The Ninth Circuit ruled against President Trump’s clear authority to exercise executive power legally delegated by Congress in a law that Trump rightly said is so clear that “even a bad high school student” could understand it.
In a 29-page opinion, the three judge panel held in a 3–0 vote that politics and judicial activism override the rule of law. Yet liberals everywhere are celebrating this decision as a win for “constitutional rights.”
What rights do they think they’re talking about exactly?
One of the most common misconceptions about the U.S. Constitution is that it grants rights to individuals. This myth is perpetuated by those who fail to understand the Constitution in context, and by activist judges who proceed from the premise that if the government (through the Constitution) grants rights, then the government can likewise take them away. This is precisely what the Bill of Rights expressly forbids.
There is a difference between rights and privileges. Rights, as the Founders recognized in the Declaration of Independence, are those “unalienable” aspects of our humanity that set people apart from all other beings. These are rights that cannot be sold, bought, abridged, or otherwise infringed at the government’s whim — including life and liberty. The Declaration specifically acknowledges that rights are endowed by our Creator, not our government. The Founders who wrote this Declaration (all of whom were lawyers) went on to say that the only proper role of civil government is to preserve and protect these unalienable rights, and the American experiment was born to implement a system that was best designed with this novel and truthful recognition of rights preexisting government.
Privileges, on the other hand, are a special kind of advantage, entitlement, or protection, typically granted to an individual person or group of people. Privileges are the advantages given to citizens by their government. In the context of the Constitution, “We the people of the United States” is the group that is granted privileges by our government. They should operate consistent with the constitutional rationale to “form a more perfect union” and “provide for the common defense,” among other valid purposes listed in the preamble. However, these privileges may change. Unlike unalienable rights, privileges may be given or taken away by the government in accordance with the rule of law established and in accordance with its sole responsibility — preserving and protecting our unalienable rights.
This becomes an extremely important distinction, because if we frame our rights as “constitutional,” or essentially misunderstand our rights to be mere privileges, our rights cease to be unalienable rights at all, because we allow the government to act as if our rights were only privileges that can be revoked or abridged at whim.
Unalienable rights are endowed by our Creator upon every human by virtue of being human, and privileges are given by our American government to a specific group of people — Americans.
Unalienable rights are endowed by our Creator upon every human by virtue of being human, and privileges are given by our American government to a specific group of people — Americans. The U.S. Constitution is only five pages. It’s not complicated. That’s because it doesn’t grant rights to the American people, it grants specific, limited powers to the federal government to operate in accordance with the Declaration’s mandate: preserving and protecting the rights we the people already possess.
For example, Article 1, Section 8 of the U.S. Constitution grants Congress the power to legislate in very specific, limited subject matters. Article II grants specific, limited powers to the federal executive branch, and Article III grants specific, limited powers to the federal judiciary.
The Bill of Rights (I prefer to call it the Bill of Protections) enumerates — but importantly does not grant — specific rights that civil governments most often infringe and abridge, and acts as a redundancy safeguard. Just in case Congress isn’t clear on its limited powers listed, the Founders told Congress specifically what it cannot do.
Today, the Bill of Rights is the pretext for most misunderstanding of unalienable rights. You and I don’t have a “First Amendment right to free speech.” You and I have a preexisting, unalienable right to free speech that the First Amendment preserves and protects in the context of American government. The Bill of Rights states that Congress shall make no law abridging the freedom of speech, not that the government grants the people the privilege of freedom of speech with the implication that the government can take away or narrow that privilege however it sees fit. This is the unique beauty of our Constitution, built upon our Declaration.
That our rights cannot be defined as government-given was exactly the concern Alexander Hamilton expressed in Federalist No. 84, arguing that bills of rights would be an unnecessary redundancy and actually dangerous because “they would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
He went on to argue:
Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but 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. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. [Emphasis added]
Hamilton rightly recognized that
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. . . . Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights. [Federalist No. 84]
The U.S. Constitution precisely recognizes that the people give up no preexisting, unalienable rights to government but rather under our consent give some limited powers to government to operate. Ultimately, Hamilton’s concern was overridden by James Madison’s argument that a bill of rights should be added as a safety measure to protect those specifically enumerated rights that are most often abridged by government. But a bill of rights doesn’t change the status of our rights as unalienable.
From a 2017 constitutional vantage point, it is probably a good thing that we have the Bill of Rights, so that we have a textual premise to argue against abridgment of certain rights; however, Hamilton’s reasoning and especially his fear that a future government would warp rights into privileges is certainly being realized today. We have seen our rights obfuscated and so painfully narrowed by activist courts.
We need to dispel the constitutional myth. We the people do not have “constitutional rights.” We have unalienable rights. The latter are far, far superior. If we had only privileges, then the government could act on whim and grant or restrict our privileges.
Understanding this very basic distinction reveals the central problem with the Ninth Circuit’s decision. The court framed its opinion conflating rights versus privileges, and applied a completely inverse understanding of this critical difference. The Ninth Circuit wrongly believes that it is a “constitutional right” (a completely fictional statement) for anyone wishing to enter the United States to have the privilege of doing so, rather than properly recognizing that only American citizens and those within our jurisdiction are entitled to American government’s privileges because our government acts to secure our rights.
It is the duty of a civil government to preserve and protect the unalienable rights of its citizens, and it is within the scope of Article 1, Section 8 for Congress to legislate the criteria for non-citizens to enter the U.S. or to become a citizen (thereby receiving the privileges of being an American).
Why is this so difficult for the Ninth Circuit to understand? It is really that simple. The problem with this constitutional crisis is that we the people fail to understand where our rights come from and that the source is not the government. The government should be protecting our rights, including our rights to life, liberty, general welfare, common defense, and security.
When we say that something is or is not “constitutional,” we should be precise. Our chief executive — our president — may act according to the specific grant of limited powers, and we the people must retain the distinction of rights versus privileges and not allow any political, activist court to undermine the U.S. Constitution by claiming a myth of being the grantor of our rights or acting as the Ninth Circuit did, abridging our rights by failing to recognize the government’s chief obligation to protect its own citizens.