Paul Ryan: Repeal health law because rights come from God

[Igel]

42. Far from it.

Back in the '70s it was still taught that the Bill of Rights was an enumeration of the basic rights that proceeded from Nature and Nature's God, according to the writers of the founding documents. Some didn't want to enumerate them because they thought simple minds would misunderstand the relationship between the enumerated rights and their actual rights, between the listing of rights and the rights that people had. It was thought some simpleton would misunderstand the Bill of Rights as the list of rights held and granted to the citizens, when it's the other way around: The Bill of Rights is a minimal list putting the government on notice that these are some, the most important, of the rights that it dare not trample.

The idea is that as a human being you have rights. It's a powerful idea. Some wanted to implement it more fully in the 1790s. Others didn't and the others won. But once the idea took hold, it tended to spread. We had to fight a war to deal with one part of the limitation on this idea--and the war itself tended to undermine the idea of rights. Then we had to have the suffragette movement to round out the idea--which is that nobody gives you your rights. You just have them. The most anybody can do is to deny you your rights. And the Constitution says that the denier of rights shall not be the federal government. State government? Individuals? Not what the Constitution was concerned with at the time. (That came later, Civil War and after.)

In the 1700s one of the principal right-deniers was the British crown and Parliament. The US soldiers fought, presumably, because liberty was better than tyranny. As Franklin put it, those who sacrifice essential liberty for temporary security deserve neither.

When they set up the first US as a confederation, they had a much more limited federal government. If somebody was going to infringe on your rights, it had to be a local government, not one a thousand miles away. Practically the confederation barely won the war; it wasn't able to govern the peace. So they scotched the confederation and formed the federation we have now, although it was a lot weaker to begin with.

The federation would be stronger than the confederation, and some feared that it would trample citizen's rights. Others argued this wouldn't happen. Some of the most important rights to be protected were listed: no quartering of troops in houses during peace time, freedom of press and speech and religion, due process, etc., etc. All of these are rights that you automatically have but which government can infringe and reduce. SCOTUS has ruled that some can be infringed--but only when there's a sufficient, a good enough, reason. All rights in the constitution are, originally, negative rights. You have them and the "right" is phrased as a prohibition against denying the right, they're phrased as limitations on government intrusion. All the rights not listed in the bill of rights still hold. You still have them. But "all the rights" at the time would have been natural rights, negative rights. Rights that basically tell the government to be hands off.

Even due process and fair trial are rights that you have because they seek to deny you of liberty and property, and they are rights you automatically have. It places a burden on government--but if government doesn't seek to curtail your freedom, then there's no burden on government to provide a fair trial. It's an obligation placed upon others by virtue of actions they want to take to limit you.

If rights come from government, then the Constitution has to be rewritten: "We, the government of the United States, in order to have subjects, ordain that the population of the United States of America shall be our citizens, subject to the constraints and rights that we, their controllers, grant them at the time of our choosing and in the manner we provide for." But it's the other way round: We consent to ordain the government as is our natural right, and permit it to function so long as it doesn't trample on our rights any more than absolutely necessary.

In practice it often works the first way--government is first, the citizens second. This is backwards, and the tension between a citizenry that places freedom above security and the need to provide order and security is what made America an interesting place for a long time. Now that a lot of people want security, temporary or permanent, and have decreed that security is liberty there's no wonder that we have all kinds of demands--from the Patriot Act and greater freedom through greater government monitoring to the assertion of a lot of positive rights.