Rights? What's a Right?

[Polycarp]

I’m starting this thread in GD with the idea of exploring, and perhaps arriving at a mutual understanding of each others’ positions, regarding the issue of what constitutes a right and what rights are guaranteed.

According to one school of thought here, the “natural rights of man” are guaranteed by the Constitution, largely through its Ninth and Fourteenth Amendments, and it would appear that it is on this school of thought that Mr. Justice Kennedy hung his hat in the recent “Texas sodomy” decision.

But the issue has been around since well before that decision, and it would appear from numerous comments that we have been talking past each other, with one side convinced that the other is asserting that a judge (or at least a SCOTUS justice with four others on his side) can find a right anywhere he wants to, and write it into the Constitution, while the other side seems to believe that their opponents are convinced that there are no rights except those specifically listed, which are to be construed as narrowly as possible.

This is a sad state of affairs. And it’s in hope that we can achieve an understanding of each others’ positions, and perhaps some common ground, that this thread is started. I want to make the firm request that nobody make assumptions about what the other person is saying, in order to argue against them, but rather to ask and seek redefinition where it appears that clarity is a problem.

I’m going to start by setting forth my impression of the stance taken by the “strict construction” side, eminently by Dewey Cheatem Undhow – not as a parody or straw man nor in the expectation that I have it accurate, but as a basis for discussion, including particularly correction and clarification by Dewey and others who largely agree with him.

Using the quote function to set off that description for clarity’s sake, but specifically denying that it’s a quote from anyone, then, here’s what I grasp that the Deweyite position is:

There may very well be a large number of “rights” (call them rights[sup]1[/sup]) which might be claimed by persons and/or extended by the governments they set over each other.

This, however, is not germane to American Constitutional law. The rights of American citizens that are Constitutionally protected are set forth in the Constitution, and particularly in the first eight Amendments. (The right not to be enslaved, the right to vote if you are 18 years of age, etc., are elsewhere, but the key rights are enumerated in Amendments I-VIII.) These may be referred to as “rights[sup]2[/sup].”

There may very well be other rights which it is the intention of the government, Federal or state, that the people enjoy without let or hindrance. Such rights would be set forth in the State Constitutions, federal and state statutes, etc., and it is to protect the power of Congress and the States to create or recognize such rights that the Ninth Amendment becomes anything more than a tautology or nullity. These rights are subject to encroachment by the appropriate legal mechanism by the body which created or recognized them, and we may call them rights[sup]3[/sup]. For example, the right of laborers in a given industry to join in unions and bargain collectively is a statutory right, revokable by the Congress which enacted the statute recognizing it.

All rights are subject to regulation in a manner set forth by the court and involving degrees of scrutiny – so that a law which impedes the exercise of a right is potentially constitutional depending on whether it advances a legitimate state interest, advances a necessary governmental function, etc., with the right of the individual and the nexus of the state regulation weighed against each other. Freedom of speech or of the press may thus be understood to include the right to advocate armed rebellion against the United States or to produce child pornography, and the power of the government to intrude on that right in order to bar that offense is tied to the essentiality of the governmental act vs. the degree to which the individual’s freedom is impeded.

Thus, while rights[sup]1[/sup] may be acknowledged to exist, they are not Constitutionally protected unless they are either rights[sup]2[/sup]. Any statute impeding a right[sup]3[/sup] is putatively Constitutional, regardless of how “uncommonly silly” it might be, and a decision finding otherwise is ultra vires.

The effort to find such “rights” constitutes a case of [eerie voice]Substantive Due Process[/eerie voice], a Constitutional law concept that embraces the work of the Four Horsemen in the 1930 and their predecessors in Lochner and other decisions that any social regulation violates individual liberty of contract and the conceptualizations of the Warren Court (and to a lesser extent the Burger Court) to find enormous quantities of legislation unconstitutional as violating personal civil rights. It briefly means that there is a constitutional guarantee not just to due procedure but to substantive justice as seen by the judges of the day, and is rightly rejected as enabling them to write whatever they like into the law.

The opposition asserts that there is a common consensus of the fundamental rights of man, of which the awareness is an evolving thing, so that personal rights taken for granted by most people which were not enumerated can, when circumstances call for their identification, be protected under the Ninth and Fourteenth Amendments and by logical corollaries (unfortunately once termed “penumbrae”) from the enumerated rights. Thus, the fact that the Constitution does not explicitly recognize a right to marry or to travel is no barrier to their being recognized – these two actions being among the sorts of fundamental rights that were contemplated in the adoption of the Ninth and the protection of the “privileges and immunities of American citizens” in the Fourteenth.

