Episode 79: How Well Do We Understand Our Rights?

Michael Schaus: Without the 14th Amendment, what would stop the state of New York, for example, from making guns illegal in that state?

This is for Free to Offend. I’m your host, Michael Schaus. I have an interesting topic for you today and an interesting guest. The topic almost seems a little bit abstract at first. Somebody actually suggested this topic and this guest to us, one of our listeners did, so again, thank you. Be sure to visit Nevadapolicy.org/podcast and you can suggest certain topics or individuals that you think would be good guests on this show.

This one is the topic of constitutional and unenumerated and inalienable rights. This idea of the rights that we are born with as United States citizens or as just people that happen to be born in one of the 50 states in this great nation.

Where do those rights come from? How are they applied legally? And what changes to the Constitution over the years, for example, the 14th Amendment, have imposed on our understanding of rights and kind of the legal structure of rights?

And to talk a little bit about that, I want to welcome Mark Iverson. In his 35-plus-year career, he’s done a whole mix of work with corporations and startup ventures. He’s very interested in data and science, and he’s also done quite a bit of studying and kind of a deep dive into the concept of constitutional rights, particularly as it relates to citizenship.

So Mark, thank you so much for joining us today. We really appreciate it.

Mark Iverson: Very welcome, Michael. And I’m happy to at least provide some feedback about my knowledge in this. I’m not a lawyer, but you can read these court cases and learn things, and I’m here to basically explain what the courts I think are saying in certain instances.

Michael Schaus: Well, and it’s one of those things, whenever you start to study constitutional law, it could become a rabbit hole. You start going down all these various different court cases and the way that lawyers and judges decide to interpret certain words and what have you, it becomes far more complicated than it initially looks when you just glance at it.

So one of the things that, that you touch on quite a bit is, this difference between unalienable rights and civil rights and what the constitution has to say about that, or doesn’t have to say about that. Talk a little bit about what is the difference between say some sort of a civil rights versus an unalienable right.

Mark Iverson: Right. Well, when the country was first formed, we didn’t even have a U.S. constitution. The states had written up their own state constitutions. And there was already the understanding that we have unalienable rights. That the constitutions don’t give us those rights. They’re inherent in us as a citizen of one of the states and the constitutions were written to simply protect those rights.

We understand that there are certain things that government is needed for. And so the people, who basically took the place of the king, the sovereign. What happened is that we severed that connection to England and the King of England. We were his subjects and the sovereignty basically became the people. That it was a distributed power amongst the people, not one person.

So that’s the concept there. We are the sovereign, the people are the sovereign. But they realized that we had to give away some of that power and authority to an entity, government, because we needed government to at least do certain things.

So the only thing that existed prior to the US Constitution was unalienable rights. And actually, I think you could say prior to even the 14th Amendment. And that all came about because of the 13th Amendment, the abolition and slavery.

And this is the one thing that President Andrew Johnson goes into great detail about. Of course he was Lincoln’s vice president, and after Lincoln was assassinated, he became president. And that’s in 1865. And there were attempts to pass the first legislation regarding the freed slaves because you had four million freed slaves in this country, and they had no standing in a court of law because they weren’t citizens. I mean definitely something that needed to be corrected.

And because of the prejudices and the racism at the time, they couldn’t get legislation passed that would confer state citizenship on the free slaves. So obviously a lot of arguing, several attempts, and eventually they came up with some of the initial civil rights legislation. But that resulted in ultimately the 14th Amendment, which basically conferred citizenship on the freed slaves and basically said all the freed slaves out there living in the states, you are now a citizen of the United States, which is basically a citizen of the District of Columbia, and you, the states, have to treat the District of Columbia citizens living in your state, the same as you treat your own state citizens.

That’s basically what the 14th Amendment did. So it was a bandaid to try to confer some type of citizenship on the free slave so that they had standing in a court of law. So that’s civil rights.

Again, this is not something that is my opinion. It’s in my Substack articles where it’s very clear we have two citizenships in this country. We have state citizenship, which was the original, and then because of the 14th Amendment, U.S. citizenship.

The Supreme Court said that although it did not create a national citizenship, meaning although the 14th Amendment did not create a national citizenship, it made that citizenship paramount and dominant over state citizenship. So civil rights are basically what you have as if you claim United States citizenship. Unalienable rights really only come from because they’re a fundamental right, via your citizenship of one of those 50 states.

Michael Schaus: So what’s an example of a civil right versus an inalienable right? How do those two differ?

Mark Iverson: That’s a good question. Unalienable rights, I’m thinking of things like the Second Amendment, the freedom of speech, freedom to assemble, freedom of religion.

