Friday, June 13, 2008

Certain, unalienable rights

Maybe it's time we stopped talking about constitutional rights. The phrase implies that the rights affirmed in the first 10 amendments to the U.S. Constitution did not exist before the document was written.

As in: The reference to the Supreme Court's "declaring for the first time that Guantanamo detainees have a constitutional right to a hearing in U.S. courts," as written in this article about this week's ruling that, for once, indicates at least five justices read the Constitution.

It's pretty clear the Bill of Rights doesn't protect only the rights of U.S. citizens. The Sixth Amendment, for example, reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, etc." (my italics) So the decision should have been a no-brainer, although four justices still had a problem sussing that out.

But in the hours following the ruling's release, I happened upon a couple of radio talk shows that made reference to the rights granted by the Constitution and whether they were intended to be granted to non-citizens or, in this case, "enemy combatants." That's such a common goof that I think the shorthand needs to be dropped.

The shorthand calls these "constitutional rights." We need four more syllables, as inconvenient as that might be. They are "constitutionally protected rights," if words on paper have any power to protect someone from a determined tyrant.

The U.S. Constitution is not the source of these rights, and they are not conferred only upon U.S. citizens. The document was written by folks who, 12 years earlier, had rallied around a document that asserted: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights ..." Notice, again, that word all.

The rights affirmed in the Supreme Court ruling are not constitutional rights; they are certain, unalienable rights that apply to every human being. The writers thought that by writing them down in the Constitution, they would be protecting these rights from the whims of an oppressive government, but pre-existing rights could not be created by the Constitution. They come with the package: We are created with these rights built into our nature.

Much of the world hasn't caught up with the folks who wrote those founding documents — sadly including, of course, the vast majority of the people operating the government founded by those documents. But that doesn't change or reduce the self-evident truths affirmed by those 18th-century writers.



Blogger listen said...

Excellent! Are you familiar with YICK WO v. HOPKINS, 118 U.S. 356 (1886)
118 U.S. 356? "The present cases, as shown by the facts disclosed in the record, are within this class. It appears that both petitioners have complied with every requisite deemed by the law, or by the public officers charged with its administration, necessary for the protection of neighboring property from fire, or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood; and while this consent of the supervisors is withheld from them, and from 200 others who have also petitioned, all of whom happen to be Chinese subjects, 80 others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is therefore illegal, and the public administration which enforces it is a denial of the equal protection of the laws, and a violation of the fourteenth amendment of the constitution. The imprisonment of the petitioners is therefore illegal, and they must be discharged. To this end the judgment of the supreme court of California in the Case of Yick Wo, and that of the circuit court of the United States for the district of California in the Case of Wo Lee, are severally reversed, and the cases remanded, each to the proper court, with directions to discharge the petitioners from custody and imprisonment."

2:20 PM  

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