Is the Voice of the People Absolute?

March 12th, 2011

There has been a great deal of discussion over the last few days, concerning whether it is right for the Missouri Senate, House, or any legislative body of representatives to override the vote of the people.  The question is: “Shouldn’t the voice of the people, as esxpressed by a definitive vote on a ballot initiative issue be  the final word on the matter?” 

Well…no.

Ballot initiative is merely a tool by which the voice of the people can be heard without using the legislative process.  There are several reasons why it is that such a tool might want to be used, but in the final analysis, it is merely a tool.  A law enacted by initiative has no more, or less, moral standing as an expression of the will of the people than does a law brought about by the actions of a group of legislators chosen by the people to represent them in the General Assembly.  Elections of any sort are a reflection of the will of those who participate in them, and so the election of legislators is no less authoritative than is any other.  However, the election of legislators has it consequences, and one of those consequences is that they will sometimes disregard the will of the majority.  What’s more, that is exactly what they are supposed to do.

This nation was established as a republic for several reasons, but one of the most important was because the Founders feared the mob rule of the majority as much as any other form of governmental tyranny.  France saw its own revolution begin in 1789 (the year our own Constitution was ratified), but its rumblings of a popular uprising had been echoing through Europe and the American colonies/States for decades prior to that.  Jean Jacques Rousseau, and other philosophers of the day, had been extolling to virtues of what came to be known as the General Will.  By this, Rousseau meant that will of the people as expressed by popular vote, and he believed that such an expression of the majority (no matter how slim the margin of majority might be) was perfect in every way and could never be wrong.  The reason he believed and taught such was because he, personally, believed that there is no such thing as a standard of right and wrong outside of the culture of a society.  So, if one society decides to enslave all people under the height of 5’7″, that is correct for that society to do so.  If, however, another society were to enslave all those above the height of 5’6″, that too was correct.  It mattered not at all that the two concepts are mutually exclusive to one another…the fact that they were the expressions of what the majorities wanted in each locale meant that they were both “the right thing to do.”

Of course, our Founders, relying heavily on the concept of natural law (which, though they disagreed with each other as to the specifics of what natural law might entail…they nearly universally agreed that it extends from God and His divine character), rejected the idea that men, or their governments, were free to act however they might choose, without regard to the Higher Authority of right and wrong.  Even so, they admired the concept that each society within the nation as a whole ought to be free to express its own identity and culture, so long as to do so did not infringe upon the rights of other communities to live as they saw fit within their own boundaries.

So, American Federalism was conceived as the hybrid of the two ideas.  There are laws, which are intended to be few, limited, and defined, at the national level given to the nation as a whole, whereby the States (and their constituent communities) can interact with one another as equals within the federal system.  However, as to the specifics regarding how the States would maintain those cultural distinctions that drove them to be created as separate entities in their colonial origins…those issues were left to the States themselves.  The way in which the Founders determined to guarantee that neither the national government, nor the States individually, would ever fall prey to the mob rule of the General Will was to guarantee that every State would have a republican form of government (Art IV, cl 1).  So strongly did the Founders fear the concept of a pure democracy driving the will of the majority over the rights of the minority, they forever enshrined the exclusion of that governmental type in the very fabric of our national identity.  It was a reflection of what James Madison wrote in Federalist #10:  ”Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

As the Founders saw it, the will of the people, as an expression of their culture and identity, was important to good government, but it was never to be allowed to take the place of good government.

Legislators, when called upon to do so, must have the courage to tell the majority, “You got it wrong this time.”  Part of the reason we have a republican form of government is due to the fact that it is impossible for every citizen to be an expert on every facet of governmental concern.  We are all equal in value as human beings, but we are not all equal in knowledge, wisdom, interest, or the ability to dedicate our time to the issues that governments at every level of society face on a daily basis.  So, we look for representatives to go on our behalf and vote for those things we would have them to support, and oppose those concepts we would disdain.  In that purest sense, they serve as our delegates; repeating the values which we hold, even if that means ignoring their own ideas and principles.  But, since we cannot know it all in every instance, there are times wherein the citizens (even a majority of them) do not know about a scenario well enough to make an informed decision on the matter.  What’s worse, is that they often do not know just how ignorant they are, because the media (and schools, and families, and churches, and…) have done such a terrible job in promoting the education and social comprehension that a republic requires in order to thrive.  Let’s face it…most people are more worried about who got voted off the latest episode of “Survivor” than they are the intricasies of governance, and we’re honestly going to suggest that THEIR will be supreme?

