Constitutional Question

[Whoops2u]

It depends on what rights you have in mind. Rights that are granted by the U.S. constitution may only be taken away or modified by amendment of the Constitution.

While amending the Constitution was my answer as well; some would claim the Constitution can be said to enumerate some of the inalienable rights we have been endowed with by our Creator and "grants" nothing.

 

[PayrollHRGuy]

Rights that are granted by the U.S. constitution may only be taken away or modified by amendment of the Constitution. Rights conferred in federal statutes may be taken away by repealing or amending the statute granting those rights.

When you get right down to it the Constitution primarily was, originally, the Federal Government could and couldn't do (States added by the 14th Amendment) and how the Federal government is to be run.

In other words the rights are already there. The Constitution grant them but provided protection for them.

 

[Taxing Matters]

While amending the Constitution was my answer as well; some would claim the Constitution can be said to enumerate some of the inalienable rights we have been endowed with by our Creator and "grants" nothing.

Some have said that; I do not agree with them. Of course, to say that we are endowed with certain "inalienable rights" by our Creator accepts as a premise that we have a Creator who has granted us rights that state cannot take away. There is nothing to prove the existence of a Creator; that is something taken on faith. And among those who believe in a God (or Gods) or Creator, the qualities that these beings possess vary greatly. In any event, we have seen from the history of humans that whatever this Creator is, clearly that Creator has not imbued us with rights that cannot be taken away as governments throughout history have taken away the very rights the Declaration of Independence lists as "inalienable." If some Creator had indeed meant to provide us rights that could not be taken away, would not that Creator have made it impossible for anyone to do so?

When the Constitution was written in Convention there was debate over whether a list of rights should be included. Some thought it not necessary since those rights were inalienable and those rights would always exist — no legislature could ever take them away. The fear of those advocating that position was that by listing certain rights it would imply that other rights not stated do not exist. Alexander Hamilton was one of those expressing that view, which was the view of the Federalists generally. "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?" Alexander Hamilton, Federalist, no. 84, 575--81.

But others felt that if the rights were not expressly provided in the Constitution that the government might well be able to take them away, because then there would be nothing in the law (and the Constitution was to be the "supreme law of the land") that would guarantee it. Thomas Jefferson, who wrote the Declaration of Independence and expressed therein the idea of inalienable rights, nonetheless took the view that a bill of rights was essential to preserve those rights:

I will now add what I do not like. First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations. To say, as mr. Wilson does, that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved, might do for the Audience to whom it was addressed, but is surely a gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just & wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse or rest on inference.​

Letter from Jefferson to Madison, Dec. 20. 1787, bolding added. Jefferson feared that leaving those rights to inference would leave those rights in doubt. And I believe him to be correct.

When I study the debates of the founders on the concept of inalienable or natural rights, what I see is considerable disagreement over exactly what those rights were and the extent of those rights. If the matter of what those rights were and the extent of them were subject to debate and differing views, what is to keep those rights from being altered or eliminated later when the legislature and the courts change their view on them and wish to limit them or eliminate them altogether, simply by revising what is included in the realm of a natural or inalienable right?

Ultimately, of course, the public at the time resisted approving the Constitution without a guarantee of rights and adoption was secured by the promise that a bill of rights would be later added. Madison himself was the chief drafter of that bill of rights even though he was a Federalist and took the same view of the issue as did Hamilton. While I respect much of the Federalist view, on the issue of a bill of rights, I think the anti-Federalists had the better view and we are better off for them prevailing on that. Because without that guarantee, I think there is no right that the government could not have taken away.

 

[Taxing Matters]

In other words the rights are already there. The Constitution [did not] grant them but provided protection for them.

I assume that you meant for your post to read as I indicated here with the bracketed text included. For the reasons set out in my reply above it should be evident that I do not agree with that idea and neither did Thomas Jefferson.

 

[justalayman]

Some have said that; I do not agree with them. Of course, to say that we are endowed with certain "inalienable rights" by our Creator accepts as a premise that we have a Creator who has granted us rights that state cannot take away. There is nothing to prove the existence of a Creator; that is something taken on faith. And among those who believe in a God (or Gods) or Creator, the qualities that these beings possess vary greatly. In any event, we have seen from the history of humans that whatever this Creator is, clearly that Creator has not imbued us with rights that cannot be taken away as governments throughout history have taken away the very rights the Declaration of Independence lists as "inalienable." If some Creator had indeed meant to provide us rights that could not be taken away, would not that Creator have made it impossible for anyone to do so?

