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    Rights in America, Bills of Attainder and the Ninth Amendment
    Rights in America, Bills of Attainder and the Ninth Amendment
    Rights in America, Bills of Attainder and the Ninth Amendment
    Ebook143 pages2 hours

    Rights in America, Bills of Attainder and the Ninth Amendment

    By Duane L. Ostler

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    While rights in America have always been cherished, many people today misunderstand the source of their rights. They have come to believe that government is the grantor of rights. The flipside of this belief is that government can also take them away. Such a view conflicts with that of the founders, who gave us the ban on bills of attainder and 9th Amendment to forever protect our natural rights.

    LanguageEnglish
    PublisherDuane L. Ostler
    Release dateFeb 19, 2016
    ISBN9781311217059
    Rights in America, Bills of Attainder and the Ninth Amendment
    Author

    Duane L. Ostler

    Duane L. Ostler was raised in Southern Idaho, and has lived in Australia, Mexico, Brazil, China, Utah, the big Island of Hawaii, and—most foreign of all—New Jersey. He practiced law for over 10 years and has a PhD in legal history. He and his wife have five children and two cats.

    Read more from Duane L. Ostler

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      Book preview

      Rights in America, Bills of Attainder and the Ninth Amendment - Duane L. Ostler

      Rights in America, Bills of Attainder and the Ninth Amendment

      Copyright 2016 Duane L. Ostler

      All rights reserved. This book may not be reproduced, copied or distributed without the express permission of the author.

      Cover art: The Pull of the Monroe Magnet by Udo J. Keppler, cover of Puck magazine, August, 1913.

      TABLE OF CONTENTS

      CHAPTER ONE: Introduction

      PART ONE - BILLS OF ATTAINDER

      CHAPTER TWO: Bills of Attainder in British and American History Prior to 1787

      CHAPTER THREE: James Madison's Views on How to Protect Rights

      CHAPTER FOUR: The Ban on Bills of Attainder

      CHAPTER FIVE: Bills of Attainder in the Antebellum Period

      CHAPTER SIX: Bills of Attainder Since the Civil War

      PART TWO - THE NINTH AMENDMENT

      CHAPTER SEVEN: Background to the Ninth Amendment

      CHAPTER EIGHT: The Ninth Amendment and the Laws of Nature

      CHAPTER NINE: Abortion and the Non-Existent Right of Privacy

      CHAPTER TEN: Conclusion

      NOTES

      OTHER BOOKS BY THE AUTHOR

      CHAPTER ONE

      Introduction

      Rights in America have always been a big deal. It was the perceived violation of rights, especially regarding taxation and representation, that drove the colonists in the 1770s to break from England and form an independent republic. It was lack of a bill of rights in the newly formed constitution of 1787 that nearly resulted in that blessed document being shot down in flames. Indeed, it was only after supporters of the constitution profusely promised that a bill of rights would be added that the required majority votes for ratification in the states were obtained. Rights continued to play a prominent role in the ensuing decades of the new nation, especially as the debate over whether slaves should have any rights became more intense. The civil war largely settled that question at least in theory, but unfortunately not in fact. Basic rights continued to be denied the freed slaves and persons of other nationalities and Native Americans for 100 years, until the fetish with civil rights exploded in the 1950s and 1960s, which corrected at least some of these problems. And to this day, if you deny an American his rights, no matter where he is in the world, he is likely to make such an annoyingly loud noise and fuss over the loss that everyone within shouting range will soon know about it. In short, in America, rights are king. They always have been, and probably always will be.

      Of course, what we have been primarily describing so far are individual rights, or personal rights of individual people. But what about rights of the people as a whole? What about situations where an individual's right is in direct competition with the rights of the people? For example, if Joe Blow owns property which the people need for a new freeway, should Joe's right to keep his land override the right of the people to have the freeway? Do individual rights always trump those of the majority? Or is it the other way around? Are there times when group rights should prevail over individual rights, or vice versa? How do we find the proper dividing line between rights of the group, and rights of the individual?

      This question has been debated since before the country began. Trying to draw the appropriate dividing line between individual rights and group rights has always been a tremendous challenge. Most would agree that individual rights should not ALWAYS prevail, since this would allow individuals to defy the entire government and country. On the other hand, group rights also should not ALWAYS prevail, since this would trample individual freedoms and rights which we all hold dear, subjecting them to the whims of the majority. A dividing line between group and individual rights is needed, even though it is not easily found.

      Our understanding of these two competing types of rights (group and individual) can be greatly clarified when we consider our starting point of reference. In other words, where do rights come from? Do they come from the governing documents of the nation? If so, then the corollary is that they can be taken away by changing those documents, or by action of the governing bodies of the nation. This would suggest the idea that rights are granted by the majority when they form their government. If we adopt this view, then individual rights are always subject to change and control and potential total loss at the whims of a majority. In short, this approach glorifies group rights over individual rights, assuming that groups create exceptions for individual rights, which can be changed if a majority says so.