Michael Schaus: One of the things that jumps to mind, you know, thinking about the 14th Amendment and the Dred Scott decision and that whole era. Because this is something that I ended up studying quite a bit once before because I was looking at the history of gun laws.

And something that we noticed was it was pretty widely understood at the time that the Second Amendment to the United States Constitution allows everybody to own a gun. Back in that day was with very, very little restrictions. But following the end of the Civil War, the South started adopting a bunch of what you would consider gun control measures, but they were obviously laws aimed at prohibiting freed slaves from owning any sort of gun.

And the argument that came up and something that the Dred Scott Case was about and something that the 14th Amendment was designed to fix was, there were some folks who said, “Look, we want to, in our state, whatever state that is, we want to give freed slaves all the same rights as everybody else. We want them to be considered citizens of the state.”

And Dred Scott said, “Well, okay, fine, you guys can do that, but they’re still not going to be considered United States citizens.” And so then the 14th Amendment was created to say, “Hey, look, if you are born or naturalized in the United States, you’re a citizen of the United States and the state wherein you reside.” And that was actually a big moment to make sure that those freed slaves could have things like Second Amendment rights.

So the question, you know, when I ask what the difference is between the two, I guess that’s part of what always worries me about the legalese and what have you. How do you think the courts would draw a distinction between the two? Or does it even matter if there is a distinction between the two?

Mark Iverson: Well, I think there is a distinction because I think civil rights are something that we can say are basically granted by the fact that you’re a citizen. In other words, being a US citizen is actually granting you the civil rights, whereas state citizenship, it’s not granting you unalienable rights. You have those by the fact that you are born in the state and have become a citizen.

Michael Schaus: So it’s almost like political rights versus you know, natural rights. You don’t have to be a citizen in the United States in order to, for example, exercise your right to freely say whatever you want to say.  But you do have to be a citizen in the United States in order to cast your vote, for example. You need to be a recognized citizen in the state that you live in order to cast a vote. Would that be kind of a potential example?

Mark Iverson: That would be one. You know, what concerns me most about the civil rights? A couple of things. One it was a bandaid, an attempt to give the freed slaves some form of citizenship status because they couldn’t have state citizenship because of the Dred Scott decision. So it was sort of a bandaid effect.

Well, why do we even need the 14th Amendment? I mean, racism in this country, I think enough generations have gone by that literally the vast majority of people who had any racial problems have died. It’s died off figuratively and literally. So why do we even need a 14th Amendment? Why can’t we just be citizens of our state?

Michael Schaus: Well, I think, you know, the argument against getting rid of something like the 14th Amendment would be, again, I’m thinking specifically of you know, gun rights, for example.

Part of the problem here is you’ve had states and you’ve had people before try to say, “Oh look, we can ban this particular class of weapon.” Or as New York tried to do, say, “Hey, here’s, here’s a whole list of bureaucratic hoops you have to jump through, and then we may or may not allow you to own a handgun.”

The reason why those got shot down is not just because the Second Amendment, but the Second Amendment in cooperation with the 14th. It says, “Look, the United States Constitution says that there’s a right to own a gun, and the courts have said that that’s an individual rights” and so on and so forth.

The reason why that’s important is because if you live in the state of New York, you are considered also a United States citizen, and therefore these rights that we’ve enumerated apply. The state of New York cannot infringe on a constitutionally enumerated right.

I think that would be the biggest argument against doing away with or rewording the 14th Amendment. It makes sure that any enumerated rights in the United States Constitution are broadly and equally applied in every single state, regardless of how they might feel about those particular rights.

Mark Iverson: Well, I guess I would argue that maybe the reason in that court case came out is because the person challenging it was declaring US citizenship as well as state or just U.S. Whereas why couldn’t he have just gone in as a state citizen who says, “I have an unalienable right to own a firearm.” End of story.

Michael Schaus: But what if the state constitution doesn’t give you the same rights as the Constitution of the United States in that case? And the 14th Amendment makes this process automatic, it says, all persons born or naturalized in the United States are citizens of the federal government and the state wherein they reside.

So you don’t have to claim anything. You can say, look, I live in New York. I’m a citizen of New York. I enjoy the same privileges and immunities and enumerated rights as anybody in the rest of the 50 states.

Mark Iverson: I guess I don’t see a reason because our unalienable rights come from state citizenship. Again, the Supreme Court has said that the U.S. citizenship only protects those rights, the civil rights. It does not protect those that come from the fundamental rights of state citizenship.

