The idea that we have constitutional rights relies upon faulty logic and makes a mockery of unalienable rights and other rights antecedent to the Constitution. It is common to hear someone utter the term “constitutional rights”. The term is nothing more than a colloquialism just as states’ rights is a colloquialism for states’ powers.
The formative thoughts and ideas to develop a written Constitution are encompassed in the Declaration of Independence. The reason for government is to better secure our unalienable rights. People exercise their unalienable right of association to form political societies. The transition from a state of nature to a civil society creates what we know as government. This transition requires that people give up some rights to better secure the remainder that they retain. Typically, the rights relinquished relate to interpersonal adjudication.
The founders were studious guardians of their unalienable rights as well as their rights as Englishmen. Over the period of several centuries Englishmen had secured certain rights under the Anglo-Saxon legal system known as common law and they had an unwritten constitution. It is important to note that Britain did not have a written constitution but used a common law system that was supplemented by equity law over time. Rights to due process, rights to property, rights to bear arms, rights to a trial by jury in the vicinage of the crime are a few examples of the rights of Englishmen.
As a point of distinction, common law is essentially judge-made law. The two functions performed by a judge under a common law system are; 1) judge the facts of the case and 2) to make the law. Common law relies upon the principle or doctrine of stare decisis – which is that a decision in one case will be followed in the next case. In other words it is based upon precedence and precedence must be adhered to. All thirteen colonies adopted common law as the basis of their legal system when they declared independence from Britain. Today, every state except Louisiana has common law (as well as equity law).
The Constitution is based upon a civil law system which means that laws are written and codified. There wasn’t a concept or idea that there was one federal or national common law system. Those involved in writing, debating, and ratifying the Constitution understood this distinction. Moreover, in structuring the federal government and distributing the power amongst the three branches the power to make law was placed with the legislative branch, whereas the power to judge was placed in the judiciary. In Federalist 47 Madison said “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.” The main point to take away from this – there is no such thing as common law in the federal government.
In examining the Constitution there is not a single so-called constitutional right granted to the people. I challenge anyone to point out where the Constitution has created a right and granted that right to the people. If the Constitution did create and grant a right, it is fair to assume that a textual analysis of the Constitution and the Bill of Rights would lead to the discovery of words, clauses, sentences, or paragraphs that, indeed, do grant some sort of right. However, in my textual analysis of the Constitution I fail to find a single right “created and granted” by the Constitution.
Article 1 defines the Legislative branch, the powers delegated to it, prohibitions against certain laws, and prohibitions placed on the States. Nowhere within Article 1 is any right granted to the people.
In Article 1, Section 9, Clause 2 says the privilege of the writ of habeas corpus shall not be suspended. Did the Constitution grant the privilege of habeas corpus? No. Habeas corpus was established long before the Constitution and was a privilege that was recognized through common law. The framers and the ratifiers of the Constitution thought it was such an important privilege that it was called out within the Constitution itself to ensure the federal government could not infringe upon it. By no means did the Constitution create or grant the privilege of habeas corpus. To the contrary, they prohibited suspending it except under the provisions stipulated in the Constitution itself.
Article 2 defines the powers of the Executive branch. No rights are granted in this Article.
Article 3 defines the powers of the Judicial branch. No rights are granted in this Article.
Article 4 generally deals with issues regarding federalism. Section 2, clause 1 is the privileges and immunities clause (a.k.a. the Comity Clause). This clause is only saying that if a citizen of one state is in another state that the state they are in must grant them the same privileges and immunities that their own citizens receive. For instance, if a citizen from Virginia goes to Maryland, while in Maryland the Virginia citizen must be extended the same privileges and immunities as a Maryland citizen. This is not a grant of rights for there is no such thing as a “federal” set of privileges and immunities. Instead, privileges and immunities are a state power and varied from state to state.
Article 5 defines the process to amend the Constitution. No rights are granted in this Article.
Article 6 deals with the debt under the Articles of Confederation, includes the Supremacy clause, and oaths of office. No rights are granted in this Article.
Article 7 defines how the Constitution would be ratified. No rights are granted in this Article.
The Bill of Rights are declaratory laws (statements) and restrictions placed upon the federal government. Certain unalienable rights and other rights of Englishmen were further protected by the Bill of Rights. The rights of the people are stated through these declaratory laws as they do not give to the people something they did not have before, rather they assert and assure the rights they already possess.
The preamble to the Bill of Rights says, “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.”
1st Amendment – Protects certain unalienable rights and restricts Congress from establish a religion or prohibiting anyone from exercising their religious beliefs, from abridging freedom of speech or assembly, and protecting the right to petition for a redress of grievances. None of these can be construed as rights being granted. Demonstrably, these are rights being protected from government interference.
2nd Amendment – Protects a person’s unalienable right to self-defense and to bear arms. It is a complete prohibition on the federal government from “infringing” upon those rights. The right to self-defense is unalienable and to bear arms is an extension of that. That is not a right granted by government, rather it restricts government.
3rd Amendment – Prohibits the government from quartering troops in a person’s home. No right is granted in this amendment.
4th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights. These were not “new” under the Constitution as Englishmen already had these things. No rights are granted in this amendment.
5th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights. These were not “new” under the Constitution as Englishmen already had these things. No rights are granted in this amendment.
6th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights. These were not “new” under the Constitution as Englishmen already had these things. No rights are granted in this amendment.
7th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights. These were not “new” under the Constitution as Englishmen already had these things. No rights are granted in this amendment.
8th Amendment – Prohibits the government from imposing certain “cruel or unusual” punishments on citizens. No rights are granted in this amendment.
9th and 10th amendments – Both are amendments of construction. In other words, both are meant to guide and instruct a person on how to read and understand the Constitution in regards to both powers delegated and reserved, and rights (enumerated or not) reserved.
Future amendments to the constitution do not grant rights either. For instance, nowhere in the Constitution is there a political right to suffrage. Suffrage is a power reserved to the States. Amendments 15, 19, and 26 do not grant a right to vote for blacks, women, or those over the age of 18. Those amendments prohibit discrimination on account of race, gender, or age, respectively. States retain the power to define the qualifications for voters. Today, a state could enact a law that says only those citizens of the State that own real property and have a net worth greater than $1 million can vote. Assuming that law doesn’t violate the State’s Constitution only those people meeting that criterion can vote. Since the law does not discriminate based on race, gender, or age the law is valid.
In conclusion, the Constitution doesn’t grant rights. The very idea is a fallacy and a dangerous assertion. If the Constitution granted rights to people it implies that either the people of the States or the government is granting those rights. The people aren’t granting themselves rights as they already possessed those rights and declared them so through the Bill of Rights. Likewise, if the government grants rights to men then government can abridge, deny, infringe or revoke those rights. To believe or concede that government grants rights means government decides what rights you have and do not have, which rights you can and cannot exercise and under what circumstances, and that government can rescind or revoke those rights at any time. At best it is wrong-headed and makes a mockery of unalienable rights and the long history of the rights of Englishmen. At worst it endangers the very lives, liberty, and property of all members of society to concede government has this power of the people.
The Constitution protects rights that already existed before the document was even drafted. The right to trial by jury, the right to due process, the right to bear arms, the right of conscience to worship as one desires (or not), etc. People should refrain from using the term constitutional rights and supplant it with the term rights protected (or secured) by the Constitution.