by Jacob Hornberger, Future of Freedom Foundation
It is commonly believed that the rights of the American people come from the Constitution. Nothing could be further from the truth.
Throughout history, the standard belief was that people were unconditionally subject to the commands of their government. If the king ordered a person to leave his family to fight in a war thousands of miles away, that person would have to obey. The king could control and regulate both lives and property because he was sovereign and supreme, and the citizens, as subjects, were subordinate and inferior. When the king commanded, people obeyed.
Gradually, people began questioning the notion of the king’s having unrestricted control over their lives and fortunes. For example, in 1215, with Magna Carta, the king was forced to admit that his powers over the citizenry were limited.
It was in 1776, however, with the publication of the Declaration of Independence, that the historical concept of sovereignty got turned upside down. Government wasn’t sovereign and supreme, Jefferson declared to the world. Individuals are. And government officials are subordinate and inferior to the citizenry.
The Declaration emphasizes that men have been endowed with certain fundamental and inherent rights that preexist government. In other words, man’s rights don’t come from the king or from any other government official. Rights such as life, liberty, property, and the pursuit of happiness exist independently of government, not because of government.
It also emphasizes that the reason people call government into existence is to protect the exercise of these rights. That is, in the absence of government, antisocial people such as murderers, rapists, and thieves would make life quite miserable for everyone else. Therefore, government is needed to arrest, prosecute, and punish these types of people.
What happens when government transgresses its rightful duty of protection and becomes more destructive than what would be the case in the absence of government? The Declaration tells us that it is the right of the people to alter or abolish that government and to implement a new government that is designed to protect, not destroy, the exercise of man’s natural or God-given rights.
The quandary, of course, that our Founders faced was whether it was possible to bring a government into existence that would remain limited to an inferior and subordinate role rather than attempt to assume the more traditional sovereign and supreme role.
In 1787, the Founders attempted to solve the problem by writing a Constitution that called the federal government into existence. The result was historically significant: The Constitution made it clear that this government, unlike others in history, would not be one of unlimited powers. Instead, by the express terms of the Constitution itself, the federal government would be one of limited, enumerated powers. For example, the powers of Congress are limited to those enumerated in Article 1, Section 8 of the Constitution.
Thus the correct question is not “What rights does the Constitution give to the American people?” but rather “What powers does the Constitution grant to the government?” If a certain power is not enumerated, the government is not permitted to exercise it.
Not trusting government officials, however even democratically elected ones the American people ensured the passage of the first 10 amendments to the Constitution. These should more appropriately have been called the “Bill of Prohibitions” than the Bill of Rights. Why? Because a careful examination reveals that they are express restrictions on government powers rather than a grant of rights to the citizenry.
Some people argued that a Bill of Rights was unnecessary because government’s powers were already limited to those enumerated in the Constitution itself. Since the government has not been given the power to regulate speech, for example, there was no reason to have an express prohibition against the regulation of speech.
Fearful, however, of the propensity of government to move toward dominance and control, the people felt safer with express restrictions on the power to interfere with rights that they believed were of the utmost importance. Playing it safe, they included the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
So the next time someone refers to your “constitutional rights,” remind him that people’s rights don’t come from the Constitution. And if you really want to stimulate thinking, ask him whether he believes that today the federal government is destructive of the very rights it was designed to protect.
Originally published at The Future of Freedom Foundation on June 1, 1999