What is the Most Important Right?

 

I know I’ve put this in a comment or two somewhere, but it seemed like the perfect topic to bring up in a longer form for this month’s Constitutional theme: What is the most important right in the Bill of Rights? To remind us, the Bill of Rights comprises (short form courtesy of Cornell Law School):

1 Freedom of religion, speech, press, assembly, and petition.
2 Right to keep and bear arms in order to maintain a well regulated militia.
3 No quartering of soldiers.
4 Freedom from unreasonable searches and seizures.
5 Right to due process of law, freedom from self-incrimination, double jeopardy.
6 Rights of accused persons, e.g., right to a speedy and public trial.
7 Right of trial by jury in civil cases.
8 Freedom from excessive bail, cruel and unusual punishments.
9 Other rights of the people.
10 Powers reserved to the states.

It’s a purely theoretical exercise because, of course, they are all important. But the First and Second Amendments get a lot of attention, and their position might suggest that the Founders themselves considered them of top importance. I would be willing to bet if you asked a sampling of Americans to name the most important right in the Bill of Rights, many would likely answer “Freedom of Speech” or one of the other Article One rights. Assuming, that is, that they have heard of the Bill of Rights, which is no longer a given.

But many years ago, I was listening to the Imprimis Law Hour on the radio when this question was asked.  I think the first and second amendments came up several times, but then one of the participants said that it was the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The panelist contended that from this right all the rights in Article 1 flow, because no one would exercise those rights if the government could march in and seize your property. You wouldn’t really be free to speak, assemble, practice your religion, or even bear arms if doing so would invite the government to seize everything you own. I think these days, after seeing the FBI sicced on parents at school board meetings and the January 6th rioters thrown in jail without due process, I might argue that the 5th, 6th, and 8th are also critical for protecting other rights. To exercise our rights, we have to be free of the fear of government retribution.

One could also argue that the Second Amendment is foundational, but I think that Waco and Ruby Ridge show that while an armed citizenry is a bulwark against tyranny, the government always wins when it is just a few citizens against them.

But short of the dystopian future that we may be heading for that the treatment of the January 6th rioters portends, I think the right to be secure in your property is probably the one that protects the other rights the most, as it is still hard for the government to arrest you and throw you in jail, but seizing your bank accounts and other property seems to be getting easier all the time.

Other thoughts?

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There are 29 comments.

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  1. JoelB Member
    JoelB
    @JoelB

    Quite true. These rights are interdependent. We have seen the Democrats violate, or attempt to violate,  what are arguably the most important.

    • #1
  2. Old Bathos Moderator
    Old Bathos
    @OldBathos

    I think we need to step back sometimes and think about the notions of human life and human nature at work here.  These enumerated rights are all about respecting the dignity and value of the person.  That is why freedom and limited government comprise a moral imperative.

    Too many (liberals especially) try to recast the Bill of Rights as stuff we ought to be allowed to do if we feel like it.  Guns and religion become amusing hobbies, speech judged on whether it is a hassle, cops not hassling us and the rest is just historical detritus.  The issue then becomes whether government serves or inhibits various appetites and the notion of personhood gets lost.

    • #2
  3. Henry Racette Member
    Henry Racette
    @HenryRacette

    Interesting food for thought. Thanks.

    I’ll stick with freedom of speech, because I think that’s the most essential foundational right in a representative democracy.

    But I like them all.

    • #3
  4. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    The classic answer is that 2A protects all other rights.

    • #4
  5. MWD B612 "Dawg" Member
    MWD B612 "Dawg"
    @danok1

    I think that the most important right is the right to due process of law, a milestone in Western Civilization. Some might find this hyperbolic, but I believe the right to due process of law is one of the greatest achievements of our civilization. Out of a field at Runnymede came what is arguably the basis of our law. (NB: I know Magna Carta was rescinded and reinstated a number of times.)

    The 4th, 6th, 7th, 8th, and the rest of the 5th Amendments all fall out of due process (IMHO, of course).

    • #5
  6. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    Old Bathos (View Comment):

    I think we need to step back sometimes and think about the notions of human life and human nature at work here. These enumerated rights are all about respecting the dignity and value of the person. That is why freedom and limited government comprise a moral imperative.

    Too many (liberals especially) try to recast the Bill of Rights as stuff we ought to be allowed to do if we feel like it. Guns and religion become amusing hobbies, speech judged on whether it is a hassle, cops not hassling us and the rest is just historical detritus. The issue then becomes whether government serves or inhibits various appetites and the notion of personhood gets lost.

    I agree wholeheartedly.  That’s why our Declaration of Independence is so important.  It states the basis of our rights, not the King or government or other people but our Creator.  They are not granted by government. 

