THOMAS MITCHELL: A few reminders for the constitutionally challenged - Opinion - ReviewJournal.com

Jan. 31, 2010
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THOMAS MITCHELL: A few reminders for the constitutionally challenged

"The right of freely examining public characters and measures, and of free communication among the people thereon ... has ever been justly deemed the only effectual guardian of every other right."

-- James Madison

As recent events have clearly amplified, the average American's grasp of the content and purpose of the U.S. Constitution is woefully inadequate and too often inaccurate.

Ask a friend, a family member or a co-worker about the Constitution and what it does. You are likely to be told it grants Americans their rights and assures democratic elections and fair trials, or something along those lines. You'll also learn these things belong only to individual Americans. Foreigners and corporations are not covered.

No Miranda rights for the knickerbomber. Corporations have no free speech rights. Not in the Constitution. Never mind what the Supreme Court ruled in Citizens United v. Federal Elections Commission, saying laws limiting free speech by anyone are tantamount to censorship.

One persistent online commenter insisted recently, "Since you brought the issue up, again, Mr. Mitchell, please point out to me language in the Constitution that permits a corporation to petition the government for redress. And since there is no such language, how can such a right be claimed by corporations?"

The Constitution does not permit. It does not dispense rights. It grants limited powers to the various branches of government and then provides checks and balances. Such as Article 1, Section 8: "The Congress shall have power to ..."

The Bill of Rights does not grant rights, either. Those 10 amendments limit the power of government to encroach on the rights presumed to belong to all of us.

The Founders were students of the proponents of natural law, especially John Locke and his treatises on government.

For the Declaration of Independence, Thomas Jefferson drew from Locke's argument that government must protect the people's life, liberty and property or it may be legitimately overthrown.

James Madison embraced Locke's concepts of checks and balances in the Constitution. Madison even thought the Bill of Rights unnecessary because such rights are presumed.

"A man, as has been proved, cannot subject himself to the arbitrary power of another," Locke wrote in "The Second Treatise of Civil Government" in 1690, "and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects."

Rights come from nature, not government.

Look at how the Bill of Rights is phrased. None says the state hereby grants these rights to its citizens. It should more properly have been called the Bill of Prohibitions.

"Congress shall make no law ... abridging the freedom of speech ..." The freedom is presumed and Congress shall not interfere.

Additionally, "... the right of the people to keep and bear arms, shall not be infringed ..." The right exists. Don't infringe.

"The right of the people to be secure in their persons ..."

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ..."

As well as "... the right of trial by jury shall be preserved ..." Preserved, not granted.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." They are enumerated, not granted. And those not enumerated are retained by the people.

Don't imagine what you want the Constitution to say or pretend it says something it does not.

If you, like the president, don't like what the Constitution says, amend it. An amendment banning corporate free speech probably would pass, because most people think the rest of us are too gullible to resist a message backed by money.

If that's the case, this experiment in democracy is over.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.