Libertarian Columnist Jon Caldara Needs An Education On Human Rights

The impetuous libertarian gun fanatic and rabble rouser Jon Caldara is at it again in his latest Denver Post op-ed ('Jared Polis and the New Human Rights', Perspective, Oct. 7). Caldara writes:

"Jared Polis insists: 'Health care is a human right'.   Either my understanding of human rights is completely wrong or Polis's understanding of the English language is. I thought human rights were guarantees through natural law that you can do some things even if the society around you wants to stop you. Those activities and beliefs behind them, can't be ripped from you even if you're in the political minority. The government can't take away your speech, and expression, yur ability to assemble, own firearms. Government can't take property without due process, inflict cruel punishment."

Here Caldara demonstrates the typical truncated libertarian view that only negative rights count. In other words,  there are only “negative” rights inherent in the Bill of Rights, and there can be no “positive” ones.   A negative right implies that there are ‘x’ things the government can’t do to you, e.g.  take away your guns or your property without good legal basis ("eminent domain"). . By contrast, positive rights assert there are actual positive rights to which you are entitled under the Bill of Rights, say health care and privacy. Most of those on the Right (as well as libertarians like Caldara) , who have only passing acquaintance with the Federalist papers, assert positive rights don’t exist, but they are wrong. They merely show they fail to grasp the concept of an "unenumerated right", i.e. under the ninth amendment of the Bill of Rights..

The latter has been well explicated, for example, by Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999).   As Prof. Wills has pointed out, the unenumerated rights are all those rights not already specifically declared or described in the existing Bill of Rights.  The Founders thereby realized and understood there could exist rights in the future they hadn’t conceived of at the time of the Constitutional Convention, and so allowed those (then) undefined rights to become realized later. In other words, the rights allotted citizens are not limited to the rights actually and specifically delineated, i.e. in the Bill of Rights.

This opens up the basis for positive rights, not merely negative ones. Hence, Jared Polis - unlike our friend Jon Caldara- simply grasped the concept of the unenumerated right and how it paved the way for rights such a health care and privacy.

And why not? (Apart from the fact the U.S. is a signatory to a 1994 UN Declaration that health care is indeed a right.)  Think about it carefully, from the perspective of Caldara that health care must not be a right, never and no how.   So let us say I have no access to competent health care and in Caldara's view, no right to it.

I then contract Avian flu, Ebola or some other highly virulent disease, but for which I can get no care. (No money to pay for it) I am turned down at place after place and end up circulating amidst large crowds merely spreading the particular  contagion to others. HOW is this helpful to the community I live in, how is it beneficial to our national security? It isn't! 

This is where Caldara's ill-informed logic breaks down, i.e. "The new progressive bill of rights means the people around you owe you stuff".

No, that is Trump think.  What it means is that by conferring positive rights like health care the whole community benefits because that one loose end which could unleash an epidemic is sealed. Closed, not left open.  Rather then thinking in a limited fashion about "grabbing others' stuff" one is led instead to concur that all partake of the protections afforded by the tax commons. That goes for national defense - but also for health care.

It also includes an inherent right to privacy - another positive right. For example, if the presumption is no right to privacy then the Fourth Amendment of the Bill of Rights is meaningless. To restate that Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But note, “secure in one’s person, house, papers, effects” implies PRIVACY! These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy was a myth then by all accounts being secure in one’s person, papers, effects wouldn’t matter. Hell, let the whole freakin’ world see ‘em! This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person has, even his own body. Hence, in fascist dictatorships, such as existed in Nazi Germany, all personal effects, papers could be seized by the Nazis on a whim or remote suspicion - under the Reich Laws. A fundamental right to privacy, meanwhile, insists there exist bona fide entities that one can uniquely own, e.g. papers, effects – including photos or what not- that are private. Without this fundamental right, then, “personal papers, effects” has no meaning hence the 4th amendment is meaningless.

