Finding a Right in the Constitution

You’re likely aware that a number of state laws and constitutional amendments limiting the right so LGBT people to marry, have recently been found to be unconstitutional. The anti-equality pundits then issue their (now pretty standard) press releases denouncing the ruling, and explaining how the judge “found” a non-existent “right to gay marriage” in the U.S. Constitution. Today, on NRP’s Fresh Air program, host Terry Gross  kept referring the Supreme Court “finding a right” to marriage in the Constitution. I’m here to theorize that one does NOT go to the Constitution to find a right.

This is a topic I’ve had on my mind for some time, and today’s interview with Adam Liptak by Terry Gross (who I am starting to like less and less for many reasons) finally pushed me to write this short piece. Gross was asking about whether the Supreme Court would take up the gay marriage issue next year, and kept wondering if they would “find a right to gay marriage in the Constitution.” Let me put in the standard disclaimer…I’m not a lawyer; I’m not a Judge; I’m not a Constitutional Scholar; I didn’t even stay at a Holiday Inn last night; but I did take Junior High Civics.

The very wise founders of our nation (who likely had no clue what a mess we’d wind up making of things…likely that whole “give me liberty or give me death” thing might have been toned down a lot), never intended for us to have to go to the Constitution to “find” rights. They believed in inalienable rights. What does that phrase mean? Well  a legal dictionary explains is this way: “that which is inalienable cannot be bought, sold, or transferred from one person to another. The personal rights to life and liberty guaranteed by the Constitution of the United States are inalienable. Similarly, various types of property are inalienable, such as rivers, streams, and highways.” That phrase is not in the Constitution, but we know it informed their thinking, as Jefferson had used it in one of the best know paragraphs of the Declaration of Independence. This is where he spoke about “certain inalienable rights,” and went to use the phrase, “that among these…” The he just lists a few as examples.

Why did Jefferson list only a few? Are we to surmise that “life, liberty, and the pursuit of happiness” are the only rights we have? (Just those three, if honored, would carry us a long way.) Of course not. Jefferson said as much when he used the phrase, “that among these are…” Again, he was providing examples. The thinkers of that day believed man had, within reason and civility, nearly unlimited individual rights.

The arguments of the day were not about what rights men had, but which ones could be reasonably limited in some by a government, how best to accomplish that. Our founders had no concept of going to the Constitution to “find” rights. They knew they could never exhaustively list them all, as they envisioned them. We see this in the language of the first ten amendments, The Bill of Rights. The Bill of Rights (for good or bad) doesn’t grant a person a right to keep and bear arms. It says, “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.” If the founders had intended to place that right in the Constitution, they could have easily said, “People have the right to keep and bear arms.” What they said was, the right shall not be infringed. See, they assumed it was already there.

Let’s play this game with the all important First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Again, the founders never said, “People have a right to free speech, to a free press, a right peaceably assemble.” They assumed those rights exist as part of the collection of unnamed inalienable rights. What they spoke about was the ability (or lack thereof) for the government to interfere in those rights.

A true Constitutional test looks like this:

1. Is the right prohibited in the Constitution? If yes-Stop, if no, see 2 below.
2. Does the right in question involve a power granted to the government? If no-stop, if yes, see 3 below.
3. Does the government have an interest in interfering with or regulating that right? If n0-stop, if yes, take the appropriate action.

The Constitution has the following purposes:

1. To establish and define a form of government;
2. To prescribe the powers and interests of government;
3. To proscribe certain powers of government.

It was never meant to be a listing of rights. We don’t go there to look for rights. We assume, absent the government having first the power, and second the legitimate interest to regulate or curtail a right, that any right exists, and that would include the right of gay people to get married.

This not hard stuff, and why the Supreme Court so often makes it look so hard is beyond me…unless of course, you have a personal agenda to impose on everyone else (I’m looking at you Catholic members of the Court).