Im surprised tm.

What is inalienable about our rifhts is Whether or not the government acts to suppress our Rifhts, we still have those rights. The Constitution makes it unlawful to suppress our Rights. Of course the government can prevent us from exercising them but that does not remove those rights. We always have the rights.

 

[Taxing Matters]

Im surprised tm.

What is inalienable about our rifhts is Whether or not the government acts to suppress our Rifhts, we still have those rights. The Constitution makes it unlawful to suppress our Rights. Of course the government can prevent us from exercising them but that does not remove those rights. We always have the rights.

The expression "inalienable rights" means rights that we would have even if they were not secured in the Constitution or even if the Constitution expressly prohibited them — the idea is they are rights that we have from a higher power than humans (e.g. a Creator) such that no humans may abridge or deny them. The history of humans shows, though, that the concept of inalienable rights, while attractive in theory, is not one that you see actually applied in practice. Unless you take steps to secure those rights that you consider fundamental, you could lose them. Our founders took the step to put those rights in the Constitution as a security against the government infringing them or taking them away. The Federalists thought the Bill of Rights was not necessary. But given that history of humans that I mentioned, they were wrong. It was necessary. Even in our own history, we have seen the government do outrageous things, some of which were deemed legal because there was nothing in the Constitution or any statute to prohibit it, and others that the courts restrained only because the Constitution was held to prohibit it. The courts have never held that there is some source of rights higher than the Constitution. Even those rights that the Supreme Court has found that are not expressly stated in the Constitution, like the right to privacy, the Court says are implied from the rights stated in the Constitution, not an inalienable right bestowed from some higher power. If the right derives from the Constitution that means the Constitution may be amended to take them away. Thus, we could end, for example, the right to abortion by constitutional amendment. That right exists because of the Supreme Court's implied constitutional right of privacy. Amendment could not take away that right if it were "inalienable" and higher than the Constitution. (I express no view on whether there should be a right to abortion and do not want to get into that debate here.) While some founders thought the right to bear arms was inalienable, too, I think there is little doubt that the Constitution could be amended to take away that right. There is no authority higher than the Constitution that would prohibit that. Those rights only exist as long as they are in the Constitution.

 

[justalayman]

Correct and we have such rights. It’s not like I’m Superman and can fend off all police and be able to continue to exercise my rights though.

Using your definition we have no rights at all other than those given to us by the government. Those aren’t rights. Those are permissive acts.

You are wrong on the issue concerning inalienable rights.


You are confusing the issue of taking away ones rights or disallowing s person from exercising those rights. You can never take away an inalienable right. It exists whether you prevent me from expressing it. Your confusion is apparently the difference between having something or beijg allowed to express it.

It’s like this:

You have two legs. You have an inalienable right to have those two legs. That doesn’t stop somebody from cutting off your legs. Rights aren’t super powers.

 

[Taxing Matters]

You are wrong on the issue concerning inalienable rights.

I am not wrong. We have rights against the government because those rights are secured in the federal and state constitutions and various statutes. But not one of those rights an inalienable right. An inalienable right is, as you define it, one that could never be taken away. But there are in reality no such rights. If we amend the U.S. and state constitutions to take away freedom of speech for example, then the government could restrict our speech in any way it liked simply by passing a statute prohibiting the speech the government does not like. Why? Because then there is nothing (apart from the public pressure of voters) that would prevent the government from doing that. Freedom of speech is therefore not an "inalienable right." The Supreme Court has never held that there is any "inalienable right" that trumps what the Constitution says. There is no right that we have that is not possible to be taken away. It is difficult to amend the Constitution which makes those rights reasonably secure, but it is not impossible to eliminate even our more cherished rights. It is for that very reason that the American public needs to be vigligant and resist those efforts by some to erode the rights we have.

You are confusing the issue of taking away ones rights or disallowing s person from exercising those rights.

I am not. I am speaking quite clearly about the power to take away rights. I'm not discussing at all the issue of infringing the rights we have.

