But perhaps the most significant challenge to a republican form of government is the liberal state that emphasizes rights as its critical feature. Rights tend to be inviolable; moreover, a privilege vouchsafed over several months morphs easily into a right.Rent control in New York City, for example, proffered as a temporary measure to assist G.I.’s returning from World War II, was transmogrified into a right that doesn’t make economic sense and certainly has little application to the city 60 years after its introduction.
The liberal state is fond of finding and then defending rights the founders could not possibly have imagined. Reproductive rights, the right to healthcare, the right to marry a member of the same sex are clearly contemporary rights that come to mind.
The problem with newly created rights is that they take on a status like those in the Bill of Rights; they must be defended and applied as if the First Amendment. And there isn’t any end to their invention and metamorphosis from idea to privilege to right.
Rights are also universal; they apply to those who pay taxes and those who don’t; they apply to new immigrants and the old; they may even be applied to those who arrive on our shores illegally. Hence rights can fundamentally alter the character of a nation, even as we take pride in many rights (individual rights, property rights) as being essential for the continued qualities in our nation.
Republicanism is summarized in three words, “we the people.” Our Constitution does not refer to “we the states” or to “a polity.” The government presumably serves the will of the people and acts on the consent of the governed. Therefore, rights must be seen against a backdrop of consent. If the people are willing to abjure some rights in order to enhance security, that is their privilege.
Liberalism has so encroached on the essence of the republic that the courts have arrogated to themselves the right to make laws the Constitution earmarked for Congress. And this has occurred without much of an outcry from the public.