This is the final Communique written by Philip Drucker, law professor, writer, ranter, musician, artist, empath, capital "D" Democrat, resister-in-chief, corgi dad, husband, brother, brother-in-law, uncle, vegetarian and coffee drinker. He was the kindest, most authentic, compassionate, brilliant, hilarious original Renaissance man. Words cannot express how much we will miss him.
Today we discuss the difference between legal “damage” to a property right, and an infringement on an intangible but very real and possibly highly consequential constitutional right. In addition to being one of the cornerstones of constitutional analysis, understanding this crucial difference in both conceptual and practical terms cannot be overstated.
Let’s start with a quick glance back at Thomas Paine’s “Common Sense”. In arguing for a democratic republic, Paine makes the distinction between the population that comes together to work on what are perceived actions for the betterment of individuals who see mutual benefit and are willing to work together to achieve their shared goals. Government’s basic role is to not interfere in any meaningful way with the people, unless it is for the purpose of preventing those persons who would perform acts clearly against the wishes of the people, in most cases for the chance to sow chaos and discord for personal gain at the expense of the greater societal good. Therefore, it is best to think of government at all levels as the leveler of our social and economic playing field. It might even be said the government creates, protects, enhances and expands our economy by reigning in its worst tendencies to have a handful of miscreants call the shots behind the scenes and manipulating the markets by whatever means necessary.
It is equally true that to even begin to comprehend the effect, range and scope of any given Amendment in the Bill of Rights, to frame the issue as a sliding scale, and never in terms of absolutes. Why? Because there is no such beast as an “absolute” right to any of the guarantees contained in the Constitution. In short, the applicable standard for evaluating an infringement upon a fundamental right is not whether an infringement occurred, but whether the government’s actions amount to an undue burden placed upon our natural rights to Life, Liberty and the Pursuit of Happiness as contained in the Declaration of Independence. Since all natural rights are inalienable, meaning if the government’s actions have “gone too far,” they are unconstitutional and cannot withstand judicial review, correction or outright rejection.
If the mantra regarding 2nd Amendment Rights being “absolute” comes to mind, well, you have my permission to reply (or not) with the admonition they are not now, and never will be, an absolute right found in or anywhere remotely near the Constitution. It’s kind of like caffeine free soda. Never had it, never will. Now, keep in mind when our Founding Fathers added the Bill of Rights to the Constitution, they did not intend to write the Bill of Ten Really Good Suggestions. But, if you look closely, you will notice the Amendments are written in the negative, as curbs upon the power inherent in all government actions including the possibility of abuse. For example, the 1st Amendment starts with ”Congress shall make no law…” This is a negative command and hence, grants no right upon the citizenry, only a safeguard for those rights identified in the 1st Amendment. Remember, your natural rights are God given and cannot be granted by any piece of paper, Magna Carta, constitution, or document written by the hands of a man. Substitute constitution for Christmas and you now know the true meaning of inalienable, Charlie Brown.
Similar distinctions are found in any number of court cases. For instance, your rights to free speech are dependent on the utility of the speech, and whether the speech crosses the line from mere words to an exhortation for imminent, unlawful action to an audience that is more than capable of carrying out those acts of intimidation and violence at the behest of the speaker. Simply put, your rights to free speech have limits. Your rights to the free exercise of your religion have limits. Last time I looked polygamy was illegal in all 50 states and human sacrifice in the interest of pleasing one’s chosen god was a Bozo no-no.
Lastly, I do not believe it to be an overstatement that when evaluating the severity of a government’s effect upon a fundamental right that the context of the events in their totality, must be a central area of research and inquiry. Don’t rely on black-letter law alone for your evaluation. I recommend always asking how did the proposed infringement impact this plaintiff under these circumstances? You may be surprised at what a 180 degree game changer this can be.
And please, as a final warning, don’t ask yourself what if this happened to me? Why, you already know the answer, don’t you? Hope this helps and as always, wash, rinse and repeat as necessary.