So, when establishing the republican form of government, the Founders allowed for the people to be heard and be represented in their best interests, but this was to be done by individuals dedicated to get it right.  Representatives often fail in this effort, but such failure proves only the error of the representative, not the system itself.  And, in those instances wherein the public gets it wrong (and they inevitably do from time to time), the true representative of the people will suffer the slings and arrows, and act in the best interest of the people, even if they do not see that such is actually in their best interest.  So, the representative is required to “vote how I tell him to vote…unless there is something I don’t know about, in which case, vote as I would, if I knew what he knows.”

Now, that will make the libertarian minded friends among us furious, but that is the republican form of government in action.  It can be different than that, but it will take a Constitutional Amendment, the erasing of more than two hundred years of societal precedent, and the rewriting of our national identity, but hey…

So, with all of that in mind, the question boils down to this: “Did the voters get it wrong in regard to Prop B?”  If not, the Missouri Senate got it wrong, and every senator, who voted contrary to his/her constituency, ought to be expelled at the very next electorial opportunity.  If so, those educated voters with the ability to admit that they may not know it all will have to swallow their pride and be thankful that our senators were courageous enough to stand up to the masses without blinking.

I could go through the reasons why I believe Prop B was, and is, bad law…then others would come on here and say that I am simply the modern, male version of Cruella DeVille, seeking to slay puppies only after they have been properly tortured, and no one’s mind would be changed.  So, since this is already much longer than any of us intended, permit me to cut to the chase…

Prop B is unconstitutional.

The Hancock Amendment to the Missouri State Constitution (1980) reads, in part:

“A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the general assembly or any state agency of counties or other political subdivisions, unless a state appropriation is made and disbursed to pay the county or other political subdivision for any increased costs.”

Since Prop B increases the level or activity of a governmental service beyond those in effect in 1980, and the activities in question would be the burden of the counties and other political subdivisions of the State to bear, the State is required by its own Constitution to fully fund that increased activity, because the Hancock Amendment prohibits unfunded State mandates.  It’s really just that simple.

This being the case, the law either had to be altered to remove the unfunded mandates, be fully funded by the State, or stricken from the books all together.  We are already in an economic crunch in our State coffers, and to repeal the act entirely would disregard completely the will of the people; so, the only option left was to alter the act to removed the unfunded mandates, and unless my reading of SB113 deceives me…that’s exactly what it does.

I know I haven’t changed the minds of some, and I realize I may lose the respect that I have striven to earn in the eyes of some.  However, I wouldn’t lie to you for any reason; not even to make you aprove of my position.  So, I’m opposed to Prop B, and I believe SB113 is a viable option to remove us from the unconstitutional predicament in which the voters (well-intentioned though they were!) placed us all, when they got it wrong last November.

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Missouri Ballot Security Initiative

February 27th, 2011

A Proposed Amendment to the Missouri State Constitution

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The Missouri State Constitution shall be amended to require that:

The Secretary of State of the State of Missouri shall directly certify that all candidates for the offices of President and Vice President of the United States are eligible to hold the office sought, according to the qualifications established in the Constitution of the United States, prior to any election in which the candidate would run for either of the above offices; the name of any candidate failing to comply shall not appear on a Missouri ballot for President or Vice President of the United States, nor shall the candidate qualify as a write-in candidate under any circumstances.

_____________________________________________________________

Definition of terms:

“Shall directly certify” – Each candidate shall provide to the office of the Secretary of State verifiable evidence of age, residency, citizenship status and the origins thereof, such evidence as shall be kept and maintained by the office of the Secretary of State and shall be regarded as part of the public record.  The burden of proof for such evidences, and their submission to the Secretary of State, will lie solely with the candidate in question.  “Verifiable evidence” in regard to citizenship status shall be in the form of an original, raised-seal copy of the most complete record of birth offered by the corresponding controlling legal authority in question at the time and place of the candidate’s birth.

