Codification
Posted: Sat Sep 09, 2006 11:54 am
I started to write this in another thread and realized it belonged separately. herewith:
Anastrophe wrote in another thread:
The rights that are codified in the Constitution and Bill of Rights
forgive me for quoting myself and responding to myself. but i want to stress my wording above. it's one of the things in popular discourse that drives me batty- people are CONSTANTLY saying "because i have a right guaranteed by the constitution!".
NO!
the constitution does NOT guarantee ANY RIGHTS. none!
the constitution codifies - it acknowledges - the rights we already hold, inherently. i realize the distinction may seem awfully hair-splitting, but it is not. when one suggests that the constitution guarantees their rights, they're effectively suggesting that the government, through this document, is giving us certain rights which we may then enjoy. the fact is, however, that the rights listed are rights we hold regardless of the existence of the constitution. every copy of the constitution could be burned, and every reference to it obliterated in textbooks, and discussion of it could be banned - but it would not take away from us the fact that the rights are ours; they are not 'given' to us by the government or by the document.
furthermore, one does harm to one's greater freedom by the suggestion. that's why, further into the bill of rights and not often considered, is the tenth amendment, an extremely important one in this regard:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
think about what that's saying. it's saying that if a human right is not codified in the consitution it does NOT mean that the right doesn't exist. the constitution does not state that we have a right to breathe. if we suggest that we only have the rights that are listed in the constitution, then we're suggesting the government would have the power to forcibly stop us from breathing. or to require everyone to wear clown shoes. or whatever.
no doubt, having the constitution and bill of rights to point to, to say - 'look, see? the founders felt this was important, you can't take that right away' is a very, VERY good thing. but in writing it down, they were not concommitantly placing limits on what rights we have. they were codifying the most important rights that governments tend to chip away at.
okay, that's my rant on codification versus gaurantees.
Anastrophe wrote in another thread:
The rights that are codified in the Constitution and Bill of Rights
forgive me for quoting myself and responding to myself. but i want to stress my wording above. it's one of the things in popular discourse that drives me batty- people are CONSTANTLY saying "because i have a right guaranteed by the constitution!".
NO!
the constitution does NOT guarantee ANY RIGHTS. none!
the constitution codifies - it acknowledges - the rights we already hold, inherently. i realize the distinction may seem awfully hair-splitting, but it is not. when one suggests that the constitution guarantees their rights, they're effectively suggesting that the government, through this document, is giving us certain rights which we may then enjoy. the fact is, however, that the rights listed are rights we hold regardless of the existence of the constitution. every copy of the constitution could be burned, and every reference to it obliterated in textbooks, and discussion of it could be banned - but it would not take away from us the fact that the rights are ours; they are not 'given' to us by the government or by the document.
furthermore, one does harm to one's greater freedom by the suggestion. that's why, further into the bill of rights and not often considered, is the tenth amendment, an extremely important one in this regard:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
think about what that's saying. it's saying that if a human right is not codified in the consitution it does NOT mean that the right doesn't exist. the constitution does not state that we have a right to breathe. if we suggest that we only have the rights that are listed in the constitution, then we're suggesting the government would have the power to forcibly stop us from breathing. or to require everyone to wear clown shoes. or whatever.
no doubt, having the constitution and bill of rights to point to, to say - 'look, see? the founders felt this was important, you can't take that right away' is a very, VERY good thing. but in writing it down, they were not concommitantly placing limits on what rights we have. they were codifying the most important rights that governments tend to chip away at.
okay, that's my rant on codification versus gaurantees.