And Second Amendment is a fundamental right. It comes from the fact that you’re a citizen of one of the states under the state constitution. And you know, all the states, other than the original 13 have in their state constitution, something called an equal footing clause. So they were brought in on an equal basis to the original 13, and that includes basically the fact that as a state citizen, your unalienable rights are not granted, but are protected by the state constitution.

It has nothing to do with the U.S. essentially.

Michael Schaus: I agree with that. I understand that distinction. Let’s put it another way. Let’s pretend that we did not have the 14th Amendment right now. If the State of New York said, “All right, you know what? We don’t like guns. So we’re going to rewrite our state constitution to remove the state equivalent of the Second Amendment, the piece of the New York constitution that says everybody has a right to keep and bear arms.”

If they take that out the state constitution without the 14th Amendment, what would stop the state of New York from making guns illegal in that state, despite the Second Amendment in the U.S. Constitution? How would the people in New York have protection under the U.S. Constitution without the 14th Amendment?

Mark Iverson: The U.S. Constitution still applies to the citizens of the states. I think what’s happening with the U.S, Constitution is that it is, in a sense, reasserting or re-recognizing the unalienable rights that state citizens have.

So a state citizen could go into court, challenge his unalienable right to possess a firearm. And he can base it on solely being a state citizen, but he’s basing it on not only the state constitution, but the U.S. Constitution, as a state citizen only, not a U.S. citizen.

Michael Schaus: But isn’t that part of what Dred Scott caused problems with. The court basically said that, you know, you’re not guaranteed any of the rights or the privileges or the immunities enumerated in the United States Constitution if you are not a United States citizen.

So, for example, a northern free state could say, “Okay, all free men, come up here.” But the court said, yeah, we’re still not going to let you, you know, vote or exercise Second Amendment rights or First Amendment rights or anything like that. Isn’t that part of what Dred Scott did?

Part of what the bandaid of the 14th Amendment was supposed to address was everybody in every state has got those same U.S. constitutional rights that we’ve enumerated.

Mark Iverson: I would argue with that. Can we agree that there’s two citizenships? there’s citizens of the states, the 50 states, and then there’s District of Columbia citizens, aka a U.S. citizens.

Michael Schaus: Yeah, I mean, there was even a comment. I wish I could pull it up. I have no idea where I’d even start to find it, but I remember reading about the Dred Scott case and one of the folks who was pivotal in pushing forward the 14th Amendment even mentioned that the intent of the 14th Amendment from their perspective. I wish I could remember which lawmaker it was, but he said his intent for the 14th Amendment was to restore what we used to understand about citizenship, which is if you are a citizen of a state, you are a United States citizen.

So I think that there was a distinction between the two, but I’m not exactly sure what that distinction was beyond that. I like your explanation of you get your inalienable rights from the state and then on the federal level, they kind of codify all these other civil or political rights.

But yeah, I look at that and I think the 14th Amendment, well, you know, maybe not necessarily. It was trying to correct what we today see as a very bad Supreme Court decision, which was the Dred Scott case, where they, in the Dred Scott case, the court really tried to draw a distinction, I think between the two types of citizenship and use that distinction to disenfranchise in that case, freed slaves from enjoying what the United States Constitution otherwise would apply to everybody.

Mark Iverson: I mean, I have seen summaries of Dred Scott that basically one of the bullet points was that non-whites couldn’t have state citizenship standards and therefore Congress was in a real dilemma.

There was too much racism back then to confer the exact same citizenship status ,that white people enjoyed at the time. And so Congress had to come up with something, and that was U.S. citizenship. And again, you’re talking about U.S. citizenship, but understand that, Supreme Court stated, it did not create a national citizenship.

We the people did not give the federal government the power to create a national citizenship. So what did it create? It created a citizenship of the District of Columbia, because it’s not one of the 50 states and it will never be one of the 50 states, otherwise this would blow up.

Michael Schaus: Well I remember the bullet point of Dred Scott being different, that the court held that United States citizenship was only enjoyed by white persons or naturalized white persons, I guess. And the case basically was saying, black freed, or maybe the son of a black freed slave could be a state citizen, but not a citizen of the United States, and therefore, U.S. constitutional protections don’t apply to them.

Mark Iverson: Well that’s interesting. I do not interpret it that way. And understand that, I don’t know what year was the 14th passed? I don’t know right offhand.

Michael Schaus: I don’t even remember off the top of my head.

Mark Iverson: And the Dred Scott decision was quite early. Late 1700/early 1800s. Anyways, there was no such thing as a citizen of the United States prior to the 14th Amendment, U.S. Supreme Court.

