very welcome.
      And you are correct that we the people have allowed the damage to the Founders’ beautiful design. Restoring America is simple (that is not the same as easy). If 1/2 or even 1/3 of Americans tomorrow again understood the Founders’ vision and dedicated themselves to restoring it, a very complete restoration could be accomplished in just a few years.

      • searcherseeker

        We have to get rid of hyphenated Americans to make it back to where We the People belong.

        We must eschew the language of the Left such as, “Constitutional” rights. I hear so often of these rights. This one or that one has a “right” to health care or a “right” to a living wage, ad infinitum. How soon will a member of a group have the “right” to marry a lamp post?

        America is not a nation of groups. This is the greatest weapon in use by the Left. E Pluribus Unum has become E Unum Pluribus.

  • David Ball

    As for the 9th and 10th are in fact amendments of article 1 section 10 listing the limits of Congressional power vis a via the States.
    As for the Declaration of Independence you really need to read all of it not just the “good parts” most of the body of the document is not meant to be a declaration of rights but a list of criminal charges against a ruling King..
    Read to for example the main body . The history of the present King of Great Britain is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny over these States. To prove this let the Facts be submitted to a candid World.
    He has refused his Assent to Laws, the most wholesome and necessary for the public Good.
    He has forbidden his Governors to pass laws of immediate and pressing Importance ,unless suspended in their operation till his assent should be obtained : and when so suspended he has utterly neglected to attend to them..
    Sounds a little too much like the last 16 years ….

    • Robert Curry

      Dear David Ball,
      You are of course correct about the main body of the Declaration.
      How close do you think we came in 2016 to tyranny? Too darn close, says I.

  • glendower

    “The Constitution is not the source of our right to freedom of speech because freedom of speech is an unalienable right.
    What the First Amendment can do is recognize that already existing
    unalienable right by forbidding the government from abridging it.”

    Precisely right, sir. This point must be repeated at every turn.

    I suspect that 99% of people would agree with the statement, “The First Amendment grants us freedom of speech, of the press, etc.” It does not. It grants nothing, as you point out.

    The First Amendment, like the Second, ENUMERATES a right which–we must emphasize–pre-dates the Constitution, and which exists independent of the Constitution.

    I have often found myself wishing that the Ninth Amendment had appeared at the head of the Bill of Rights. Here it is:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Read this first, and the next two amendments are easier to understand.

    Great essay, sir, thank you.

    • Robert Curry

      Dear glendower,
      Thank you for your thoughtful & generous response.

      “I have often found myself wishing that the Ninth Amendment had appeared at the head of the Bill of Rights.”

      And thank you for this brilliant thought! Not necessary in the Founders day of course, but given the poor state of our politics today, starting with the Great Ninth really might be a smart way to introduce a discussion of the other nine. Thank you for the idea. All the best.

      • glendower

        Appreciate your reply.

        Starting with the “Great Ninth” would certainly be an illuminating way to introduce discussion of the First & Second amendments. When may we expect to see your presentation?

        Actually, I think it would have been salutary for the Ninth AND 10th amendments to have appeared at the head of the Bill of Rights.

        Here we go:
        ———-
        –The enumeration in the Constitution, of certain rights, shall not be
        construed to deny or disparage others retained by the people.

        –The powers not delegated to the United States by the Constitution, nor
        prohibited by it to the States, are reserved to the States respectively,
        or to the people.

        “Congress shall make no law respecting an establishment of religion, or
        prohibiting the free exercise thereof; or abridging the freedom of
        speech, or of the press; or the right of the people peaceably to
        assemble, and to petition the Government for a redress of grievances.”

        “A well regulated Militia, being necessary to the security of a free
        State, the right of the people to keep and bear Arms, shall not be
        infringed.”
        ———-

        In particular, in the 10th, the meticulous distinction between “the States” and “the people” would have made it clear that the term “people” in the Second amendment does indeed mean “individuals.”

        That, too, would not have been necessary in the Founders’ day, but in our benighted time, we had to wait for the Heller decision.

        Thank you for your work, sir.

