Why Rights Are Special

There has been a lot of discussion of late about Constitutional rights and the various ways these rights have become impediments to what some consider to be sound policy. At the Republican debate, Senator Marco Rubio sought to score some points on the issue of gun control, hitting back at the proposals of President Obama, saying, “The Second Amendment is not an option. It is not a suggestion. It is a Constitutional right of every American to be able to protect themselves and their families.” The implication there is that there are some things that are just non-negotiable, because they are rights.

The president and his allies don’t see rights that way. In a Q & A last week, Obama responded to a questioner who asked him what he would do to advance campaign finance reform by tweeting that “despite court cases like Citizens United [I]’ll work with orgs/states across [the] US” to advance that agenda. Which means that, despite the Supreme Court finding that the Constitution does not allow for government to limit political speech, the president will still try to do so.

What this really comes down to is a fundamental disagreement between the Right and the Left over how one is supposed to approach the Constitution and the rights contained therein. But before we can dissect that, we first need to understand what the word “rights” means, and what the Constitution is attempting to accomplish.

The 17th-century English philosopher John Locke is considered by many to be the intellectual who most influenced the founders of this country, and upon whose writings they relied more than any other. In explaining what it is that gives government legitimacy to “rule” over the people, Locke says that there are certain rights man inherently has, and those belong to him and nobody else. Only a government that respects and protects these rights is legitimate — because otherwise the governed would not consent to be governed. These are widely understood to be what Thomas Jefferson meant when he wrote in the Declaration of Independence about “life, liberty, and the pursuit of happiness.”

What gave the founders the right to rebel was the belief that King George had violated this unwritten “Contract of Government.” Because he did not respect the (inherent) rights of the governed, the governed were no longer bound to their ruler. They then set up a new system of government in such a way that it could not infringe on those rights. That is the Constitution — and that is why it is as limited as it could possibly be while allowing for a functional government.

Fast forward 250 years, and the fundamentals remain the same. The government needs to respect basic rights in order for its actions to be legitimate. That is the function of the Constitution until today.

But that’s where the Right and the Left part ways. Those on the Left (who are being intellectually honest, and not just looking to gain power) see the Constitution as a “living” document — changing with the times in order to update this “Contract of Government” to be more age appropriate. What people wanted and/or needed in the 18th century is not the same as their wants and needs today, and the founders only meant to confine government to the consent of the governed.

Those of us on the Right, however, disagree with this. A strong argument in our favor would be that the founders actually argued whether the Constitution should expire every 19 years (as Jefferson proposed, so as not to “bind the succeeding generation”) or that it remain permanent, with a mechanism set up whereby future generations could “[correct] breaches of it” (as Madison wrote in Federalist No. 49). The latter view won out, and there is a permanence to the Constitution. Even Jefferson didn’t advocate that each generation ought to define what was included in it based on their interpretation guided by what the Supreme Court thinks is good policy.

In light of this, the more conservative justices on the Supreme Court are known as “Originalists” because they define the Constitutional rights based on how they were understood at the time they were written. For people like me who have a built-in distaste for those who like to rewrite texts to fit modern-day considerations, it’s a no-brainer why this is more appealing. Similarly, our dislike for how the modern-day “progressives” seek to undermine the moral underpinnings of the nation’s founding makes this a natural fit for us.

It is also why the oft-repeated mantra of the Left whenever they want to regulate a right, that “rights aren’t absolute,” is meaningless. Of course rights are absolute. The only question is what exactly the right is — as meant by the founders. How much did it include?

The two biggest proponents of this judicial philosophy are Antonin Scalia and Clarence Thomas. There is, however, one tremendous difference between the two of them. As Justice Scalia explained, “[Thomas] is the most willing of all of his colleagues to overrule precedent, what is known in legal jargon as stare decisis, or ‘let the decision stand.’ He does not believe in stare decisis, period. If a constitutional line of authority is wrong, he would say let’s get it right. I wouldn’t do that.”

For me, and many other people I know, Thomas’ approach seems to be more correct. When we are dealing with interpretation of text, and there is no reason to venerate those who interpreted it before you, of course the prudent course of action should be to “get it right.” Otherwise, it would be a small group of “elites,” and not society, who decides what it is that the government must respect as a right. That is not much of an upgrade over King George — and it most certainly is not what the founders intended.