“Candidates for the offices of President or Vice President of the United States” – Those individuals who, regardless of party affiliation, or the absence of party affiliation, petition the Secretary of State office for the State of Missouri to be considered as a legal candidate, eligible for a slate of electors to vote in the Electoral College for President and Vice President of the United States on behalf of the State of Missouri and the citizens thereof.

“Eligible to hold the office sought, according to the qualifications established in the Constitution of the United States” – “Eligible” candidates shall be those who meet the requirements of the offices of President and Vice President of the United States as set forth in the United States Constitution, Art. II § 1, namely, each candidate must be:

  • A Natural Born Citizen
  • At least 35 years old
  • A resident within the United States at least fourteen years

“Natural Born Citizen” shall be understood to be an individual, whose United States citizenship was affixed at birth, due to the circumstances of birth, without need of any further action on the part of anyone, according to the laws of the land in force at the time of birth.  In scenarios wherein a person was born outside of the United States and/or its territories, the following shall apply:

Birth Abroad to Two U.S. Citizen Parents in Wedlock

A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock if the child is the genetic issue of the married couple.

Birth Abroad to One Citizen and One Alien Parent in Wedlock

A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “New” Section 309(a)

A person born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) of the INA, as made applicable by the “new” Section 309(a) of the INA provided:

  1. A blood relationship between the person and the father is established by clear and convincing evidence;
  2. The father had the nationality of the United States at the time of the person’s birth;
  3. The father was physically present in the United States or its outlying possessions prior to the child’s birth for five years, at least two of which were after reaching the age of 14.
  4. The father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
  5. While the person is under the age of 18 years –
  • the person is legitimated under the law of his/her residence or domicile,
  • the father acknowledges paternity of the person in writing under oath, or
  • the paternity of the person is established by adjudication of a competent                                            court.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “Old” Section 309(a) of the INA

A child born out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under the former Section 301(a)(7) of the INA as made applicable by the “old” Section 309(a) of the INA if the U.S. citizen father, prior to the child’s birth, had been physically present in the United States or one of its outlying possessions for ten years, five of which were after the age of 14, and if the paternity of the child had been established by legitimation prior to the child reaching the age of 21. The “old” Section 309(a) of the INA is applicable to individuals who were 18 on November 14, 1986 and to individuals whose paternity had been established by legitimation prior to that date. Individuals who were at least 15 on November 14, 1986, but under the age of 18, could opt to have their claim determined in accordance with the provisions of either the “old” or the “new” Section 309(a).

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother:

A person born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 309(c) of the INA if the mother was a U.S. citizen at the time of the person’s birth and if the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person’s birth. The mother must be genetically related to the person in order to transmit U.S. citizenship.

“Prior to any election in which the candidate would run for either of the above offices” – In regard to Presidential primaries, candidates shall provide verifiable evidence of eligibility to hold the office of President of the United States “on or after 8:00 a.m. on the fifteenth Tuesday prior to the presidential primary, and on or before 5:00 p.m., on the eleventh Tuesday prior to the presidential primary, along with a written request to be included on the presidential primary ballot which is filed with the Secretary of State.  In regard to general elections, candidates for President who did not participate in a primary election and candidates for Vice President shall provide verifiable evidence of eligibility to hold the office of President or Vice President of the United States “not later than the twelfth Tuesday prior to each presidential election, or notwithstanding any prior laws to the contrary, in the year 1996 and thereafter, within seven working days after having been chosen as a nominee by an established political party for President or Vice President of the United States, whichever is later.”

“Write-in Candidate” – A person:

  • whose name is not printed on the ballot (see 115.453(4,5,6) RSMo); and
  • who has filed a declaration of intent to be a write-in candidate for election to office with the proper election authority prior to 5:00 p.m. on the second Friday immediately preceding the election day. It is not necessary to file a declaration of intent if there are no candidates on the ballot for that office. (see 115.453 (4) RSMo)

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How the Constitution is Being Threatened

January 13th, 2011

Recently, I was asked to write a small piece to answer the following question: “Exactly how is the Constitution being threatened?”

I believe the person asking the question was doing so out of a sincere desire to understand my position, or perhaps to help me focus on the reason(s) whay I, and so many others hold the position we do.  Regardless, it allowed me to crystalize what I have long held to be the truth in the matter, as it relates, not only to the Constitution as a document, but as the very foundation upon which our nation has been established.

