Balancing Competing Stakeholders' Rights to Life, Liberty & Property

The great debate on news and social media sites of late seem centered on the fear that our constitutional "right to life, liberty or property" shall be hindered, denied, or lost. This main issue is repeatedly debated around three contexts. In a very simplistic manner, this blog will visit those three contexts only to illustrate that the hotly debated "issues" are really just contexts for looking at the threshhold, or main issue, of the limits and powers of Constitution protections.

Same Sex Marriage
One context framing that fear revolves around same sex marriage. A few are adamently opposed to same sex marriage based on the argument that homosexuality is "wrong". Because this argument is based on a moral stance built on religious belief, the argument seems to center on a fear that legalizing same sex marriage will erode religious freedom, create societal depravity, or lead to catastrophes caused by divine retribution for allowing sin to go unchecked. Those on the total opposite side of this debate base their argument on "equal rights", part of the Fourteenth Amendment. Just as miscogeny laws preventing interracial marriages have been deemed unconstitutional; so, too, the propoents of gay marriage believe the laws prohibiting them from marrying someone they love just because of an inherent sexual orientation should be deemed unconstitutional. As with all arguments around such a hotly debated issue, there are many more people landing somewhere between those few holding the views of the two polar opposite camps.

Gun Legislation
The second context is gun control. In one camp are those seemingly opposed to any laws restricting gun use. These people fear losing their Constitutional freedoms in general and the right to use a gun to defend home, self, family, and property. On the opposite camp are those wanting a ban on assault weapons (able to discharge numerous rounds in just seconds), and background checks and weapons training before weapons permits are issued. Again those are the polar opposite views on that issue. Most land somewhere in between those two camps.

On the gun rights issue, Congress, in the Second Amendment, has spoken, though vaguely and ambiguously:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Retrieved from:http://www.senate.gov/civics/constitution_item/constitution.htm#preamble

An annotation at that same site states, "Whether this provision protects the individual's right to own firearms or whether it deals only with the collective right of the people to arm and maintain a militia has long been debated." In other words, Courts have not yet defined or figured out what this means. Those who want their guns with limited restrictions want them for self-protection; in other words they are emphasizing their own right to life and property. This group thinks they can best protect themselves by having the latest weapon for responding to danger. The other camp sees gun restrictions as a preventive measure lessening the need for having to respond to danger. But underlying both sides is that underlying desire to protect life and property.

Abortion Debate
Yet a third context for the discussion revolves around "right to life". In the one camp are those who wish abortion (sometimes even contraception) to be made illegal. Again this argument is primarily based on moral grounds and on the argument that taking a fetus's life is murder. This same camp, however, also tends to be in favor of capital punishment and strongly advocates gun rights for self-protection. In the other camp are those who seem to define "right to life" as including the entirety of the Fourteenth Amendment; they tend to be in favor of gun regulation, against capital punishment, and in favor of programs protecting the property rights of those dependent upon Social Security benefits, a government option for health care, legislation that would curtail protections for corporations, businesses, and financial industries that allow profits and resources to be held by a small minority of citizens while the majority struggle for food and shelter.

One problem with the first camp's argument is that the First Amendment does not and cannot protect any particular religion and, therefore, it cannot legislate based purely on morality or a specific religious entity's belief system.
The Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (emphasis mine). Retrieved from:
http://www.senate.gov/civics/constitution_item/constitution.htm#preamble

Again this post is not attempting to detail all the nuances of the contexts. Only a simplistic outline has been provided to illustrate that the threshold issue in all three instances is really the question of how far the Fourteenth Amendment extends. If we could only get a handle on that question, the other questions might more easily fall into place.

Passed in 1868, the Amendment states:

"Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Retrieved from: http://www.senate.gov/civics/constitution_item/constitution.htm#preamble

In reality our rights that are "protected" by the Constitution are often "taken". We are not allowed to shout "fire" in a crowded fear because exercising that freedom could create a stampede, mass exit, and loss of life or limb. The press is limited in what it can say; it cannot libel another person for doing so would damage another's reputation and, thus, restrict that person's freedom and possibly their livelihood. "Liberty", freedom to move about as one pleases, is restricted by stop lights, pedestrian crossings, locked doors, and common courtesy such as waiting in line to pay for merchandise, etc.

A few tests determine when a Constitutional right can be "taken":

1. Is the underlying basis for upholding the law rational? The Courts look to evidence to determine that question. This test is the one most easily passed; some valid reason usually can be found.
2. Does the law target a protected class? Laws define who fits in this category and, generally, answers this question. Regarding the question of same-sex marriage, at least two Courts have decided that laws prohibiting same-sex marriage does target a class that should be protected, that homosexuals have been unfairly targeted and, thus, should be protected. 
3. Does the law protect a state interest? This third question is the one most difficult to analyze. It looks to evidence proving that the state (federal government or individual state) is somehow harmed by the enactment of a law, and looks at whether protecting the state interest is worth the cost of enforcing or enacting the law.

