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Natural Rights, the Declaration, and the Constitution, Part 3

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The Bill of Rights should actually have been called the Bill of Prohibitions because it actually doesn’t give any rights to anyone. Instead, it expressly prohibits the federal government from infringing the fundamental rights of the people.

Our American ancestors understood that people’s rights don’t come from the government or from the Constitution. They come from nature and God. It is the responsibility of government to protect, not damage or destroy, the exercise of such rights.

Consider the First and Second Amendments. Notice that they don’t give people freedom of religion, freedom of speech, freedom of the press, freedom to assemble, or the right to keep and bear arms. Instead, they expressly prohibit the federal government from depriving people of those important rights, all of which inhere in every human being by virtue of his humanity.

In other words, suppose the Bill of Rights had never been enacted. Would people still have, say, the right to keep and bear arms? Absolutely! Again, such a right doesn’t come from government or the Constitution. Instead, like freedom of speech, freedom of religion, and freedom of the press, the right to keep and bear arms is a natural, God-given right that preexists government and the Constitution.

Why did the American people consider it necessary and wise to provide express restrictions on the federal government, prohibiting it from violating people’s important natural and God-given rights?

The reason is simple: They believed that the federal government was the greatest threat to their rights and freedoms. They believed that such express prohibitions would prevent or at least inhibit federal officials from infringing or violating such rights. And they were counting on an independent federal judiciary to enforce those constitutional restraints on power.

The Bill of Rights

Our ancestors understood what the Framers had claimed — that the enumerated-powers doctrine would limit federal officials to those powers that were enumerated in the Constitution. But Americans simply weren’t convinced that it would work. They knew that the federal government would inevitably attract power-lusting people to public office — people whose love of power would lead them to come up with all sorts of rationales, excuses, and justifications for exceeding the limited powers enumerated in the Constitution.

Americans were certain that such power-lusting federal officials would end up punishing critics of government wrongdoing, would punish people for failing to worship God in the correct way, would prevent people from peacefully assembling, and would prohibit people from owning guns.

The First and Second Amendments were intended to make it clear: federal officials (i.e., the servants) were expressly prohibited by the people (i.e., the masters) from doing those types of things.

The Third Amendment prohibits the federal government from quartering soldiers in private homes without the consent of the owner. This amendment reflected the deep antipathy toward militarism and standing armies of our American ancestors. Since the federal government was the greatest threat to people’s freedom and well-being, they understood that the way that such a threat materializes is through the government’s ability to use force against the citizenry. And what better way to employ force than through the use of a standing army, especially one that could always be expected to be loyal to its commander in chief, the president?

James Madison explained that in the Roman Empire, whenever the citizenry threatened revolt or rebellion over the ever-increasing spending, debt, and taxation needed to sustain the empire, Roman officials and the Roman military would simply stir up some foreign crisis, at which point the citizenry would be expected to set their anger against the government aside and rally to the support of the troops and the government, in order to protect the nation from the external “threat.”

After 20th-century Americans had brought into existence a gigantic military and military-industrial complex, retired U.S. Army Gen. Dwight D. Eisen hower, who was then serving as president of the United States, issued a warning to the American people, one with which our American ancestors would have certainly agreed. He suggested that the enormous military and military-industrial complex posed a grave threat to the democratic processes of the United States.

The Fourth, Fifth, Sixth, and Eighth Amendments concern criminal procedures — e.g., the power of government to break down people’s doors to search for evidence of criminal wrongdoing, to force people into confessing to crimes, and to take people into custody and incarcerate, mistreat, or even execute them.

What people feared is that the federal government would be a government in which federal officials could exercise the most omnipotent, totalitarian power of all — the power to do whatever they wanted to people, especially their critics.

The ultimate dictatorial power

Ask yourself: what would be the greatest power that a dictator could wield over people?

The power to tax them to any extent he wishes? That would certainly be an enormous power over the citizenry — the power to take their money and their property away from them.

The power to debase the money supply? That too would be a means by which to deprive people of their wealth and property.

The power to prohibit people from owning guns? That would be a tyrannical power, especially since its exercise could deprive people of the means to defend themselves from tyranny.

The power to control speech? That could prevent people from rallying others to the defense of liberty.

But all those powers pale in comparison to the power to simply send troops or the police into a person’s home, search through all his belongings, force him to confess to crimes, incarcerate him, torture him, and even execute him without any judicial review whatsoever. The omnipotent, nonreviewable power to search, arrest, incarcerate, torture, and kill people is the ultimate dictatorial power. It is akin to the power to murder the citizenry.

