Sunday, February 19, 2012


Piling Irrelevancy Upon Irrelevancy

Let's start at the beginning: We hold these truths to be self evident that all humans are endowed by God with certain inalienable rights including, without limitation, life liberty and property. You can only be deprived by the government of these named three through due process. The Bill of Rights was necessarily tacked onto the Constitution to ensure its passage by enough states to form a more perfect union than the Articles of Confederation provided. Madison and, to a lesser degree, George Mason crafted the first 10 amendments, the Bill of Rights, but were rightly concerned that the 10 would be viewed as a complete list, which they were not. So the 9th Amendment was crafted to tell everyone: This is not a complete list of self evident, inalienable rights.

It kinda failed, but in the second half of the 20th Century, judges on the Supreme Court began to find other inalienable rights in the umbras and penumbras of the Constitution. (Shouldn't they merely be self evident?) One of these rights was named in Griswold v. Connecticut, a right to use contraceptives in the zone of privacy of the bedroom. Contraception use became one of the self evident but unnamed-in-the-Constitution rights Jefferson and Madison were talking about.

So for the last 50 years or more, it is an inalienable right to use contraception and neither the federal government nor any state government can stop people from using them. Case closed.

Let's talk a little about the evolution of the concept of rights in the lefty dominated political marketplace of ideas since 1965 and Griswold. You have what are simplistically called negative rights. That is, the government can't do certain things--search your house on a mere hunch, try you again and again for the same crime until they convict you, for example. And you have positive rights as well--to keep and bear firearms and to speak freely and worship freely, for example. But these positive rights do not involve, at least usually, the concomitant right that the government pay for your firearm, for example, or provide you a venue and sound system, or a place of worship. We have a free press but the government doesn't have to buy everyone a printing press and paper so they can exercise this right. Turning back to contraception, I think it actually was a negative right in that the government can't prohibit your use.

Contraception has never been a plank of the Republican platform and certainly since Griswold (until recently), it probably has never even been mentioned by Republican candidates for President, for the simple reason they could not do a thing to stop access to contraception in light of the Supreme Court's ruling, even if they had wanted to, which they didn't.

But now a lot of people are talking about contraception as if it's an important issue. What a singular waste of time!

There is one aspect, however, which is eluding the lefty leaning media. The President has ordered private health insurance companies to give everyone contraception, et al., for free. Aside from the serious problems this order poses to the free exercise of religion clause in the 1st Amendment (as Catholics, for example think non-natural forms of contraception are morally wrong), this aspect is worth talking about, but this part of the subject involves only the President and the Democrats and puts them in a damaging light.

The Republicans are not now wanting (and have never wanted) to take away and cannot take away people's access to contraception. Anyone who talks about the subject with that slant is trying to fool you and wasting your time.

The idea however, that the President can order people in business, however organized, to provide free service is a concept totally anathema to the idea of ordered liberty of the founding fathers. It is tyranny on a minor subject. It is tyranny because the federal regulation impinges upon the self evident right to property without any process but executive fiat. It elevates a right, perhaps a valid 9th Amendment right, of prohibition on the government into a positive right (that you are to be supplied with contraceptives) and makes the cost of that mutated right the proper roll of the government. And worse, rather than make the cost of the mutated right fall on all taxpayers, it falls, by executive order, only on a small subset of private citizens. That sounds pretty unfair to me.

This is the important aspect of this story. See how much you hear about it this coming week. I boldly predict the left leaning media will be trying to sell the false narrative that the Republicans are anti-contraceptive or anti-women. At the same time the left leaning media will ignore the thin end of the wedge--naked tyranny--inherent in the recent actions of Secretary Sebelius and the fraudulent accommodation offered by the President.

UPDATE: Mark Steyn, ever cognizant of the problem inherent in socialist nations with shrinking populations, throws in his two cents on the subject with the usual humor and insight, and here the assist of Glenn Reynolds.

But in America an oblivious political class, led by a president who characterizes young motherhood as a “punishment,” prefers to offer solutions to problems that don’t exist rather than the ones that are all too real. I think this is what they call handing out condoms on the Titanic.

Glenn Reynolds, the Instapundit, distills the current hysteria thus: “It’s as if we passed a law requiring mosques to sell bacon and then, when people objected, responded by saying ‘What’s wrong with bacon? You’re trying to ban bacon!!!!’”

Americans foolish enough to fall for the Democrats’ crude bit of misdirection can hardly complain about their rendezvous with the sharp end of that page-58 budget graph.
Here's the graph:

There are nations which have survived a debt load of 100% of the GDP but they are very few. No nation I know of has survived a debt load of 150% of GDP. The debt in the graph understates what our government has promised but probably can't pay and it could well understate the growth of the subset of debt shown here. However, as Steyn points out, economic activity stops because of the debt load in 2027, 15 years away. Oh, goody.

The President has decided not to do a thing to curve down the growth of the debt and has seriously increased spending and borrowing and creating more unfunded entitlements in his first four years. No sane person can vote to continue this overspending/borrowing. The Republicans may not be able to bend the curve down quickly or easily but at least they will try.

UPDATE 2: I was troubled what I just wrote regarding positive rights. I think it is much more accurate to say all the rights in the Bill of Rights are negative rights in that each of them is a prohibition on action of the government. Congress shall make no law abridging speech religion, free press, etc....the right of the people to keep and bear arms shall not be infringed [by the Government]...the government can't quarter soldiers in your house...the government can't conduct searches without probable cause...the government can't try you twice for the same crime, or compel you to testify, nor deprive you of the three first identified inalienable rights without due process or steal your property (I like this amendment the best), etc.

The so called positive rights--to free stuff from the government--are not God given inalienable rights because they require someone else to provide you the free stuff, they necessarily impinge on the rights of another. The so called positive rights are a socialist wish list only

I was wrong above. There are no positive rights in the Bill of Rights, which is a good thing.

UPDATE 3: Diomedes questions my acceptance of Griswold as naming a valid, inalienable right. I like it when the government is prohibited from taking away my freedom. I hate it when the government takes away freedom, especially under the guise of a positive right. So stopping the government from prohibiting my ability to purchase contraceptives is, I think, a good thing even if Griswold is a springboard to the more troubling Roe v. Wade.


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