It will be interesting to see how state and federal government answers that third question and, then, applies the answer to that third question to the contexts of abortion, same-sex marriage, and gun legislation.

 

Max

“Hi, how can I help you?” the stylist asked.

“The sign says walk-ins are welcome; are you able to fit me in?”

“Yes, have a seat, Hon,” the stylist answered.

The standard greeting of Old Virginia. But this stylist was young. There was no wedding ring or other jewelry. There was no nametag. The voice could be male or female. The waist length ponytail added to my confusion. The workstation didn’t help either—no photos, artwork, or other clues to an appropriate conversation opening. Suddenly I realized just how much I defaulted to gender stereotypes whenever other conversational cues are absent.

Years ago I gave a talk about how etiquette provides a place to hang our hats and coats, a generally universally accepted code that helps begin a first-time meeting without fear of inadvertently insulting another. The rules provide a sense of security, a sense of knowing how to begin. They aren’t meant so much as a means to control behavior but more as examples of how to love others as we ourselves want to be loved, a framework on which to build a relationship. But outside clues are important if we are to understand which guidelines apply.

Here in this salon, however, I was stuck. In essence I stood, hat and coat in hands, not knowing what to do next. All cues, even my least favorite one of gender, were gone. With males, as a contented single female, I tend to tread carefully, and keep a distance that makes it clear I am not available as a potential significant other. I speak less about feelings. Even the topics I choose gravitate toward that which is appropriate for the “traditional male.” With females, on the other hand, my tone is lighter, more relaxed, less guarded, more open about feelings. Beginning topics gravitate toward those of interest to traditional females.

An imperfect system? Definitely. But historically it’s been a starting place for developing rapport, a default that failed me now.

“What are we doing today?”

“It’s been too long since my last haircut. It was a pixie and I am thinking of doing that again.”

“Pat Benatar has a pixie. She’s my hero.”

The stylist gently picked up strands and let them fall, studying the texture.

“Nice hair. Lots of wave.”

“And cowlicks. I loved my last hairstylist, but she is too far away since I moved. She cut by art, not measurement. I have found my favorite stylists cut that way.”

I hoped the tone would be heard as friendly but also a tad bit nervous about someone new trying to tame my unruly locks. The result was perfect, and ended up being one I had no trouble maintaining.

It was now time to leave and here in the south, the standard exit for someone my age is, “Thank you, ma’am” or “Thank you, sir.” Or for those who have been here longer, “Thank you, hon.”  As a relative newcomer to Virginia, I can’t make myself do the latter so I resorted to a neutral “Thank you so much,” then paid and asked for a follow-up appointment.

After returning to the car, I looked at the appointment card. The stylist’s name was Max. A nickname for Maxine or Maxwell? or just Max?

Today I returned to the shop, still confused about social cues, wondering what we could talk about. At least I had a name, a means for being a bit more personable.

“Good morning, Max.”

After a brief comment about the bitter cold, the conversation switched to what I wanted, my desire to reshape my pixie.

“I remember talking last time about a singer you liked who also had a pixie,” I ventured, with more than a little trepidation. Music is not the context I usually choose for a discussion. For some reason, certain music styles agitate my ADHD. Therefore, I don’t listen to the radio and, as much as possible, carefully select the music I hear. Unfortunately that means I also do not know much about the artists. Choosing this conversation thread, therefore, could take me to a personal dead end and a hunt for a new topic. But it was all I had. Thankfully it proved enough.

“Pat Benatar, my hero. She did a benefit after Sandy.”

“I love hearing stories like that. It makes the artists human.”

“Yes, she grew up in Statin Island.”

“Really? So this was personal for her?”

Max then summed up Ms. Benatar’s history, her beginnings as a singing waiter and how she was “found.” Chosen details made it clear what was important to Max. This was storytelling at its finest. A form of communication I knew well, having grown up in Iowa where storytelling and family legends identify values, outline boundaries, and illustrate cultural norms.  

Pat Benatar began singing opera, Max said. But she found herself the first time she sang rock and roll and never went back to opera.

“Being true to herself,” I said. “That is such great history. I’m of a different generation, obviously, and his vocal range was nowhere near Pat Benatar’s, but Johnny Cash is one of my favorites.”

Max ran away with the conversation.  Johnny overcame so much. His lyrics were profound. And once famous, he helped George Jones get started.

“Ahh yes, Johnny Cash didn’t just break through; he shared what he knew with others.”

“Yes,” Max agreed.

Through the chosen details in both stories, I discovered Max and I treasured many similar values. Overcoming life’s challenges and our own mistakes. Hard work. Earning the titles we wear. Giving back to the community. Mentoring others. Doing what one was created to do.

Max dried my hair, added a little spray, and handed me a mirror.

 “Max, you have a great job. You help people feel beautiful.”

I was not just referring to the cut, but also the affirmation that comes when someone shares your internal compass. Before the next appointment, I will find some piece of trivia about Pat Benatar on which to continue the conversation for I now know Max. And now I know the rules. Shared rules, in fact.

And I like feeling beautiful.