The Constitution Does NOT Grant Us Any Rights

Most people think it does, but it really doesn't

*All references herein to our founding documents are taken from transcripts at https://www.archives.gov/founding-docs

I know, this is a shocking title, but with good reason. In today’s political climate, with statements about the Constitution being bandied about quite frequently, I’ve been thinking a lot about what people do or do not understand about our country’s founding documents. In this vein, we often hear phrases such as “First Amendment rights,” “Second Amendment right,” and “Constitutional right” used by people in defending what they want (or want to be able to do), and I don’t believe the people using these phrases truly understand them or their implications. If, these claimed “rights” are granted by the Constitution or the Amendments, then by extension, they are actually granted by the Federal Government and therefore may also be rescinded by the Federal Government; but this is not at all what our Founding Fathers had in mind, nor is it what is enshrined in our founding documents. So, what are our founding documents, and what do they say?

The three documents upon which the United States was founded are the Declaration of Independence, the Constitution, and the Bill of Rights (which also does not grant us any rights – but more on that later). First, since it seems it is so misunderstood, and I believe this to be a major reason why people have such misinformed expectations of our government, let’s consider the Constitution proper (the Bill of Rights is, after all, the first ten amendments to the Constitution, and therefore, a part of the Constitution). What is the Constitution and what rights does it convey to us, the citizens of the United States?

The US Constitution is a very well thought-out, relatively short document (only 4,543 words, approximately 9 type-written pages), in common language, with a very specific purpose as stated in the opening clause: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”. First and foremost, it should be noted that this document was established by “We the People”, not the government. That said, the Constitution was written in order to lay the foundation for the union between the states, to set up a system of justice, to provide for peace and defense, to enact policies that would help provide for the general welfare of the states (not individual welfare), and to secure our “Liberty.” In so doing, they wrote a document that does not go about defining or delineating the rights of the people; instead, they wrote a document that spells out the few and limited powers and responsibilities of the federal government (a government that has grown far beyond what could possibly have been foreseen, and certainly beyond what was intended, by the founding fathers).

To summarize (very briefly) the structure, it is broken down into seven articles, each addressing a particular branch of government or specific powers/responsibilities of the government as follows:

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Article I: The Legislative Branch – defines the houses of Congress, how representatives and senators are to be elected, and the powers and responsibilities of each of the houses, which include: writing bills, forming an Army when needed and with funding for no more than two years, calling up the Militia, providing for a Navy, levying taxes, etc).

Article II: The Executive Branch – defines the office of President and the duties and powers of said office which include: acting as Commander in Chief of the Army and Navy and of the Militia, signing bills into law, granting pardons for “Offences against the United States”, making treaties, and nominating and appointing judges to the Supreme Court, ambassadors, and all other officers of the Unites States whose appointments are not otherwise provided for in the Constitution.

Article III: The Judicial Branch – defines the Supreme Court and provides for Congress to establish inferior courts as necessary, and defines the duties of the courts. The Supreme Court has original jurisdiction over particular cases and appellate jurisdiction over all other cases mentioned in Article III.

Article IV: Full Faith and Credit – this article provides for states to recognize the “public Acts, Records, and Judicial Proceedings” of each of the other states. Herein is also perhaps the only instance where a statement is made that might be construed to “grant” an individual any rights: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This, of course, does not actually define any “rights,” but states basically that all citizens will receive all rights afforded in any other state.

Article V: Amendments – this article sets out the process whereby Congress or a Convention of States may amend the Constitution.

Article VI: Debts, Laws, Treaties and Oaths of Office – this article states that debts entered into prior to ratification of the Constitution will still be binding, Laws and Treaties made in pursuance of the Constitution will be “the supreme Law of the Land,” all legislators (state and federal), executives (state and federal) and judicial officers (state and federal) will be bound by oath to support the Constitution, “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Article VII: Ratification – this article states that a ratification of the nine states will be sufficient to establish this constitution and lists a couple of minor edits that were made in the original text.

 For the full text, see https://www.archives.gov/founding-docs/constitution-transcript

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As can be seen, though the Constitution does cover a lot of information, it does not directly enumerate or address any particular rights of the citizens of the United States. So, what did the founding fathers believe were the rights of the people? Surely they are enumerated and granted by the Bill of Rights, correct? No, that isn’t correct either. Again, perceiving the Bill of Rights as granting rights leads to the same problem as believing that the Constitution grants individuals rights, the concession that our rights are granted by government and thus an be rescinded by the government. What the Bill of Rights actually does is place restrictions on the government, preventing the government from infringing on our rights. As with the Constitution, I will summarize the Bill of Rights here:

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Amendment 1: prohibits Congress from making any laws establishing a national religion or restricting the free exercise of religion (this is very straightforward and is contrary to what people claim is a “separation of Church and State”, though that is a long discussion for another time), and prohibits Congress from infringing on our rights to free speech, freedom of the press, freedom to assemble peacefully (that last part seems to be forgotten these days), and the right to petition the government for a “redress of greivances.”

