When considering rights and authentic liberty, it is critical that we understand the concept of rights as our Founders understood it. The “unalienable rights” they upheld in the Declaration of Independence are what social researchers today call negative rights. The other category of “rights” is positive rights. These are qualitatively different:
Negative rights are the rights we enjoy because government is restricted from forbidding or hindering personal activity. Positive rights are “rights” that are secured when government intervenes in citizens’ lives to give them resources or to otherwise enable them to do or to have certain things. Generally speaking, America’s Founders and early leaders upheld the former, and in only a few instances the latter (such as an individual’s right to a trial by jury). Accordingly, they drafted and ratified the Bill of Rights to the US Constitution, which secured foundational rights of citizens through government limitations.
Therefore, the Bill of Rights is a list of restrictions on government to secure and maintain the negative, or “unalienable” rights of the people. It is not, nor has it ever been, a guarantee of “rights’ made possible by government manipulation and intervention in people’s lives.
The Bill of Rights is a list of restrictions on government to secure and maintain the negative, or “unalienable” rights of the people. It is not, nor has it ever been, a guarantee of “rights’ made possible by government manipulation and intervention in people’s lives.
The rights enumerated in the Bill of Rights is worthy of review, in order that we may understand the kid of rights the Founders believed were God-given, and thereby innate or inherent, a part of the natural order of things.
In volume 1 of his three-volume history of the United States — America: The Last Best Hope — William Bennett explains the importance and the significance of the Bill of Rights to the US Constitution. Here we can see clearly that the Bill of Rights is all about negative rights.
To read the first ten amendments, we can read the history of the colonial struggle against British despotism. Freedom of speech, press, and religion were guaranteed by the First Amendment, as well as the right to assemble and to petition for “redress of grievances.” These rights form the core of a free society, and they had been violated in one way or another by British misrule. The Second Amendment—still controversial in our day—meant what it said. Americans remembered that General Howe’s redcoats marched out of Boston to seize the militia’s gunpowder and weapons. An armed people remained a free people because they are the last redoubt against a hostile government’s tyrannical advances. And, just as importantly, an armed people could resist the demands of militarists to regiment society. Americans would be free without ever resorting to the sort of goose-stepping mindlessness of Prussian (not to mention Soviet or North Korean) dictatorial states. The Third Amendment prevented government from stationing, or “quartering” troops in private homes in peacetime—a major abuse of the British in Boston.
The next five amendments, all relating to judicial procedures, each corresponded to very real British acts of tyranny, many of which are detailed in the Declaration of Independence. Those notorious “Writs of Assistance” were general warrants that allowed British colonial officials to rummage through Americans’ homes, farms, and shops looking for incriminating evidence. The Fourth Amendment banned them, specifying no “unreasonable searches or seizures.” The Fifth protected Americans from having to testify against themselves or from being tried twice for the same offense. The Sixth Amendment called for a speedy public trial, with the right of the accused to confront witnesses, compel witnesses for the defense to testify, and to have the assistance of counsel. The Seventh Amendment guaranteed the right of trial by jury, while the Eighth outlawed “cruel and unusual punishment.”
The final two amendments were the capstones—the bookends to the preamble’s acknowledgement that the powers of government were delegated by the people. The Ninth Amendment recognized that rights enumerated in the Constitution were not the only rights the people enjoyed, and the Tenth assured that any powers not granted to the federal government or prohibited to the states were retained by the states and or by the people.1
Larry Schweikart and Michael Allen summarize the first ten amendments to the Constitution in their landmark work, A Patriot’s History of the United States. Their summary also affirms that the Bill of Rights protects negative rights by restricting government.
The First Amendment combined several rights—speech, press, petition, assembly, and religion—into one fundamental law guaranteeing freedom of expression. While obliquely related to religious speech, the clear intent was to protect political speech.…However, the Founders hardly ignored religion, nor did they embrace separation of church and state, a buzz phrase that never appears in the Constitution or the Bill of Rights. [James] Madison [who is considered the Father of the Constitution and of the Bill of Rights] had long been a champion of religious liberty.…[He] rejected the notion that the exercise of faith originated with government, while at the same time indicating that he expected a continual and ongoing practice of religious worship.…Modern interpretations of the Constitution that prohibit displays of crosses in the name of religious freedom would rightly have been shouted down by the Founders, who intended no such separation.
The Second Amendment addressed Whig fears of a professional standing army by guaranteeing the right of citizens to arm themselves and join militias. Over the years, the militia preface has become thoroughly (and often, deliberately) misinterpreted to imply that the framers intended citizens to be armed only in the context of an army under the authority of the state. In fact, militias were the exact opposite of a state-controlled army: the state militias taken together were expected to serve as a counterweight to the federal army, and the further implication was that citizens were to be as well armed as the government itself! The Third Amendment buttressed the right of civilians against the government military by forbidding the [government forced] quartering (housing) of professional troops in private homes.
Amendments Four through Eight promised due process via reasonable bail, speedy trials (by a jury of peers if requested), and habeas corpus petitions. They forbade self-incrimination and arbitrary search and seizure, and proclaimed, once again, the fundamental nature of property rights. The Ninth Amendment, which has lain dormant for two hundred years, states that there might be other rights not listed in the amendments that are, nevertheless, guaranteed by the Constitution. But the most controversial amendment, the Tenth, echoes the second article of the Articles of Confederation in declaring that the states and people retain all rights and powers not granted to the national government by the Constitution. It, too, has been relatively ignored.2
Then Schweikart and Allen make this critically important observation, a principle that America needs to rediscover today.
[The Bill of Rights consists of] ten clear statements [that] were intended by the framers as absolute limitations on the power of government.
—Larry Schweikart and Michael Allen—
These ten clear statements were intended by the framers as absolute limitations on the power of government, not on the rights of individuals. In retrospect, they more accurately should be known as the Bill of Limitations on government to avoid the perception that the rights were granted by government in the first place.3
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Copyright © 2020 by B. Nathaniel Sullivan. All rights reserved.
Notes:
1William J. Bennett, America, the Last Best Hope—Volume 1: From the Age of Discovery to a World at War, (Nashville: Thomas Nelson, 2006), 142-143.
2Larry Schweikart and Michael Allen, A Patriot’s History of the United States: From Columbus’s Great Discovery to the War on Terror, (New York: Sentinel, 2004), 125-126.
3Schweikart and Allen, 126.