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July 11, 2022

The essence of this lesson is: Federalism is a basic structure of governance in the United States, U.S. Constitutional rights are limited, and some rights come from God, not government.

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Supreme Courts of the United States like to bore down, relative to fundamental rights, to those that have historic recognition in the traditions and customs of the People. In other words, our system has a hierarchy of individual rights. That hierarchy is:

I. RIGHTS FROM GOD (UNALIENABLE; DECLARATION OF INDEPENDENCE, 1776)

A. life itself, the taking of which is conditioned by Moral Law first and then Positive Law

B. liberty of the person, conditioned on respecting the liberty of other persons

C. pursuit of happiness, conditioned on respecting other people’s pursuit of happiness

II. US CONSTITUTIONAL RIGHTS, 1787

A. the right to a trial by jury in criminal cases

B. the right to present oneself for trial – habeas corpus

C. the right not to have a religious test used as a condition of federal public service

D. the right not to be incriminated by a legislative body – bill of attainder

E. the right not to be indicted for a crime that was not illegal at the time – ex post facto law

F. the right to obligate oneself by contract

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III. RIGHTS ADDED TO THE CONSTITUTION AS THE BILL OF RIGHTS, 1791

A. the right to exercise one’s religion and speak on issues of public policy in a proper forum

B. the right to peacefully assemble and petition the government for redress of grievances

C. the right to keep and bear arms

D. the right to be free from arbitrary search of one’s person and property

E. the right to a grand jury for a federal crime

F. the right not to be tried for the same offense twice

G. the right not to be compelled to testify against oneself

H. the right to due process if deprived of life, liberty, or property

I. the right not to have one’s property taken without just compensation

J. the right to a public, speedy, trial by an impartial jury where the crime was committed

K. the right to be informed of the accusation, to confront witnesses, to have counsel

L. the right to be free of cruel or unusual punishment or excessive bail

IV. US CONSTITUTIONAL RIGHTS IN SUBSEQUENT AMENDMENTS

A. the right to the privileges and immunities of national citizenship, due process for loss of life, liberty, or property, and equal protection of the law – the 14th Amendment (1868)

B. the right to vote – the 15th (1870), 19th (1920), 24th (1964), and 26th (1971) Amendments

V. STATE CONSTITUTIONAL RIGHTS VARY IN EACH STATE’S CONSTITUTION – example: the right to primary and secondary education is a right derived from each state, not the US Constitution

Image: United States Supreme Court collage made using a photo by Jesse Collins. CC BY 3.0.

Other than those rights that come from God and attach to us by our existence, most of the rights we cherish as Americans are political rights that define our relationship to the federal or state government and protect the primary value of our Constitutional Republic, which is personal liberty.

The Supreme Court in 1973 (Roe v. Wade) decided that the Due Process Clause of the 14th Amendment incorporated a Liberty interest in privacy that, while not expressly stated in the original document or its amendments, arose from emanations and penumbras of various parts of the Bill of Rights. (This is called Substantive Due Process.) Since the 14th Amendment applies to states, the Court decided that a law in Texas that banned abortion was unconstitutional as a violation of the mother’s privacy rights. The Roe decision, as the Supreme Positive Law of the Land, overturned all state abortion laws then in force.

Why did the current Supreme Court overturn a decision that has been the Law of the Land for fifty years?