Why did our American ancestors demand the enactment of the Fourth, Fifth, Sixth, and Eighth Amendments? Because they were certain that the federal government would inevitably attract power-lusters to office who would do the types of things that those amendments proscribed. With the enactment of such amendments, the American people were making it clear that before federal officials would be permitted to enter into people’s homes and search for evidence of criminal wrongdoing or arrest, incarcerate, and punish people, they would have to satisfy well-established procedural requirements whose origins stretched back into centuries of resistance by British citizens to the tyranny of their own government.

In fact, the phrase “due process of law,” which is found in the Fifth Amendment (and Fourteenth Amendment) stretches all the way back to the year 1215, when the barons of England required King John — their king — to acknowledge publicly that he lacked the authority to take away people’s lives, liberty, or property without following the “law of the land.”

The Fourth Amendment enshrines the principle that federal officials may not simply force their way into people’s homes and conduct searches of their belongings. They are required to first go to a magistrate in the judicial branch and seek a warrant. The magistrate issues the warrant only on a finding of “probable cause,” which is established by sworn statements.

Moreover, the government may not simply go out and pick up people and incarcerate them, torture them, or execute them. Before punishing people, the government is required to follow well-established judicial procedures. For example, it must secure a grand-jury indictment that charges a person with a specific crime that is already on the books. That person is entitled to the assistance of an attorney, to ensure that the government doesn’t railroad him into a conviction. He’s also entitled to confront witnesses against him and cross-examine them, as a precaution against the government’s use of false testimony to secure a conviction. The accused is entitled to elect trial by jury to ensure that ordinary citizens in the community decide the issue of guilt, not some jaded or corrupt judge who might be in the pockets of the prosecutors. The accused is entitled to a speedy trial so that the charges cannot be left hanging over his head indefinitely. When the government does secure a criminal conviction, it is nonetheless prohibited from imposing cruel and unusual punishments on the person convicted.

The Seventh Amendment guarantees the right of trial by jury in civil cases.

Protecting other rights

In this context, we shouldn’t forget the important procedural protection of habeas corpus, which our ancestors understood was the linchpin of a free society. It was included in the Constitution itself. Like the procedural rights in the Bill of Rights, habeas corpus originated in the British people’s resistance to tyranny at the hands of their own government.

Suppose, for example, the government decides to simply ignore the procedural requirements in the Bill of Rights. It just goes out and takes people into custody and jails them, intending to torture them to death for criticizing the government. That’s what habeas corpus is all about. It entitles the aggrieved person to seek a writ of habeas corpus from a federal judge. The judge orders the government to produce the person and to show cause why he is being held. If the government cannot do that, the judge orders the prisoner’s release. The custodian must comply with the judge’s order.

Again, what is the point of all these procedural restrictions and prohibitions?

Our American ancestors were convinced that the federal government would inevitably attract the kind of people that all governments in history have attracted — power-lusters who would come up with any rationale, justification, and excuse to satisfy their lust for power, especially with respect to depriving people of their lives, liberty, and property.

Were the rights enumerated in the Bill of Rights all-inclusive? No. Some people were concerned, however, that by enumerating some rights, those in government would claim that no other rights were protected from governmental assault.

That was the reason for the Ninth Amendment. It says that the list of rights is not all-inclusive. Though some rights are enumerated it does not follow that the people don’t have other natural, God-given rights.

To reemphasize the importance of the enumerated-powers doctrine, our ancestors demanded passage of the Tenth Amendment. It says that all powers not in that list of enumerated powers delegated to the federal government in the Constitution are retained by the people and by the states.

Today, nearly everyone acknowledges that our country is in a deep mess. Everywhere you look, there is a crisis — Social Security, Medicare, Medicaid, federal spending, the national debt, the dollar, monetary policy, banking, Iraq, Afghanistan, torture, indefinite detention, terrorism, and on and on and on.

What are the causes of these crises? How do we get our nation back on the right track?

The answer to both those questions lies in the political and economic philosophy of our American ancestors, a philosophy that understood that people’s own government was the greatest danger to their lives, liberty, property, and well-being and that freedom requires the constraint of governmental power through a constitution. To put our nation back on the right track — toward freedom, peace, prosperity, and harmony — requires a recapturing of the spirit of our ancestors.

Part 1 | Part 2 | Part 3

This article originally appeared in the December 2010 edition of Freedom Daily.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.