OMG! When it comes to the Islamic faith and the First Amendment, am I prescient or what?

Earlier today, I put together a post saying that the Bill of Rights trumps the Civil Rights Act.  It is so because the Rights are inherent in individuals, meaning that Congress has no power to pass a law abrogating those rights (at least not without a very good reason).  I even prepared a nice little chart to walk people through my thinking in this regard.  As part of the chart, I noted that, in theory, Muslims can use the Bill of Rights to justify subordinating women.  Just a few hours later, a friend sent me a link to this news story out of Canada (which does not have a First Amendment):

Barbers in Toronto who refused to cut a woman’s hair have become the target of a human rights complaint, in a case that pits religious freedom against gender equality.

When Faith McGregor went into the Terminal Barber Shop requesting a short haircut, she was told the shop only grooms men.

The reason, co-owner Omar Mahrouk said, was that as a Muslim he could not cut the hair of a woman who was not related to him.

But for McGregor, the rejection of her patronage amounted to sexism.

“Fundamentally, my hair is the same as their male clients, so why would they have a problem with that,” she told CTV News.

“I felt like a second class citizen, like it was hard to hear that they refused and there was no discussion.”

So the 35-year-old filed a complaint with the Human Rights Tribunal of Ontario.

Read the rest here.

One can make a very good argument that the reason the First Amendment had such a good run for a couple of hundred years was because, while Americans might have had doctrinal differences, they shared the same values about core issues:  marriage, sexual orientation, self-reliance, etc.  Now, though, with Leftism ascendent and an increasingly large Muslim population, the tensions being placed upon the Bill of Rights have become unsustainable.  Something’s got to give — and the Left is well-situated to make sure that it’s the Judeo-Christian tradition that cries “Uncle” first.

Bill of Rights versus Civil Rights Act 1

Random thoughts about the Declaration of Independence, the Bill of Rights, Civil Rights, and ObamaCare

Fellow Weasel Watcher Greg, at Rhymes with Right, came up with a good poster likening every woman’s right to have a gun to a black woman’s right to sit anywhere she wants in the bus.  That poster, combined with a discussion I had with some young ‘uns about the Bill of Rights got me thinking about the expression “Civil Rights,” which is something the Left bandies about freely.

Lately, the Left has taken to calling government control of American health care a Civil Right. We all know that’s wrong, but it’s worth understanding precisely why it’s wrong.  I’m still trying to organize my thoughts here, so please bear with me as a waffle my way through this.

United States Declaration of Independence

The beginning of any discussion of civil rights must be the Declaration of Independence:

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.

This single sentence is the “whereas” the precedes the Constitution.  Without this acknowledgement of God-given human status and dignity, the explicitly listed Rights in the Bill of Rights are meaningless.  These unalienable rights are the abstract predicates that justify a citizen’s more concrete “right” to have certain areas of functioning upon which the government cannot impinge.  Unless we acknowledge that humans — all humans — are equal and deserving of Life, Liberty, and the ability to make their way in the world, all the other bulwarks against government overreach are meaningless.

Second Amendment

Which gets us to the Bill of Rights.  What exactly is it?  I mean, we all know what’s in it, but I don’t think most people stop and think about what it is.

The Constitution is a contract between the People (acting through their state-elected representatives) and the government.  Its sole purpose is to describe what form the federal government will take.  It’s a rather dull document that’s given over to defining the executive branch, the legislative branch, and the judicial branch, and then apportioning power and responsibilities between the three of them.

The main body of the Constitution has nothing to do with the People, and everything to do with defining a functioning government.  Thus, while it seeks to make sure that the executive can’t overwhelm the legislature or that the courts can’t overwhelm the executive, there’s nothing in it about whether the government as a whole can overwhelm the citizens under its rule.

What the Founders realized in the wake of the Constitution’s ratification is that creating a government is not the same as protecting the People’s declared rights under that government.  “Rights” aren’t things that the government gives people and that it can take away from people.  Things that the government can “giveth and taketh away” are merely privileges.  Rights, on the other hand, belong to the People outside of the government.  Rights have nothing to do with government control over people, and everything to do with the People’s right to control government.  They preexist the government and will continue to exist long after the government is gone.  Rights are independent of government.

That rights are independent of government does not mean that the government cannot use its aggregated power to destroy those rights.  That they are destructible, despite being unalienable, is what concerned the Founding generation and what led them to create the Bill of Rights.