        • Robert Curry

          Dear glendower,
          Thank you for spelling it out like this.
          It really works, doesn’t it?
          I believe you have a brilliant idea for a thoughtful contribution to the national discussion of rights, and you clearly write well.
          How do you feel about working up a piece setting our your thinking?
          If you are interested, I would be interested in helping you however I am able.
          With all best wishes.

          • glendower

            Thank you. I’m flattered.

            I’ll admit that I’ve occasionally thought about setting up a blog, just so I could expand beyond what can be expressed in a comment thread.

            We can certainly discuss this matter. How do we exchange personal messages?

          • Robert Curry

            I’m told “send an email to Ben Boychuk through the site. Ben will put him in contact with you.”

          • glendower

            I’m unable to find an email for Mr. Boychuk on the site, and the “contact us” link near the end of the Privacy Policy page doesn’t work.

          • Robert Curry
          • glendower

            Noted. Thank you.

          • glendower

            Email sent to Mr. Boychuk.

  • Captain Mann

    Great article and excellent point! I’ll certainly keep it in mind.

    • Robert Curry

      Thanks for your comment.

  • Stanley1

    Very useful brief article. And I’m glad to learn of Mr. Curry’s book.

    But I see that the book hasn’t been covered in the Claremont Review, although Mr. Curry is associated with the Claremont Institute. Why not? Would that be considered the institutional equivalent of incest? 🙂

    On the general subject of demystification of the American regime, I think Gene Healy’s 2008 book The Cult of the Presidency is terrific. Both the book and a ~5,000-word essay of the same title, distilled from the book, are available for free (last I looked) at the Cato website: http://www.cato.org/cult-of-the-presidency

    Here’s much of the essay’s opening passage:

    ====
    “I ain’t running for preacher,” Republican presidential candidate Phil Gramm snarled to religious right activists in 1995 when they urged him to run a campaign stressing moral themes. Several months later, despite Gramm’s fund raising prowess, the Texas conservative finished a desultory fifth place in the Iowa caucuses and quickly dropped out of the race. Since then, few candidates have made Gramm’s mistake. Serious contenders for the office recognize that the role and scope of the modern presidency cannot be so narrowly confined. Today’s candidates are running enthusiastically for national preacher—and much else besides.

    In the revival tent atmosphere of Barack Obama’s campaign, the preferred hosanna of hope is “Yes we can!” We can, the Democratic front-runner promises, not only create “a new kind of politics” but “transform this country,” “change the world,” and even “create a Kingdom right here on earth.” With the presidency, all things are possible.

    Even though Republican nominee John McCain tends to eschew rainbows and uplift in favor of the grim satisfaction that comes from serving a “cause greater than self-interest,” he too sees the presidency as a font of miracles and the wellspring of national redemption. A president who wants to achieve greatness, McCain suggests, should emulate Teddy Roosevelt, who “liberally interpreted the constitutional authority of the office” and “nourished the soul of a great nation.” … Hillary Clinton, meanwhile, suggests she is “ready on Day 1 to be commander in chief of our economy.”

    The chief executive of the United States is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He—or she—is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s also the Supreme Warlord of the Earth.

    ====

    The essay is also available here: http://reason.com/archives/2008/05/12/the-cult-of-the-presidency/print

  • Paul

    Outstanding!
    It really is just that simple.

    • Robert Curry

      Thanks, Paul
      The Founders’ thinking is deep but it is not obscure.
      All the best.

      • Hominid

        Read Jefferson – he was full of doubts.

        Washington – the first president – didn’t have a clue what the Constitution meant – he violated it immediately.

        Franklin’s words – “A republic, IF you can keep it.”

        Adams – “Our Constitution was made only for a moral and religious people.”

        Madison – “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

    • Paul, were you aware of the (Disqus) passing of the Reverend Gerald Palmer? I
      know you met him. Perhaps you could follow my history or click on the
      link so that you can sign the guest book. Of course you are invited to
      the wake. It would mean so much to his mother if you put in an
      appearance.

      https://disqus.com/home/discussion/channel-familyreunions/reverand_geralds_funeral_is_a_sad_family_reunion/

      • Paul

        I left my condolences.

