A Crucial Constitutional Fact
Tibor R. Machan
In my efforts to defend the free society and its basic principles, the idea of natural individual human rights, I run across the objection–advance by both conservatives and “liberals”–that once a constitution has been accepted, it overrides those principles. Putting it differently, while perhaps human beings do have the basic rights to life, liberty, property and so forth in, as it is called, the state of nature–that is, prior to the formation of a community with a legal foundation–once that state is given up and a community is formed, they no longer have those basic rights. Instead, they have delegated to government or the legal system the authority to limit the previous freedoms they enjoyed. So instead of the constitution limiting the legal authorities or government, it supposedly limits the rights and liberties of the citizenry.
There is some plausibility in this since in the case of contracts when people enter into them they often bind themselves to obligations and responsibilities they didn’t previously have–e.g., when they marry or lease an apartment. So perhaps the constitution is that kind of a document, through which people commit themselves to abide by rules, even serve rulers, they would be free to ignore prior to entering civil society. This certainly is one rationale being advanced in opposition to libertarians who hold that what the constitution achieves, if properly conceived and instituted, is to establish the protection and elaboration of the rights of the citizenry, something they arguably lacked outside civil society.
Yet even in the admittedly murky case of the U. S. Constitution and the founding of the republic, there is evidence any lay person, let alone legal expert, can detect pointing to the libertarian interpretation that a proper constitution does not give away but attempts to secure individual rights. First of all the Declaration of Independence makes it clear what the American founders set out to do with their efforts to institute a government via the U. S. Constitution. The precise road to the establishment of free government may well be complicated but once one realizes that at heart government is supposed to be institute so as to secure the rights laid out in the body of the Declaration, there is little reasonable doubt that the ensuring setting up of a constitutional government wasn’t meat to abolish individual rights, quite the contrary. Government was meant to give security to those rights in light of the plain fact that without a legal system and its competent administration the rights individual have would be at the mercy of anyone bent upon violating them. Yes, people do have those rights in the state of nature or prior to entering civil society but their security would be dependent entirely on how well individuals are able to defend themselves, without the benefit of a specialized body of men and women who could be counted upon to provide the expertise needed to make those right as secure as humanly possible.
If one then looks at the U. S. Constitution itself, there are other clues to reading it along libertarian lines. The Bill of Rights not only mentions several of the rights that are to be safeguarded by the legal system but makes explicit reference to non-enumerated rights, ones the citizenry retains even if they are not mentioned in the document. This, it would appear, makes it clear, unambiguous, that leaving the state of nature does not imply at all giving up the basic, natural, individual human rights all human beings have.
The point of joining civil society as far as the American system is concerned isn’t, then, to give up but to secure the basic and all the derivative rights human beings have. Those who argue otherwise aren’t on solid grounds. That much is pretty clear, so they must reinterpret the American founding to shore up their case for American statism. Yet some of the most influential legal scholars advance this untenable position–namely that the law in the American tradition aims to limit the liberty and rights of the citizenry–and numerous prominent law schools teach it as well.
Let me make a final point about rights. Much communitarian thinking from both Left and Rights laments that Americans are too fond of rights but not of responsibilities or obligations. Yet if one realizes that having rights also implies having obligations, this lament is quite misguided. Everyone has the legal obligation or responsibility to respect the rights to everyone else. And that is just as it should be, with other obligations and responsibilities left to be worked out in the private sector, mainly via morality and contract law.