PrintApril 10, 2010
When Civil Rights Make Civil Hands Unclean
The advocates of "social justice" masquerade as partisans of civil rights, but they are actually practitioners of civil wrongs.
Some people in this country think that they have a right to use government compulsion to overcome the free will of their fellow citizens. In the name of "social justice," they claim to have a "civil right" to health care, and they assert that their fellow citizens have a corresponding civil duty to finance that civil right. If their fellow citizens disagree, the proponents of "social justice" have no qualms about using government power to compel their fellow citizens to submit to their notion of civil rights.
As the frightening spectacle of "social justice" unfolds across our nation, thoughtful people are waking up to the fact that the civil rights movement has been hijacked by ideas inimical to freedom. Many are digging into the past to discover how, in the long march to emancipate slaves from physical shackles and women from legal shackles, this country turned off the road to freedom and headed down the path to tyranny. The more they dig, the clearer it becomes that there is a fundamental flaw in the thinking of the "social justice" advocates.
Of course, the notion of "social justice" is beguiling at first glance. By its very vagueness, the phrase invites people to endow it with whatever meaning they find most appealing. For a devout Moslem, social justice means Sharia -- the subjugation of all people to Islamic religious law by any means Mohammed endorsed. For cultural Marxists, social justice is publicly proclaimed to be the dispossession of the "haves" and their replacement by the "have-nots." For a contemporary American liberal, social justice is primarily a matter of using the law to redistribute material goods and social services by requiring "advantaged" citizens to forfeit their advantages so that "disadvantaged" citizens can have them (sometimes called "distributive justice").
Though each of these ideas of "social justice" claims to seek a different result, they all have one thing in common. Each of them depends upon wielding socio-political power to the detriment of some people and for the benefit of other people. Of course, the meme of contemporary liberals and cultural Marxists is that socio-political power is already used in that fashion to uphold the wealthy and keep the poor downtrodden. But if that is their only justification for social justice, then the phrase is nothing more than an Orwellian masquerade for social retribution -- a verbal disguise behind which lurks a desire to put the shoe on the other foot and perpetrate on the "haves" the very evils the proponents of social justice claim to oppose.
Yet while revenge may motivate some of the advocates of social justice, it does not characterize all of them. For some, the concept of social justice is more ideological. It is founded on a belief that the government should supply social goods and services to the people as a matter of civil rights. That is what lies behind recent pronouncements by leading Democrats about the "right" of people to health care. Of course, such statements are made without any attempt to legitimate the assertion, as if the proposition is simply self-evident. But for anyone who understands the historical role of government in society, that kind of proposition is anything but self-evident. In fact, it is directly contrary to what should be evident to anyone who understands the historical role of government in American society.
In 1776, Thomas Jefferson was asked to reduce to writing the reasons that the thirteen English colonies decided to break away from the Mother Country and chart a new course across the stormy sea of human history. The American colonists were outraged because the government of the Mother country taxed them without their consent for purposes they considered objectionable. In the Declaration of Independence, Jefferson wrote:
We hold these truths to be self-evident, that ... governments are instituted among men, deriving their just powers from the consent of the governed. [Emphasis added.]
When Jefferson penned these words, he spoke for all of the Founders of the American constitutional system of government. Thus, following publication of the Declaration of Independence, the Founders affirmed the vision of government by "the consent of the governed" in two distinct ways. First, they crafted a limited federal government that was authorized to exercise only powers expressly granted to it in the Constitution (Jefferson's "just powers"). Then, as a condition of ratifying that Constitution, they promulgated a Bill of Rights consisting of ten amendments, the last two of which provide that:
- Apart from the limited set of powers expressly granted to the federal government, all political power is retained by the states and by the American people (10th Amendment); and
- It is the people who own all of the civil rights in America, not society in general, and not the federal government in particular (9th Amendment).
If the Constitution and Bill of Rights mean what they say, then they stand for the proposition that unless the federal government has an express grant of authority to interfere with the civil rights owned by the American people, the government may not create, abolish, or modify those rights for any reason whatsoever. Indeed, no other proposition is consistent with Article V of the Constitution, which authorizes the federal government only to propose a constitutional amendment if it wants to modify the civil rights of the American people, and which explicitly requires that all such amendments be ratified by the affirmative action of three-fourths of the states before they can become the law of the land.
The advocates of "social justice" attempt to circumvent this clear limitation on the "just powers" of the federal government by arguing that Article I, Section 8 of the Constitution gives the government the authority to declare new civil rights and compel the American people to pay for them. However, Section 8 of Article I merely states that Congress can "regulate commerce with foreign nations, and among the several states." It does not grant the federal government any power to declare, expand, or diminish the civil rights owned by the American people. Thus, while the social justice advocates claim that the government has the authority under the commerce clause to tax the people against their will in order to finance a newly created "right" to health care, under the Bill of Rights, it is the American people who must decide whether such a right even exists. A foundational inquiry, therefore, is whether the American people have made such a decision.
The principal advocates of "social justice" say that the American people decided the issue when they put Mr. Obama and the Pelosi Democrats in power. "The campaign is over," said Mr. Obama. "We won the election," said Nancy Pelosi. But in the constitutional scheme of things, the fact that the Democrats became the majority political party doesn't give the federal government new powers. Its powers are set forth in the Constitution, and no mere change in the political personalities who take control of the federal apparatus can expand the "just powers" of that government. Thomas Jefferson addressed this very issue in 1793, when he wrote:
I consider the people who constitute a society or nation as the source of all authority in that nation; as free to transact their common concerns by any agents they think proper; to change these agents ... [and] that all the acts ... of the nation ... can in no wise be annulled or affected by any change in the form of the government or of the persons administering it. [Emphasis added.]
So the election of the Democrats to power in Washington, D.C. does not justify their imposing "health care" on the American people as a new civil "right" in the name of "social justice." Only the people have the constitutional authority to expand their civil rights, and if the people want a new civil right written into the Constitution, then only the people, acting through their respective state governments, have the right to put it there. That is what the "consent of the governed" means in the American constitutional system of government.
And yet, today, we find ourselves in a situation where the national government has engorged itself on powers it does not justly possess, and it is now in the process of wielding those powers so oppressively that government "by the consent of the governed" has become a hollow mockery. In the name of "social justice," the government seeks to impose new "civil rights" on the American people without their consent, and it even criminalizes the people's refusal to finance those so-called rights. Surely, in the entire history of the American Republic, never have "civil rights" made civil hands so unclean.
Jed Gladstein is an attorney, author, and educator.
Jed Gladstein is an attorney, author, and educator.
