Replacing Scalia and Replacing “Constitutional” Rights

Mitch McConnell’s bold and sagacious gamble last year in refusing to allow a vote on the replacement of Supreme Court Justice Antonin Scalia during the remainder of Obama’s term surely helped Donald Trump get elected. The specter of Hillary Clinton nominating a replacement for Scalia genuinely frightened many voters, and brought them around to voting for Trump. The senate majority leader’s decision to keep Scalia’s seat open until after the election applied a constant and perhaps decisive pressure on the electorate.

Clinton’s defeat, however, has assured that whomever Trump nominates to the High Court is in for a ferocious confirmation fight. To recall the treatment of that good man and great jurist Clarence Thomas at the hands of senators and the media is to weep. But we are soon to witness more of the disgraceful same.

Even worse than the personal injustice any Trump nominee is likely to face, American citizens soon will endure senators and “experts” pontificating about the meaning of the Constitution in terms that would break the Founders’ hearts to hear. Worst of all, Americans once again will be left with the impression that the Constitution is a mystery difficult to understand, a thicket of problems about which the experts heatedly disagree and about which mere citizens cannot hope to hold reasonable or important opinions.

But this was not the Founders’ view. The Constitution is ours, yours and mine. The Founders wrote it for us and intended for us to understand it. That is why it is brief and clearly written. Their meaning and their intent is available to anyone who can read. Understanding it requires common sense, not advanced study in emanations and penumbras.

Where does the lack of clarity come from then? Beyond the raw politics involved, fundamentally it results from the fact that we have abandoned the language of the Founders in favor of the language of the Administrative State. It is a remarkable fact, though one little noticed, that we no longer conduct our politics in their language. What that means is that we no longer think politically at all, but are only expected to act as passive consumers of what the “experts” dispense. That makes it difficult for us to understand the Founders, though they are not in reality difficult to understand.

Take for example the Founders on our rights. George Washington wrote that the American Founding occurred during a time “when the rights of mankind were better understood and more clearly defined than at any former period.” That new understanding of our rights is what the Founding is all about.

The Declaration of Independence states we have “unalienable rights.” It challenged the legitimacy of every government then in existence, declaring that to secure these rights is the very purpose of government (“…to secure these rights, Governments are instituted among Men…”).

Unalienable rights are at the core of the Founding. Yet except for ritual observances on special occasions, have you noticed that references to unalienable rights have largely disappeared from American politics? Constitutional rights are often invoked, but very rarely or almost never are they described as unalienable rights. Though familiar in one sense, the term “unalienable rights” has the unfamiliarity of a special item only brought out for special occasions.

Recently, a popular talk radio host was discussing the question of rights. The topic had to do with billboards bearing the words: “In the beginning, God created…” Evidently, some atheists and others were objecting to the message, even claiming it needed to be suppressed because it was “hate speech.” The host of the show defended the people who had posted the message, claiming they had a “constitutional right” to post the message. Because he believed he was fighting the good fight, we can appreciate his good intentions. But was he fighting for our rights on the right ground?

No. Not according to the Founders.

If the talk show host had been Thomas Jefferson he would have said they had an unalienable right to post their message. The host’s loose language actually cheapened the truth of this matter and made it seem as though the people behind that billboard were free to speak of God’s creation only by virtue of the fact that the Constitution said they could.

We do not derive our right to freedom of speech from the Constitution. More specifically, it does not “come from” the First Amendment.

To understand this question rightly, we need to remember what the Constitution does. It defines how the federal government is to function—and the very purpose of government, according to the Founders, is to secure our unalienable rights. Consequently, unalienable rights are senior to, on a higher level than, even the Constitution itself. The sequence in logic goes like this:

  1. Unalienable Rights
  2. The Constitution (the Founders’ brilliant design for securing those unalienable rights)

The Constitution is all about defining and dispersing the powers of government. It is fundamentally a design for limiting the government, limiting it precisely in order to secure our unalienable rights from people in government who would try to violate our rights. As Jefferson said, “let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Now look at the First Amendment. Notice how it begins: “Congress shall make no law…abridging the freedom of speech, or of the press…” No right is here granted to the citizen. The First Amendment, carefully written by James Madison, follows the logic of the Constitution as a whole; it restricts what government, in this case Congress, can do.

The Constitution is not the source of our right to freedom of speech because freedom of speech is an unalienable right. What the First Amendment can do is recognize that already existing unalienable right by forbidding the government from abridging it. And that is precisely what it does.

Consequently, according to the Founders, the people who posted the message on the billboards do not have a constitutional right to freedom of speech. They have, and we have, an unalienable right to freedom of speech which is specially protected by a specific constitutional limitation on the power of government.

I hope that remembering this most fundamental fact about the Founding may help you navigate the blizzard of nonsense which will soon sweep across the federal city and the media.  And pray that our new justice is another Clarence Thomas—possessing both the courage to endure an often cruel and unjust confirmation process and the wisdom to grasp the Founders’ intent.

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