While reading through the various NRO blogs [note to NRO, overkill, people, overkill!] I came across a curious turn of phrase that I have seen in a number of other conservative writings. That notion is that it is “invention” if a court discerns a right that is not enumerated in the United States Constitution. That is so wrong that my mind is boggling as you read this. A boggling tsunami, if you will.
The Bill of Rights very clearly states that a variety of rights exist that are not described in the Constitution. That would be the oft ignored yet still in effect Article Nine:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The problem with the courts, IMHO, is that they limit our rights far too often, not that they discover new ones. The social conservatives moan about the right to privacy, a derived right not an enumerated one. Well, think about it in any other context but abortion. Do you really think that the government ought to be able to obtain Rush Limbaugh’s medical records? Or that the government should have the ability to limit what you and your wife do in your own bedroom? Give it a little more thought, folks, before you start opining.
The problem with our constitution, with our country, is that it is predicated on a set of assumptions that should, but no longer apply. Our founders thought that the federal system would be limited, to allow the states to work together and benefit from a union. They never imagined that the issue of sodomy would ever come before a Federal court, nor the ability of a twelve year old to receive an abortion. I can guess that they would have seen both as wrong, but since they didn’t anticipate these issues, we are working within the Constitution that they left us.
They left us the document that they did to correct the major problems with national government of their time. Anything not explicit in the original Constitution or the Bill of Rights, I feel safe in saying, they took for granted.
So should we. I often joke that Americans are different than Europeans. Here, anything that is not specifically forbidden is allowed. There, anything not specifically allowed is forbidden. The social right and the social left find that point of view hard to swallow. The social right thinks that government should prevent us from being bad. The social left thinks that the government should make us be good. Neither perspective is part of the Constitution, and should never be.
We’re far too free for both the social right and the social left. Let’s stay that way. Let’s have our courts continue to discern new freedoms and forbid further restrictions. That’s the American way.
