Amendments Limiting Individual Rights

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On NPR this morning, they had a brief segment on the current gay marriage debate. I don't support this amendment, for reasons on at least four levels, most of which I've covered so many times before that I don't want to go into it all again right now. But even if you fully opposed this amendment, it doesn't do to say false or misleading things in order to support that view. Senator Patrick Leahy was quoted on NPR this morning saying that this amendment would be the first time in U.S. history that we would amend the Constitution to limit individual rights. I'm not sure what he's talking about, because I count six times that amdenments have done exactly that.

13th Amendment, Section 1: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

That sounds to me like a limiting of individual rights. I would have a right to own slaves if the 13th Amendment were not in effect. I do not have such a right due to that amendment. The 13th Amendment thus limits my individual rights.

14th Amendment, Section 3: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

This takes away the individual right to hold certain offices among those who have committed certain offenses. That's an individual right that the amendment removes.

16th Amendment: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration."

This removes a property right. The Congress can ensure that some of the money that I can't keep or use as I wish some of my income, merely on the ground that I earned it.

18th Amendment, Section 1: "After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."

How could I leave out prohibition? This so very clearly eliminates the right to produce, sell, or transport alcholic beverages. The fact that this amendment came primarily from religious moralists wanting to enforce their personal ethic on those who didn't share it creates such a strong parallel with how Leahy sees this currently proposed amendment that it amazes me that he could miss it.

21st Amendment, Section 2: "The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

The first section of this amendment repeals Prohibition in general, and the second reinstitutes one element of it. It doesn't allow movement of alcoholic beverages into states if the intent is to do something illegal with them. Such transportation would not otherwise be illegal, and thus this limits the individual right to move a beverage into a state with such a motive.

22nd Amendment, Section 1: "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term."

This amendment limits the individual right to hold a particular office longer than specified, even if one would otherwise have been elected to that office.

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Even though organizations like governments are made up of individuals, it's pretty natural to read 'individual rights' as being about the common people -- the rights of a politician to do something wouldn't count as 'individual rights' in this sense. I think that's the more charitable reading for Leahy, here. (Indeed, if limiting anybody's rights counts, then all laws limit rights. The first amendment limits the government's rights to require me to practice X religion, etc.) So that takes care of the 14th and 22nd amendments, as you've described them. (I do think the 22nd amendment, however, is easily recast as a limitation on voters' rights -- no, you may not elect this person again, even if you want to.)

How about the others?

Slavery: in a technical sense, you're right -- the prohibition of slavery eliminated certain rights of the general public. It's pretty plausible (obvious), though, that on the whole, the amendment increased individual rights, rather than decreased them. It limited some in order to provide others. So it's not an counterexample to a charitable reading of Leahy.

Taxation: this one seems like a pretty reasonable case -- although it doesn't limit freedom nearly so much as, say a gay marriage ban would.

Prohibition: this is the clearest example of an amendment that definitely limited the rights of ordinary Americans to engage in activities that they would find valuable. If Leahy did say that the gay marriage ban "would be the first time in U.S. history that we would amend the Constitution to limit individual rights", then prohibition provides a clear counterexample. (Of course, I think that pretty much everybody agrees that prohibition was a bad idea, so this concession isn't rhetorically effective against Leahy's real point.)

21st amendment: I'm not seeing this one. Do we ordinarily have the right to intend to break the law? That doesn't seem right to me.

I've always seen individual rights in a constitutional context as the rights of individual people as opposed to the government's rights. That's how it's often used when contrasting the Bill of Rights, whose rights were all invidual vs. government, and other amendments, which have given the government rights over individuals in addition to giving individuals rights over the government.

This means that the government's rights in the 1st Amendment aren't individual rights, but a politician's right to run for office without government interference is.

If Leahy had given some indication that he was talking about the overall effect of a law on how many people's rights are limited, I'd give you the slavery one, but it seemed to me to be more of an absolute claim that no amendment limited any individual's rights in any way. Maybe the context would help more, but the quote as they excerpted it seemed to me to include slavery.

If we didn't ordinarily have the right (with respect to the federal government) to transport alcohol into a state for the purpose of doing something illegal with it, why does it need a constitutional amendment to retain that prohibition when the rest of prohibition was repealed? So I think we would otherwise have that federal right, though I imagine the local laws would apply either way.

