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June 22nd, 2012

Who Protects Unalienable Right?

By Nathan Tucker

Does the protection of the unborn’s unalienable right to life trump federalism?  In the wake of Congressman Ron Paul’s vote against the Prenatal Non-Discrimination Act of 2012, the pro-life community has questioned whether one could be both pro-life and a constitutionalist who maintains that the federal government is one of limited, enumerated powers.  The answer to that question goes to the very heart of not only the purpose of government, but who is government.

Some, pointing to the acknowledgment in the Declaration of Independence that man is endowed by his Creator with an unalienable right to life, argue that, “since it is clearly spelled out in our Founding Document, it is the federal government’s duty to protect that right, even if the states will not.”

The problem, however, is that Congress lacks the enumerated constitutional authority to ban abortions.  Again, some have argued that “protecting life falls under several of the purposes of government, spelled out in our Constitution: establish Justice, promote general welfare, secure the blessing of liberty.”  But these words, taken from the Constitution’s preamble, have never been held to be a grant of federal power.  Indeed, doing so would make the limited grants of power contained in the rest of the Constitution superfluous.

We are left, therefore, with the question of whether an unalienable right trumps constitutional restraints.  In the absence of any constitutional authority, can the federal government exercise raw, unchecked power to, as the Declaration states, secure man’s “unalienable rights [to] life, liberty and the pursuit of happiness”?

The only answer to that question consistent with natural law and human nature is an unflinching and absolute “no.”  Though we may desire to create an exception “just this one time” to preserve the life of the unborn, the history of human experience dictates that the exception will soon swallow up the rule.

For instance, House Democratic Leader Nancy Pelosi recently defended Obamacare on the grounds that it is “about life, liberty and the pursuit of happiness for the American people.”  Earlier in March, Pelosi declared that “it honored the vows of our founders:  of life, a healthier life; liberty; the freedom to pursue our own happinesses.”

Similarly, in defending New York City Mayor Bloomberg’s ban on large soft drinks, Pastor Brian Carter proclaimed that the mayor was “fighting for your right to a longer and healthier life.”  Building on this “right,” Bloomberg claimed that, “if government‘s purpose isn’t to improve the health and longevity of its citizens, I don’t know what its purpose is.”

Secondly, if a right trumps constitutional process, what process remains?  For instance, why couldn’t the United Nations’ Security Council pass a resolution making abortions illegal worldwide?  In fact, one could argue that “if you believe life is a ‘[national] issue,’ then you also must believe that a [nation] can decide to place into law that abortion is legal.  That is not a pro-life stance.”

Or, if rights trump process, why couldn’t the president act without Congress by issuing an executive order banning all abortions?  Or why couldn’t the Supreme Court declare such unenumerated rights as a “right to die” grotesquely found in one’s right to life, or a “right to capitalism” located in one’s property rights, or the use of recreational drugs mandated by one’s right to pursue happiness?

Likewise, why couldn’t Congress overturn by simple statute, rather than constitutional amendment, Supreme Court decisions such as Roe v. Wade, which legalized the murder of the unborn, Kelo, which allowed the taking of property from A to give to B, or Dred Scott, which elevated slavery to a constitutional right?

Finally, and more fundamentally, government power—whether local, state, or federal—is illegitimate when used outside of its delegated limits.  The defense of unalienable rights falls on We the People as individual sovereigns, and we in turn delegate that authority to civil government to serve as an impartial arbitrator.  Government is simply a social compact between We the People for the mutual defense of our unalienable rights from foreign and domestic threats.

Because all power corrupts, written constitutions memorializing this sacred pact between individual sovereigns on the degree and method of legitimate coercion were established.  This written “consent of the governed”—the fundamental will of We the People—is only changeable though the amendment process.

All power, therefore, exercised outside of that delegated by We the People is an infringement on our natural right to individual sovereignty.  This right to constitutional process cannot be trumped by other unalienable rights.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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