We often hear talk about our “constitutional rights”, a reference to those enumerated in its first ten amendments, the Bill of Rights. Unfortunately, by solely focusing on on the few rights specifically identified there, we are missing all those that are not.
People fall into the trap of thinking that the Constitution guarantees our rights by “listing” them…but it actually guarantees our rights – which are innumerable – NOT by listing them, but by limiting the government’s ability to infringe upon them. The few individual liberties listed in the Bill of Rights are not the only ones we have, and their listing there is not what guarantees them.
We must not succumb to the common misconception that individual rights exist only if they are listed in the Constitution…which is precisely what Alexander Hamilton feared would happen, and is why he argued against the inclusion of a Bill of Rights before ratification.
In Federalist 84, Hamilton said that a Bill of Rights “would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” (emphasis mine)
And Hamilton has been proven absolutely correct in his prediction that some people would use the Bill of Rights to claim more power for government than is specifically authorized throughout the entire Constitution. This despite the addition of the 9th and 10th Amendments, which addressed his fears by explaining clearly that individual rights are not limited to those listed (9th), while the powers of the federal government are strictly limited to those listed (10th).
The PURPOSE of the Constitution is to limit government, which is why it lists the very few required duties of the federal government. And if something is not REQUIRED by the enumerated powers, then it’s not ALLOWED. Any government power that is not specifically listed is absolutely prohibited, by virtue of that omission.
We need to stop referring to our “1st Amendment rights”, for example, as if their enumeration in the Bill of Rights is what guarantees them. They are infinite, and are guaranteed by virtue of the strict, purposeful limits placed on government throughout the Constitution, which confines government’s duties to ONLY those required by the enumerated powers…no more, no less.
–first written on 25 February 2015