Part I: The Constitutional Argument – Who Controls Your Rights?

Mike Magee

On June 19, 2010, self-described Conservative/Libertarian, John Graham, wrote a paper in the National Review titled: “The Constitution and Your “Right to Health Care.” It alerted me from the start that this debate, on the highest policy levels, was about language and semantics.

In the article, Graham writes, “I’m willing to concede a ‘right to health care,’ because once it’s defined as a right, the entire weight of the Constitution comes down against federal (and perhaps even state) control…Where the Constitution enumerates rights, it’s pretty clear that the Founders’ bias was that your ability to enjoy any right was dependent on Congress not meddling in it.”

Graham was signaling that the argument over “rights” in our nation goes way, way back, literally to the birth of our nation, and arguably continues to this very day.

If we allow his to be the final word, we must abandon practicality, prudence, justice, and wise stewardship of resources. Left alone, a battle over the Constitutional “right” to health care, a literal life or death struggle for many in our nation, has been strangely stripped of emotion, compassion, or even self-reflection.

But that is not how it began. As recorded by the painter John Turnball, the Committee of Five on July 4, 1776, – John Adams, Thomas Jefferson, Robert Livingston, Benjamin Franklin, and Roger Sherman – presented their draft of the Declaration of Independence to the full Congress. It’s second paragraph begins, “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 very serious debate was in full swing in pursuit of “consent of the governed” a decade later in 1787 when Alexander Hamilton, James Madison, and John Jay penned the 85 articles and essays that constituted “The Federalist Papers.” Published under the collective pseudonym, “Publius”, their goal was to advance the ratification of the newly proposed Constitution.

In their very first article, they wrote, “It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”

Our early leaders sanctioned this “war of words” in the hope of avoiding more deadly confrontations involving “accident and force.”

The anti-federalists weighed in right from the beginning about the very same concerns with these words: “…inasmuch as it would be impossible to list all rights, it would be dangerous to list some and thereby lend support to the argument that government was unrestrained as to those rights not listed.”

In direct response and rebuttal, James Madison replied, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

In this, he was referring to what became the 9th and 10th Amendment to the Constitution, part of what we call “The Bill of Rights” – the first 10 of some 27 permanent changes or additions to the rules of play of our government.

The 9th and 10th Amendments were designed largely to appease the anti-Federalists who in 1787 and 1788 were fast at work igniting a civil war in a nation that had barely drawn its first breathe. These were assurances, not that the new national government would deliver benefits to its citizens, but rather that they would not “seize” rights that the citizens of the 13 member states currently possessed and jealously guarded.

Thus the enumerated rights are often described, as John Graham did above, as “negative rights.” Madison didn’t grab them out of nowhere. They are actually derived from other sources including the Virginia Declaration of Rights, as well as the Northwest Ordinance, the English Bill of Rights, and the Magna Carta.

As it turns out, Madison was a very good listener. The original 13 listings were eventually trimmed down to just 10 and approved in 1791. Originally, Madison had wanted them inserted into the body of the Constitution, but as a compromise allowed that they would be an add-on. Even so, he added the 9th and 10th amendments to head off several states who demanded reassurances of preservation of state prerogatives and “individual freedoms” before they would sign on.

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

And Amendment X states: “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.” It is useful to note, however, that Madison left wiggle-room here in not qualifying the word “delegated” with the iron-clad legal boundary of the word “expressly.”