  • kiefo

    The pro-America (i.e., Republican) majority in the U.S. Senate should immediately invoke the One-Eyed Harry Reid Rule and prohibit the America-hating, Obama Democrat party’s minority in the senate from blocking Trump’s five or six Supreme Court nominees with filibusters.

  • RU_Serious

    It’s the same with the 2nd Amendment, which refers to “the right of the people to keep and bear arms”. The 2nd Amendment recognizes that right, it does not grant it.

    • Robert Curry

      Yes !!

    • Hominid

      And, more importantly, it bars the government from infringing on that right.

  • Cuttothetruth

    It’s amazing to how many otherwise good conservatives I have to explain or remind that for example the 2nd amendment is not what guarantees the right to keep and bear arms. Nor any other ammendment any other unalienable right. Good article.

    • Robert Curry

      Thanks for your note.
      Keep up the good work. It’s important.

    • Hominid

      Exactly. The 2nd Amendment does not specify the right to bear arms – it acknowledges it. What it specifies is that the government can’t INFRINGE the right.

  • MinnesotaConservative

    I enjoyed reading your direct, clear English, and I appreciate the light you shed on this vital topic. One question: assuming that a particular right is “inalienable,” does this mean that it cannot be legally limited in any way by any government? If so, are all court decisions that have heretofore limited these rights essentially illegal. If not, is there a principle that clearly distinguishes those circumstances in which limitations are appropriate from those in which they are not? Thanks in advance.

  • emptorpreempted

    Well, I think the founders were just wrong. Your rights are simply what is not forbidden by any law. Thus, in the state of nature, there is no meaningful distinction between the right to do something and the mere ability to do it. But even if you disagree with this and follow Locke and Washington, your government may legitimately take away your rights as long as it does so, not arbitrarily, but in accordance with recognized legal procedures, as when jailing a criminal. As Oakeshott says somewhere, the theory that only those laws are legitimate that conform to a set of preexisting “laws of nature,” is a recipe for anarchy.

  • Ch Hoffman

    like the right to be free of the threat of violence from your deranged neighbor whose kids are left in the house with a dozen automatic weapons

  • PAIN wtf

    That upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: “A republic, if you can keep it.”

    The United States is, indeed, a republic, not a democracy. Accurately defined, a democracy
    is a form of government in which the people decide policy matters
    directly–through town hall meetings or by voting on ballot initiatives
    and referendums.

    Here is something to Read;

    http://www.thisnation.com/question/011.html

    • Severn

      I’m not sure where you’re getting that definition from.

      democracy – a system of government by the whole population or all the eligible
      members of a state, typically through elected representatives.

      • PAIN wtf

        I’m just saying we are a Constitutional republic, Not a democracy

        • Hominid

          Two corrections — first, the US was formed as a constitutional, republican DEMOCRACY. Second, that formula has been eroded greatly with the consent of the people over the years of US existence – the US has been moved away from a republic much closer to a popular, socialist democracy.

          • PAIN wtf

            I agree that we have become socialist democracy and believe that are that way because some of use have lost are back bone to stand-up for all that is right.

            like Benjamin Franklin said you have a republican if can keep it. And we have Not done that. It pains me greatly to see where we are headed and what we are leaving the next generation.

      • PAIN wtf
      • PAIN wtf

        This man is incredible

        Carl Miller on the Constitution and the Bill of Rights

      • ADM64

        A democracy is a system of unlimited popular government, whether directly or through representatives. A republic, as its very roots in Latin suggest, is a system of government in which there is a public and a private sphere (res publica means those things that are public).

        • Severn

          A democracy is a system of unlimited popular government, whether directly or through representatives.

          You keep making up your own definitions of terms.

  • Ricardo Montalbon

    If they could teach kids that one concept in school, it would make the billions of dollars we waste on education worth it. Unfortunately the majority of teachers can’t understand the concept of unalienable rights. It presumes an understanding of God and yourself in relation to God which most of the people in 18th century America would have had.