 

[westside]

While amending the Constitution was my answer as well; some would claim the Constitution can be said to enumerate some of the inalienable rights we have been endowed with by our Creator and "grants" nothing.

This is a correct statement.

 

[icreepin]

It was a general question as You see different movies then you see on the news about how the constitution is so strong ect. I was not asking the question related to any one issue just in general as there are many laws that have been passed which takes away rights that the constitution says every citizen has.

example a person convicted of a felony when does that persons right to vote come back?

example a convicted felon in possesin of a fire arm does that right ever return?

in the news you hear about people in the government saying the internet needs to be regulated if that happens what about freedom of speech?

 

[justalayman]

I am not wrong. We have rights against the government because those rights are secured in the federal and state constitutions and various statutes. But not one of those rights an inalienable right. An inalienable right is, as you define it, one that could never be taken away. But there are in reality no such rights. If we amend the U.S. and state constitutions to take away freedom of speech for example, then the government could restrict our speech in any way it liked simply by passing a statute prohibiting the speech the government does not like. Why? Because then there is nothing (apart from the public pressure of voters) that would prevent the government from doing that. Freedom of speech is therefore not an "inalienable right." The Supreme Court has never held that there is any "inalienable right" that trumps what the Constitution says. There is no right that we have that is not possible to be taken away. It is difficult to amend the Constitution which makes those rights reasonably secure, but it is not impossible to eliminate even our more cherished rights. It is for that very reason that the American public needs to be vigligant and resist those efforts by some to erode the rights we have.



I am not. I am speaking quite clearly about the power to take away rights. I'm not discussing at all the issue of infringing the rights we have.

Using your argument we have absolutely no inalienable rights, at all.. is that your position?

 

[Taxing Matters]

Using your argument we have absolutely no inalienable rights, at all.. is that your position?

If you define inalienable rights as you did, which are rights that are impossible to take away, then that is indeed my position. Suppose that the Constitution were amended today to remove our right to freedom of speech and specifically permitting the government to regulate speech in any fashion it wished. Congress then passes a law tomorrow banning all speech critical of the federal government. You make a statement critical of the Congress for doing that and are prosecuted for violating that law. What would be your argument to the court that the law was invalid? The Constitution would no longer protect freedom of speech, after all, so you could not say that the law was unconstitutional. After all, the Constitution now specifically says the government may do it in this example. So what other argument would you have? I think in that situation there would be no good legal argument that the law was invalid. The right to free speech in that case has been taken away, leaving the government free to regulate speech as it sees fit. That is exactly why the Bills of Rights is so important: it protects against the government doing that very sort of thing. And because the Consitution is so hard to amend, it would be extremely difficult for an amendment like the one in my example to ever be adopted. That's by design and was a good decision by the founders to set it up that way. But difficult is not impossible. The point is that there is no right that is impossible for the government to take away. Thus, no inalienable rights as you define them.

If you define inalienable rights as Thomas Jefferson did to mean rights that all persons should always have against government, I think there are at least a few rights that most Americans would agree fall into that category, especially those in the First Amendment.

 

[quincy]

icreepin returned to his thread to ask questions. It might be nice if someone spent time answering those and leave debates for the senior forum.

It was a general question as You see different movies then you see on the news about how the constitution is so strong ect. I was not asking the question related to any one issue just in general as there are many laws that have been passed which takes away rights that the constitution says every citizen has.

example a person convicted of a felony when does that persons right to vote come back?

example a convicted felon in possesin of a fire arm does that right ever return?

in the news you hear about people in the government saying the internet needs to be regulated if that happens what about freedom of speech?

 

[LdiJ]

Using your argument we have absolutely no inalienable rights, at all.. is that your position?

The Constitution does not say anything about inalienable rights. Its the Declaration of Independence that talks about inalienable rights. Those inalienable rights discussed are life, liberty and the pursuit of happiness.

The Constitution and the bill of rights outlines how the founding fathers, and those who followed them and made amendments, set things up so that we could enjoy our inalienable rights of life, liberty and the pursuit of happiness.

Since then court ruling have been made to allow for situations where rights can be suspended, but those rules are pretty strict, and have to do with doing things that infringe on other people's rights to life, liberty and the pursuit of happiness.