What is a right, and where does it come from? A right is a power or privilege that is recognized by tradition or law. Natural or human rights are inherent to human nature; they are not given by government, but neither does government always protect them. Legal rights are those recognized by government, but they can often be taken away as easily as they are given. Throughout U.S. history, many Americans have sought to protect natural rights with law. Indeed, rights form the core of the American experience. As noted by the Commission on the Bicentennial of the United States Constitution: “America has always been about rights. . . . While many nations are based on a shared language or ethnic heritage, Americans have made rights the foundation of their national identity.”
In 1776, Americans proclaimed their focus on rights in the Declaration of Independence. It stated that all people were created “with certain unalienable rights” and that the very purpose of government was “to secure these rights.” Great Britain's refusal to grant American colonists the same rights as other English subjects sparked the Revolutionary War. Such rights were protected by the Magna Carta in 1215 and the English Bill of Rights in 1689. But some American colonies offered greater protection of rights than in England to attract new settlers. When the colonies later separated from Great Britain, they adopted new state constitutions--often containing separate bills of rights.
In 1787, the framers of the U. S. Constitution did protect certain rights within the body of that document. Among these were the writ of habeas corpus, which requires the government to show cause why it is holding a prisoner; the right to trial by jury in criminal cases; and the prohibition of religious tests for public office. However, a motion to add an additional bill of rights, brought up late in the convention, was defeated.
This omission became the chief obstacle to the Constitution's ratification by the states. To address that concern, the first Congress under the Constitution proposed twelve amendments on September 25, 1789. Ten of those were ratified by the states on December 15, 1791, and became known as the Bill of Rights. The First through Eighth Amendments protect the rights of individuals, from freedom of religion to prohibition of cruel and unusual punishment. The Ninth Amendment secures rights not specifically listed in the Bill of Rights, and the Tenth Amendment reserves to the states all rights not delegated to the United States.
The American system is one of majority rule with minority rights: everyday laws pass with a simple majority vote, but certain fundamental rights protected by the Bill of Rights are not subject to the wishes of the majority. In such a system, an independent judiciary, not subject to the political pressures of elections, is especially important. The U.S. Constitution creates a judicial branch that serves for life, and its job is to protect the rights of the minority. Thomas Jefferson believed that independent judges were the key to making a bill of rights more than a mere “parchment barrier” to the will of the majority. When protected by an independent judiciary, constitutional rights offered a safe haven from the shifting tides of political opinion.
The Constitution and the Bill of Rights only limit the actions of the government, not private parties. Therefore, freedom of speech does not apply to the private workplace, and the Second Amendment does not guarantee the right to carry a gun in the office. Private employers can require drug testing, even when the federal government cannot.
In addition, the Bill of Rights at first only applied to the federal government, not the states. The first words of the Bill of Rights say that “Congress shall make no law” restricting certain rights. However, the Fourteenth Amendment, which was ratified in 1868, did specifically limit the actions of the states. Over time, the Supreme Court eventually held that almost all the protections of the Bill of Rights applied to the states as well through the Fourteenth Amendment.
All of the rights in the Bill of Rights are designed as limits on government. They say what government cannot do, not what it must do. Such limits are known as negative rights, versus the positive rights of requiring government to provide jobs and healthcare. For instance, the First Amendment forbids the government to ban freedom of speech in the public square. It does not say the government has to buy everyone a microphone so they can be heard. Similarly, the Bill of Rights protects freedom of petition so that citizens can lobby their legislatures for better schools, but it does not guarantee the right to public education. But in other countries, and in the United Nations, there are legal mandates for jobs, education, and healthcare. Nonetheless, these mandates are often difficult to enforce.
Rights content written by Linda R. Monk, Constitutional scholar
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