Again, this is not exceptional so Caldara's limited view of rights  as only negative breaks down. Caldara is correct that a right (positive or negative) retains that property irrespective of the population affected, as when he writes:

"In a society of only three people it would still be a violation of human rights for two of them to force the third into a religion, or take his arms".

 

True, but this is not the same as a government of three agreeing to a contract that health care for all members is a right - a shared responsibility - to protect each from a terrible disease that may befall one and spread to the others.  In other words, the extension of the positive right is a matter of mutual self-interest.   This is why Caldara's logic also breaks down when he writes:

"If it is a right to demands goods or services at someone else's expense then one person out of our fictional society of three could demand health care...and the other two must provide him that human right."

Well, they could also refuse - and die themselves- say if he contracts cholera.  Caldara's claim is that "it's not a freedom" i.e.  for the recipient of the care (say oral rehydration with salts in the case of cholera) but rather a "liability for the other two to provide".   My argument is that it is not a liability but a very wise form of self protection to take proactive care of the 3rd member of the fictional society.  Hence, it is beneficial to this mini society to deem health care a right, just as it would be for any larger society.

The whole problem, as I see it, is a failure of vision (and political moxie and will) to see positive rights as beneficial to whole communities or nations, not as liabilities to be avoided.   Caldara is right about one thing, all human rights are unconditional - and that includes health care and privacy.

Balkanizing Business Via "Religious Freedom" - The Best Way To Destroy the Nation's Economy

Denver 850 KOA talk show host Ross Kaminsky is like too many millions of other lamebrains who just don't grasp the reasons why it would be sheer madness to balkanize American business and allow every religious business owner to run amuck - deciding which customers they will serve or not. Writing in the Sunday, April 5th Denver Post ('Do Liberals Really Care About Rights?') this asshole shows he really has no clue what rights mean or how they exist in the context of the Constitution, and especially in the private enterprise domain..

Kaminsky spends most of the first part of his op-column bellyaching how "the American left, their media allies and the gay rights movement" don't care about genuine rights because they haven't stood up for those of the wedding baker and photographers or pizza makers, who don't wish to serve gays".   But as usual, he has it all ass -backwards.

First, he mixes up free exercise of religion and freedom of association, with freedom to  trade and engage in commerce. No one told or educated this dummy that the two spheres cannot be connected in one to one correspondence, as I noted before. That is, if indeed one has received a license for public commercial trade all "freedom of association" goes out the window.  By the commerce laws of our land, including the commerce clause of our Constitution, the buyer is free to associate his business with any establishment BUT the establishment - as a cornerstone of business - cannot exclude buyers unless they display unbecoming conduct.  As I observed in my prior post on the Indiana RFRA:

The restaurateur or trader is afforded certain privileges (via licensing) to trade or provide services (such as food) in the public domain. Hence, his so called "freedom" is limited to do whatever he wants- and hence that can't include refusal of service unless there are extenuating circumstances, i.e. the customers enter drunk and disorderly. The trader doesn't have the latitude to refuse service on the basis of  skin color, the other person's own beliefs, sexual orientation, pro-choice stance or nationality.

This is also why American businesses like Apple, Starbucks have come out against this nonsense as well as the Indiana Chamber of Commerce in that state. Because they know the chaos that'd be wrought otherwise.  As salon.com author Jeffrey Tayler put it recently:

"Given that RFRAs don’t specify to which religion they pertain, if they do legalize discrimination, they will do so ecumenically, offering adherents of all denominations a chance to bully both rationalists and believers of other cults. "

Which is why the door would open to balkanized chaos. Pharmacies could refuse serving people they regarded as 'sinners'  - say denying birth control pills to young, single women or couples that they knew were living together but unmarried. Owners of home improvement stores could decide that they want no Jews around because after all, they "killed our Savior".   Orthodox Jews could even decide they no longer wish to serve the "unorthodox" and Catholics might decide they no longer wish to serve Protestants.  Private hospitals -operating as businesses - might decide that they will serve the needs of no declared atheists, or  known pro-choice folks or gays on their premises either. Restaurants would feel free to bar anyone who might wish to celebrate a known pagan festival at their venues.

