CommentsTHE VIEW FROM HERE - Politicos love to incorrectly call America a democracy because democracies place no constraint on the power of a politico who claims a mandate by virtue of receiving a majority of votes.
Although a republic usually allows for voters to elect some officials, the right to vote does not turn a republic into a democracy. The United States is a federated democratic republic for one reason: The constitution, and not the will of the majority, is the highest law of the land.
The Declaration of Independence pre-determined that our form of government would be a republic rather than a democracy by two key sentences.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Bold added)
By making inalienable rights axiomatic, the Declaration ruled out a democracy where the majority’s will determines rights. No government which did not secure inalienable rights as superior to the will of the voters could be legitimate.
There is no indication that the founding fathers ever contemplated that the new nation would not have a written constitution. Due to recent illicit developments on the Supreme Court, we need note the phrase, “certain unalienable rights, that among these are life, liberty and the pursuit of happiness . . “ Life, Liberty, and pursuit of happiness were not an exhaustive list of inalienable rights. This understanding was incorporated into the Constitution’s Bill of Rights as the Ninth Amendment.
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Ninth Amendment reflects the same fear as caused other wording in the Declaration and the Constitution. The fear was that in the future those who were avaricious for power would distort the documents to deprive some persons of their rights.
By use of the words “all men are created equal,” the Declaration made clear that there could be no classes of people where some had more inalienable rights. Inalienable rights were innate in the individual and not in any group, e.g., Christians, aristocracy, white people.
Jefferson replaced John Locke’s “Property” with “Pursuit of Happiness,” because slaves were considered property. If the Declaration had included property, then slaves would not have inalienable rights since they were chattel. The word “property” could result in only Whites having inalienable rights and their owning slaves would be an inalienable right of Whites.
The Constitution used “Persons” which made clear that women were not excluded. At that time women were in fact excluded from exercising many rights, but the Founding Fathers expected the Declaration’s inalienable rights to eventually be acknowledged as inherent in all individuals. Thus, they wanted to avoid word usage which could be used against that goal.
The awkward phrase “three-fifths of all others” (Const. Art I, Sec 2) was used so that the Constitution would not mention slavery and thus be used as a legal ground to say that the Constitution condoned slavery. (By the way, free Blacks counted as one full person and were not included in the 3/5 formula.)
Both the Declaration and the US Constitution recognized that current circumstances fell woefully short of the proclamation that all men had inalienable rights. Thus, the Ninth Amendment recapitulated the Declaration’s use of “among these” so that none could later argue that the list of inalienable rights set forth in the Declaration, the body of the Constitution and in the Bill of Rights was an exhaustive list.
Madison’s argument in Federalist Paper #46 showed why the Ninth Amendment was necessary. At first, Madison had argued that rights were obvious from the structure of the Constitution, but after writing Federalist Paper #46, he realized his error. As a result Madison and others promoted a Bill of Rights. So that some people might not later argue that the Bill of Rights had identified all inalienable rights, they added the Ninth Amendment. Apparently, Samuel Alito feel asleep before getting that far in his constitutional studies.
The Constitution Significantly Curtailed Voting
As explained in July 11, 2022, CityWatch, Democracy Kills Inalienable Rights, The Constitution went to great lengths to protect the people’s inalienable rights from themselves as irrational voters. No matter how government officials were chosen, the Constitution and inalienable rights were the supreme law. The branch of government most protected from the passions of the voters was the judiciary which could declare laws enacted by the voters’ representatives as unconstitutional. Not only were the court members not popularly elected, the persons involved in their selection, the President and the Senators, were not popularly elected. Alas, insulating justices from the voters did not guarantee that jurists of high intelligence and integrity were placed on the court.
Group Rights Sabotaged the Supreme Court
The Supreme Court’s premier allegiance is to inalienable rights. The Court’s most horrific failure was the Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which has been "universally condemned as the U.S. Supreme Court's worst decision." Wiki, Chief Justice Roger Taney’s analysis of the history of Blacks as a basis to deprive them of right of liberty is similar to Justice Samuel Alito’s cockeyed history of abortion in Dobbs to reduce the liberty of women. Underlying the descent of the modern court has been the rise of group rights. Both political parties and the High Court share blame.
The modern decision which touched off this regression in American jurisprudence was Brown v. Board of Education, 347 U.S. 483 (1954), which unanimously withheld from Blacks the inalienable right of Liberty but instead invented an equality of outcome test as measured by group achievement. Segregation was not unconstitutional because it deprived Blacks and Whites of their liberty to associate with whom they chose. Rather Brown found that since Plessy v. Ferguson, 163 U.S. 537 in 1896, sociology had been showed that Blacks achieved less well in segregated schools. In the intervening fifty-eight years, circumstances had changed and separate was not equal. One should note that the legal reasoning in Brown was closer to Dred Scott than it was to Plessy with Justice Harlan’s dissent.
In his dissent in Plessy, Justice Harlan wrote that segregation violated Blacks’ and Whites’ inalienable rights to liberty. “ The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. ‘Personal liberty,’. . . consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law. . . . If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so...” (Harlan’s dissent,) Harlan’s dissent used “liberty” nine times; Brown did not use it once.
Similar to Dred Scott, the Brown court did not find that Blacks had any right to liberty. Having been excised from the Declaration and the US Constitution, Brown accorded Blacks some illusory secondary right of equality of outcome based upon sociological studies. (The Brown Court never considered that segregation violated White people’s inalienable right of Liberty to associate with Blacks.)
The Brown decision turned President Johnson’s Great Society anti-poverty programs into a group rights orgy where quotas measuring outcomes between Blacks and Whites became all important. The Dems promised a de facto nationwide patronage system for minorities if they voted Dem. The GOP scurried over to White voters; foremost for the easy picking were Southern Whites and Fundamentalist Christians. The realignment along race lines corresponded with the American Political Scientists Association’s position that the Dems and GOP should have mutually exclusive agendas from which voters could choose. Pelosi’ Identity Politics promised to do in Whites and GOP politicos promised to do in Roe v. Wade.
One should not be surprised that a nation which favors a democracy over a republic would scuttle inalienable rights. All that mattered was who had most votes to fatally corrupt the Supreme Court. Just as Hillary forgot to count votes before calling Whites “Deplorables,” Pelosi and her ilk forgot to count the years until Whites were no longer the majority of voters, probably in 2040's. The current Court’s dimwits forgot to count the number of Whites who opposed reducing women’s liberties.
(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor. You may email him at [email protected])