Michael Schaus: Well, and that’s kind of my point. I think that the distinction was kind of invented throughout the Dred Scott decision and what have you, because again, in discussions for the 14th Amendments, a lot of the discussions were about restoring what people thought was already common knowledge.

If you were born in a state of the United States, so whether that be Kentucky or New York or Virginia or Maryland or wherever, you enjoy certain protections, for example, those protections outlined in the Bill of Rights. There are certain rights outlined and enumerated in the Constitution of the United States that were supposed to apply to everybody.

And the Dred Scott decision said, “Oh, well actually we’re not going to apply them to everybody.” So they said, “Okay, well how do we do this?” That was the resulting 14th amendment.

My question is even getting beyond all that, one of the things that kind of worries me about our modern state, like where we are today in our political world is we have a really, I mean, part of this is the educational system. People are not taught civics, for example. People are not taught how our government works.

When you ask somebody, “Okay, put the hierarchy of governments, you know, US government,” they always say the US government is in control of all the states, and the states are in control of all of us. And it’s actually not really the way it’s supposed to work.

So one of the worries that I get into is when we start talking about people’s understanding of rights, that worries me because it seems so lacking nowadays. You know, you and I are having a good conversation, I think about inalienable rights and civil rights and political rights.

Most people I think, don’t even understand. I mean, if you were to ask the average person, do you think they would know what an inalienable right even is?

Mark Iverson: Well, in the last 20 years, probably not. I think my generation perhaps a little more, but as you say, I think educational system is definitely failing our kids.

Michael Schaus: You know, if you were talking to somebody today and you wanted to explain to them, there are certain rights that we don’t get from government. Government’s not creating our right to free speech, for example. Aside from free speech, you know, what’s an example that you would give somebody so that way they have a very clear understanding that an inalienable right is something so basic, so fundamental that it doesn’t even have to necessarily be enumerated?

I mean, that was the point of the Declaration of Independence. They were saying, “Hey, look, some of these things are so basic, just by virtue of existing, basically we have a right to them.” What’s a couple of examples you would give folks that you think might make them start thinking about this?

Mark Iverson: Your ability to worship what you want, who you want. Obviously the Second Amendment is a big one, especially the way things are going in this country. I think the Second Amendment is becoming more on people’s minds. Just the right to stand out on the street corner and maybe complain about the federal government or your state government.

Michael Schaus: Hey Mark, I really appreciate you taking the time. This is an interesting topic because it really is one of those things that I don’t think is discussed enough. We throw around the term rights so often and we never really dive into what that means or kind of the specifics. So I’d love to see more of what you are going to do on your Substack and maybe have you back sometime in the future.

Mark Iverson: Oh, I’d love to Michael, and thank you for bringing this up. I agree that, that we really need to teach our children more about rights and the importance of maintaining those that they aren’t granted by government.

Anything that government gives you, it can take away. I’ve heard this, but I don’t know if it’s true, that this is the only country where our rights are just assumed unalienable. They are not granted by government, that they are basically inherent when you’re born in this country, whereas in other countries, yeah, their constitutions may say you have rights, but they never state that they’re unalienable. That those countries documents, constitutions, whatever you want to call it, basically are granting the rights.

Michael Schaus: Oh, yeah. Even in other you know, so-called democratic republics or you know, constitutional republics or anything, it’s still a list of things that government’s going to allow you, you know? Whereas in this country, historically and traditionally it has always been assumed you have the right to do it unless we have specifically given government the right to curtail your actions.

And that’s one of the great achievements of the whole enlightenment period and John Locke and everybody else was this idea. And it’s still a radical idea, which is amazing to me. You know, even a couple hundred years, this is still something that’s radical enough people don’t just naturally think that way.

But again, Mark, thank you so much. We really appreciate it. Again, it was Mark Iverson.  You know, when we talk about constitutional rights, when we talk about unenumerated rights and we talk about inalienable rights and everything else, there is very much this understanding.

I mean, look at the way that people use the term rights nowadays. You know, people think that they have a right to not be offended. They think that they have a right to shut down your speech if you say something nasty. There’s really this perverse misunderstanding of what rights actually are.

And more importantly, the fact that they don’t come from government. We have them. We’re born with them. We are born with the right to say whatever we want. We are born with the right to worship or not worship however we deem fit.

We are the right to protect our lives with lethal force if necessary. I mean, ultimately, that’s what the Second Amendment comes down to. The Second Amendment just protects a particular set of tools that you can use to effectively engage that right But the right is to protect your life with lethal force if necessary. And so often we kind of lose sight of that. So it’s been an interesting topic.

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This has been Free to Offend.