I think it’s probably true a lot of folks are relatively unaware that there was a sort of battle over the initial amendments to the United States Constitution.
Most Americans know the first ten amendments as the Bill of Rights.
That said, I believe even those who’re aware of their existence, likely are not in on the fact that the folks proposing them, were at odds with another group who thought they were a bad idea.
On the one hand, were folks who came to the conclusion it was necessary to spell out, certain rights, in order to ensure specific basic freedoms, perceived to have been given by “nature’s God” were not abridged by people claiming to have no understanding of their being an inherent part of the package, as it were.
The ones opposed to such a proposition as the enumeration of those god-given allowances, tended to have at least two problems with that act.
In the first place, they maintained that all men should already be aware they existed. Put simply, they felt amending that precious document by adding explicit references to them, shouldn’t be a necessary thing, because everyone ought to understand they existed. Spelling them out, therefor, was seen as stating the obvious.
Another argument was that it would be assumed by the less scrupulous among us, that they were the only such rights. In other words, instead of assuming certain things to be god-given benefits, because they were not appended to the Constitution, would make it so folks could say essentially, “Well, it’s not in the amendments, so it must not have been sufficiently important to be considered a right.”
Obviously, the disagreement was finally settled such that, here we are, with the Bill of Rights being the first ten amendments of our Constitution.
There’s an interesting fact about those changes. They were intended to make clear the things allowed for as rights therein, were actually more about what individuals—mostly government—could not do, than that for which the people were given authority.
This is why the first argument was so strongly put forth. The assumption was that one of the mandates of the Constitution itself, was that the federal government should already be completely aware it had no authority not expressly given it in that document. As such, stating they could not do something, seemed to be unnecessary.
As I say, those in favor of the addition(s) won the day, as we can see based on how things now stand.
The point though, is that these “negative rights” were what was seen as so significant as to need to be spelled out.
The interesting thing is, the 1st Amendment, starts with a powerful phrase that makes it abundantly clear exactly what a negative right should look like. It says, “Congress shall make no law…” then proceeds to indicate about what Congress will not be allowed to write legislation.
It’s hard to imagine a more overt statement to explain the idea behind a negative right.
The idea here, is that these were, “hands off issues.”
This is why I find it so amazing that government on a national level, spends so very much time talking about how to restrict these things over which they are intentionally informed, they have zero authority by edict.
How many times have you heard of the federal government talking about, for example, banning access to “assault weapons?”
Some years ago, I found a YouTube video that did an excellent job of explaining the basic problem of doing so, called The Truth About Semi-Auto Firearms.
The fact is, I can make no case for the banning of such arms regardless the information given in that video. As I said in another of my blog posts (talking about violence), the problem with weapons is not their form, rather, the concern should always be how they’re used.
The thrust of what I’m saying though, is that this right is a “don’t touch” one, based on the fact that it’s found specifically mentioned in the amendments to the Constitution. That particular one is in the 2nd Amendment to be specific; not the 1st, which I recently heard an uninformed police officer cite, when speaking to a citizen on his right to bear arms.
What I’ve said, is entirely consistent with the text of that amendment. It states simply, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Note the form in this case, instead of saying “Congress shall make no law…” at the outset, it says something even more restrictive at its end. That would be, “…shall not be infringed.” This implies nobody may employ such a restriction.
It’s at this point we begin to ask ourselves about the right of any legislative body in the country, making a law that says something like, “You cannot have magazine that can hold more than ten rounds.”
In this, however, I digress. The thing to recognize here, is that the person to whom the authority has been given to bear arms, is not the one restricted by this piece of text. Rather, individuals who might seek to infringe their right so to do are “targeted.”
This is what’s meant by negative right.
What’s interesting is, but for a few very basic things you’re expected always to be allowed to do or have, there are a scant number that aren’t expressed in terms of negative rights. The three that immediately come to mind are, life, liberty, and the pursuit of happiness.
It’s my contention, this was done on purpose.
It’s generally assumed that government cannot grant you rights, but that you must exercise them yourself. This is why so many have made so much of phrases like, “promote the general welfare.” What am I saying? That you would be hard pressed to find such language in the works of the Founders, and where they occur, the intention was not to discuss a right.
So negative rights speak about things you possess, but more importantly, they’re things others cannot take away. This is the intent of that form.
Thanks for reading, and may your time be good.