It's the law

One can argue that the Constitution of the US, although much loved, is defective and a poor model for other constitutions. Not because the freedoms it protects should not be protected, although at least one should not in my view, but because it does not properly state the rights it endows.

This is because, of course, its framers did not believe that rights are something a society as a body endows on its members, although they are, but believed instead that they pre-exist as inalienable rights endowed by God. The mechanism of endowment is unclear, because suggesting that rights are bestowed by a supreme being is merely a grandiose way of saying that there are rights that one should have in a free society.

Were one to write an ideal constitution, I think one would list the rights that the society agrees that its members have and the powers it agrees to allow its government on constituting the state. It might or might not explain the reasons it believes those rights should be endowed -- and in a religiously minded state, that could well include that God bestows them on humans as natural rights and no state, however formed, has the right to abridge or alter them. (Without God, I believe that the concept of "natural rights" is very difficult to define or delimit. One can explain why we should consider that we have rights in various ways -- perhaps by a Rawlsian analysis of what is just -- but it is not by any means simple, as you would find if you set out to do it. Most who try descend rapidly into handwaving, and write elaborate versions of "we just do".)

Alberto Gonzales made a quite shocking statement during questioning in Congress, suggesting that the Constitution did not actually grant the right of habeas corpus, but only guaranteed not to take it away. This is quite alarming, because a government that pursued this line of thought could argue that its citizens do not have any rights at all if it decrees it. (The article I link is a bit alarmist and the argument is not entirely sound and the comparison with communist constitutions is interesting.) Obviously, Gonzales was right, and he, perhaps inadvertently pointed to the mistake the framers made:

the Constitution doesn't say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas."

Whereas it could not grant rights that it believed were inalienable, it could have assured them. You could argue that suggesting that one might not pass laws to abridge them or suspend them is the same thing but Gonzales is pointing to a key understanding of the US constitutional settlement, which is in essence correct. The state is in no position to assure basic rights because it does not grant them. The state works for the people after all. It has no constitutional basis to grant you anything. (You might suppose that the state could invent new rights to endow you with, but you would have to ask what right it has in turn to do so. After all, you are the state in this model. You can grant yourself any right you like. It is up to the state, as a representative of society, to decide whether to recognise it.) But this is the thing. Gonzales is smarter than he's credited, and righter too. Because he is saying exactly that there is no mechanism in the Constitution to endow rights on citizens, only to recognise those that exist by the will of the people.

This discussion is lost on those in the UK who want the government to assure a set of rights in a charter (or the opposite). They do not seem to grasp that if the government is conceived as simply a servant of the people, it is in no position to grant or deny rights, only to recognise that we grant them or deny them to each other. Governments in the US model do not stand above the people. However, in the UK there is a feeling that the government does stand above or at least apart from the people. This is an outcome partly of its birth in being the consultative body of a sovereign and partly of the UK's simply not being constituted for its people. The state in the UK is more often an encumbrance on the people than their servant.

European governments actually recognise a far broader set of rights than the US Constitution, as set out in the ECHR. But this is a contract between governments, not between people.

My view on this is that were the ECHR reframed as the minimum standards that any society should accept -- in other words, that these are the rights that a society should endow on itself and that a government in that place should recognise and protect -- it is far superior to the American Constitution. It has two distinct advantages, in any case (quite apart from not recognising a right to carry guns): first, that it applies to "everyone" with no distinction between citizens and aliens -- so that in fact Europe recognises that the rights it wishes protected are fundamental in a way the US simply does not -- and second, a government that wishes to deny you a right must explicitly deny it. It cannot quibble over its existence.

posted by Dr Zen @ 3:46 pm