You have No ‘Constitutional Rights’. None. Nada.(crossposted from Blogodidact)
utional Rights’.That’s right. That’s what I said. As an American citizen, you have no ‘Constitutional Rights‘, none, zero, nada.
Why do I bother to say it that way? Because it is important to. Why? Because if you think that you have ‘constitutional rights‘, rights granted to you by the Constitution, then you have NO Rights at all. None, zero, nada.
Why? Because if you think that your Rights were granted to you by the law, then legislators who write the laws, can revoke or gut those rights, by passing still other laws. If the legislator’s pen is where you got your Rights from, then you in fact have no ‘rights‘ at all, but only such allowances which your friendly neighborhood legislator is pleased to extend to you. Such things, which may go by the name of ‘Rights’, are in actuality, nothing of the sort, they are simply privileges.
Why say this now, and in this way?
Because in a couple days time the Supreme Court of the United States is going to announce the result of their deliberations upon the constitutionality of ObamaoCare, and I am saying this in this way, because it is being reported that the SCOTUS is deciding whether or not Americans have a Right to Healthcare.
Which is a ridiculous idea.
Of course you have a Right to Healthcare. You absolutely have a Right to receive healthcare, should someone agree to provide it to you, either for free, or for a fee – you have a right to receive quality healthcare, just as those who are able to provide it to you, have a right to do so. What you do not have, and no one else does either, is a right to force others to provide that healthcare to you, against their will, either physically, or financially.
No law can change that, because no law and no constitution ever granted you any of your Rights in the first place. The SCOTUS might very well approve ObamaoCare as a law, but that will neither make a Right, or make the law right.
They have the power to call it a law – just as Justice Taney’s SCOTUS had the power to declare Dred Scott to be only ‘property’ and not a man – there is little doubting their power to do that, but they do not have the Right to. No one does, and declaring it to be so does not make it so, anymore than declaring Dred Scott to be less than a man, made him any less of a man.
No man can grant a Right to another; no lawgiver, no philosopher, no prophet, no majority of men, have a right to take away a Right, or to make a right either. They may acquire the power to impose such a law upon us (should We The People be careless enough to allow it), in the same way that any robber who is bold and brutish enough can impose his will upon you, taking what they desire by force, in violation of your Rights.
But such a demonstration of power will never create a Right, or make it right, even if they pass a law that says so.
Our Laws do not give us our Rights. They protect them. Or violate them.
The Founding Fathers gave us no Rights
In fact it wasn’t even the Framers of the Constitution who singled out those few particular Rights we normally think of as ‘our Rights’, it was instead We The People who demanded that the legislature draft a Bill of Rights to protect our Rights, as a condition of the Constitution being ratified, and the Government of the United States of America, as we know it, being formed at all.
In framing the constitution, the majority of the Founders felt that they needed only refer to a few Rights, and those only in passing as needed in framing the Constitution – that of Contract, Representation, to live in a Republic, protection of our Intellectual Property Rights (patents) and other particulars of law, thinking that the rest of the Rights of We The People would be secure by virtue of the fact that they gave no explicit power to the government through the constitution, to abridge them, and so, they thought, our individual rights would in effect remain secure by being absent from the powers they gave the Constitution.
We The People, disagreed.
In debating the merits of ratifying the constitution (see the Federalist, and anti-Federalist papers) it became apparent that We The People were not very well assured that enough of our Rights were secured by the constitution as it stood, and as a condition of ratification, a promise was made that the incoming legislature would see to it that a number of our Individual Rights would be specifically recognized and amended to the Constitution, as the law of the land, and some, Patrick Henry for instance, were not very satisfied with even that.
