The United States Constitution does not grant a single right to anyone. It limits the power of the government.
The First Amendment does not say “The People have the right to the freedom of speech.” It says, among other things, that “Congress shall make no law … abridging the freedom of speech.”
The Second Amendment does not say “The people have the right to keep and bear arms.” It says “the right of the people to keep and bear arms shall not be infringed.”
The entire Bill of Rights follows this pattern. Actually, we would be more accurate if we called it the “Bill of Restrictions,” and not the Bill of Rights, since it restricts government power to violate the preexisting rights we all have.
This is an important philosophical concept. Which is why a recent speech by Brett Kavanaugh, Donald Trump’s pending appointment to the U.S. Supreme Court, is troubling.
Just last December, he gave a speech at the American Enterprise Institute’s Sixth Annual Walter Berns Constitution Day Lecture. In his presentation, which can be seen here in its entirety, he discussed his admiration for former Chief Justice William Rehnquist. That is not the disturbing part. The disturbing part is his consistent depiction of the Constitution as granting rights.
So, like a good textualist,1 as Kavanaugh purports to be, let us look at the words he used during this speech. Kavanaugh started off praising the lecture series namesake, Walter Berns: Berns “had the belief, considered naive in some circles, that the meaning of the Constitution is related to the actual words of the Constitution.”
So far, so good.
Kavanaugh went on to explain why he, too, believes that the actual words used in a document are crucial to understanding the document. He said, “The Constitution is primarily a document of majestic specificity, and those specific words have meaning.”
So far, even better.
Unfortunately, shortly after describing how important the meaning of words are, he began to ignore the meaning of some important words.
He rightfully stated that the only legitimate way to change the Constitution is to amend it. He described the amendment process and mentions what some of them did. For example, the 12th Amendment changed the mechanism for electing the President and Vice-President.
Then he came to the next sequential amendments, stating “The 13th, 14th, and 15th Amendments altered the autonomy of the states and created new constitutional rights and protections for individuals against states.”
And here is the problem: That is not what the actual words say. By their very terms, these post-Civil War amendments do not create new rights. They refrain the states from abridging rights that already exist. They restrict government power and declare the states can no longer deprive former slaves of those rights.
The text of the 13th states:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
There is a big difference between saying (1) “The government grants former slaves their freedom” and saying (2)“The government can no longer legally enslave people.” This is a significant difference. The first version views the government as an entity that decides who gets what rights and how much of them. Think of the government as the guy ladling gruel to Oliver Twist in the movie version of the Dickens novel: The orphan holds his bowl up to the headmaster and feebly asks for more.
It is completely up to the authority whether or not “more” is ladled out. Little Oliver is denied more.
But that is not how the Constitution works. Nor is it supported by the text of the document.
The 13th Amendment says the government will cease taking away freedom from slaves. Contrary to Kavanaugh’s characterization, the post Civil War amendments did not create new constitutional rights – they prohibited the government from continuing to infringe on existing rights.
These post-Civil War amendments did not represent a benevolent ladle of freedom dished out to former slaves. These amendments represent the end of the malevolent deprivation of freedom from former slaves. Slaves had been denied even a bowl or the ability to stand in line to get something in it. That denial was over.
Likewise, the 14th Amendment, in pertinent part, states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The text could not be clearer. The amendment prohibited the government from exercising the power to deny rights the government had previously denied. It limited government power.
Contrary to Kavanaugh’s assertion, the Fourteenth Amendment did not ladle out those rights.
The 15th Amendment declares “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” This “right of citizens” already exists. This amendment explicitly declares that the government, either federal or state, shall not violate those rights.
Continuing his presentation, Kavanaugh then asks “Who decides when it is time to create a new constitutional right or to eliminate an existing constitutional right?” His point, which is well taken, is that there is a process to amend the Constitution and judges should not amend it by writing an opinion. Unfortunately, and for the same reasons, Kavanaugh’s construction is wrong. The Constitution has never created a right. Rights are immutable and can not be eliminated by any document, including the Constitution. Those rights can only be denied. This is why government power must be constrained. It is the entire point of the Constitution.
For example, if the First Amendment to the Constitution were repealed, you would still have the right to free speech. It is not dependent on the document. And the specific words of the Constitution acknowledge this. If government agents arrested you and put you in jail for criticizing federal policy, your rights would be violated, with or without the existence of the First Amendment.
One can see the problem: If the government “grants” rights, then why should it not “grant” the right to free healthcare? The right to a job? The right to a home? These are actually rights Franklin Delano Roosevelt, in his 1944 State of the Union address, proposed the government should be ladling out.
It is concerning that Kavanaugh appears to embrace FDR’s theory of constitutional rights. Because that theory is incorrect. When an allegedly constitutionally conservative judge starts talking about the government adding or subtracting rights through a document, the Constitution, he is hardly a textualist.