I am continually amazed by how knowledgeable, erudite and generally pleasant members of congress are when discussing particular issues within the confines of a committee meeting (no doubt due to lots of diligent research done by staffers) and how they are able to reverse all of these qualities in general statements to the press.

Your analysis is spot on and without doubt the senator is deserving of ridicule for such a statement, but congressmen/women make such ridiculous assertions so often that it seems pointless.

Generally speaking, the government has duties; individuals have rights. Any system of ordered liberty will involve limiting the individual for the greater good. And almost every law within that system (that does not simply state a governmental duty) can be rephrased to state some restriction on individual liberties. The same is true with the Constitution. If you’re not looking only at terms like “no person” or “shall not,” you can find limitations in almost every Amendment.

Consider the 4th 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 person or things to be seized.”

Although this Amendment sounds like it's affording “people” all kinds of rights, here are a few limitations:

(1) You have no reasonable expectation of privacy against reasonable searches or seizures (i.e., airport searches, border stops, sobriety checks).
(2) You can be searched or taken into custody under a lawfully-issued warrant.
(3) You can be searched or detained upon probable cause of illegal activity.

This is just from the text of the Amendment. There are so many exceptions to the search and seizure clause (meaning, further limitations on individual rights) that some say that the exceptions have swallowed up the rule.

So much for the argument that the marriage amendment would be the “first time in U.S. history that we would amend the Constitution to limit individual rights.”

As for the amendment itself, I would prefer allowing the states to establish their own standards of morality—as they always have in the past (there I go with a broad generalization that is probably false if examined carefully)…I mean, as they usually have in the past. But, after doing some more research and considering the judicial decision that have held unconstitutional state legislative efforts to enact such laws, I may be more inclined to support federal legislation (whether it would be successful is a different issue).

I don't have a problem with federal legislation in principle, but I prefer to leave it to the states. I think it's a bad policy decision anyway, so I would argue that states not prohibit providing the legal benefits of marriage to gay couples who have committed themselves as strongly as heterosexual couples have with a ceremony and a legal document.

I don't think this should be called marriage, but then I don't think the legal contract between heterosexuals that the government calls marriage should be called marriage. I don't think marriage is a legal contract, and I don't think most people who have that legal contract are married in the same sense that I am, since the sense in which I'm married is a bond reflecting intra-trinitarian relationships, one that's permanent until death without possibility of no-fault divorce. That's what marriage is, biblically speaking, and legal contracts do not provide that.

Without that, I see no reason not to extend what isn't biblical marriage to gay couples. The strongest reason why it should be extended is for the sake of their families, particularly their kids, and I think there are Christian reasons to support what they're calling gay marriage (without calling it marriage but also without calling heterosexual legal contracts marriage).


I understand your reasoning, but I think you may be underestimating the social or maybe psychological effect that legalizing something has in our culture. Making something legal suggests acceptance (approval, not only tolerance) and defines our collective morality.

I'm fully aware of the arguments presented by the homosexual community. Being in the legal field, I have encountered and even befriended homosexuals--who often are very vocal (and even persuasive) in defense of their rights. It's hard to say that they should be denied health and life insurance benefits and all the other privileges associated with a legally-recognized union.

However, because I think Scripture clearly teaches against homosexuality (or, for that matter, any sex outside of marriage), I would never support any law that would redefine marriage to include homosexual relationships. Although "marriage" today is a poor reflection of the concept of marriage in Scripture, that is certainly no reason to water it down further.

I don't believe in "forcing" our morality on others. But I do believe that, as a person with certain moral values, I have every right to live out those values in my life and to encourage others to do the same (which may include political participation). If society collectively chooses some other alternative, then I have to respect that. Jesus did not establish a theocracy, but He did call us to be salt and light.

I didn't say I support a law that uses the word marriage to include gay relationships as married. That's exactly what I don't support. I just don't think these legal contracts people have with the government should have that term either.

"That sounds to me like a limiting of individual rights. I would have a right to own slaves if the 13th Amendment were not in effect. I do not have such a right due to that amendment".

Sorry if this was already noted, but that clearly does not limit a right. It limits a liberty. You do not have a right to do everything that you are at liberty to do. To give one more example, you might be at liberty to swim in Jones' pool. But it is obvious that you have no right to do so. If Jones decides to limit your access to the pool, he violates none right of your rights.

