Ian Underwood | GrokWatch News Desk
Dear Rep. DiSesa,
As you point out, the New Hampshire Constitution does say:
[Art.] 3. [Society, its Organization and Purposes.] When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.
This raises an important question: Which rights, exactly? Not surprisingly, the very next article answers that question:
[Art.] 4. [Rights of Conscience Unalienable.] Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of Conscience.
In addition to rights of conscience, which other rights may not be surrendered up to society?
It’s not hard to think of rights for which no equivalent can be given or received. The right to conceive and raise children, for example. What could society possibly offer that would compensate for giving that up?
Or the right to practice the religion of your choice?
Or the right to decide how your children will be educated?
Or the right to say what you think?
Or the right to defend yourself, your family, and your property (whether from outlaws, or from your own government) wherever you happen to be?
No equivalent can be given for any of these.
On the other hand, where rights are surrendered up, the terms of surrender are specified in constitutions. This is one of the things that constitutions are for.
For example, let’s look at the federal Bill of Rights. The First Amendment makes it clear that you surrender the right to assemble in a non-peaceable way. The Third Amendment makes it clear that you surrender the right to refuse to quarter soldiers in time of war, as prescribed by law. The Fourth Amendment makes it clear that you surrender the right to refuse a search when there is enough evidence of wrongdoing to convince a judge to issue a warrant. And so on.
We find these kinds of terms echoed in our own state’s bill of Bill of Rights. For example, Article 19 echoes the Fourth Amendment, Article 29 echoes the Third Amendment, and so on.
So here’s what it comes down to: If you believe that a right is ‘surrendered up to society’, you should be able to point to the words in the relevant constitutions that explain the exact terms of surrender.
Absent that, Article 3 is not a license to say, for example, that because you don’t like that some other people are exercising the right to keep and bear arms, it must be one of the rights they have to surrender.
But take heart! Both the federal and the state constitutions contain procedures by which they can be amended. So if you feel that some right should be surrendered, the proper way to do that is to work to have those constitutions amended to make the terms of surrender clear. Having laid that foundation, you can then proceed to pile legislation on top of it.
But consider the alternative. Suppose you decide that you don’t want to go to the trouble of amending constitutions, because it’s too much work; or that you don’t need to go to the trouble of amending constitutions, because (as the courts would have us believe) the words don’t really mean what they say.
In either case, this raises another important question, which may have escaped your attention. If you’re not going to pay attention to the words of our constitutions, why should anyone pay attention to the words of your statutes?
I would very much like to hear your answer to that question.
Kindest regards,
Ian Underwood, Croydon, NH
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