The right way to think about rights
The Constitution doesn’t grant us freedoms; it prohibits government from taking them.
Nearly all of us, at one time or another, refer to our “constitutional right to free speech.” While this common phrase may seem harmless, it points to a larger misunderstanding of where our rights come from — a misunderstanding that undermines many of our most fundamental policy debates.
The fact is, the U.S. Constitution protects our God-given rights from government. The government does not (as the phrase above implies) grant those rights to us as citizens. This is perhaps the most widely misunderstood aspect of our system of government.
The idea that the power of government is derived from the consent of the governed was first articulated by John Locke in his 1690 “Second Treatise of Government,” in which he wrote, “Men being, as has been said, by nature, all free, equal and independent, no one can be put out of this estate and subjected to the political power of another, without his own consent.”
Locke’s words are the underlying basis of the First Amendment in the Bill of Rights, which reads: “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.”
Many people refer to this amendment, and their right to free speech, as though it is the First Amendment that grants them the right to say what they like. That is looking at it the wrong way.
Were the Constitution the granter of the right to free speech, religion, assembly and so forth, the First Amendment would not start out, “Congress shall make no law.” That part of the sentence clearly states that the government has no rightful authority over those things and is blocked from infringing upon them. This is the concept of negative rights.
A negative right is one that cannot be infringed upon by outside forces. Government is not granting you the right to free speech. That right already exists. Government is expressly forbidden from attempting to infringe on it.
The Declaration of Independence asserts that all men are endowed by their Creator with certain unalienable rights. In other words, our rights to life, liberty and the pursuit of happiness are God-given, not government given.
However, if you think that we are granted our fundamental rights by the government, then you are more likely to seek additional favors from the government. If the government is the grantor of all good things, what is to stop someone from thinking up more good things that could and should be granted by our elected leaders?
Yet our government is not Santa Claus writ large, and our rights are not wish lists drawn up by eager tots on Christmas Eve. Any fair-minded reading of the Constitution reveals that it does not grant us the wonderful rights we embrace. It handcuffs the government from infringing upon them. Or at least it used to be that way.
Our Founding Fathers did not see government as a benevolent Santa Claus guaranteeing an ever-expanding wish list of rights. Rather, they viewed government as a necessary evil — far preferable to anarchy, but nonetheless a serious threat to liberty.
Liberty was the ultimate goal of our Founders, and for its sake, they were willing to lay down their lives. In the famous words of Patrick Henry, “Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty or give me death!”
That spirit continues to inspire oppressed people around the world. It should inspire all of us fortunate enough to live here everyday. It certainly should deter us from thinking that our rights come from anyone other than God.
- Ed Feulner is founder of the Heritage Foundation.
Originally appeared in The Washington Times.