Mark Steyn’s National Review Online piece today, entitled “Swingin’ Kennedy,” discussed unwritten or “implied” rights and freedoms:
Steyn shares from George Jonas (referencing what happened in Canada in 1982: “Charter of Rights and Freedoms”)
“If you write down your rights and freedoms, you lose them.” Steyn states, “That was generally the view of the Britannic part of the English-speaking world until the late 20th century: What’s unwritten is as important as, if not more so than, what is. The Constitution of Australia, for example, makes no mention of the office of prime minister. The job exists only through custom and convention understood from the United Kingdom, where likewise it existed only through custom and convention: “statutory recognition” in London didn’t come till 1937 — or over two centuries after dozens of blokes had been doing the job.

Obamacare has almost 3,000 pages of what is and is not allowed in terms of our rights and liberties effectively wiping out much of what we take for granted today. I got to wondering what is it exactly that we have become accustomed to in our rights and liberties and what is it that has eroded over the last hundred years or so and what, with Obama’s signature legislation do we have to look forward to losing in our future?

What are the implied rights and liberties as originally outlined by the Founders? In the beginning and based on what new Americans were attempting to escape in their motherland…“..individuals were deemed to have reserved certain rights spoken of as “natural” rights. These rights could neither be taken away nor be limited without the consent of the individual affected.” This is considered a social contract theory. In a word, man is regarded now throughout Europe, contrary to the view expressed by Rousseau, as primarily a member of society and secondarily as an individual. The rights which he possesses are, it is believed, conferred upon him, not by his Creator, but rather by the society to which he belongs. What they are is to be determined by the legislative authority in view of the needs of that society. Social expediency, rather than natural right, is thus to determine the sphere of individual freedom of action.

In the first place, the rights of men, of which their liberty consisted, were, as natural rights, regarded in a measure—and in no small measure—as independent of the law. This means the Constitution is superior to mere laws that might be passed. In fact, the Ninth Amendment to the Constitution reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Constitution and Bill of Rights represent a more thorough, but (according to the Ninth Amendment) not an exhaustive exploration of the unalienable rights that belong to all people.
For example, the Constitution does not enumerate the right to eat one’s food, but the Constitution does not grant to the government the power to deny people that right. The Ninth Amendment recognizes that such natural rights are retained by the people and cannot be abridged by the government.

As James Madison explained in the Federalist Papers: “In the first place it is to be remembered, that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.” The Federalist No. 14, at 65 (James Madison) (Carey & McClellan eds., 1990). (From Law.com)

From Heritage: The Constitution’s Framers placed their faith not in specific guarantees of rights—those came later—but in an elegant system of checks on government. Foremost is the separation of power between the three branches of the federal government, as well as between the federal government and the states. These arrangements provide the flexibility necessary to ensure security and the restraint essential to safeguard liberties.

The Tenth Amendment is central to maintaining our rights: “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.” Because the Constitution created a government of limited and enumerated powers, the Framers initially believed that a bill of rights was not only unnecessary, but also potentially dangerous. State constitutions recognized a general legislative power in the state governments; hence, limits in the form of state bills of rights were necessary to guard individual rights against the excess of governmental power. ….The Federalists relented and passed the Bill of Rights in the First Congress only after making certain that no such implication could arise from the prohibitions of the Bill of Rights. Hence, the Tenth Amendment—a rule of construction that warns against interpreting the other amendments in the Bill of Rights to imply powers in the national government that were not granted by the original document. (The Constitution in One Sentence: Understanding the 10th Amendment.)

Implied rights, though not specifically stated in the original Constitution, are extensions of what is in the Constitution (i.e. Bill of Rights) or are made more explicit via the Supreme Court. Some of these are as follows (from: US Constitution Online):

“Life, Liberty, and the Pursuit of Happiness”

This phrase is commonly attributed to the Constitution, but it comes from the Declaration of Independence. The Fifth Amendment does offer protections to our “life, liberty, or property,” noting we cannot be deprived of any of them without due process of law.

The Right To Privacy

The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th’s search and seizure limits, and the 5th’s self-incrimination limit.

Other rights were found in a book, Encyclopedia of American Civil Liberties, Volume 1 By Paul Finkelman:

{Among others}: The right to believe must be cognate to the rights to free exercise of religion and freedom of speech. The right to marry and have children, the right to association, the right to study a foreign language, the right to educate one’s children, the right to be protected from unreasonable searches and seizures and against self-incrimination {as part of right to privacy}, etc.

We’ve watched over the decades and even more so in this administration, our rights being slowly eroded. Like frogs in a boiling kettle, many Americans have sat idly by as evidence of our own demise mounts. The rights of smokers and now what restaurants can serve are curtailed. In a previous blog, I lamented the elimination of plastic bags in an entire state. We’ve watched the power of the Environmental Protection Agency grow into a gargantuan monster now controlling access to oil in our own country. We protect a Gobi fish over the life of an unborn child. Any reader can easily cite their own example not listed here. And the water boils hotter and hotter as we await the decision of what could come down to one Supreme Court Justice’s vote in just a few months.

So let’s look at Obamacare:

The first most obvious violation stems from the infamous Commerce Clause: whether Congress has the authority to create commerce and then regulate it. This questioning follows the arguments presented by AFLC’s (American Freedom Law Center) Co-Founders and Senior Counsel Robert Muise and David Yerushalmi in their lawsuit against Obamacare and in their “friend-of-the-court” brief filed in this case in the Supreme Court: does Congress have the authority to regulate inactivity?

Under Obamacare, the federal government can force people under penalty of federal law to engage in economic activity; and once they are engaged in this activity, Congress then seeks to regulate them under the Commerce Clause. Once this right of whether or not to purchase something is taken away,the federal government has no limits.

In another lawsuit against Obamacare, AFLC () has continued its fight against Obama’s unprecedented attacks on our Constitution by challenging his controversial “contraception” mandate with a lawsuit filed in a New York federal court on behalf of Priests for Life, a Catholic pro-life organization. This latest Obamacare mandate is a direct attack on religious freedom and the First Amendment.

But it is my premise also that Obamacare attacks many of our “implied rights” such as the right to privacy. If Obamacare passes, my right to privacy in my medical records being between me and my doctor and my right to make decisions in my own medical care evaporates into the control of someone in the federal government who does not know or care about me. I’m 58. By the time this law comes down the pass, I’m too old for a pacemaker or certain surgeries. I’m a conservative and I did not nor will vote for Obama or any other liberal attempting election. Who is to say I will receive any care at all? Someone else is deciding that and they aren’t looking out for my best interests but rather their own and their political party’s best interest. I harken back to the closing of “certain republican owned” car dealerships as an example.

Will I feel safe to express my opinions? Will it be safe to assemble? We already have the Whitehouse Watchdog site encouraging citizens to report other citizens on a taxpayer paid web link.

Would I lose my right to vote for whomever I choose? What would be the consequence to voting against the left? How will children get healthcare from their government? Will it happen in school? Will home school still be allowed? Our tax dollars already pay for a state-controlled education system. What is in our future after Obamacare?

It is my belief that we are on the road to having all of our rights taken away when liberals and the federal government control one sixth of our economy and all of our life, liberty and eventual pursuit of happiness. If they can control what we can or cannot buy and from whom and how we stay alive, they can control everything.

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