  • Severn

    The Constitution is not the source of our right to freedom of speech because freedom of speech is an unalienable right.

    We have the right to free speech while most of the world does not due to the Constitution. Or to say that another way, we have the right to free speech because we have agreed that we should have such a right.

    Try speaking your mind in much of the world (including modern Britain) and you’ll discover that your “unalienable right to freedom of speech” is very alienable indeed.

    • Robert Curry

      Dear Severn,
      I am sure you understand that you are saying the Founders were wrong about rights.
      But what if they were right about rights?
      My question for you is this: have you given them a fair chance?
      Following their arguments is a thrilling adventure and an education in itself. It can take you far.
      With all best wishes.

      • ADM64

        Mr.. Curry,

        Not sure what Severn is arguing but it seems to be that abstract theories of our rights are irrelevant because ultimately all government comes down to power, and thus that the Constitution therefore alone ensures our rights. This is something of the view Robert Bork advanced and that Henry Jaffa amongst others disputed. My sense is also that Severn believes legitimacy comes from democracy (popular consent) and thus not any other facts of reality about man and human nature. If I’m putting words in his mouth, I’m sure he will correct me.

        The problem with the democracy as the source of legitimacy argument is that it denies any over-arching set of principles of right or justice, just as monarchy or other systems of government do. One can argue policy preferences in a democracy, but there is no answer to why the majority shouldn’t do whatever it pleases. Whatever the inconsistencies in the Founder’s political thinking, they most certainly did not stand for that.

        • Severn

          You really should try reading what the Founders actually believed some time. I’ve even offered you links before now to help get you started.

          http://eyler.freeservers.com/JeffPers/jefpco35.htm

          The Founders believed, fervently, in the concept of “democracy as the source of legitimacy”.

          The problem with the democracy as the source of legitimacy argument is
          that it denies any over-arching set of principles of right or justice

          It does not. It simply shifts the answer to the question “Who decides what the over-arching set of principles of right or justice is?” from the minority to the majority. Somebody must possess the power to decide what “rights” we possess “inalienably”. That somebody can either be “we” (meaning the decision of the majority) or it can be some minority (meaning perhaps five out of nine members of the Supreme Court making decisions for 300 million people)

          So much for American history. As a purely philosophical argument the notion that people have an “inalienable right to life” is laughable. You’re dying slowly at present, as we all are. To whom shall you protest that your inalienable right to life is being violated? If you go swimming and get eaten by a shark, or get stranded in the desert and die of thirst, of what utility to you is your “inalienable right to life”?

          • Hominid

            Don’t be perverse – it detracts from your legitimate points. The ‘right to life’ refers to the prohibition for another human being to unjustly end your life.

        • Hominid

          In fact, democracy is the greatest con job in history. No practical, successful human enterprise relies on democracy because it’s obviously folly to do so. The collective decisions of a mass of stupid, emotional, ignorant, lazy, selfish, hedonistic people cannot be expected to yield wisdom.

      • Severn

        I am sure you understand that you are saying the Founders were wrong about rights.

        No, I’m saying you are wrong about what the Founders believed about rights.

        • Robert Curry

          Interesting.

          • AEJ

            It is interesting, Mr Curry, isn’t it. I would like to say to this that a lack of belief in God doesn’t negate. One -an agnostic for example- could say that Man is a moral creature, “endowed… with certain unalienable rights” and as such, those rights are conferred upon Man not by other human beings (gov’t) but by something beyond ourselves, even ‘higher’ than ourselves. This is ‘Common Sense’ (as opposed to only ‘Reason’ and ‘Rationality’). As with existence of God, there is no proving nor disproving, rather, this touches upon that thing called ‘fatih’ (or call it ‘trust’), which for Man is operative for and throughout Life as lived. An argument for this would be to look into so-called ‘Universal Human Rights’ (say, the UN’s declarations) to discover that though theology isn’t utilized to justify, some form of ‘faith’/’trust’ is.
            What do you think?