With James Wilson, we say, “Enumerate all the rights of man? I am sure, sir, that no gentleman in the late [Constitutional] Convention would have attempted such a thing!”

We, or at least I, read Mr. Kennedy’s assertion in Lawrence v Texas as defining the right of human beings to autonomy in whom they will associate and have intimate relationships, sexual or not, as among these fundamental rights so protected. And I note that Mr. Kennedy explicitly limited his understanding of this right to autonomy to exclude a great deal of what stands leering on various levels down the slippery slope.

The above is submitted for review and comment by the Dopers with an interest in it. The definition of the Deweyite stance is specifically intended to be for correction to more clearly represent that stance. It is not my intention that this thread flame or misrepresent anyone, but deal with Constitutional law issues regarding the conceptualization of rights.

[Stratocaster]

*Originally posted by Polycarp *
**The opposition asserts that there is a common consensus of the fundamental rights of man, of which the awareness is an evolving thing, so that personal rights taken for granted by most people which were not enumerated can, when circumstances call for their identification, be protected under the Ninth and Fourteenth Amendments and by logical corollaries (unfortunately once termed “penumbrae”) from the enumerated rights.

**Very interesting topic, Poly. My reaction to the above is that an “evolving judicial awarenesses” is a dangerous mechanism for identifying rights not specifically enumerated. Am I understanding you to say that the SC simply notices a right that would have escaped their notice, say, in the nineteenth century (though it would always have existed), but that their notice now (or then) has no real relationship to the text of the Constitution?

This is shapeless to the point of permitting judicial fiat, it seems to me. The SC’s awareness is obviously not the same as that belonging to the legislature that enacted the law in question. Why does the SC’s “win”? On what do they base the opinion if not on an identifiable constitutional right? Or do I misunderstand you?

Sorry, I’m not the constitutional scholar you were hoping for (but I will follow this thread closely).

[zwaldd]

I believe a right is any action that is protected from infringement in some way.

The Bill of Rights legally protects actions that the FF’s decided were crucial to their vision of national freedom.

[BrightNShiny]

I have a question, then…

Which viewpoint does Plessy v. Ferguson fall under? And which viewpoint does Brown v. Board of Education fall under?

[Beagle]

I like this outline of DP because it includes procedural due process.

In that, the “how” is procedural due process. Is a law too vague? Is it applied fairly to all? Does a law presume guilt? A vagrancy law might be declared too vague if the definition of a vagrant is not detailed enough. A law that makes wife beating illegal but permits husband beating might be declared to be an unfair application. A law must be clear, fair, and have a presumption of innocence to comply with procedural due process.

In that context, this,

Any statute impeding a right3 is putatively Constitutional, regardless of how “uncommonly silly” it might be, and a decision finding otherwise is ultra vires.

A statute has a certain presumption of validity coming into court. Being an enactment of duly elected legislators, the statute will be given due deference, a construction to make it effective, not absurd, etc.

After that, it’s cut-and-paste. Just kidding, sort of.

But, to say that a law can be “uncommonly silly,” IMO, ignores fundamental procedural due process. As always, it depends on your definition of “silly.” SDP is a far more nebulous thing. Obviously, there is no explicit right to privacy in the US Constitution. Going much further than that is not something I am prepared to do. Penumbras and emanations abound. Polycarp, You forgot emanations. That certainly clears things up. The concept makes sense. The wording is obviously imprecise.

[Beagle]

“In that context, this,” :o (quote)

is, IMO, not an accurate description of the entirety of remedies available to someone challenging a statute as a violation of a right.

[Dewey_Cheatem_Undhow]

I think that’s a fair outline, Poly, at least on first reading, although I reserve the right to further clarify as the thread progresess. I’d like to add a couple of things:

1. I like to think of strict constructionism as as a coherent judicial philosophy that fits into a consistent framework for government. I would readily agree that many self-described “strict constructionists” only label themselves as such because they favor the outcomes it provides in the modern era, e.g., because those results tend to produce socially conservative outcomes. I think many of those folks would applaud a modern-day Lochner, not because it fits a consistent judicial philosophy, but rather because it invalidates a liberal policy outcome (namely, worker protection laws).