The first ten amendments to the Constitution recognize that the rights described are fundamental rights that transcend government, but that a tyrannical government can nevertheless destroy these fundamental rights.  Rather than assuming that a beneficent government will automatically protect these rights, the Founders erred on the side of caution and warned the government that it had (and has) no power to touch rights that exist in the People, irrespective of the government.

Combined, that extraordinary sentence in the Declaration of Independence and of the first ten amendments to the Constitution create a bright line of human inviolability into which government cannot intrude.  For example, from the Declaration of Independence, we have a controlling principle that explains why, even though sitting in the front of the bus isn’t set out explicitly or even implicitly in the Bill of Rights, it is still a fundamental Right that is a necessary predicate to the Bill of Rights.  Rights must be applied equally to all humankind, because humankind is created equally.

Freedom to speak, worship, and assemble are unalienable rights.  The right to be armed, for whatever the heck reason you want, is an unalienable right.  The right to have your home free from American troops in an unalienable right.  The right to be protected from torture and coercion aimed at forcing you to convict yourself out of your own mouth is an unalienable right.  The state has the right to execute you if a properly constituted trial finds you guilty of a capital crime, but you have the right to an execution that is neither cruel (death by torture) nor unusual (death by bizarre forms of torture).  There are other unalienable rights.

Let me say again what these rights are:  They are a bright line of human inviolability and power that the government, despite its concentrated strength (police forces, armies, taxing powers, etc.) cannot attack or abridge.

Once one understands the difference between Rights (which are unalienable) and privileges (which depend on the government we elect) we can see why it’s so ridiculous when the Left describes health care as a “civil right.”  It’s not.  True civil rights recognize that citizens and the government are adversaries:  the government constantly attempts to impose itself on the citizens, and the citizens have as their bulwark the Declaration and the Bill of Rights to protect them from this government overreach.  Good health is not a matter of government overreach — except, of course, when the government uses health as a means of undermining the Bill of Rights.

This then, is the problem with ObamaCare: Rather than upholding a civil right, it is created to undermine people’s civil rights.  Its death panels contravene the unalienable right to Life.  Its abortion and contraception mandates directly impinge upon the unalienable right to freedom of worship.  It’s proposed requirements that doctors ask prying questions about guns infringes upon the unalienable right to keep and bear arms.  And Justice Roberts’ decision to the contract, its penalties for inaction are a direct infringement to people’s liberty.

As I said, this is a work in progress, so I don’t have a rousing or neat conclusion.  I’m not even sure what to do with these thoughts, but I did want to get them down while they were still swirling in my head.  Please feel free to add to or refine upon what I’ve written.

The Left transforms Civil Rights, so that it’s no longer freedom FROM government, but total control BY government

Civil rights are much discussed lately, primarily because Progressives with bully-pulpits are furious that Glenn Beck held a rally at the Lincoln Memorial on the 47th anniversary of Martin Luther King’s famous civil rights rally at that same location.  To hear them tell it, in the wake of the “Civil Rights Movement,” civil rights are entirely a black thing, and whites who parade around in the civil rights mantel are manifestly racists.

It says much about the Orwellian twists the Progressive mind takes that its spokespeople can, with a straight face, confine civil rights to a single race.  The whole Progressive concept is oxymoronic, because civil rights, by definition, extend to all citizens within the civitas, not just citizens of a specified color.  (And isn’t that the point King was trying to make?)  The idiocy emanating from the Left might be merely amusing, but for the fact that the Left is working out to ensure that this definition applies to all future generations.  After all, it was Arne Duncan, Obama’s Education Secretary, who appeared at Al Sharpton’s poorly-attended counter rally to announce that education is “the civil rights issue of our generation.”

All of this points to the fact that, in the years since Martin Luther King’s pivotal moment in the sun, the Left has redefined civil rights into a concept that would be utterly alien to Martin Luther King — and that is alien to most people who aren’t Progressives or self-styled “liberals.”  It’s therefore time, in Health and Human Services Secretary Kathleen Sebelius’ memorable words, for some “reeducation.”

To me, and perhaps to you, “civil rights” are those inherent rights that automatically extend to all citizens in a free country.  Thomas Jefferson articulated the broadest outlines of these rights in the Declaration of Independence:

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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Jefferson stated unambiguously that these unalienable rights — the ultimate civil liberties, if you will — do not come from government.  They exist independent of government.  Government’s job is not to create those rights, but to safeguard them.  Government cannot hand them out, not can it take them away.  They just are.  And if government fails to provide the proper safeguards or, worse, itself threatens these unalienable rights, it is not the rights that are illegitimate, it is the government.