Amendment 2: prohibits the government from infringing on the right to “keep” (own) and “bear” (carry) arms. There is no caveat regarding the type or number of arms, nor is there any limitation placed on the individual here. The government simply is not permitted, in any way, to infringe on this right. Many will point to the opening statement, “A well regulated Militia, being necessary to the security of a free State,” and say that this is longer necessary, so this Amendment no longer applies; however, this opening statement isn’t a qualification, it’s an observation. The latter restriction on the government is not contingent upon this clause. Again, there is much more that can be said about this, but that is a topic for another discussion.

Amendment 3: prohibits the government from forcibly housing soldiers in a citizen’s house during times of war or peace.

Amendment 4: prohibits the government from unreasonably issuing warrants or searching and/or seizing private property. Any of these may only be performed when probable cause exists, the issuance of a warrant is supported by oath or affirmation, and the place to be searched and people and/or items to be seized must be specified.

Amendment 5: prohibits the government from trying an individual for any “capital, or otherwise infamous crime,” unless a grand jury presents an indictment, the government may not try a person twice for the same offense, the government may not compel anyone to bear witness against himself, and the government may not deprive anyone of private property without just compensation.

Amendment 6: the government may not deprive someone accused of a crime from a speedy (this seems to be lost anymore) and public trial by an impartial jury in the State and district in which the crime was committed,  the accused may not be deprived of knowing the nature and cause of the accusation or of being confronted with the witnesses against him, nor my he be deprived of counsel for his defense.

Amendment 7: all matters of common law exceeding $20 will receive the same treatment as stated in Amendments 5 & 6.

Amendment 8: the government shall not impose excessive bail nor inflict cruel and unusual punishment.

Amendment 9: any rights enumerated in “the Constitution” shall not be construed to deny or disparage others retained by the people (in other words, the Constitution makes no attempt to enumerate all of our rights)

Amendment 10: any powers not specifically granted to the federal government by the Constitution are reserved to the States or the people.

full text available here: https://www.archives.gov/founding-docs/bill-of-rights-transcript

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Some may wonder, if the Constitution doesn’t grant us rights, why would Amendment 9 mention rights “enumerated in the Constitution”? The Amendments are part of the Constitution, as I stated earlier, and the way a few of the Amendments are phrased, they could be seen as granting specific rights. These are mainly Amendments 6 & 7, though these amendments do still limit how the government handles legal issues. As well, while the rest of the Amendments enumerate particular rights, they are phrased in such a way as to limit the power and extent of government and prevent it from infringing upon our rights, not to grant the stated rights.

So, what did our founding fathers see as our rights, or from where do they come?  For this, the first place to look is the Declaration of Independence ( https://www.archives.gov/founding-docs/declaration-transcript ). In this primary founding document, the founding fathers wrote:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  According to our founding fathers, our rights come from our “Creator.” None of these rights originate with the government, each citizen is entitled to these, and no citizen’s right to any of these may in any way infringe upon another’s right to these. One person’s right to liberty may not infringe on another’s right to liberty or to life; one person’s right to the pursuit of happiness may not infringe upon another’s right to pursue happiness, to life or to liberty, and so on. In case there is any mistaking what they meant, earlier in this document, the founding fathers state that, “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Yes, the founding fathers believed in God. Being "Nature's God", He was seen to endow us with "natural rights." As a matter of fact, their belief in God was the primary motivation for their separation from the crown, the source from which we derive our rights, and the power that would enable their endeavor to found a new country on a new form of government to succeed. This last is enshrined in the final paragraph of the Declaration of Independence:

“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

The “Supreme Judge of the world” and a reliance on “divine Providence” are clear references to dependence upon God. While they rejected the notion of a “religious test” as a requirement for holding office, our founding fathers were religious men. The reason for a rejection of a religious test, and for restricting Congress from writing laws establishing a religion or restricting the free exercise of religion, was to keep the government out of religion, not to keep religion out of government. They came from an oppressive environment in which the crown mandated the “state” religion and in which the crown had great influence over religious practice. Our founding fathers saw this as anathema and wished to avoid a similar circumstance in their newly-established union. They also viewed religion as absolutely necessary to the continuance of our country. John Adams said in an address to the Massachusetts militia:

“While our Country remains untainted with the Principles and manners, which are now producing desolation in so many Parts of the World: while she continues Sincere and incapable of insidious and impious Policy: We shall have the Strongest Reason to rejoice in the local destination assigned Us by Providence. But should the People of America, once become capable of that deep simulation towards one another and towards foreign nations, which assumes the Language of Justice and moderation while it is practicing Iniquity and Extravagance; and displays in the most captivating manner the charming Pictures of Candour frankness & sincerity while it is rioting in rapine and Insolence: this Country will be the most miserable Habitation in the World. Because We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other." (emphases mine)

This is not to say that our founding fathers expected all people to hold to one religion, for they were not all of the same faith, and they prohibited Congress from declaring a single religion for the country. They did, however, recognize that only people bound by morals, people who recognized that truth exists beyond themselves, that right and wrong is not determined by our whims nor by popular assent, but by a “Supreme Judge of the world” who is beyond us, were required for the survival of the country they were establishing by the ratification of our founding documents. So, there you have it in a not-quite-so-small nutshell. Our rights derive from God, our creator, not from the government nor the Constitution, and the Constitution (more specifically, the Amendments) are there to protect those rights from infringement by the government.