I categorically reject that view. If Roe is wrong, so is Lochner. One’s constitutional philosophy ought not be driven by the outcome of a particular case.

I note this only because all too frequently proponents of strict constructionims are slurred as bluenosed prudes who want nothing more than to rain on everyone’s parade. That is not true, at least not for those who have not taken its mantle up out of political convenience. Strict constructionists believe as they do because they believe there is a higher principle at stake than the outcome of a particular case.

2. That principle is self-governance. Strict constructionists believe deeply that the citizenry ought to be able to chart their own course. They believe it is wrong to deny the people the right to shape their own societies without a concrete basis for doing so. They believe that the best results come from socieities experimenting, retaining what works and rejecting what doesn’t. They also recognize that democracy tends to be self-correcting: it is much easier to vote out bad decisionmakers and repeal a bad law than it is to undo a Supreme Court precedent.

3. It’s important to realize the Constitution is not a magical document. It did not spring fully formed from the ether. It is a product of the democratic process. Its legitimacy is derived from that democratic process. That being the case, it is important that only those provisions resulting from the democratic process be legally cognizable – in short, the text of the document.

The Constitution is a democratically-agreed upon set of limitations on future legislatures. It is a deal made with future generations. It is wrong to go beyond the terms of that agreement. That is why strict constructionists oppose the finding of rights not found within the text of the document itself – that is no more acceptable than, say, the bank arbitrarily changing the terms of your home mortgage halfway through its term.

That’s all I can think of for now; please recognize that the above is more a random collection of my immediate thoughts than an attempt at a comprehensive philosophical exegesis. I’m sure there will be more later.

[Alien]

I have a question I’ve been wondering about for some time which I also posted in another thread about rights, though I havent’ received an answer:

I thought that Constitutional rights could not be revoked - that the government cannot take those rights away from its citizens. Yet, I’ve read that convicts has had their right to vote taken away from them. How is that legal? Or isn’t voting in the Constitution?

quote:

Originally posted by The Ryan
Now, if the word “right” is interpreted as it is used in the Bill of Rights, this means that the government may not interfere with a person trying to secure these things.

quote:

Originally posted by The Ryan
In the constitution and Bill of Rights, the term “right” is used as something which the people have and which the gov’t may not infringe upon. Rights are used to deliniate those areas into which the gov’t may not intrude.

---

[Alien]

I’m sorry, please ignore the quotes in my post above, they belong to another thread.

[Whack-a-Mole]

*Originally posted by Bob Cos *
This is shapeless to the point of permitting judicial fiat, it seems to me. The SC’s awareness is obviously not the same as that belonging to the legislature that enacted the law in question. Why does the SC’s “win”? On what do they base the opinion if not on an identifiable constitutional right?

I was always of the opinion that the Founding Fathers setup our system of government (checks and balances) precisely because they knew they couldn’t account for all possibilities themselves nor account for changing mores and values as the society evolved.

I, for one, think it is crucial that the SCOTUS be allowed ‘legislate from the bench’. Clearly we have seen instances such as Brown vs. Board of Education where ‘judicial fiat’ was critical in making the US a better place.

It would be near impossible to try and ennumerate every specific ‘right’ US citizens should enjoy and keep up with it. It seems a far better state of affairs that the SCOTUS be allowed to infer rights citizens should enjoy from those enumerated in the Constitution. For those who don’t like that idea realize that the SCOTUS is not the final word. Mechanisms exist to undo their decisions. If the Lawrence v Texas decision (as an example) is deemed to be overreaching then methods exist for amending the constitution to address it thus undoing the SCOTUS decision.

In short, I would rather live in a country where the presumption is that I do possess a ‘right’ without it being specifically listed in the Constitution. Taking rights away should be the more difficult course of action…not granting them. If you want to restrict my freedoms then be prepared to submit it to the country for debate and vote.

[minty_green]

*Originally posted by Dewey Cheatem Undhow *
One’s constitutional philosophy ought not be driven by the outcome of a particular case.