This was my response:

________________________________

In regard to the manner in which the Constitution is threatened, there are specific instances in which the action of governmental officials and/or agencies have ignored their constitutional constraints, thereby removing from themselves the very bridle the Founders saw fit to place firmly in the mouth of governmental power to ensure its willingness to yield to the reins held in the hands of the governed.  The recent foray into the realm of mandatory health insurance and healthcare overhaul by the national government, without one whit of constitutional authority to express itself in that facet of life, is sufficient of itself to show the fashion in which our national leaders have forgotten their place as servants of the States and the people, wherein the spark of sovereignty forever lies.

 However, that example, and the many others that can be just as easily set forth, are only symptoms of the real problem at hand, and cause too many to ignore the core issue facing us as a nation wherein our national identity is at hand.

Just within the last several days, the national media took the newly elected, Republican controlled House of Representatives to task for having the Constitution read at the beginning of the legislative session.  One “journalist” from the Washington Post (Ezra Klein) suggested on an MSNBC news program (Dec. 30, 2010), that the Constitution cannot be rightly understood, since it is more than 100 years old.  This idea that the words of the Founders cannot be understood correctly has been brought about by the same notions that suggest our Constitution is “a living document,” by which is meant that it is malleable and capable of being made to fit the needs of a modern society, not by the amendment process instilled within the framework of the document itself, but rather by simply discovering new ways in which to understand the words that were written, decades, or even centuries ago.

 We see the effects of this attitude toward the static, written word: 1965 saw the rendering of the Supreme Court’s decision in Griswald v. Connecticut proclaim the “right to privacy,” even though there is no such right given within the Constitution.  From that creation of a “right” out of whole cloth, we saw the 1973 decision of Roe v. Wade, the result of which (apart from the more than 40 million unborn children we have lost) being the removal of the power of the sovereign people, acting as the sovereign States to decide those matters most intensely personal, which were clearly left to the realm of the local body politic by the Founders via the 10th Amendment.

 Because the Constitution has been relegated to the concept of an antiquated document, the words of which being beyond our comprehension, and the force of which used only when it serves to extend government but never to curtail it, the document is effectively ignored as being the foundation of our society.  That alteration of attitude among our elected leaders, the various media outlets, and increasingly among the population writ large, is perhaps the greatest threat to the Constitution imaginable, for if it does not mean what it says, it does not means something else…it means nothing at all.

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Let the Words Speak for Themselves!

December 25th, 2010

Whatever flu-like form of plague has been going around here in the Ozarks, has flown firmly into our house this holiday week.  Earlier, the two kids still here at home were ill, and now their mother and I have it, as well.  So, that means an abbreviated celebration of Christmas, for the Chappell family…and it means that I found myself sitting by the fire, watching the History channel on Christmas Day.

Big mistake.

There was a program shown thereon entitled, “Banned from the Bible.”  So wonderfully successful was this program (I speak as a fool), that there followed a “Banned from the Bible II.”  The basic premise of these productions was that there are errors in the Bible, errors which are corrected and/or explained in the various books that were “banned” from the Bible because they did not jive with the understanding and traditions held by those, identifying themselves as Christian leaders at the time.  Now, this blog is not the place to go into a detailed explanation of the determinations made between which writings were indeed canonical, versus those that were apocryphal, but let me show just one brief example cited in the program so that the basic problems with this level of “scholarship” may clearly be recognized.

The supposed “problem” is the same one addressed by nearly every Bible class teacher, when teaching from the book of Genesis: Where did Cain get his wife?

The “scholars” on the show reject entirely the idea of the creation account given in the Scriptures (Specifically, that Adam and Eve are the father and mother of all humans who have ever lived on the face of the earth), treating them as simple “creation myths” rather than the inspired word of God.  Now, some may well be reading this, who also reject that account of man’s origins, and that is their right, of course.  However, if one is going to represent himself/herself as an expert in the holy writings of the Hebrew and Greek Old and New Testaments, may we not expect such a one to handle those writings with the integrity and respect that true scholarship demands?  May we not chastise those who would use their positions of influence, especially over their students, to propagate their own preconceived ideas, regardless of the textual evidences?  Of course we may, and indeed, we ought to do so, if for no other reason than as a recognition that truth is always an honorable pursuit justified in its own right.

