Fundamental Rights Should be Inalienable Rights (Part III)

The other aspect of gaining an elevated Fundamental Right belongs to the power principle. Those with the most money and lobbying power gain more friendly legislation and rights. The NRA was pivotal in attaining guns as a Fundamental Right for self-defense. Self-Defense is certainly a Fundamental Right, but guns are not the only means or choice of weapon. I do not believe guns had to be elevated as a Fundamental Right since it was protected in the Second Amendment. For example, elevating Freedom of Speech or Freedom of Religion as Fundamental Rights is redundant and merely a truism since they are in the First Amendment. Another example of power is the LGBT community. This is a strong faction even though they are not a majority. To get the Supreme Court to rule as they did in Romer v. Evans (preferential treatment to gays), Lawrence v. Texas (Sodomy), and Obergefell v. Hodges (Gay Marriage), they must have some clout. Most minority groups have a strong backing through the work of social justice liberals. In Schuette v. Coalition to Defend Affirmative Action (2014) the Court barely upheld a Michigan Referendum that states: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Justice Sotomayor in her dissent repeatedly states “race matters”. It is hard to imagine or fathom that an anti-discrimination law can be found unconstitutional, but that is exactly what would happen if there is just one more liberal justice pushing for social justice. This is how biased and discriminatory elevated Fundamental Rights can become the law. Remember, the first Fundamental Right elevated by the Court was in the Dred Scott decision (1857). In that case, the Court held all blacks (including freedmen) had no Constitutional rights. This decision led to many other popular (majority rule) decisions such as Plessy v. Fergusson (1896) – the Separate but Equal doctrine, or Buck v. Bell (1927) that compulsory sterilization of the intellectually challenged is permissible. In Plessy, Justice Harlan proclaimed in his famous dissent: “the Constitution is colorblind”.

Our rights are protected through government (legislation and judicial system), but more importantly through the “freedom of contract”. We cannot count on government to protect our rights (as pointed out above), but we can certainly control our property and possessions through the “freedom of contract” and the “freedom from contract”. That is why “freedom of contract” should be a Fundamental Right. However, that Fundamental Right was overturned in the landmark case West Coast Hotel v. Parrish (1935) where the Court held that “freedom of contract” was not as important as government control over economic issues such as work hours, work pay, and work unions via the Commerce Clause.

Let’s examine a few examples or rights which currently are not Fundamental Rights elevated by the Supreme Court. First, is the right for justice. This is a Fundamental Right because every individual is allowed some form of Justice against anyone who harmed them and violated their rights. Everyone is allowed justice if they have been wronged. Justice may come in the form of a restitution (monetary) or prison punishment or both. I would like to see more prisons encourage employment opportunities for inmates (who are poor) so they can pay a monetary punishment for crimes. It could also be used as an incentive for release: once an inmate meets their restitution requirements they can be released. Justice, is not always guaranteed. Our judicial system is set up to protect against convicting an innocent person (the presumption of innocence). This means that guilty people will be set free at a high rate since the burden of proof is on the plaintiff to show the defendant violated someone’s rights beyond a reasonable doubt. People may not receive justice, but they have the right to pursue any options at their disposal to achieve justice.

The second right is the right to health insurance or healthcare. This is not a Fundamental Right. Health insurance may be seen as self-defense to fight life threatening ailments. Health insurance is property because it is a personal possession that costs money. Health insurance is also a contract. Hence, health insurance has many qualities of Fundamental Rights but like any form of property, people can only buy what they can afford or want. It is the right of any person to choose what they spend their money on. Besides, health insurance can be taken away from anyone who fails to pay their premiums unlike true Fundamental Rights (Property, Justice, Knowledge, and Parental Decisions). Government sponsored health care is an entitlement and no entitlement is a right. Taking money from one private citizen to give to another private citizen violates the Takings Clause of the Fifth Amendment (the government can take money for public projects such as infrastructure). This welfare concept violates any Fundamental Right principle that property can be taken (yes money is property) through coercive means without any contractual consent from the taxpayer. Welfare creates a “free rider” system where those on welfare can benefit at the expense of others without any requirements of restitution for their takings. Moreover, government intrusion does not make any product or service better it makes them worse. Government healthcare has fewer insurance options, longer wait times for services, and fewer doctor or medical choices (look at ObamaCare, Medicare, VA, and Medicaid) than private sector healthcare options. If healthcare and health insurance are rights, then government intrusion is a restriction or regulation of those rights. Government intrusion does not make healthcare cheaper because it creates more taxes, opens the doors to fraud and waste, and fails to regulate those mechanisms making healthcare more expensive (such as tort reform).