If one’s constitutional philosophy is impervious to the outcome of a case, that constitutional philosophy is in dire need of rethinking.
Interesting thread idea, Poly. I’d actually been thinking myself about starting a thread inquiring about where we get our ideas of how to interpret and apply the law. Unlike some people :p, I’m quite willing to admit that many–but not all–of my legal positions coincide with my personal positions developed years before I went to law school. (Of course, in the vast majority of actual legal issues, I don’t give a personal damn and am happy to argue either side, depending on who breaks out the checkbook first.) So, how is it that we take our personal opinions and incorporate them with the pre-existing structures of the law?

I don’t think this is an easy question to answer, but I think any answers take us rather closer to figuring out what it is that really separates the participants in these discussions.

[Stemba]

I’d like to venture the concept that mankind have no rights, merely legally (constitutionally) protected privlidges and natural (inalienable) states of existance which. The idea that humankind have any true ‘rights’ is actually a silly concept. To quote one of my favorite authors (who will go unnamed, points to whoever knows him):

" …since a human being has NO NATURAL RIGHTS OF ANY NATURE…Ah, yes, the ‘unalienable rights.’ Each year someone quotes that magnificent poetry. Life? What ‘right’ to life has a man who is drowning in the Pacific? The ocean will not haerken to his cries. What 'rigth to life has a man who must die if he is to save his children? If he chooses to save his own life, does he do so as a matter of ‘right’?..As to liberty, the heroes who signed the great document pledged themselves to BUY liberty with their lives. Liberty is NEVER unalienable, it must be redeemed regularily with the blood of patriots or it ALWAYS vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is NEVER free…The third ‘right’?–the ‘persuit of happiness’? It is indeed unalienable but is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore…"

You see, no rights are guarenteed. To understand ‘rights’ in a naturalistic sense, you have to look at the entirety of humanity to get a sense of what is ‘universal’ as far as being human goes. If you will allow, I’d like to dissect the articles of the United Nations Delceration of Human rights (http://www.un.org/Overview/rights.html).

Article 1:
To state that all persons are born ‘free’ and with ‘dignity’ would imply that liberty is a guarenteed universal. As far as dignity, well, I live in Sumter, SC, and this damn city has a lot of undignified activities going on (14 years running, top 10 WORST cities in the USA under 75,000 inhabitants.) Also to state that they are endowed with ‘reason’ and a consience is impossible. No person can be endowed with reason or a conscience. Both are cultivated in a cultural context (whether that context meets with the USA’s or UN’s stamp of approval is debatable.) As for acting in brotherhood, I’m all for it, but that sounds like a suggestion, not a ‘right.’

Article 2:
This reads more like a preambulatory clause to a UN resolution than an actual right. In essense, if I’m reading this correctly, article 2 states that “You have these rights because of this right?”

Article 3:
See my above quote.

Article 4:
To this article, I submit the countries of Chad, Sudan, Mauritania, and the United Arab Emerates. In these countries, slavery is still practiced overtly. There are no known statistics (to my own knowledge) as far as covert slavery (hence the ‘covert’ part.) Again, another suggestion.

Article 5:
Another suggestion, although it is one I personally agree with (as far as torture, too many opportunities to abuse that.) As far as cruel, inhuman, and degrading, I agree with actually DOING things that way. Cruel, to make a point. Remember, IMHO, there is no ‘natural’ conscience, only a cultivated one. Pain would go greatly to cultivating a consicence. Inhuman and degrading would serve to show the rest of a society that it is bad, therefore sparing everyone the need to be flogged, hung, etc.

Article 6:
It’s not a right, not a suggestion. Just a common sense statement which makes it universal for a person to have a set of social standards placed upon them.

Article 7:
Another suggestion, and another one I agree with.

Article 8:
Due process is not a right. Indeed, if the country in which a person is tried is a signatory to this document, then if the countries own constitutional law disagrees with this document, in whole or in part, then the arguement can be made that this ‘right’ isn’t a ‘right’ at all.

Article 9:
Holy cow, something which actually is clear and makes sense. “It is your right not to be detained, arrested, or exiled on a whim.” But, again, its only a suggestion.

Seeing as I’m getting a bit long winded, I’ll pass on the rest. But do y’all understand my point? There are no rights, seen as a ‘right’ is nothing more than a privlidge backed by law, and as law is not universal, then right is not universal.

Anyway, that’s my $.02.

[E-Sabbath]

Ah, Robert Anson Heinlein.

