The U.S. Government Cannot Grant Rights

This is something I posted to a discussion on a mailing list, slightly edited to correct typos:

Date: 22 Sep 1999 21:43:41 -0000
From: Eric Smith <>
Subject: Re: "weird-ass laws"

Jacob wrote:

my objection was that you see it as the gov's right to "make things legal" instead of the other way around.

You've got that correct. The government does not have the authority to "make things legal". Nor do they have the authority to "grant rights", or, for that matter, privileges. Rights are inherently posessed by the citizenry, and the government has been granted by the Constitution certain limited powers to restrict some of those rights.

People forget that the Constitution was written NOT to give rights to the people, but rather to grant limited powers to the government.

This is, in fact, why the Bill of Rights was controversial. Few people opposed the actual ideals of Freedom of Speech, Freedom of Religion, etc. But what they feared, and why they opposed the Bill of Rights, was that people would forget that the Constitution grants limited powers to government, and instead begin to believe that the Constitution grants limited rights to the people. They were right; that's exactly what happened. Even my high-school instructors and textbooks had this wrong.

Jacob wrote:

I prefer less writing on the books, that's my point. Details should be parsed out by a jury individually for an offender of the basic violation.

Unfortunately that's inconsistent with the whole concept of "Rule of Law". Without well-defined laws, there are two major problems:

  1. It's not possible for a citizen to determine with reasonable certainty whether a potential course of action is unlawful, and
  2. There would be no effective restraint on government; they'd be able to pressure juries into interpreting laws as broadly or narrowly as they want.

With well-defined laws, it is somewhat harder for the goverment to abuse the laws.

Note that I'm referring to the Jury's ability to determine whether a defendent has violated the law. This is independent of "Jury Nullification", in which the Jury may decide that the law itself is unjust, and refuse to convict on that basis. Jury Nullification is the last legal check on the system, and many judges and prosecutors try very hard to prevent jurors from knowing that they have that option, even though it has been well-established for hundreds of years. U.S. Supreme Court Chief Justice John Jay, in Georgia v. Brailsford, 1794, wrote: "The jury has the right to judge both the law as well as the fact in controversy". See for more information.


Back to Eric's home page

Last updated September 22, 1999

Copyright 1999 Eric Smith.

Valid HTML 3.2! check now