By: Robert Curry
June 6, 2016
t is a remarkable fact, though little noticed, that we no longer conduct our politics in the language of the Founders. What that means is that we no longer think politically in their terms.
Take for example the Founders on our rights. George Washington wrote that the American Founding occurred during a time “when the rights of mankind were better understood and more clearly defined than at any former period.” That new understanding of our rights is what the Founding is all about.
But do we today remember what the Founders knew?
The Declaration of Independence declared that we have “unalienable rights.” It went on to issue a challenge to the legitimacy of every government then in existence, declaring that securing these unalienable rights is the very purpose of government (“…to secure these rights, Governments are instituted among Men…”).
Unalienable rights are at the core of the Founding. Yet except for ritual observances on special occasions, have you noticed that unalienable rights have largely gone missing from American politics? In day-to-day politics constitutional rights are often invoked, but very rarely or almost never unalienable rights. Though familiar in one sense, the term “unalienable rights” has the unfamiliarity of a special item only brought out for special occasions.
For example, I listened to our rights being discussed on talk radio recently. The topic was billboards with this message: “In the beginning, God created…” Evidently, some atheists and others were objecting to the message on the billboards, even claiming it needed to be suppressed because it was “hate speech.” The host of the show defended the people who had posted the message, claiming they had a constitutional right to post the message. Because he believed he was fighting the good fight, we can appreciate his good intentions. But was he fighting for our rights on the right ground?
Not according to the Founders.
If the talk show host had been Thomas Jefferson he would have said they had an unalienable right to post their message.
But why not call it a constitutional right? Don’t we derive our right to freedom of speech from the Constitution, specifically from the First Amendment?
To get to the correct answer to this question, we need to remember what the Constitution does. It defines how the federal government is to function—and the very purpose of government, according to the Founders, is to secure our unalienable rights. Consequently, unalienable rights are senior to, on a higher level than, even the Constitution itself. The sequence in logic goes like this:
• Unalienable Rights first
• Then the Constitution: the Framers’ (brilliant) design for a government to fulfill the purpose of government by securing our unalienable rights.
The Constitution is all about defining and dispersing the powers of government. It is fundamentally a design for limiting the government, limiting it precisely in order to secure our unalienable rights from people in government who would try to violate our rights. As Jefferson said, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Now take a look at the First Amendment. Notice how it begins: “Congress shall make no law…abridging the freedom of speech, or of the press…” No right is here granted to the citizen. The First Amendment, carefully written by James Madison, follows the logic of the Constitution as a whole; it restricts what government, in this case Congress, can do.
The Constitution is not the source of our right to freedom of speech. It cannot be because freedom of speech is an unalienable right. What the First Amendment can do is recognize that already existing unalienable right by forbidding the government from abridging it. And that is precisely what it does.
Consequently, according to the Founders, the people who posted the message on the billboards do not have a constitutional right to freedom of speech. They have, and we have, an unalienable right to freedom of speech, specially protected by a specific Constitutional limitation on the power of government.