    The Bill of Rights is also unique, as I understand it, because it lays out what the government may not do to interfere with our God-given rights, not what it is allowed to do.

    The two documents are a one-two punch that rocked the world.   

    • #6
  7. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    MWD B612 "Dawg" (View Comment):

    I think that the most important right is the right to due process of law, a milestone in Western Civilization. Some might find this hyperbolic, but I believe the right to due process of law is one of the greatest achievements of our civilization. Out of a field at Runnymede came what is arguably the basis of our law. (NB: I know Magna Carta was rescinded and reinstated a number of times.)

    The 4th, 6th, 7th, 8th, and the rest of the 5th Amendments all fall out of due process (IMHO, of course).

    I would accept this argument because, again, without it you would not be free to exercise your rights, even if they are granted.  But at least for now, I worry less about lack of due process than illegal property seizure.  I may be wrong.

    • #7
  8. Henry Racette Member
    Henry Racette
    @HenryRacette

    Gossamer Cat (View Comment):

    Old Bathos (View Comment):

    I think we need to step back sometimes and think about the notions of human life and human nature at work here. These enumerated rights are all about respecting the dignity and value of the person. That is why freedom and limited government comprise a moral imperative.

    Too many (liberals especially) try to recast the Bill of Rights as stuff we ought to be allowed to do if we feel like it. Guns and religion become amusing hobbies, speech judged on whether it is a hassle, cops not hassling us and the rest is just historical detritus. The issue then becomes whether government serves or inhibits various appetites and the notion of personhood gets lost.

    I agree wholeheartedly. That’s why our Declaration of Independence is so important. It states the basis of our rights, not the King or government or other people but our Creator. They are not granted by government.

    The Bill of Rights is also unique, as I understand it, because it lays out what the government may not do to interfere with our God-given rights, not what it is allowed to do.

    The two documents are a one-two punch that rocked the world.

    The two documents are also very different in character. The Declaration of Independence is a moral argument put forth as a justification for rebellion. It explicitly argues that rights transcend man-made institutions and are an intrinsic property of every man.

    The Constitution, on the other hand, is a legal document that defines the structure and scope of our government. It does not make a philosophical argument about the source of our rights.

    I think that’s important, because it means that the Constitution’s fundamental legitimacy is not up for debate based on varying ideas of whether rights are fundamentally God-given or man-made.

    • #8
  9. Charlotte Member
    Charlotte
    @Charlotte

    Put me on Team Third Amendment!

    • #9
  10. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    DonG (CAGW is a Scam) (View Comment):

    The classic answer is that 2A protects all other rights.

    I think that is true at scale, but as I said in the post, when it comes to individuals  exercising their rights, the government can and usually does overpower them.  So the right to bear arms did not protect those in Waco or Ruby Ridge.   But the arming of the citizenry as a whole is a critical and unique check against the use of the military against the people. 

    • #10
  11. Gary Robbins Member
    Gary Robbins
    @GaryRobbins

    Charlotte (View Comment):

    Put me on Team Third Amendment!

    There is not enough said about the Third Amendment! 

    The Third Amendment can be called the most effective Amendment of all time.  It irrevocably settled that issue for once and for all.  

    • #11
  12. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    The question in the OP assumes that one “right” can be more important than another.

    Is this correct?  Is this the proper way of conceptualizing the issue?

    Can rights conflict?  I don’t see any conflict between the specifically enumerated rights in the Bill of Rights, but what about the unenumerated rights?  For that matter, what are the unenumerated rights?  The 9th Amendment certainly suggests that some such rights exist.

    • #12
  13. Henry Racette Member
    Henry Racette
    @HenryRacette

    Jerry Giordano (Arizona Patrio… (View Comment):

    The question in the OP assumes that one “right” can be more important than another.

    Is this correct? Is this the proper way of conceptualizing the issue?

    Can rights conflict? I don’t see any conflict between the specifically enumerated rights in the Bill of Rights, but what about the unenumerated rights? For that matter, what are the unenumerated rights? The 9th Amendment certainly suggests that some such rights exist.

    Jerry, it seems perfectly plausible that, of the initial ten amendments, some are more practically essential to maintaining our freedom than others — in that sense, more important. We may cherish them all equally, but they may have differing practical importance at any given time.

     

    • #13
  14. Victor Tango Kilo Member
    Victor Tango Kilo
    @VtheK

    I really wish they had included a right-to-be-left-alone.

    • #14
  15. DaveSchmidt Coolidge
    DaveSchmidt
    @DaveSchmidt

    Given the current state of affairs, the most important right is one the progressives have not yet invented.  

