The Constitution Doesn’t Create Rights

I heard an interesting conversation on a radio show the other day.

The host was talking about NSA spying, and the discussion turned to recent revelations that the agency listened in on phone calls of American “allies” in Europe. The producer chimed in and said he wasn’t sure he had a problem with spying on foreigners.

“Oh, I agree,” the host said. “I don’t care about that. They certainly don’t have the same constitutional rights as Americans.”

I actually see this line of reasoning often. On the surface, it kinda, sorta makes sense. The Constitution certainly doesn’t apply to Spain or Germany. But just under the surface hides an insidious idea that Americans need to root out of their collective psyche – this notion that the Constitution creates rights.

Essentially, that’s what the radio host argues. Implicit in his statement, we find the idea that government creates rights and then benevolently bestows them on those it chooses. If you take the logic to its reasonable conclusion, it follows that without the First Amendment, nobody has the right to speak freely or worship without government interference. And without the Fifth Amendment, nobody has a reasonable expectation of due process. No Second Amendment – no right to keep and bear arms.

Governments don’t create rights.

They don’t give us rights.

Individuals have rights by virtue of their personhood. Whether you view it from a theological or natural law perspective, every individual has the same rights simply because they exist. Rights include the right to life, the right to liberty of conscience, the right to property, the right to defend oneself and the right to associate freely with others.

Governments can either protect or infringe on rights. But regardless of the government structure, the rights always exist. The fact that somebody happens to live in China doesn’t change the fact that they have a natural right to think and speak freely. Those poor souls simply live in a system that denies them that right.

So if it doesn’t give us rights, what does the Bill of Rights actually do?

It sets limits on the power of the federal government.

The Bill of Rights doesn’t create the right to keep and bear arms. It simply prohibits the federal government from doing anything to encroach on the right to keep and bear arms. It doesn’t create free speech. It simply forbids Congress from passing a law that restricts free speech. It doesn’t create a right to privacy, But it does forbid the federal government from searching though your things and seizing items without probable cause and a warrant.

Notice something important here: the provisions of the Bill of Rights don’t apply only to American citizens. The Fourth Amendment doesn’t say “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized – unless they happen to be from someplace else and then the federal government can do whatever it wants.”

If all people possess natural rights, all people should remain free from federal infringement under the Bill of Rights.

We can debate spying in context of international relations and national security. Some will argue spying, even on “allies,” serves an important role in defending the U.S. Although I am dubious of these “ends justify the means” arguments, placing things in an international context complicates matters. But we need to scrub this notion that the Constitution endows Americans with special rights from our discussion.

It does not.

Every human has inalienable rights, whether born within U.S. borders or elsewhere.

Mike Maharrey