A common complaint I hear as a lawyer comes when some court applies the rights protected in the Bill of Rights to someone other than a US citizen. Often, that "someone" is an illegal alien. Conservatives especially seem concerned when this happens. They seem to feel that the protections of individual liberty in the Bill of Rights need the accident of birth in the United States, or, at least, the payment of taxes before the protection is earned. |
This unwillingness to apply the Bill of Rights to every individual on the planet reveals a misconception of the source of the liberties set forth in the first ten amendments to the US Constitution.
Back in the 1780's, when the Constitution was under consideration as a replacement for the earlier Articles of Confederation, two camps developed with regard to the issue of whether a bill of rights was even needed.
The group advocating the adoption of a new constitution was called the Federalists. Those opposed to a new constitution were called the Anti-Federalists. The fall-back position of the Anti-Federalists was that if a new constitution was to be adopted, it must contain a bill of rights. Federalists insisted that the Constitution so obviously created a limited federal government that no bill of rights was necessary. The Anti-Federalists argued that the federal government needed to be chained down with a bill of rights so that it did not encroach on fundamental liberties. The Federalists countered that listing certain rights in a bill of rights was dangerous because the government might argue that a "right" not listed did not exist.
Even though the Anti-Federalists got the Ninth Amendment included in the Bill of Rights ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."), it turned out that both sides were correct in their concern that the government would ever seek to expand its powers to the detriment of the individual.
In the Declaration of Independence, Thomas Jefferson advanced the idea that governments are not the source of fundamental rights. Jefferson, a deist, stated that the source of rights was man's nature--that all men were endowed with these unalienable rights upon creation.
The fundamental idea--that government is not the source of rights--was carried forward by the advocates of the Bill of Rights. The rights listed were essential rights deemed to be possessed by all men simply because they were men. The Anti-Federalists wanted it made clear that government could "make no laws" to abridge these fundamental rights.
The argument was--and is--that these rights exist prior to and independently of government, and outside its permission. Governments may protect these rights, but governments are not the source of these rights. Instead, man's nature as man is the source of these rights. And this logically applies whether the man--or woman--resides in the US, Mexico, Egypt or anywhere else.
Even with the strong language in the Bill of Rights, statists are ever trying to chip away at our liberties. On balance, it seems to me that the Anti-Federalists got it right because without the written protection of the first ten amendments to the Constitution we would be much worse off.
Conservatives shoot themselves in the foot when they try to restrict these fundamental rights to US Citizens. By this argument they buy into the position that government is the source of these protections. The danger in this position is that by giving government the power to hand out these "rights" to such groups as it deems worthy, conservatives are inadvertently endorsing the idea that government is the source of the rights. And what the government "gives," the government can also take away. Once you put your liberties up to a vote or make them dependent on government whim, you are only secure in your liberties so long as you are in the majority of voters or at least in the favor of the government. This is a situation that is philosophically avoided when one agrees that rights are prior to government. But this position, in turn, requires that such rights are prior to government for all individuals, not just citizens or taxpayers of the particular government involved.
October 8, 2009
Copyright © 2009 Donald Ray Burger. All Rights Reserved.
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