A Widespread Misunderstanding

A recent comment posted to this blog demonstrates a widespread–and pernicious–misunderstanding of the role of the U.S. Constitution. The commenter demanded to know where there was any reference to healthcare in the constitution.

The answer, of course, is that no such reference exists–just as there’s no reference to, say, smoking. Or marriage. Or the right to drive a car. Or the internet.

The constitution does not grant us rights. It limits the government’s right to infringe on those rights. The founders believed that we have certain “inalienable” rights by virtue of being human (hence “human rights”). Some believed those rights were “endowed by the Creator.” But Creator or no, those human rights preceded governments and their laws; the Bill of Rights was intended to constrain government from ignoring or invading them.

The bottom line is that government can pass laws and create programs that the legislature believes will advance the general welfare, so long as those laws and programs do not run afoul of the limits imposed by the document itself, or by the Bill of Rights. We are all free to disagree about the wisdom of government’s policy choices; we are equally free to debate whether, in close cases, government has crossed the lines established by the constitution.

But when we look to the language of our constituent documents for permission–when we view government as the source of our rights–we betray a fundamental misconception of the role of government and law in these United States.


  1. Exactly WHERE in the Constitution did President Thomas Jefferson ever get the idea that he could just up and buy a whole bunch of land from the French?

  2. I disagree that rights exist in the absence of government. There is nothing natural about them. Rights are one of humanity’s greatest creations. In the absence of civil society, the state of nature is the war of all against all; solitary, poor, nasty, brutish, and short.

  3. Doug, I think I understand what you’re saying, but it does seem at odds with the Declaration of Independenc’s statements concerning “certain innalienable rights”, and that the in order to secure these rights, governments are instituted. This would suggest that the somehow exist(ed) outside of government.

  4. I concur with Doug, though I would modify ‘government’ to ‘authority’ in general. You have no rights in the face of power other than what that power grants you. This is why benevolent, representative government is so necessary. We are supremely blessed that the founders of our government considered certain rights to be ‘inalienable’–if they had not, we may not have them.

  5. Doug–as a matter of FACT, I think you (and Hobbes) are correct. But the role of government was seen as necessary to PROTECT rights, not confer them.

  6. I think Jefferson’s declaration that “we hold these truths to be self-evident” is one of the greatest dodges in history. First, it avoided having to explain where these rights were grounded. Second, it sounded a lot better than, “we think these are some really good policy ideas.” Lastly, and maybe most important as a practical matter, he was fighting in a political environment where he had to contend with the notion that Kings were granted authority by God.

  7. Doug, the framers of our government were very clear where our right came from. Jefferson didn’t “dodge” anything. I don’t need another human being to tell me I have a right to life and liberty; anyone with an ounce of common sense understands these rights are conferred by God himself. Suppose no government existed. If someone tries to take my life or my property, I don’t need government to tell me I have a “human conferred right” to defend either. I understand fully my right to life, liberty and the pursuit of happiness. I’ll just assume you are in agreement with Obama that he doesn’t like our “negative charter of liberties.” I love them and I love the inventor of them, and it wasn’t Jefferson, Washington, Adams or Franklin.

  8. Right. I disagree with the framers. I also disagree that God is a matter of common sense. In the absence of government, you have no property and you have no rights. Instead, you have your life and stuff that you get to keep so long as no one stronger comes along. Certainly, you can try to stop them, but they can kill you and take your stuff, and it’s not illegal for them to do so because there are no laws to break without government. God certainly isn’t going to come down from on high and do anything about it.

    Hobbes was right when he said that, in the absence of government, the state of nature is a war of all against all wherein the lives of individuals are solitary, poor, nasty, brutish, and short.

    You can talk about your rights and you can talk about God. But, in the absence of a functioning civil society; a society committed to enforcing your rights, if necessary, with force and violence against those who wrong you, it’s nothing more than talk.

  9. I don’t think Doug is wholly off base; even if misguided by his presuppositions. He inadvertently affirms what the bible in fact teaches; civil government is not optional it is mandatory and absolutely necessary for human existence. Government is as absolute as my right to life. Government, not God directly, regulates human interaction. But, in no way can it be extrapolated from this that we have no inalienable rights apart from government. That is a proposition that can only be asserted with a priori knowledge. And that is where all disagreements (without exception) stem from.

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