Bill has advanced degrees in education and political science. He has been a political science teacher for over 27 years.
Do our rights come from the Constitution? The Constitution with its Bill of Rights mentions many freedoms, like the First Amendment freedoms (religion, speech, press, assembly, and petition) as well as other freedoms that are stated in the form of protections (like no cruel and unusual punishment). But it’s one thing to say that the Constitution mentions our rights; it’s another to say that the Constitution is the source of those rights. So, do we get our rights from the Constitution?
The short answer is “yes” and “no.” Some of our rights come from the Constitution while others do not. This essay is devoted to helping you to better make the distinction between the two.
Human Rights Granted by the Constitution
What rights are given to us by the Constitution? It's those rights that define our relationship to the government. Rights such as the right to petition the government, no double jeopardy, and warrants being issued on the basis of “probable cause” come from the Constitution and define how we are related to the government. These rights are a means to an end, that end being greater protection from arbitrary governmental power and fairer treatment to all citizens under our government.
The Right to Vote
An example of this first type of right is the right to vote. The right to vote would be a "civil" right in that it has to do with our relationship to our government and depends upon the form of government that we have. While we possess a "right to vote" in many western nations, we don't normally think that we have the right to vote for every government office. In fact, even in the United States, we don't get to vote for most government positions. There are several countries where citizens have no right to vote.
The emphasis on the right to vote tends to be this: If voting is the means by which an official comes to his office, then every citizen should have a right to participate in that vote, and there should be no discrimination of that right.
Human Rights Not Granted by the Constitution
That brings me to the second type of right. Some rights do not emanate from the Constitution. Such rights are outside the orbit of the Constitution and are sometimes referred to as natural rights.
The Constitution does not say that you have a right to practice your religion, speak publicly, own a firearm, or write and publish a book. What it does say is that Congress cannot prohibit or abridge those freedoms. Now, in order for the Constitution to place a prohibition on Congress, we can assume that you are in possession of those rights that Congress cannot obstruct.
Historically, our founders have said that such rights have the the characteristic of being “unalienable” which means that these rights cannot be taken from the citizen. If they came from the Constitution or from government, they could not be “unalienable.”
But, what is the source of these “unalienable rights”? In the Declaration of Independence, Thomas Jefferson said that these unalienable rights are “endowed by their Creator.” So these rights do come from authority, but not human authority. They are the bestowments of Divine authority. The role that the government plays with regard to these rights is to “secure” them.
Separation of the Church and State
This is one reason why the ACLU’s interpretation of the separation of church and state is a perversion of American ideals. Neither the government nor the people in their collective capacity are the source of our most basic rights. Rather, such rights are the deliverances of our Creator. Consider these quotes that reflect this basic understanding of the source of our rights:
- "The rights of the colonists as Christians . . . may be best understood by reading and carefully studying the institution of the great Law Giver and Head of the Christian Church, which are to be found clearly written and promulgated in the New Testament." —Samuel Adams
- "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a Gift of God"? —Thomas Jefferson
Read More From Soapboxie
- "Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God." —Benjamin Franklin
- "Our government rests upon religion. It is from that source that we derive our reverence for truth and justice, for equality and liberty, and for the rights of mankind. Unless the people believe in these principles they cannot believe in our government." —Alexander Hamilton
- "Natural liberty is a gift of the beneficent Creator, to the whole human race; and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of injustice." —Calvin Coolidge
- "The rights of man come not from the generosity of the state, but from the hand of God." —John F. Kennedy
- "History comes and goes, but principles endure and ensure future generations to defend liberty—not a gift of government, but a blessing from our Creator." —Ronald Reagan
From these quotes, we can make the reasonable inference that our Constitution is predicated upon a belief in God. As the liberal justice William O. Douglas once remarked, "We are a religious people whose institutions presuppose a Supreme Being" (Zorach v. Clauson ). In his dissent in McGowan v. Maryland (1961) Douglas highlighted the transcendent nature of some of our rights by saying that
"The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the state is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect."
Atheistic views like those advanced by the ACLU undermine this first principle and would have our freedoms predicated upon the benevolence of the government.
How Do We Know Where These Rights Come From?
Scholars past and present have looked to three main sources of our inalienable rights:
- They come from God
- They come from nature
- They come from human authority (like the legislature)
Let's take the last one: Could rights come from human authority? After all, we could make up anything and say we have a right to it, correct? The problem is that such contrivances can be as equally revoked as they were created. The inescapable problem is that they are arbitrary, and America’s founders recognized that problem. So, rights must have some authoritative agent as their source.
How about "natural rights? The problem here is that "nature" has no mind to grant rights and it is not a source of authority that people would yield submission. We violate nature all the time in many respects. Besides, where in nature would you look for such rights? In the animal kingdom? Does the lion observe the rights of the antelope? Does the polar bear suppress his natural tendency to stalk his prey in respect of its rights? America's founders knew that nature was an insufficient ground for our rights. After all, Jefferson and Company did not just ground our inalienable rights in "nature," but in "nature and nature's God."
So, grounding rights in nature cannot protect your most cherished liberties. The protection of these liberties must be authoritative and absolute. Here we are talking about “rights as laws,” as mandates, as requirements, not like the “law of gravity” which is more of a description of nature than it is a rule of nature.
Perhaps you might say, "OK, but even if we can't sufficiently ground our rights in nature, it's rational to think that we have them and that we can rationally affirm that such rights are necessary." Here the idea is that we have such rights because we can rationally conceive of their necessity . But that only addresses how we came to know that we have rights; it doesn't address their origin or my claim to possess them. Mental fictions, no matter how useful or rational, are still fictions. And let's not forget our history here: "nature" got dragged into this discussion because men wanted to find another source other than God as an authority to justify their actions. But that project has been a failure. To abandon God is to abandon justice, liberty, and the security of inalienable rights.
If we insist on saying, “No, there are some rights that can’t be taken,” then they can’t have as their origin our collective will as if they emerged out of a social contract, or in nature or in out rational contrivances.
In short, our most cherished liberties—including the freedom to write and publish this article—are recognized by the Constitution, but they are not the product of it. Such freedoms are the deliverances of our Creator. They come from God.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2010 William R Bowen Jr