      This, however, was not the view of the founders. They broke with King George and the British Parliament primarily because they believed that individual rights are given by God and predate all governments, and therefore cannot ever be changed or abridged. In their view, if government ever attempts to abridge such God-given individual rights, then it is the right and prerogative of the people to rebel and replace such a dysfunctional government-gone-bad. Just read the Declaration of Independence and you will find this view of rights dripping from almost every sentence.

      So, what of today? Do our views regarding the importance of individual rights still mirror those of the founders? Or has our modern entitlement society changed our mode of thinking so that we now tend to favor group rights? Put another way, if we assume government has a duty and obligation to help its citizens in all aspects of their lives (as many do today), doesn't that necessarily imply that government also has corresponding power over all aspects of their lives? And if such power exists, does government have the power to extinguish individual rights, for the (supposed) good of the majority?

      Most people shudder at the thought, of course. But perhaps a concrete and highly disturbing example will serve to illustrate my point. In this example we will see the idea which is apparently believed by many in modern America that government CAN take away long-existing rights, and can do so completely and without consequence. This example highlights the danger from believing that government is the dispenser of rights--that government somehow has the power to give rights and to take them away, and therefore that government is the ultimate source of rights in America today.

      And what is this disturbing example, you ask? It is the example of abortion. To this day few, if any, issues are more divisive in America. Without being able to see the readers of this volume, I know that many of them--those who support abortion--are already raising their shackles and frowning in anger as they read these words, certain that I am about to criticize something they firmly believe in. Well, let me assure you that my main criticisms of abortion will be reserved to the end of this volume, and can also be found in my other books. I wish to simply highlight something which demonstrates what I have been talking about above--about government's alleged ability to take rights away. The example I want to highlight is this: Did the unborn ever historically have any rights in this country? And if so, do they still have the same rights today? And if not, what happened? Who took away those rights, and under what authority did they do so?

      Naturally, those who favor abortion do not like these questions, since they believe that the unborn have no rights, and supposedly never did. The unborn are not people, they claim. There is no need to protect the rights of a group who are not people. They then pat themselves on the back at having answered an unanswerable question.

      But regardless of how pro-abortionists answer the question, history reveals that the unborn did indeed once have rights. Prior to 1973, the unborn had the right to be born alive under the laws of all 50 states, with only limited exceptions such as to protect the life of the mother. In 1973 with the Roe v. Wade decision, five unelected judges on the U.S. Supreme Court swept aside these abortion laws of all the states, and ceased allowing full protection of the life of the unborn, depending on the age of the fetus. No longer did the unborn in the early stages of pregnancy have the right to be born alive. While there have been some modifications of this ruling in subsequent Supreme Court cases, the right to life of an unborn, at least in the early stages of pregnancy, continues to be denied. This is directly contrary to the historical protection of the life of unborns from the founding of the nation until 1973.

      But there is more. If you consult U.S. law books, you will find a little known law that goes even further in granting rights to unborns. Laws which are still effective in all 50 states TODAY say that unborn children HAVE PROPERTY RIGHTS. That is, current law specifically recognizes that a child has the right to property WHILE STILL UNBORN. The only qualification to this law is a very logical one, that in order to exercise these property rights the child has to be born later.

      Consider for example a court trying to decide if an inheritance property right existed in an unborn in April even though the child was not born until June. In such a case, the law is crystal clear that the unborn child possesses property rights while he/she is still unborn and in the womb.[1] In short, the law in America TODAY recognizes property rights of the unborn. However, since 1973, the right to life of the unborn is no longer fully protected.

      This is rather disturbing, isn't it? After all, how can the same law books grant unborn children property rights, and deny them life rights, or in other words, the right to live? There seems to be a terrible inconsistency here, doesn't there?

      And now, to return to the questions I raised above:

      1. Did the unborn ever historically have any rights? Yes. They have always had property rights, and continue to have such to this day. Until 1973 and the Roe v. Wade decision, they also had a right to life--to be born alive.

      2. If so, do they still have the same rights today? No. The property rights are the same, but the right to life changed in 1973, depending on the age of the fetus. The right to be born alive today is no longer fully protected.

      3. If not, what happened? Who took away those rights, and under what authority did they do so? Prior to 1973, the unborn had rights to be born alive under the laws of all 50 states. In 1973, five unelected judges on the U.S. Supreme Court swept aside these abortion laws of all the states, and ceased allowing full protection of the LIFE of the unborn, depending on the age of the fetus; however, they made no change to protection of the PROPERTY of the unborn, which protection continues to this day. In short, 5 members of one unelected branch of government took away the rights of millions

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