Does Government Have a License to Murder?
During the hearings in the Senate Judiciary Committee regarding the nomination of Samuel Alito to the U.S. Supreme Court, Senator Russ Feingold asked Alito if, hypothetically, a convicted man was scheduled to be executed, and then evidence appeared that found the man to be actually innocent, the innocent person has the Constitutional right not to be executed.
by Fred E. Foldvary, Senior Editor
As reported, Judge Alito refused to say that the innocent man would have a Constitutional right to not be killed by the state. He evaded the question with legalistic maneuvers, saying that the man could file a petition to the court. The implication seems to be that in his judgment a man clearly proven to be innocent may nevertheless be killed by the state. If that is the case, then government has a license to murder any person so long as he has gone through a legal process.
Thus, by that view, a jury could be selected in which the members have a predilection to convict someone, even if the person is innocent, and that person could be executed, even if the facts prove that he is innocent. Government may pluck any person out of his home and put in on trial with jurors predisposed to convict him, and then kill him, all legal and constitutional.
This testimony reveals several deep flaws in the American legal system. It goes way beyond the views of one particular judge. There is first of all the procedural issue of whether a candidate for judge in the supreme or other court should be obligated to avoid answering any question regarding the rights of the people. While it would be inappropriate to give an opinion on a specific case that could come up before the court, it should be quite proper to reveal one’s views of what are our basic legal and constitutional rights.
If, for example, a nominee is asked whether the people have a constitutional right to freedom of speech, most candidates would answer in the affirmative. But if they are asked whether people have the right to live, to not be murdered by the state, they revert to legalisms. What’s the difference? The former, freedom of speech, is explicitly expressed in the U.S. Constitution, while the latter, the right to not be murdered, is not so enumerated.
But the U.S. Constitution contains the 9th Amendment, which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Surely there is no greater right than the right to live, to avoid being murdered, without which all other rights become void. If the 9th Amendment protects rights even if not laid out in the document, it surely has to include the right to live. Yet a judge candidate will say we have the right to speak but not necessarily the right to live!
A candidate for judge, of any court, who says we have the right to speak freely, but refuses to say whether an innocent person has a right to not be murdered by the state, is really telling us that, in his judgment, the 9th Amendment is null and void.
The intent of the founders of the U.S. Constitution, those who wrote it, signed their names to it, and ratified it, was that the federal government would have only those powers specifically allocated to the federal government, and all other powers would be left to the states and to the people, a principle made explicit in the 9th and 10th Amendments. But now the dominant legal and governmental thinking is the opposite: the federal government has the power to do anything not explicitly forbidden to it, and the people have no rights other than those explicitly spelled out in the Constitution.
The reason why the 9th Amendment is disrespected by judges and other government officials is that there is a fundamental ignorance of our natural rights not just by the public but by scholars, including and especially by philosophers, social scientists, and legal experts. Those who espouse natural moral law, natural rights, and the universal ethic are in a small minority, even though those who deny natural moral law have nothing legitimate to replace it with. They appeal to religion, contrary to the First Amendment prohibiting them from establishing religion.
If any Senator has any regard for the U.S. Constitution, they would vote to not confirm any candidate for judge who denies or disparages non-enumerated rights retained by the people. Unfortunately, these Senators themselves are guilty of such disrespect for our rights.
Ultimately, it is up to the citizens of a republic to uphold their natural rights, and they can do so by refusing to vote for any candidate who does not understand moral rights. But who will educate the people, with government controlling most of schooling? Perhaps the only hope is that some prominent person will become enlightened about the universal ethic and then preach it to the public. Until then, government may indeed exercise its perceived license to murder.
-- Fred Foldvary
Copyright 2006 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.
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