Over the last few days, I’ve had conversations with a couple of my more progressive friends in which they lamented the fact that the U.S. Constitution doesn’t give the American people enough rights.

They echo sentiments expressed by Ruth Bader Ginsburg. Last February, the Supreme Court justice made a similar argument when advising the Egyptians to not look solely to the U.S. Constitution when drafting their own.

“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012,” Ginsburg said in an interview on Al Hayat television. “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.”

Both friends seemed quite shocked when I told them in a sense they were correct. In fact, the Constitution doesn’t really give Americans any rights at all.

But what about the Bill of Rights, they both protested. “It gives us the right to free speech, freedom of religion, freedom of the press…”

Of course, the Bill of Rights does no such thing. Yes, it does protect those basic rights from interference from the federal government, but it does not “give us” those rights.

Look at the language of the Bill of Rights.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The language of the Bill of Rights presupposes that those rights already exist. It protects rights already possessed by every person. As Jefferson put it in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”

We have rights simply because we exist, not because some document or government decree gives them to us.

But my friends and our esteemed Supreme Court jurist misunderstand the nature of  rights. They view them as something granted by decree, and in their minds, rights encompass all kinds of stuff. They construe rights in the same way 19th century activist Elizabeth Cady Stanton did.

“In this world of plenty every human being has a right to food, clothes, decent shelter, and the rudiments of education.”

But in order for something to qualify as a right, it must exist simultaneously among all people. Therefore when one person exercises a right, he does nothing to diminish the rights of any other individual.

And a right confers no obligation upon another person in society.

Take freedom of speech for instance. When a citizen exercises her right to speak freely, she takes nothing from another person and requires nothing of her fellow citizens, other than their non-interference. The same holds true of the right to assemble, the right to move freely or the right to worship.

To sum up with an old adage, my rights end where your nose begins. We have the right to worship, but we don’t have right to demand another group of citizens buy us a church building. We have the right to speak, but we don’t have the right to demand someone build us a soapbox. We have the right to defend ourselves, but we can’t force our neighbor to provide us a gun.

In contrast, consider the idea of a “right” to food. In order to fulfill that so-called right, we must take from another person. If an individual can’t afford the food he needs, society must demand of the farmer, or the producer of foodstuffs, that she supply this need. Or else confiscate the earnings of one group to pay for the satisfaction of the “right” of the other group. To fulfill poor person’s “right” to  food, we must necessarily diminish the “rights” of  others.

As Walter Williams explained, things like food, clothing and health care are not rights, but wishes. We hope that all people will have access to these things, but they cannot qualify as rights unless we allow that the rights of one individual may impose on, and even supersede, the rights of another.

As members of society, we should seek to help those without access to necessities. As decent human beings, we should work to eliminate hunger, sickness and poverty. But to demand one individual, or group,  supply the needs of others by force through taxation or law, violates the basic liberties of those upon whom the burden is placed.

So, the U.S. Constitution does exactly what it was intended to do: create a general government with limited powers for specific enumerated purposes. In fact, by its very nature, the Constitution protects every right and liberty, because it restricts the federal government to a few specific tasks. The Ninth Amendment makes explicit this implicit truth.

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

If we really want to protect rights – true rights – we must put the federal government back inside the fence the Constitution created.

Mike Maharrey

The 10th Amendment

“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.”



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