What's wrong with this picture? If you can't see it, there's no point me trying to clarify it for you. And if you can't understand that the model of "everyone going to his own people to conduct business"  is a non-starter you have no business reading this blog. You need to stick to comic strips!   As Tayler humorously put it:

"Presumably followers of the Torah, say, could deny service to those who have performed any of thirty-nine types of activity forbidden on the Sabbath.  If so, beware — these include some pretty improbable things, like putting out fires, writing one’s name and erasing it, flaying a goat and separating threads.......Muslims, in turn, could deny service to Jews and Christians for having rejected the Prophet Muhammad"

Reductio ad absurdum, anyone? But you get the point - I hope. We'd have so much contretemps in trade and business practices that no uniform business basis or national -scale free enterprise would be feasible. It would be "I serve who I wish, when I wish and how". It is precisely for this reason Kaminsky ends up in a rabbit hole of unreason with no resolution because there can't be any. 

But this is why a free market implies total freedom on the part of choice for the buyer - not the seller! The seller is confined and limited not only by regulations (e.g. meat sellers can't vend month old rats with rabies and pass it off as veal) but by limits on his notions of free association. The latter may be fine for his garden parties but not with whom he does business, he must be open to ALL.

Second, Kaminsky makes the error of most right wingers by harping on "negative rights", e.g.

"Ours is uniquely a system of negative rights aimed at ensuring that Americans aren't subject to the whims of others"

Well, I guess unless  the whims emanate from a cartoon, tyrant deity in a magic book.  But the point is that a negative right implies that there are ‘x’ things the government can’t do to you, say take away your guns or deny you property ownership, disposal. By contrast, positive rights assert there are actual positive rights to which you are entitled, say under the Bill of Rights.

  Anyway, not content with his initial ignorant display he writes:

"Our constitution reiterates rights but does not grant them, rather it limits the power of government to infringe on them."

I will argue, however, that not only does a right to privacy certainly exist, but it underpins most other rights that inhere in the amendments to the Bill of Rights

For example, if the presumption to no right to privacy is valid, then the Fourth Amendment of the Bill of Rights is meaningless. To restate that Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But note, “secure in one’s person, house, papers, effects” implies PRIVACY! These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy was a myth then by all accounts being secure in one’s person, papers, effects wouldn’t matter. This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person possesses.

As to the limits on positive rights, Kaminsky clearly doesn't know where to look.  He, like other Reich nuts, needs to read Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999).  The chapter ‘Constitutional Myths’(p. 108). Wills notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights. Hence, the subtext is that rights can only accrue to human individuals. And these are POSITIVE rights.

Hence, the term "state's rights" is bogus, in error. States have prerogatives, not rights, because states exist as governmental entities not a persons-individuals.

Wills goes on: 

"The Ninth Amendment states that the people retain unenumerated rights”

 "The people:" here refers to flesh and blood citizens, not to a bunch of contractual abstractions (states), or to corporations. .As Wills emphasizes and underscores (ibid.):


“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”

Do we truly want to invoke specious arguments on "religious freedom" or "free association" to fracture and balkanize our economy to the extent Jews only frequent Jewish stores, Catholics go to Catholic stores, Muslims go to their own stores, and atheists to atheist stores?  I would hope to hell not because, frankly - given the fragile condition our economy remains in - we can't afford that level of stupidity and short-sightedness to appease some magic man in the skies only given credence in magic books.

As Tayler aptly puts it:
.
"Such are the farcical dilemmas and rank absurdities with which religion threatens to swamp us if it infests our judicial system and trumps secular law, as any RFRA legalizing faith-based discrimination would do.  The ghastly morass to which RFRAs will one day probably lead speaks to nothing but the ahistorical ignorance of their drafters.  The Founding Fathers never meant for religion to play a role in our affairs of state.  If the First Amendment isn’t proof enough of this, doubters might check out other things they wrote."

Bingo!