So, where did Cain get his wife?  The Scriptures simply tell us that, after having been marked by God as partial punishment for killing his brother, Abel, “And Cain went out from the presence of the LORD, and dwelt in the land of Nod, on the east of Eden.  And Cain knew his wife; and she conceived, and bare Enoch: and he builded a city, and called the name of the city, after the name of his son, Enoch” (Gen 4:16-17).  The show suggested that Cain must have clearly chosen a woman from another family (ie: not descended from Adam and Eve), because “there is in the Bible” as, Rabbi David Wolpe, of Sinai Temple, Los Angeles asserted, “a fairly powerful prohibition against incest, and clearly the idea that Cain married his sister would be very difficult for people, and it just shows how hard it was for people to accept that a woman would come out of no where.”  Excuse me, but the text does not say that a woman appeared from nothing, nor does it even hint that such was the case.  What the Bible does say, is that Eve is “the mother of all living” (Gen 3:20), and that there was no creation accomplished beyond the six days of the Creative Event described in the first two chapters of Genesis, because, as we are told in Exodus 20:11, it was within those six days that God created all He created, and John 1:1-3 goes on to explain that outside of God, no creation has ever been accomplished.  Again, some may not accept these as being conclusively the word of God, but if one proclaims to be a Bible believer, or even a Bible scholar, should not the actual words of the Bible supersede those merely spoken about it?  So, if, as the Bible leads us to accept, Cain married a woman unnamed in the Bible, and she had to have been a descendant of Adam and Eve, the only logical conclusion is that she was a blood relative of Cain’s.  Perhaps she was a sister, a niece, or some other relation, but a relative to be certain.

So, why then, would the perception of a “fairly powerful prohibition” (how can one have a prohibition, have it be “fairly” powerful, and have it “prohibit” anything at all?!?) force one to reject what the Bible clearly states?  Is there not a reasonable explanation why we have an apparent case of biblically mandated incest, while the Bible is equally clear, that one must not engage in an incestuous relationship with one’s near relatives (Lev 18:8-18)?  How can this supposed contradiction be understood?  Cain, and whatever woman it was to whom he was married, did not live at all under the Law of Moses, which is the law wherein the prohibition against incestuous marriages is established for the children of Israel.  Cain, and all those who lived prior to the giving of that Law to Moses on Mt. Sinai (the irony that the Rabbi cited above serves in Sinai Temple is not at all lost…), lived under what is known to biblical scholars as the Patriarchal Law, whereby each family had its own laws given to them by the Lord, and it was to that law that they were particularly amenable.  Noah, for example, was the only one directed to build the ark, and that commandment is simply not enjoined on any other.  As further evidence of this principle, let us consider Abraham, the father of the faithful, and the very starting point of familial identity for those of the nation of Israel.  Abram (as he was originally named) was married to Sarai (later renamed “Sarah”), and yet she was his half-sister, the daughter of his father, Terah, by another mother.  Now, some have suggested that Sarai was actually the daughter of Abram’s brother, and therefore, his niece, but either way, Abram would have been in direct violation of the Levitical prohibitions against such an incestuous relationship…if he had lived when they were in force.  Abraham, however, lived centuries before those laws were in place, and so he never violated any law of that sort.

You see, in studying ancient manuscripts, context is everything, and everything is a context.  If one seeks to understand the actual meaning of what was originally intended by the writing examined, one simply must understand all of the various contexts in which that text resides.  Who is speaking, and to whom?  What are the cultural, linguistic, educational, geopolitical, governmental, and legal contexts in which the event takes place?  Which law of God is it under which the individuals cited were living at the time of the event?  Whether the Patriarchal, Mosaic, or Christian dispensation, the scenario cited simply cannot be comprehended correctly without a proper identification of the Law of God in force at the time.

So, what does any of that have to do with a political science blog?

Just this: the Constitution is an ancient manuscript, and as such, it can only rightly be understood by examining all of the contexts in which it was created by those, who had a hand in its completion.  Who said what?  Why was that particular piece of the societal puzzle important enough to be addressed at that time?  What were the cultural, linguistic, educational, geopolitical, governmental and legal issues of the day, that worked together to give us the foundation upon which our secular society has been established?  In fact, all of our foundational documents (the Articles of Confederation, the Declaration of Independence, the Federalist and Anti-federalist papers…all of them can only rightly be understood within the contexts in which they were created.  There is no vacuum in which intellectual pursuits may be sought, and each of the Founders were as much a product of their respective environments as the documents they penned were of their preconceived ideas and prejudices.