Liberty was one of the three rights in the Declaration of Independence and in the Constitution. I've been thinking of that as meaning that liberties are rights, which would mean the founders saw rights in a Hobbesian way, i.e. it's a right unless there's something to prohibit you doing it. You sacrifice rights you would have in nature by being in a social contract, and constitutional strictures can thus limit your rights by limiting your liberties. If you know of any reason not to take them this way, I'd be curious to hear it. As it is, I'm not sure how otherwise to take the right to liberty.

I don't think they would say I'm at liberty to swim in Jones's pool unless Jones gives me permission, because Jones has property rights that limit my liberty to swim in it. If Jones gives me permission, then I have a right to swim in it until Jones retracts that permission. I'm pretty sure this is how Hobbes would see it, and I have trouble seeing how the right to liberty could mean something different, but maybe I'm just missing something.

"I don't think they would say I'm at liberty to swim in Jones's pool unless Jones gives me permission, because Jones has property rights that limit my liberty to swim in it"

Or rather that Jones prohibits you from doing so. There is no implied prohibition, as far as I know. For instance, there is no implied prohibition against crossing Jones acre of land, if that is a convenient way to reach the bus stop. But this is just one example. You are at liberty to swim in the Pacific Ocean at spot x. But if I purchase the land at x and prohibit your swimming, I do not deprive you of any rights. You never had that right to begin with.
I have no idea what it means to claim that a liberty is a right. Hobbes never claims that "liberties are rights". He says rather that in the *state of nature*, everyone has a right to everything (i.e. perceived as necessary to self-preservation). In the natural state, liberties might set the limits to rights; but that is not to say that liberties are rights. More importantly it is not to say that we (or the founders) have (or had) the rights afforded in the Hobbesian natural state. But apart from this, it is beyond credibility to maintain that I have a right to anything that is not explicitly prohibited. I don't have a right to the moon or to the stars. I don't have a right to the galaxy (Is there really any need to say this?). None of these is explicitly prohibited. Can you imagine someone claiming that the laws of the land have restricted his right (his *right*, no less) to the galaxy? Aside from the painfully obvious megalomania, the suggestion pretty much on its face, is absurd. You have no right to the galaxy or to the stars or to the slave.

Mike, if you're right isn't it just as bad for Senator Leahy? After all, wouldn't gay marriage then be a liberty and not a right, and the amendment would then limit individual liberties and not individual rights?

I do think Hobbes actually defines rights in terms of liberties, but I don't care enough about that right now to try to find it.

Generally speaking, a right refers to an entitlement afforded under the law, while a liberty suggests something independent of the law. Liberty refers to something more fundamental, possibly equivalent to Thomas Jefferson’s “inalienable rights” or John Locke’s “natural rights.” While they use the term “rights,” I think we can still differentiate between rights afforded under the law, and inalienable rights that are independent of the law.

Specifically, in the United States Constitution, the 5th and 14th Amendments guarantee the right of the individual against government deprivation of life, liberty, and property without due process of law. The term “liberty” here is something of a pandora’s box. This provision, commonly called the “due process clause,” has been interpreted to have both a procedural and substantive component. I briefly explain the distinction between procedural and substantive due process in a recent post on my new blogsite ( Under the substantive component, the clause has been interpreted to mean that individuals have certain fundamental liberty interests—that are “deeply rooted in our Nation’s history and traditions” and “implicit in the concept of ordered liberty.” The reason why it’s a pandora’s box is because who’s to decide what constitutes a fundamental liberty interests. Under substantive due process, “liberty” has been interpreted to include all the rights guaranteed under the “Bill of Rights.” In addition to those rights, the courts also have included certain rights associated with marriage, family, and raising children (so certain liberties can be protected as rights). No one has any problems with the US Supreme Court holding that parents have a fundamental liberty interest in deciding how to raise their kids. But, in the 1973 decision Roe v. Wade, the US Supreme Court held that “liberty” also includes a woman’s right to chose what to do with her own body, thereby creating the right to have an abortion.


You're right that the 'right of nature' in Hobbes refers directly to liberties. But I don't think Hobbes can identify even that right with a liberty. Though, I grant that it sounds like he is doing that. But he allows us to transfer our rights to the sovereign. The tranferrence of a right does not in any way limit what I, in fact, can do. It does not limit my de facto liberty. It limits what I can legitimately do. So it looks like rights have something to do with legitimate liberty. I'm happy with that.
I don't care enough about Sen. Leahy to comment.

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