Foxfyre wrote:Is there a difference beween an inalienable right and a fundamental right? I consider the first to be anything that requires no participation by any other and thus is not subject to regulation or prohibition. The second seems to imply more of an expectation that all or most are or can be benefitted, but anything that requires a license (ie sanction of the government) can surely be regulated andor prohibited by that same government.
Foxfyre:
An "inalienable right" is a right that cannot be surrendered to the governing power only to be granted back to us on whatever terms the government deems fit. When we use the term "inalienable" to describe rights, you have to be mindful of the history.
Under English rule, it was believed that the KING ruled by divine right and that the King could do no wrong. Accordingly, the King's subjects had absolutely NO RIGHT to life, liberty, or pursuit of happiness. The King's subjects lived and died at the pleasure of the King.
When our forefather's laid the groundwork for government, it was a novel idea that an individual held inalienable rights to life and liberty. When the Constitution was adopted, it was done so on the premise that "we the people" SURRENDERED NOTHING, and RETAINED EVERYTHING.
Accordingly, the Constitution establishes a government of limited powers. Our federal government may only exercise enumerated powers and the government's power is further limited by the Bill of Rights. "We the People" do not have "constitutional rights" in any literal sense. The Constitution does NOT grant rights. It protects and secures the rights that we retained when we formed government.
The Constitution did not grant us the right to life, liberty, and pursuit of happiness. The Constition was ordained and established to SECURE the blessings of liberty to the people and their progeny--to secure ALL THE RIGHTS we retained. We surrendered nothing.
NO RIGHT, however, is absolute. Inasmuch as all men are created equal, my right to life, liberty, and pursuit of happiness does not allow me to violate another individual's right to life and liberty. The government SECURES my rights and it SECURES my neighbor's rights.
I have a right to life and liberty; my neighbor has a right to life and liberty. This right to life and liberty is inalienable in the sense that NONE of us surrendered these rights to the government when we formed government as these rights are incapable of being surrendered to a governing power. We do not live our lives as free persons at the mere whim of the government.
Fundamental rights are those rights that are fundamental in our concepts of ordered liberty. (Remember, LIBERTY is an inalienable right, so a fundamental right is merely part and parcel of the inalienable right to liberty.) Accordingly, I have an inalienable right to life and liberty and I have a fundamental right to life and liberty.
The government cannot deprive me of my fundamental right to life and liberty EXCEPT BY DUE PROCESS OF LAW.
In our concept of "ordered liberty" wherein the government was formed to secure the inalienable rights of all citizens and persons within its jurisdiction, the right to life and liberty would be virtually meaningless if disorder was allowed to prevail and my neighbor was allowed to snuff out my life / liberty without any accountability or consequences.
The government has general police powers to secure our concepts of ordered liberty and to promote the general welfare. Thus, we are accountable to the laws. Most laws are constitutional if they are reasonably related to a legitimate government interest. There is no question that the government has power to prohibit and criminalize murder and other crimes against persons and their property.
If I commit a crime--even though I have an inalienable right to life/liberty and a fundamental right to life/liberty--the government can deprive me of my life/liberty as punishment for a crime providing that the government provides me with due process of law.
You try to distinquish between inalienable rights and fundamental rights by claiming "inalienable rights" are not subject to regulation or prohibition. But your attempt to distinquish fails miserably because I cannot think of one inalienable right that is not subject to government regulation through laws for the equal protection (security) of all.
The people did not surrender their right to life anymore than they surrendered their right to marry to the government only to have these rights "GRANTED" back to us under whatever terms the government desired.
We surrendered nothing; we retained everything. We agreed to live in a society of ordered liberty where the government was responsible for securing the rights of all on an equal basis.
We have an inalienable, fundamental liberty interest in the right to travel. The fact that government might require that drivers obtain drivers licenses to demonstrate that they are minimally-qualified safe drivers before they are permitted to drive potentially dangerous weapons on public roads for the equal protection and security of all does NOT negate the fact that individuals have an inalienable, fundamental liberty interest in the right to travel.
Governmental regulation of conduct or an activity is not the sine qua non distinction between "inalienable rights" and "fundamental rights." There is no distinction because ALL RIGHTS are subject to reasonable regulation for the equal protection and security of all.
We have an inalienable liberty interest which includes the fundamental right to marry. Our right to marry may be regulated in part, but not completely denied. Each and every regulation must pass constitutional scrutiny on its own merits.
When the government seeks to regulate the inalienable right to liberty which includes the fundamental right to marry, the government must articulate a compelling interest and the means used by the government must be necessary and narrowly tailored to serve that compelling interest.