Yes, one may take the Bible, and with an impure intent, make it say whatever one chooses, just exactly as the Constitution and other foundational documents may be made to express ideas foreign to those intentions by which they were established.  However, to do so is not to prove that the writings are unstable and of no certain value, but rather it is an indictment of those, who disrespect the pure intentions of those writings, choosing rather to subvert the original intent of the writers by replacing them with their own, lesser messages.

Let me be clear, if the Constitution, or any portion thereof, does not mean what those words were originally chosen to express, in the contexts in which they were originally written, then it does not mean something else…it means nothing at all.  The relatively new concept that the Constitution is a “living document” to be molded into whatever the reader desires is simply a false, irrational, and wholly unscholarly doctrine.

Small wonder then, that the Bible and the Constitution each suffers at the same hands, as these “experts” tell us everything that needs “fixing” in them.  Here’s an idea…what if we just understand the words of the Constitution as they were originally meant, and use them to define the society as the Founders intended?  What if we looked to the Bible as the standard of right and wrong, allowing the words to mean what they were intended to mean, ignoring the insertions of supposed corrections?

But…then again…I’ve always been radical like that.  It’s what makes me a Conservative.

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Searching for the Authority to Search

December 16th, 2010

Searching for the Authority to Search:
The TSA and the Social Contract
by Darin Chappell, MPA

Much has been said recently concerning the Transportation Security Administration and its tactics for ferreting out threats in the nation’s airports, especially since the public outcry over the more intrusive methods used. Attorneys from every angle have weighed in on the constitutionality of the searches, and there are court cases which express what the nation’s judiciary has thus far determined regarding the matter. However, what has not been largely addressed is the concept of these actions being deemed unconstitutional from a social contract perspective.

Social contract theory, advocated by Hobbes, Locke, Rousseau, and other philosophers upon whom the Founders relied in the nation’s establishment, declares that the State receives its capacities of governance from the citizenry, as they cede their capacities of self-rule to the government so as to have the security of a social order in place of the chaos of anarchy. Jefferson noted this tenet in the Declaration of Independence when he penned, “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.” This being the case, “government” is the result of individuals coming together to form a contract so that they need not fear the movements of others around them, knowing that they also have given up certain liberties (as in, not doing harm to their neighbors), so that all partners of the contract (recognized as “citizens”) have the reasonable expectation of the protection of their “unalienable Rights” by the government formed for that very purpose.

Because this view of government as “the servant,” rather than “the Served,” was so deeply ingrained in the Founders, they provided the newly formed nation with a list of rights codified as proposed amendments to the Constitution. In 1791, the Bill of Rights, as those first ten Amendments came to be known, were ratified, declaring rights which the national government simply could not ignore. Among those was the 4th Amendment, which reads, “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.” The concept was clearly set forth in the writing of the Amendment itself…government “shall not” infringe upon the right of the people to be secure from unreasonable searches and seizures. Note that there are no exceptions therein for activities during time of war, insurrection, or other national distresses, as are included in other constitutionally guaranteed rights. It simply declares what government shall not do, without caveat.

Of course, this makes perfect sense from a social contract perspective. If the government receives its just powers via consent of the governed, then it follows that the governed may not delegate any powers which they did not possess in the first place. May one individual, without probable cause, detain another and search his person simply on the off chance that the second may intend to harm the first? How then can a government (the mere agent of the citizen) do what the citizen may not do, if the government derives its powers from those being governed? It is clear that the courts have determined that the right to be free from unreasonable governmental searches and seizures may be eroded appropriately in the face of trying circumstances, but such decisions are not inherently correct simply by having been made. The courts also once held that slaves were mere property of their masters, without rights of any sort, but now we see that as a terrible injustice.

All agree that the nation must be secure as possible from the very real threats in the world, and that people with nothing to hide are usually willing to yield to requirements thought outrageous in other contexts. However, “how” we do things is just as important as “that” we do them. If we save the society by destroying the social contract upon which it is based, what have we accomplished? What will be the next trauma that justifies our loss of the God-given rights for which so many have died, and so many more continue the fight to preserve?

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