[John_Mace]

I’m surprised that no one has brought up the 9th Ammendment:

[qoute]Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
[/quote]

Doesn’t this sort of leave the door pretty wide open? Maybe one of the lawyers here could weigh in on whether this is ever actually used in any meaningful way.

[DSeid]

I’d like to venture the concept that mankind have no rights, merely legally (constitutionally) protected privlidges and natural (inalienable) states of existance which. The idea that humankind have any true ‘rights’ is actually a silly concept.

No legal scholar I, but on this I’ll give my wee bit.

“Rights” are the axiomatic basis of a secular society. They are no more provable, disprovable, silly, or sacred than any axiomatic statement of a religious system of thought. They are instead the postulates that a particular secular society accepts from which all else follows. As to the Heinlein quote: a bit silly that. All moral imperatives are balanced against reality and in conflict against each other at different times. Morals can be broken; rights can be denied - by humans or by nature - it has little bearing on whether or not we accept the axiom as true.

Axioms are true, by definition, within any system. In many societies the axioms were provided by the religion directly. In the US rights may have been inspired by religions and by thoughts emenating from the Enlightenment, but were indeed special for providing a basis for society that did not require accepting any particular religion but instead could form a common ground across many faiths.

Given that, I would argue that “rights” not mentioned are not axioms of the system unless they deductively follow from the rights mentioned explicitly. They may be axioms that we accept within our contempory society, but they are not constitutional axioms and should not be part constutional decision making.

[minty_green]

*Originally posted by John Mace *
**I’m surprised that no one has brought up the 9th Ammendment:

Doesn’t this sort of leave the door pretty wide open? Maybe one of the lawyers here could weigh in on whether this is ever actually used in any meaningful way.

No, it is not. Apart from one redundant reference in one of the birth control cases, the 9th Amendment is not and never has been the source of any subtantive right. It merely provides that the government cannot deny an alleged right on the basis that it is not expressly enumerated in the Constitution.

[Dewey_Cheatem_Undhow]

*Originally posted by minty green *
If one’s constitutional philosophy is impervious to the outcome of a case, that constitutional philosophy is in dire need of rethinking.

Oh come now. In context my meaning was clear: one shouldn’t carry the banner of a jurisprudential philosophy when it achieves a conservative or liberal outcome (depending on your particular proclivities) but drop that philosophy when an opposite result ensues. He who says Roe must say Lochner.

My point was that many who champion the strict constructionist theory do so not out of a principled understanding of what that theory is trying to accomplish, but because that theory nets results that wins them political popularity. I think many assume that this sort of political scoring is what drives that theory. That’s an incorrect assumption, and one I was trying to dispell.

[Dewey_Cheatem_Undhow]

*Originally posted by Whack-a-Mole *
I, for one, think it is crucial that the SCOTUS be allowed ‘legislate from the bench’. Clearly we have seen instances such as Brown vs. Board of Education where ‘judicial fiat’ was critical in making the US a better place.

So the ends justify the means, then?

I wonder how many would have agreed with your sentiment when judicial fiat was being used to protect your “right” to work for over twelve hours a day at less than minimum wage.

[Polycarp]

*Originally posted by minty green *
**No, it is not. Apart from one redundant reference in one of the birth control cases, the 9th Amendment is not and never has been the source of any subtantive right. It merely provides that the government cannot deny an alleged right on the basis that it is not expressly enumerated in the Constitution. **

I gathered that, minty, and on rereading Randy Barnett’s brief summary in one of my references, I see that his discussion, though headed “Ninth Amendment,” generally deals with the finding of “unenumerated rights” as implications of ones that are enumerated. I don’t have ready access to two cases he appears to allege depended on the Ninth, Richmond Newspapers, Inc. v. Virginia (1980) and Crandall v. Nevada (1867) – would one of you who can access Westlaw and Lexis see what the nexus of these cases and the Ninth might be?

Though it’s merely philosophical theorizing without a definitive tie to either case law, the Constitution, or any writings on law that I’ve seen, I think that if I were to attempt to define “fundamental right” I would make an assertion similar to the one that the Orthodox Church makes on what comprises Holy Tradition – what has always and everywhere (save for the occasional lunatic fringe group) been held to be the truth, as newly applied at a point where conflict has called for its identification and specification. Prior to Loving there was no need to identify a “right to marry” – no state had ever attempted to proscribe people from marrying in a manner that led to a case or controversy. To be sure, the focus of Loving was in condemning miscegenation laws, but in the course of that it identified the idea that one had the right to marry whom one chose to (subject, of course, to the same right inherent in the intended spouse!). And I think if you had polled the Founding Fathers and inquired, they would have been unanimous in saying that a free man (or woman) has the right to choose to whom he/she will be joined in wedlock.

