Nearly all of us, at one time or another, refer to our “constitutional right to free speech.” But while this common phrase may seem harmless, it points to a larger misunderstanding of where our rights come from -- a misunderstanding that undermines many of our most fundamental policy debates.
The fact is, the U.S. Constitution protects our God-given rights from government. The government does not (as the phrase above implies) grant those rights to us as citizens. This is perhaps the most widely misunderstood aspect of our system of government.
The idea that the power of government is derived from the consent of the governed was first articulated by John Locke in his 1690 Second Treatise of Government, when he wrote, “Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another, without his own consent.”
Locke’s words are the underlying basis of the First Amendment in the Bill of Rights, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Many people refer to this Amendment, and their right to free speech, as though it is the First Amendment that grants them the right to say what they like. That is looking at it the wrong way.
Were the Constitution the granter of the right to free speech, religion, assembly and so forth, the first Amendment would not start out, “Congress shall make no law.” That part of the sentence clearly states that the government has no rightful authority over those things and is blocked from infringing upon them. This is the concept of negative rights.
A negative right is one that cannot be infringed upon by outside forces. Government is not granting you the right to free speech. That right already exists. Government is expressly forbidden from attempting to infringe on it.
The Declaration of Independence asserts that all men are endowed by their Creator with certain unalienable rights. In other words, our rights to Life, Liberty, and the Pursuit of Happiness are God given, not government given.
But if you believe that we are granted our fundamental rights by the government, then you are more likely to seek additional favors from the government. If the government is the grantor of all good things, what is to stop someone from thinking up more good things that could and should be granted by our elected leaders?
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