The Paradox Of Rights

Originally Posted At Forbes.com
By Lawrence A. Hunter, Ph.D.
January 15, 2012

Americans have been taught to think of the U.S. Constitution as a rule, actually a set of rules—the fundamental rule-set for organizing and regulating the national government of the United States of America and protecting certain individual rights delineated in the Constitution from undue encroachment by government.  That understanding is upside down and backwards. 

The Constitution is not the rule; it is the exception (set of exceptions) that proves the fundamental, unwritten, general rule, to wit:  “Anything not proscribed is permitted.”  This unwritten rule of natural rights—derived from natural-law theory dating back to Plato, elaborated during the 17th century by John Locke and expounded upon by the Founding Fathers—predates the Constitution, and it is the only legitimate framework in which the Constitution can properly be understood, interpreted and implemented.

The Constitution, then, is like the no parking sign (the exception) that proves the general rule (“park at will”):  “Unlimited parking is permitted unless it is explicitly and specifically restricted.”  The general, unwritten constitutional rule of total freedom follows from the precept that government lacks any legitimate authority to exercise power and limit people’s behavior unless that power first is consensually delegated to the government from the people, the only legitimate earthly repository of authority to restrict their own behavior. 

That is to say, the Constitution does not specify the set of rights to be protected from government incursion and then permit the national government to exercise any power it sees fit as long as it navigates successfully around those rights.  The listing of rights in the Constitution, e.g., the Bill of Rights, is redundant, not defining.  It was inserted after the fact for emphasis and extra protection against over reaching government officials.  It was never intended to delineate an exhaustive list of rights enjoyed by people living in the United States. Indeed, James Madison and Alexander Hamilton both feared and opposed the inclusion of a Bill of Rights in the Constitution.

Hamilton explained why he believed it was both unnecessary and dangerous in Federalist # 84.  He argued it was unnecessary to insert a specific list of rights into the Constitution because the document already presumes every conceivable right is protected unless it is specifically restricted therein by delegation of an enumerated power.  It was widely understood that the general rule—“permitted unless prohibited”—was the foundational principle of the Constitution.  The Founders believed they had “so contrive[d] the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Ambition had been made to counteract ambition, they thought, and thus were the abuses of government to be controlled (Federalist # 51). 

A Bill of Rights was dangerous because of the legal concept Madison and Hamilton called the “negative pregnant.”  In Federalist # 32, Hamilton explained the negative pregnant and demonstrated how it worked within the confines of the Constitution, namely Article I, Section 10, which prohibits the states from laying any imposts or duties on imports or exports without congressional consent:

“The restriction [prohibition] in question amounts to what lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an AFFIRMANCE of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles.”

In other words, by stipulating what states could not tax (the negative), the Framers implicitly affirmed their power (the pregnant) to tax anything else without having to seek congressional authorization to do so.

In Federalist # 84, Hamilton explained the danger of admitting a specific list of rights into a constitution that presumed the people’s right to do anything they desired unless it was prohibited by a specific constitutional exception.  He illustrated this concern with respect to a proposed provision denying Congress the power to regulate the press, which he feared would be twisted by politicians, judges and lawyers to achieve the opposite of what it was intended to achieve:

“...it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”

During the Constitutional Convention, Madison resisted a Bill of Rights because he believed that it would be impossible to avoid an unintended and undesirable negative pregnant unless every conceivable right were enumerated.  When Madison finally came around to supporting a Bill of Rights, he offered the Ninth and Tenth Amendments as bulwarks against the negative pregnant.  These amendments stated explicitly that rights not enumerated in the Constitution were not denied to the people and that powers not enumerated in the Constitution nor prohibited to the states therein were reserved to the states or the people.

The Father of the Constitution did not, unfortunately, foresee that the panoply of structural barriers the Founders had erected against power-grasping officials would prove so ineffective, allowing the national government to be transformed from one of limited, enumerated powers into one of virtually unlimited, implicit, un-enumerated powers.  Instead of ambition successfully checking ambition and instead of the interior structure of the government providing a means of keeping the various branches in their proper place, government officials avoided competition with each other by erecting a cartel of power within the national government. 

Rather than acting so as to restrict each other’s power as the Founders envisioned the Constitution would force them to do, lawmakers, judges, presidents and governors circumvented the Constitution by conspiring to expand each others’ powers and divvy up the growing expanse of power they created out of whole cloth, much as an economic cartel divvies up a market.  Rival branches and levels of government refused to compete with each other for control over a clearly defined, fixed set of powers.  That would have subjected them to fierce competition and forced them into a zero-sum game, which is antithetical to their symbiotic quest for power.  Instead, government officials conspired to expand each others’ powers by engaging in a gigantic exercise of intra- and inter-governmental political back-scratching, which created for themselves a positive-sum game of power creation and power grabbing at the expense of the American people. 

So, while there must of logical necessity exist an expansive and amorphous set of unspecified powers and rights reserved to the states and/or the people, the power cartel has literally drained that set empty.  They can pay lip service to the concept of enumerated powers without being at all constrained by having to take it seriously.

While the Constitution originally was intended to protect liberty by delimiting government, it perversely has become the very means by which government expands its power and limits freedom.  The world has turned upside down.  The snake has eaten its tail; the exceptions (government) to the general rule (freedom) have been so expanded that the exception (government) now swallows the rule (liberty).  Everything is prohibited unless it is permitted.  A long series of successive precedents, each expanding government’s reach incrementally step by step has so altered the meaning of the Constitution that it has become antithetical to the original design.

The snake eating its own tail is the mythical symbol of the Ouroboros, which frequently has been interpreted as the Demiurge (an artisan-like figure responsible for fashioning and maintaining the physical universe) in its corrupted state as it attempts to consume its own creation. The word “demiurge” is an English word from a Latinized form of the Greek δημιουργός, dēmiourgos, literally “public worker.”

There comes a time in the course of legal evolution when the Court must step back and ask what hath it wrought?  It must follow the implications of its train of past decisions to their logically absurd consequences.  It is time the Court eschewed it’s abstruse doctrines and convoluted tests that invariably fail to discover real limits to the federal government’s power.  It is time for the Court to construct a straight-forward reductio ad absurdum proof by logical contradiction to uncover the fallacies and inconsistencies in its past reasoning, which have led to a constitutional contradiction.  It is time the Court finally contemplate whether the accretion of federal authority through its repeated tweaking of ill-conceived precedents has led to an absurd outcome that is contradictory to the fundamental understanding of the federal government as possessing only limited and enumerated powers. 

The Court’s upcoming consideration of the Patient Protection and Affordability Act (ObamaCare) offers it an opportunity to ask if a government capable of implementing ObamaCare is consistent with a government of limited, enumerated powers?  Is a government authorized to ration medical care and force individuals to purchase health insurance against their will consistent with even a minimal notion of privacy, private property and economic freedom? 

To paraphrase Justice Potter Stewart in Jacobellis v. Ohio, the Court doesn’t need to draw precisely the outer bounds of federal power to know that ObamaCare exceeds them.  The Court can know an act of legislative obscenity when it sees one—especially when it’s a lurid display of crude federal power that produces a contradiction at the heart of our political system.  ObamaCare exceeds the bounds of constitutional decency and therefore cannot stand.

For, if self-serving precedent has accreted federal power to such an extent that the principle of limited government survives in name only, which it surely must if ObamaCare is allowed to stand, constitutional jurisprudence will have made a total mockery of the Constitution.  Wherever that line may be, ObamaCare has far exceeded it because to accept otherwise is to accept a profound constitutional contradiction and a paradox of rights that makes a travesty of liberty and limited government.

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