Very soon after the American Revolution ended, our Founders recognized that the federal government needed some guidance if it was to maintain its legitimacy and provide a stable structure for its citizens without destroying their rights.  To that end, in 1791, the Founders enacted the Bill of Rights (i.e., the first ten amendments to the United States Constitution).  They are short and sweet, and are notable for the way in which, rather than extending government power, they severely restrict its power over citizens:

Amendment 1 – Freedom of Religion, Press, Expression.

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.

Amendment 2 – Right to Bear Arms.

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.

Amendment 3 – Quartering of Soldiers.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 4 – Search and Seizure.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment 5 – Trial and Punishment, Compensation for Takings.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment 6 – Right to Speedy Trial, Confrontation of Witnesses.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment 7 – Trial by Jury in Civil Cases.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment 8 – Cruel and Unusual Punishment.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment 9 – Construction of Constitution.

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

Amendment 10 – Powers of the States and 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.

To summarize in modern English, our “life, liberty and pursuit of happiness,” “unalienable rights” that come from “the Creator,” are preserved only if we have a federal government that, as to the citizens within its borders:

  • has “no desire to make windows into men’s souls” (1st Amendment);
  • allows them to speak freely, whether the government likes that speech or not(1st Amendment);
  • allows a press unconstrained by government threats or requirements(1st Amendment);
  • let’s them to rally together (1st Amendment);
  • listens to their concerns (1st Amendment);
  • lets them arm themselves (2nd Amendment);
  • protects them from the reach of the government’s own military and police (3rd and 4th Amendments);
  • makes the home inviolate, with the burden on the government to prove a pressing need to breach that privacy (4th Amendment);
  • ensures that a citizen suspected of a crime is held only subject to a clearly stated charge, is prosecuted only once, is brought swiftly to trial, has a fair trial, may have the facts of his case judged by his peers, and cannot be bullied to convict himself out of his own mouth (5th, 6th and 7th Amendments);
  • establishes that, in any case, not just a civil one, the citizen may have a jury of his peers and may not lose his life, liberty or property without a full, fair trial (7th Amendment);
  • prevents the government from stealing private property (5th Amendment); and
  • never inflicts cruel or unusual punishment on any citizen (although the reference to capital crimes in the 5th Amendment indicates that execution does not fall within those parameters) (8th Amendment).

All of the above are the explicitly stated limitations the Founders placed upon the federal government.  It took eight amendments to drive those points home.  But to reiterate just how severely constrained the United States’ federal governments’ power is vis a vis the citizens within its borders, the Founders made two further points:  While the amendments are to be understood to control the federal government, they cannot be read to mean that American citizens have only those rights enumerated in the first eight amendments (9th Amendment).  Instead, those ostensibly stated affirmative “rights” are actually limitations on the government.  All else remains to a free people.

And if that isn’t clear enough, the 10th amendment says that, unless the Constitution specifically reserves an affirmative right for the federal government, or prohibits it to a state, all other rights — the universe of rights, whether or not articulated — belong to the states or the people within those states.

This is small government writ large.  Civil rights mean small government, with the government limited primarily (although not entirely) to protecting citizens from itself.

Martin Luther King understood this.  The Civil Rights movement was a stand against overt government encroachment on the rights of black people.  The Southern States, ignoring the Declaration’s acknowledgment that all men inherently possessed civil rights, used the government as a weapon against the black people within its borders.  The real problem blacks faced wasn’t that their fellow white citizens behaved hostilely, and even murderously, towards them.  Had the government fulfilled its policing responsibilities and stepped forward to protect those citizens, Jim Crow would have been a short-lived phenomenon.  The real problem was that Southern government itself encroached on citizens’ freedom.

It was Southern government that legislatively segregated schools, segregated housing, segregated business establishments, segregated marriages and enacted barriers between blacks and ballots.  It was Southern government that was a “Form of Government [that had become] destructive of these ends [life, liberty and the pursuit of happiness for black people],” making it the civil  “Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

In the sixty years since the Civil Rights movement, the Left has entirely perverted the whole notion of civil rights.  Civil Rights as the Founders intended meant the right of all citizens, regardless of race, color, religion, sexual, gender, etc., to be free of government constraints (although the government’s police powers certainly required the government to protect citizens when others amongst them worked to injure them or constrain their basic freedoms).  Civil Rights as the Left demands it has become an all powerful government that is responsible for redistribution wealth, property, access to government and even happiness, from whites to blacks.

Cross-posted at Right Wing News