Kindness; generosity; aid — even these need defending from government.
In “Performing Charity Is a First Amendment Right,” C. J. Ciaramella writes about the difficulties people have had in feeding the poor in their towns and cities.
The problem is not lack of charity — unless you mean the lack of charity that local governments sport.
In Houston, Texas, and Fort Lauderdale, Florida, and Santa Ana, California — and in many other communities around the country — local governments have fined and prohibited the charitable from doing the good they do, often on grounds of “health and safety.”
Houston even set up a hyper-specific charity area — reminiscent of the “free speech zones” set up for political rallies in recent years — in a parking lot near a police station. Just the kind of place that the destitute want to hang around in!
After the usual forms of police harassment came the court cases … and appeals to the First Amendment.
And as I read through Ciaramella’s article, the attempts to defend charity as a right of “religious expression” struck me as odd. Santa Ana politicians, for example, characterized charity as “incidental” to the core religious missions — a bizarre tack to take when dealing with Christian doctrine anyway! — and for once the U.S. Justice Department took the common-sense position on this. Thankfully.
But charity as “expression” leaves a bad taste. Charity’s more basic than “expression,” isn’t it? Some might see the art of giving as a duty, others as a rite, and others as mere generosity for its own sake. Jesus spoke of charity as something one did without speaking about it.
Could it even be more basic than free exercise of religion? Might it not more accurately be a Ninth Amendment right — one “retained by the people”?
So fundamental there seemed no need to spell it out specifically.
Our most basic rights are general rights, and charity is fundamental to being human.
This is Common Sense. I’m Paul Jacob.
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7 replies on “Unlisted Help”
The reason for attempting a legal defense of charity as expression is, of course, that in recent decades the courts have disregarded the Ninth Amendment, and respected only enumerated rights, except in the case of a peculiar attempted application of the right to privacy. (Even then, the Ninth Amendment was ignored! In favor of hand-waving!)
I’d agree that the right to effect charity is not that of expression; it is the right to transfer property. As such, it is an unenumerated right that the courts are especially unwilling to acknowledge. A right to uncontrolled exchange of property would be logically entailed. After all, virtually no charity is perfectly unconditional; some trade is thus implicit in nearly all cases.
But I’m very doubtful of your suggestion that the right to effect charity is more basic than the right to use one’s property for purposes of expression.
Daniel,
The Ninth Amendment is key. As our society grows and becomes more complex, rights that the founders didn’t think of will be recognized. The right to privacy should also be recognized via the Ninth Amendment. It’s fundamental to human freedom.
Pat,
Indeed, Justice Kennedy pointed to the Ninth Amendment for a right to privacy; but he was exceptional.
I agree that the Ninth Amendment should be invoked, but I’m sorry to disagree with your assertion that unenumerated rights will be recognized.
Charity is a right of the people. And possibly the states. Not the federal government, because as soon as tax dollars are given to an individual, it becomes “specific” welfare rather than “general”.
There is no authority for the federal government to be involved in anything that favors an individual under the Constitution. Hence it is usurped power that does not belong to DC.
I completely agree with this. And I also agree that communities have a right to control things like traffic. So just as we have a right to have a small business we also have a right to do organized charitable giving but we don’t have a right to create a traffic flow that is apparent to a neighborhood without the permission of the residence. NIMBY strikes again.
*aberrant
Like so much else that govt does, this is about control.