Blurred Lines

A few years ago, while the Beloved Spouse and I were visiting friends in southwestern Texas, our host observed that the most fundamental distinction represented by the border is that on one side there are property rights and the rule of law, on the other, not. Other than that, he said, it’s the same land and people.

I found my friend’s comment memorable for its simplicity and for the clarity with which it illuminated two characteristics of American law and culture that are among the most essential building blocks of our society’s successes.

What attracted – and still attracts – millions to our shores? The chance to abandon the stations of their births and build new lives and identities based on their own efforts. In short: the opportunity and personal dignity that flow from liberty.

Liberty itself rests on both a shared acceptance of what are agreed to be unalienable individual rights and the clarity and uniform application of law. The way these elements come together is captured beautifully by the principal of English law that: “that which is not forbidden is allowed” (and its converse, TH White’s definition of totalitarianism: “Everything which is not forbidden is compulsory”).

Where liberty prevails, individual initiative thrives, bounded only by laws that are arrived at by common consent and understood by all. This cultural construct of individual liberties, rather than any inherent superiority of one group – or place – over another, explains our nation’s astonishing inventiveness. After all, the people who came here were overwhelmingly considered the refuse of their native lands.


Against this backdrop, let us consider the unprecedented, sustained assault by progressives on both the specific rights enumerated in the Constitution and the clarity of American law generally.

The broadest assault on America’s traditional liberties comes from the judges and justices, and their supporters in academia and the political world, who choose to see the Constitution as a “living”, i.e., infinitely malleable document.

“‘When I use a word’, Humpty Dumpty said in a rather scornful tone, ‘it means exactly what I choose it to mean – neither more nor less.’ ’The question is,’ said Alice ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty ‘who is to be master, that’s all.’”

                                                       – Lewis Carroll

Precisely. Who is to be master? The courts? If the people are truly sovereign, no. If the Constitution is to be changed to embody new rights or to limit existing ones, the only constitutionally-authorized way for that to happen is via an amendment – a process that was specifically designed to be difficult in order to ensure that such changes reflect the consensus views of the people.

When inventing new supposedly constitutional rights like abortion or gay marriage*, or trampling on enumerated rights (e.g., by ignoring the Contract Clause – thereby directly weakening property rights), the courts don’t act alone. They can point to support from the academic world and from innumerable progressive politicians who are all too happy to see their own powers as not effectively limited by constitutional constraints. Laws restricting private ownership of guns, individuals’ ability to bargain with or use their own property, and even to speak freely (i.e., laws against so-called hate speech) would instantly proliferate in spite of the plain strictures of the Bill of Rights if judges and justices with a malleable view of the Constitution’s meaning prevail – so progressives lobby the courts aggressively to that end. I have no objection to their lobbying, but what they are demanding subverts our explicit constitutional order.

If constitutional – that is, extremely difficult to overturn via the usual democratic processes – rights like abortion and gay marriage can be invented by the courts, while enumerated rights like freedom of speech, religion or to bear arms, can be severely restricted or waived away by judicial fiat, the Constitution, conceived of as the fundamental compact between the sovereign people and the government we employ, isn’t so much living as dead, because it is effectively irrelevant as written.


More frightening to me even than progressives’ taking outrageous, ahistorical positions on this or that clause of the Constitution (which positions, taken out of context, they uniformly posit as morally justified), is that I believe that most of them have given up on the fundamental vision of society’s baseline rules that is made explicit by the Bill of Rights and explains the success of the American experiment. They no longer truly believe that individual rights are God-given and unalienable; they have lost (or rather, are trying to throw away) the clear vision of property rights and the rule of law that created the America we know.

As evidence for this startling proposition, one might consider the innumerable progressive efforts to legislate away individual rights.  Indeed, arguably such efforts define progressivism. For the sake of brevity, though, I will focus here on the philosophical implications of one of President Obama’s most famous, and most clearly defining, comments (more recently re-used by Fauxcahontas):

“You didn’t build that.”

What does this statement mean? At one level, it might seem to be an anodyne reminder that we have all inherited blessings from our forebears and benefited from society’s present infrastructure, paid for in part by the taxpayers generally, so we should be properly grateful and humble about our accomplishments, and perhaps even willing to “give back”. Fair enough.

At a deeper level, though, Obama’s comment is much more aggressive than a call for personal humility and generosity: it is a petulant assertion that all property is, or should be, considered communally owned. If “you” didn’t really “build that”, then I (implicitly: the government) am morally justified in taking it away as I see fit. This assertion meaningfully blurs the once-pristine clarity of America’s shared acceptance of property rights.

Will we become more like Mexico over time, or the other way around? If the progressive vision of hazily-understood and communal, rather than clear and individual, rights prevails, it will be the former – and the light of personal liberty that has lit our way will burn low.

Which side of the border would you rather live on?

M.H. Johnston

*Objection to our courts’ – in my view, deeply improper – high handedness in regularly inventing new constitutional rights or limiting established ones should be understood as completely separate from the question of whether one is for or against their current stances on particular issues like abortion or gay marriage; it’s about the unconstitutional de facto rule by an almost perfectly unaccountable judicial clerisy.

2 comments to Blurred Lines

  • Doug  says:

    Nice piece. Your friend from Texas is quite astute. In the Obama/progressive world can one own their reputation? What about the legacy they work to build for their offspring? What if one of those fortunate offspring leverages such a legacy to create a opportunity. Does Obama’s daughter own her own diploma? She didn’t build that.

    • Anonymous  says:

      An opportunity

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