            Also, I find Clarence Thomas to be a man -and a Justice!- of Common Sense. In his dissent in Obergfell v. Hodges he argues clearly -and quite succinctly!- the most important points about these rights, as far as ‘source’ and ‘Gov’t responsibility’ to secure these rights.

            A few most important excerpts:

            On Dignity AKA Inherent Worth (source of/the Conferrer [anti thatGov’t is the conferrer]), he writes that “…the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that ‘”all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and
            therefore of inherent worth. That vision is the foundation upon which
            this Nation was built. The corollary of that principle is that human dignity
            cannot be taken away by the government. Slaves did not lose their
            dignity (any more than they lost their humanity) because the government
            allowed them to be enslaved. Those held in internment camps did not
            lose their dignity because the government confined them. And those
            denied governmental benefits certainly do not lose their dignity because
            the government denies them those benefits. The government cannot
            bestow dignity, and it cannot take it away…. Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State.”

            On that ‘Liberty’, Justice Thomas notes that “…liberty is only freedom from governmental action, not an entitlement to
            governmental benefits. And as a constitutional matter, it is likely
            even narrower than that, encompassing only freedom from physical
            restraint and imprisonment…. our Constitution is a “collection of ‘Thou shalt nots,’ not “Thou shalt provides.”

            And: “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power.”

            And (in Summary of his dissent), he writes that “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the
            Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.”

            I would LOVE for you, Mr Curry, to expound upon Justice Thomas’ opinions, in writing (articles, books, blogs, et al) and/or radio, podcasts, et al!

            I’d also like to say here, for myself, that though the Obergfell case pertained to SSM ‘rights’, Thomas, in his written dissent, touches sharply upon the much broader problem. I’m personally of the opinion that Gov’t asked for their troubles RE Obergfell (and Windsor) when they got involved in Marriage. ‘Rewarding’ married couples (on the premise that Marriage strengthens Society, and all the other reasons the Pols find to elevate it), and especially rewarding monetarily, lead Gov’t right into the rabbit trap. Those in Gov’t got what they deserved: a right mess.

          • Robert Curry

            Dear AEJ,
            Thank you very much for your thoughtful and interesting reply.
            Re Justice Thomas: Yes! His robust common sense sets him apart from the others on the Court, even the very brilliant Justice Scalia.
            Thank you for the beautiful Thomas quotes. Though they are familiar to me, re-visiting his thinking is always uplifting, inspiring even.
            Re your question: as you so beautifully state, common sense is something beyond ourselves, even higher than ourselves. But we do not need to take it on faith. A powerful case can be made for common sense without a leap of faith. Please consider reading my book. It will introduce a way of thinking about common sense that I feel will be appealing to you.
            After all, it is a proposition of moral geometry that if you love Thomas and I love Thomas then you and I already have much in common.
            With all best wishes.

          • AEJ

            Thank you for your reply, Mr Curry. I intend on reading your book; it is on my reading list – I’m especially looking forward to it because from what I’ve read about the book, you delve into the Scottish Enlightenment and the Founders’ roots in the SE. I’m personally very interested in this topic.
            We do have much in common, as you note, but more than you probably realize. I was not arguing that common sense requires a leap of faith (though there might be certain aspects that Reason alone cannot ‘prove’; Man is not infallible nor all-knowing after all; and ‘Reason’ itself is incapable of revealing all things to Man).
            I’m not an atheist -nor an agnostic- looking to remove ‘Creator’ from the Declaration so I personally can accept that we are endowed with certain unalienable rights. But there are those who cannot accept this. There are also many who are certain that there is no Creator (and so, the source of unalienable rights cannot have been endowed upon Man by something beyond Man/higher than Man) and yet refuse to sign on to an idea that that necessarily generates a slide into declaring that Man is the origin/source/supplier of those rights. There are plenty of atheists who accept the Declaration -‘Creator’ language aside- because they believe that there IS something innate in Human Beings that justifies the Founders’ recognition of those rights.
            What I find dangerous is any idea that there is nothing about Man to justify such a declaration, that our those rights are ours because some folks thought we OUGHT to have those rights. That is sliding sand!
            The concept of innate rights, unalienable rights, liberty, freedom, has been on Man’s mind for millennia (as you know). The Founders weren’t the first, they didn’t ‘discover’ them but what they did that is most important to us is that they ‘recognized’ them -and understood their necessity – the sine qua non (again, as you know.)