    • #15
  16. garyinabq Member
    garyinabq
    @garyinabq

    Our runaway federal government is the biggest immediate problem we face.  I vote for the 10th as the best way to combat that.

    • #16
  17. Skyler Coolidge
    Skyler
    @Skyler

    All rights derive from your right to life, which is left unstated in the Bill of Rights because I presume the founders thought it so obvious.

    • #17
  18. Skyler Coolidge
    Skyler
    @Skyler

    garyinabq (View Comment):

    Our runaway federal government is the biggest immediate problem we face. I vote for the 10th as the best way to combat that.

    When I studied for the bar exam, the standard advice was that the 9th and 10th amendments were never the correct answer on the multiple choice questions because they were considered dead.

    • #18
  19. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    Skyler (View Comment):

    garyinabq (View Comment):

    Our runaway federal government is the biggest immediate problem we face. I vote for the 10th as the best way to combat that.

    When I studied for the bar exam, the standard advice was that the 9th and 10th amendments were never the correct answer on the multiple choice questions because they were considered dead.

    Well that is kind of scary, isn’t it?  

    • #19
  20. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    Skyler (View Comment):

    All rights derive from your right to life, which is left unstated in the Bill of Rights because I presume the founders thought it so obvious.

    Agree.  It is stated clearly in the Declaration of Independence, but as Henry Racette states clearly in comment #8, the Bill of Rights doesn’t deal with the moral basis of our rights.  Life being the undisputed number 1 of these.

     

    • #20
  21. Bartholomew Xerxes Ogilvie, Jr. Coolidge
    Bartholomew Xerxes Ogilvie, Jr.
    @BartholomewXerxesOgilvieJr

    I wish this weren’t even a question we had to ask. This is why I tend to agree with Hamilton and those who argued against the Bill of Rights because it implies a default assumption that the government can do anything it wants, with only certain rights marked out as protected.

    This is the exact opposite of the way our Constitution was supposed to work. All rights, including the ones no amendment mentions, should be considered absolute, except in the specific areas where the Constitution explicitly authorizes government intrusion. It should not be necessary for us to find some clause in the Bill of Rights that protects us.

    And yes, I know I’m dreaming. Without the Bill of Rights, we’d probably have no freedoms left. The Bill of Rights was a bad idea, but it was also necessary. I just wish it weren’t so.

    • #21
  22. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    The First, which speaks to the right to be secure in one’s person, as well as speech, religion, etc.  By definition, the State can’t really get inside your head to read your thoughts, but loss of freedom of speech does curtail those thoughts, at least as spoken.

    I just saw a story which speaks to the Fourth, and I will be doing a post on that shortly.

    • #22
  23. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    RushBabe49 (View Comment):

    The First, which speaks to the right to be secure in one’s person, as well as speech, religion, etc. By definition, the State can’t really get inside your head to read your thoughts, but loss of freedom of speech does curtail those thoughts, at least as spoken.

    I just saw a story which speaks to the Fourth, and I will be doing a post on that shortly.

    Interesting interpretation!

    • #23
  24. Flicker Coolidge
    Flicker
    @Flicker

    The most fundamental right is the right to life.  All other rights are impossible without it.

    • #24
  25. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    Flicker (View Comment):

    The most fundamental right is the right to life. All other rights are impossible without it.

    Agreed.  (Also made by Skyler in Comment 17).  

    • #25
  26. Flicker Coolidge
    Flicker
    @Flicker

    Gossamer Cat (View Comment):

    Flicker (View Comment):

    The most fundamental right is the right to life. All other rights are impossible without it.

    Agreed. (Also made by Skyler in Comment 17).

    Yes.  I just put in my vote, and why.

    • #26
  27. Mark Alexander Coolidge
    Mark Alexander
    @MarkAlexander

    The right to kick govt in the gonads.

    • #27
  28. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    I plead the Fifth. While the courts have treated the 9th and 10th dismissively, it is worth noting that the 9th points to a natural law basis of rights, that rights preexist government.  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The common explanation for this amendment is a reasonable fear that enumerating rights would be taken as a limitation, that anything not listed would not be protected from government oppression.

    This conversation is part of our Group Writing Series under the September 2022 Group Writing Theme: “Constitutional.” Stop by to sign up and share your own short observations.

    Interested in Group Writing topics that came before? See the handy compendium of monthly themes. Check out links in the Group Writing Group. You can also join the group to get a notification when a new monthly theme is posted.

    • #28
  29. DaveSchmidt Coolidge
    DaveSchmidt
    @DaveSchmidt

    Mark Alexander (View Comment):

    The right to kick govt in the gonads.

    At least those in the government that are still “intact.”  

    • #29
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