“Does it not insult your judgments to tell you, Adopt first, and then amend! Is your rage for novelty so great, that you are first to sign and seal, and then to retract? Is it possible to conceive a greater solecism? I am at a loss what to say. You agree to bind yourselves hand and foot —for the sake of what? Of being unbound. You go into a dungeon — for what? To get out. Is there no danger, when you go in, that the bolts of federal authority shall shut you in? Human nature never will part from power. Look for an example of a voluntary relinquishment of power, from one end of the globe to another: you will find none. Nine tenths of our fellowmen have been, and are now, depressed by the most intolerable slavery, in the different parts of the world, because the strong hand of power has bolted them in the dungeon of despotism.” – Patrick Henry (Speech to the Virginia ratifying assembly 1788)
, and Henry was very nearly right – the legislature delayed and balked at the idea of producing a Bill of Rights. It was James Madison, then a member of the House of Representatives, who insisted that they fulfill their obligation, and wrote the rough draft for the Bill of Rights himself and insisted that they be debated, even though Madison, the father of the Constitution, was leery of a Bill of Rights as well.
Most of the states already had their own bills, and he was concerned that in naming a few critical Rights, it would have the effect of reducing our rights to those few that were specifically noted. There is much in Madison’s argument that is worth your consideration, it certainly consumed much of his consideration, for he wasn’t worried about ‘granting’ too many Rights, but with losing more thancould be written down,
“…, the rights in question are reserved by the manner in which the federal powers are granted. 2 because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews Turks & infidels. 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4 because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”
IOW, what he understood, was that we have many, many Rights, too many to be noted and defined and protected – and the attempt to do so, no matter how voluminous they might be, would still come up short (for instance, if you say ‘you have a right to free speech’ a slick lawyer can say ‘you were granted the right to speak, but not a right to write‘), in ways that might not yet even be realized in his time.
Madison, however, in giving the matter careful consideration, felt that he came upon a way in which he might be able to secure the unlimited nature of our rights, without naming and reducing them to only those few ones named. His brilliant innovaitons were what formed the core of what eventually became the 9th and 10th amendments:
Article IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Does that sound like the Rights and Powers of We The People are something which comes from the Legislator’s pen?… or something which the legislator needs to take careful pains not to abbrogate?
It’s also worth noting what usually is never taken note of, the Preamble to the Bill of Rights, because it makes it clear that our Rights were not privileges granted to us by our govt as if they were simply conveniences cited in order to ‘provide for the general welfare‘, as the ‘living(dead) document’ proponents would have it, no, the Preamble makes it clear that they were meant as restrictions upon government which were imposed upon it by We The People; the same We The People who created that government, through its constitution. And that is likely the chief reason why this Preamble is rarely, if ever, mentioned in any textbook, school or seat of government – for as Patrick Henry noted above, power seeks to preserve and increase its power, it doesn’t like having to admit to any limitations of its power.
“Begun and held at the City of New York, on Wednesday, the 4th of March, 1789.
The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;–
Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both houses concurring, that the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said Constitution, namely,–
Articles in Addition to, and Amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the Fifth Article of the original Constitution.
IOW We The People, in order to prevent our government from abusing its powers and infringing upon our Rights, insisted that some of our essential political rights, essential to thwarting the rise of tyranny, be recognized and defended by law, at the source of our laws – the Constitution.
Our Govt did not grant us our Rights. In fact that first legislature, one of the finest ever, did not want to follow through on its promise of legislating a Bill of Rights. Govt, power, always feels itself above obligations to those it ‘serves’, it trusts itself; it is up to us, We The People, to continually remind our Govt that it serves us, not the other way around.
So we have our Rights protected in the foundations of our laws, because We The People demanded that they be recognized by law, but… that doesn’t really tell us what is being recognized, does it? The fact that we demanded that our Rights be recognized doesn’t tell us the nature of what Rights are, does it, it simply lets you know that you have a bunch of something being protected for you… but a bunch of what? Why? Where from do they come?
One thing we can say unequivocally about our Rights at this point, is that we are not given them by legislators, philosophers or prophets, they come from a much more unimpeachable source than that.
What they are and where they come from, tomorrow.