Who or what is the source of civil rights? What are civil rights? They must be important or there wouldn’t be a US Commission on Civil Rights, a Civil Rights Division at the Department of Justice, or several Civil Rights Acts. How can the meaning of such a common term remain so hazy and ill-defined? Despite the confusion, one thing is certain. The Supreme Court has no business creating civil rights.
My 1969 American Heritage Dictionary takes almost half a page to dissect “civil” and its iterations. As an adjective, civil . . .
1. Of pertaining to or befitting citizens or citizen as an individual.
2. Of or pertaining to citizens and relations with one another or with the state.
3. Of ordinary citizens or ordinary community life, as distinguished from the military or the ecclesiastical.
4. Of or in accordance with organized society and government.
5. Observing or befitting accepted social usages: proper; polite.
The first three definitions so much as assume republican government, the sort of government created for citizens, by those men and women in society who are all equal before laws made with their consent. The fourth usage reinforces the connection between equals who first gathered in society and afterward crafted a government. Finally, in the fifth definition, only a society that shares common customs and traditions are capable of civil societal relationships, that of enough respect for one another to solve common problems in non-violent ways.
Further down the page is “civil rights.” These are rights belonging to a person by virtue of his status as a citizen and a member of civil society. It follows that those outside of civil society, such as people in John Locke’s State of Nature, do not have civil rights. It isn’t that they are denied them, they simply don’t exist in the State of Nature. Similarly, slaves and convicts are also outside the protection of many protections established by society.
In the civil society of 1788, the sovereign people came together in a Constitution. “We the People” in the Preamble are the source of civil rights and determine what they are. Whereas Natural and Unalienable Rights are gifts from God, civil rights come from our fellow citizens, who establish them in cool and measured deliberation through the procedures in Article V or their state Constitutions.
In the US Constitution are many declarations of citizen rights in society. For instance, the enforcers of civility, police and court systems, cannot toss anyone into jail for very long before he is brought before a judge and charged with a crime. There are further protections in the grand and petit juries to make sure that no one is denied life, liberty or property without formal court appearances, without due process of law.
Of first importance to a peaceful society is that everyone is treated equally under the law. The law must be blind to the race, sex, etc. of the parties. This “equal protection” clause in the 14th Amendment was to prevent unequal treatment of blacks both statutorily and in the courtroom. As fellow citizens, society could treat blacks no other way.
It could be said the US Constitution is but an expression of common and accepted societal norms. Absent a society, there is no need for the three branches, nor for government at all. Just as the US Constitution set forth nationwide civil rights for all US citizens, so too do state constitutions do the same for their citizens.
At his 1987 hearing before the Senate Judiciary Committee, President Reagan’s nominee to the Scotus, Robert Bork, famously acknowledged limits to the judicial power. Not every complaint is necessarily a constitutionally justiciable matter; those that are not justiciable are best dealt with by the political branches, or the states, He touched on the source of civil rights as envisioned by society itself:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
While he admitted he was not entirely sure of its meaning, he found one explanation plausible, that the amendment was intended to clarify that guarantees of rights found in state Constitutions were valid even if the US Constitution did not explicitly guarantee those rights.1
Additionally, “The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.”
Where Judge Bork was uncertain as to the validity of civil rights and norms established in state Constitutions, I am not. In a republic, the idea that a panel of oligarchic lawyers can substitute their feelings for the declarations of certain rights by legitimate amendments to state Constitutions doesn’t pass the giggle test. It is nonsensical.
Through their state and US Constitutions, the sovereign people are entitled to occupy the high ground above the governments of their creation. Scotus obviously did not participate in the drafting or ratification of society’s will, the US and various state Constitutions, so from what source does Scotus assert authority to define societal rights? Upon what clause in the US Constitution does the Scotus feed, that it is grown so great?
There is no such clause. As envisioned by our Framers, Scotus was a defensive instrument of society rather than a bludgeon against society. Scotus’ duty is to protect Natural, Civil, and Political rights. Is the nation to believe a government that famously divides the three natural powers (legislative, executive, judicial) among three distinct institutions would empower one of them to both create and judge the rights of its creation? Who, as a defendant, wouldn’t prefer to be the jury in his own trial? Scotus does just that when it judges cases involving rights of its own creation.
An institution that believes it can cast aside the Sixth Commandment, “though shalt not murder,” as a silly annoyance and re-label murder a right will have no compunction, no reservation whatsoever when it comes to upturning mere societal traditions, such as those surrounding marriage.
Having commandeered the power to define all rights Natural, Civil, and Political, recall the events that led to Obergefell v. Hodges, the judicial enshrinement of homosexual marriage. In 2000, California statutorily through a referendum defined marriage as the union of a man and woman. The State Supreme Court shot it down. In response, the sovereign people of California amended their Constitution to secure marriage as between a man a woman, but to no avail before a Scotus that recognizes itself as the source of civil rights.
The sovereign people under their state and national Constitutions, and not the judiciary, have the indefeasible authority to decide the limits and shape of civil/societal rights. Scotus regards itself superior to God and the sovereign people. In this upside-down outrage, the created are greater than the creators. Elections cannot dislodge Scotus from its perch, nor can a popularly elected Senate ever find the will to exercise its Article III duty to check a runaway Scotus.
Scotus is the “runaway” institution that Article V opponents should fear. Its arrogance knows no bounds as it strips the sovereign people of their right to frame their government and define societal rights. It is past time for patriotic Article V opponents to leave Flatland and accept the third dimension of Article V. Scotus is powerless over a Convention of States and ratification conventions, whose very purposes are to reestablish the supremacy of the sovereign people and once again set them where they belong: on the high ground above all earthly governing institutions.
1. National Review: Judge Bork’s Ink Blot.