The Constitution and Rights

One of the good aspects of being politically involved is that it can lead one to study, and give serious thought to, the really fascinating document which is our own constitution.

Someone in some discussion of the Kagan nomination quoted her as saying that the constitution, “generally specifies limits on government rather than affirmatively granting individual rights,” which that person found “rather alarming” about her.

My initial reaction was to agree with the speaker but on reflection I am more inclined to agree with Kagan, assuming that she did say it, and to see it as a positive for her rather than a negative. It is entirely consistent with earlier things I have said about my belief that the constitution is the document which defines what our government is.

Consider the second amendment, which reads “the right of the people to keep and bear arms, shall not be infringed.” It does not grant the right to bear arms, it assumes it to be an existing right preceding the creation of the constitution. It says that the government shall not interfere with that right.

The only place I can find where it might seem to grant an individual right is the sixth amendment, where it says that in criminal matters, “the accused shall enjoy the right to a speedy and public trial.” Even there, however, it seems to refer to a speedy and public trial as an existing right.

In the very next clause, the seventh amendment, it is clearly back to regulating the government’s behavior with respect to assumed rights when it says that in common law, “the right of trial by jury shall be preserved.”

There is a scene in “An American President” where the President is giving his daughter a book on the constitution and she is rolling her eyes, and he says enthusiastically, “This is exciting stuff.” You know what? It actually is. This document defines who we are, and we are botching it really badly right now because we are not defining ourselves by this document.

Instead, we are using the constitution as a list of privileges to which we, as American citizens, are entitled.

That document was written to define the “land of the free” where freedom is the nature of the government, is part and parcel of the definition of its government, is woven into the fabric of its being. We are redefining this nation to be the “home of the privileged,” whose citizens enjoy rights, privileges, entitlements and freedoms which we do not extend to those outside our borders.

Shame on us.