Similarly, the First Amendment right to free association and the Fourth Amendment right to be secure in one’s person from unreasonable invasion by government instrumentalities furnish grounds for recognizing the right to make autonomous choices in personal, intimate affairs, which would then be a “privilege or immunity” of citizens protected by the Fourteenth from government regulation. That parents or social pressure may influence with whom a given adolescent may date is inconsequential; I believe any state law that attempted to erect classes for the purpose of restricting the dating of adolescents to “their own kind” by someone’s standards, would definitely be found to be a violation of their personal liberties. And, of course, strict constructionists would assert that there is no “right to date” in the Constitution – and be correct in the letter, though in error in the spirit.

In short, what I’m suggesting is that there is an amorphous set of things that nearly all American citizens have always conceived of as being their God-given rights. Only when governmental regulation intrudes on one such right is it lifted out from the “soil of liberty,” washed off, and given Constitutional scrutiny. And it is when a set of citizens is barred from such right by the actions of another group through governmental means that such cases come to identify and define such rights.

Lawrence v. Texas, contrary to all the hoopla, did not define a Constitutional right to commit sodomy on a consenting other. Rather, it did something quite deeper and more important. It said that Americans have the right to decide with whom they will fall in love, form a pair bond with, and enter into intimate relationships, which may or may not involve sexual contact, and that it is no business of government to attempt to decide who may or may not exercise that right.

And pace Dewey, anyone who attempts to use “strict construction” to claim that Kennedy’s explicit definition of that “right to autonomy in personal relationships” cannot be found in the Constitution is making an rgument that flies in the face of the broad phrasings of the law, by arguing that only the narrowest definition of the guaranteed right. It would be like saying that burning at the stake is not contrary to the Eighth Amendment because the relevant clause does not specify what constitutes a “cruel and unusual punishment,” or that “freedom of speech” does not include the freedom to be heard by willing listeners.

That right is implicit in logical corollaries based on enumerated rights, protected by the Ninth and Fourteenth as among those rights legally enjoyed by Americans at all times and places, and only came to light here because a state law attempted to define one class of citizens who were not entitled to exercise it.

[Dewey_Cheatem_Undhow]

*Originally posted by Polycarp *
**And pace Dewey, anyone who attempts to use “strict construction” to claim that Kennedy’s explicit definition of that “right to autonomy in personal relationships” cannot be found in the Constitution is making an rgument that flies in the face of the broad phrasings of the law, by arguing that only the narrowest definition of the guaranteed right. It would be like saying that burning at the stake is not contrary to the Eighth Amendment because the relevant clause does not specify what constitutes a “cruel and unusual punishment,” or that “freedom of speech” does not include the freedom to be heard by willing listeners. **

No, it’s not like saying that at all. There is a cruel and unsual punishment clause, and that necessarily entails deciding what is “cruel” or “unusual.” There is a free speech clause, and its use necessarily entails the presence of an audience.

Not so with what we’re talking about. What’s the constitutional hook? Due process? Then we have to return to Llewellyn’s quip that there’s no getting around the fact that the word following “due” is “process.” Substantive due process is a contradiction in terms.

Using due process in this manner is almost Orwellian in its manipulation of the English language. It is the convenient redefinition of words to embrace the issue du jour. When a phrase becomes so infinitely malleable, it loses all meaning.

What then? The ninth amendment? No, not hardly. In addition to the reasons minty has outlined, there is a real problem with finding an “amorphous set of things that nearly all American citizens have always conceived of as being their God-given rights.” Who decides this? How? Even the Supreme Court doesn’t claim divine inspiration. Their views are not derived from the views of “nearly all American citizens” or from the deity himself, but rather from their own peculiar set of beliefs and biases. Why are they in any better position to judge what rights “nearly all American citizens” hold dear than the legislatures elected by those same citizens?

I think “nearly all American citizens” should speak for themselves, through their representatives, rather than relying on an unelected, unaccountable insular minority which may or may not accurately speak on their behalf.