            I know I will enjoy your book. Thank you!

          • Hominid

            “. . . common sense is something beyond ourselves, even higher than ourselves . . .” is blather.

          • Hominid

            Rights are a construct of the human mind with no basis in reality – neither ‘nature’ nor any mysticism.

            What we must do as a society is agree on (1) what the underlying principle(s) of a right are and (2) that we will abide by the agreement.

        • I think Severn does not believe in GOD, hense Rights are only what people believe them to be …. However, our founders and most people agree recognize that GOD is, and hense our RIGHTs …. ever if some other countries do not protect them … have RIGHTS and protected RIGHTS are two very different things ….

          • Hominid

            Beliefs are not reality – they’re whatever the believer wants them to be.

        • Hominid

          The Founders of the USA and Framers of the Constitution were not pure ideologists, they were also pragmatic politicians who understood the needs for compromise, ambiguity, pandering, and lying to achieve their agendas.

  • Tiberiu Dianu

    The article reminds us once again that people have inherent rights (unalienable rights) conferred to them by God, nature and/or reason – comprised in the concept of “natural law” (in which the Founding Fathers were firm believers) – via acts of legislation (“positive law”). Congratulations, Bob!

  • mlmontagne

    Some rights are unalienable, some are not. Some rights are protected by the constitution, some are not. Unalienability has no force of law, the constitution does.

    • Hominid

      Blather. You have to be more precise in your assertions.

  • mrdoug1

    Fabulous. Thank you!

    • Robert Curry

      Dear mrdoug1,
      Thank you!
      With best wishes.

  • James Alan Groome

    The founders used specific legal words which protect the rights of natural living humans vs creatures of the state. “The Law” by Bastiat is a treatise, which every student should have read by high school graduation.

  • Captain Mann

    This article changed my entire view about our rights. Thank you! I will continue to make the distinction and spread the word.

    • Robert Curry

      Dear Captain Mann,
      Thank you for taking the time to reply, and thank you for spreading the word. Together we’ll make a difference!
      Back when America knew itself, every American understood our rights.
      Best wishes

  • J_ADAMS

    Could you quote the portion of the Constitution that says that the current sitting President’s nominee for the Supreme Court shouldn’t get a hearing because the election is over 10 months in the future?

    The rest of this article is a red herring that has nothing to do with the huge violation of the Founder’s intent when the GOP decided this was a rule based on something Joe Biden said, but was never acted on.

    BTW – Mitch’s premise was the American people deserved a voice in who the next nominee would be. Well, nearly 3 million more people said they wanted Hillary to be making that choice, and I think that the President and the Senate should acknowledge that and select a well regarded moderate, like Merrik Garland.

  • eorann

    sorry, the very idea that the educated citizen would see the point of your argument is preterite. History is not a topic any more….its a series of well timed, repetitive socialist ideological directives that last and last.

    Public schools, socialist universities and socialist MEDIA PROPAGANDISTS control this society with the government as the masked thief in the basement.

    • ywiml

      This article is almost two months old. Where have you been?

      Regards-
      ywiml

      • eorann

        why are you reading a replies to a two month old article? smd.

        • ywiml

          I asked first.

          Regards-
          ywiml

      • eorann

        obsessd aremcha sparky. I win….you are one dumb cxnt.

        • ywiml

          I like you. You remind me of Earl Weaver. Carry on.

          Regards-
          ywiml

        • eorann

          Dear ywiml,
          I was banned from every major news site but this one. If you’re muscular and good looking….I’M READY….heheh.

  • JamesDrouin

    “Replacing Scalia and Replacing “Constitutional” Rights”

    If the America-hating Democrats weren’t sooooo “stupid”, they’d probably be upset with Joe Biden and his “great” rule concerning Supreme Court nominations.