Wednesday, February 8, 2012

Powers vs. rights (or why Justice Ginsburg is talking out of the back of her neck)

Roger Pilon has written a thoughtful article on the U.S. Constitution which, contra Ginsburg, argues that its wisdom lies precisely in focusing on the limitation of government power, rather than a lengthy enumeration of “rights”.
It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people.
H/T: Overlawyered.

5 comments:

RebeccaH said...

I agree completely. Elsewhere, I read some dumb article about how the Constitution really didn't list a lot of the "rights" enumerated in the constitutions of other countries, and some of the examples (such as the right to adequate housing) set my teeth on edge. I tell you, we lived in some sh**holes in our day, and the worst ones belonged to the government (Army housing). What we have now is Mt. Everest-height above that, and nobody gave it to us, we earned every stick of it, thanks to a country with the kind of constitution we have.

Yojimbo said...

Yeah, well, just how is that limitation of power thingy working out for us? I think you'll find that Tenth Amendment at the bottom of a ravine somewhere.

The Framers never envisioned that the Commerce Clause and the General Welfare "Clause" would become a vehicle for the destruction of our liberty. They never envisioned a fourth branch of government-that being the regulatory branch. They never envisioned conseratives voting for NDAA either.

Mark was right, we are living in a post-Constitutional America.

rinardman said...

When I was little, my dad kept bees. When I got old enough, he would let me go to the hives with him, and watch him take care of them.

Of course, I kept well away from the hives, but one day a bee took an interest in me that wasn't mutual. I was trying to decide what to do when my dad saw me dodging the bee, and said "Just ignore it, it'll go away."

I think that's how a lot of liberals (and a certain POTUS) feel about the Constitution. It's a pest, so let's just ignore it.

mojo said...

"At one time kings were anointed by Deity, so the problem was to see to it that Deity anointed the right candidate. In this age, the myth is 'the will of the people' . . . but the problem changes only superficially."
-- RAH

Ginsburg has a right to her opinion, obviously, but I can quite legitimately object to her spewing them overseas.

bruce said...

Exactly. They believed rights are natural, a birthright. Not granted by heavy handed governors at their pleasure, or why have a Revolution just to bring a change of the guard?