Got rights?

When writing this post from a few days ago about the Supreme Court's recent decision relative to the First Amendment, I was reminded of an article I read several months ago, provocatively titled "You Don't Have a Constitutional Right to Free Speech." Few of us are strangers to what I would call the free speech wars, which have often centered around highly controversial and often artistic expressions of opinion that are frequently designed to offend as many as possible as an affront to whatever remains of the norms of polite society. Free speech seemingly should allow any individual to express themselves however they wish, from highest literary and artistic expressions down to the often ugly and idiotic ranting of anonymous commenters on blogs and forums. All of it is "protected," although there are certainly "free-speech advocates" who would just as soon curtail your freedom of expression if it offends them.

As pointed out in the article, the Constitution does not grant us the "right" to free speech, or any of the rights identified in the First Amendment. The author, Derek Hunter, writes (emphasis mine):

You’ve undoubtedly heard someone, maybe even yourself, say that you have a Constitutional right to free speech, right? While that seems to make sense, it’s not true, or at least wasn’t before the government got so big that it started intruding into areas of our lives in which it has no business; and it is part of a modern mentality that has the potential to harm our individual liberty.

To understand what I’m talking about, the first thing you have to understand it that the Constitution does NOT grant you rights, it protects the rights you inherently have from government intrusion. The First Amendment in the Bill of Rights is this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Just look at the part that addresses speech, “Congress shall make no law…abridging the freedom of speech…” Nowhere does it say that you are granted the right of freedom of speech, it says you have it, were born with it, and the government cannot do anything about it. But that’s not how it’s viewed or even talked about by politicians these days.

We can be forgiven if we view this argument as a matter of semantics, because in some ways the net effect is the same. However, there is danger if we view the Constitution as a government document that grants such natural rights to citizens. It is a danger because if the document grants certain rights, then those rights (through the amendment or litigious process) can be taken away. So said Thomas Paine (1731-1809) in Rights of Man (emphasis mine):

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. ... They...consequently are instruments of injustice.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

The issue here is the always controversial idea of "natural rights." Thomas Paine was a proponent of this type of philosophical thinking, as was John Locke (1632-1704). He postulated that humanity's natural rights - those rights which are inherent in every human being simply because he/she exists - include such familiar ideas as "life, liberty and property." These are separate from what are often called “civil rights,” which are rights specifically bestowed on the citizenry by legal statute (such as the right to vote). The Founders were greatly influenced by this philosophy, as is evident in the Declaration of Independence as well as the Constitution. The Bill of Rights, and in particular the First Amendment, were specifically crafted to define the government's responsibility to protect those rights that we already have, to ensure individual liberty in an ordered society.

It is common parlance today for people to declare their "rights" to whatever it is they want, such as the right to drive a car, the right to have healthcare, the right to own a house, the right to vote, and the right to demand that government give them what they want even if it takes rights away from someone else. Fundamentally, it comes down to how much control we wish to bequeath to the government. If individuals give the government the power to control the rights of each individual, then those rights can easily be taken away. It all comes down to the delicate relationship between the government and the governed in a free, albeit representative, society. I think that is what is happening in the current healthcare debate. We all want better healthcare in terms of access and affordability - and to a degree we're open to having the government help to improve the system. But what people don't appear to want is for the government to be the decision-maker on the healthcare they receive. They want improvements, but they don't want the government to "control" it in any way. Thus, the backlash against the current plan.

We have a free but imperfect society. But we have become an entitlement society. To reset a proper relationship, we the people need to have a firm handle on what our natural rights are, as distinguished from civil rights. We must not allow ourselves to be co-opted into giving up our natural rights to a government that - by definition - was set up to prevent just such an occurrence. We have the right to speak our mind in whatever expression that takes - a right given to us not by the government, but by a Creator. The Constitution demands that the government cannot and should not infringe upon that right. Do all expressions of speech have value in a civil society? Probably not, but the human beings that speak or otherwise express themselves - they do have value, a point worth remembering in today's supercharged political/social environment.