What the Constitution is about

A very good post.

Excerpts to give the summary:

The Constitution is a creation of We the People. It is not something that has been imposed on us from a higher authority. We are that higher authority. We are the sovereign. All three branches of government created under the Constitution have only those powers that we have granted to them and no more. ...

A Constitutional question is never, and can never be, about creating rights. I repeat, the Supreme Court does not, cannot, "create" or "extend" rights. The Court is not God, and it does not have the power to bestow rights on anybody.

To the contrary, and, as we first recognized in our Declaration of Independence, everyone on earth already holds every inalienable right that exists....

...The Supreme Court is vested with the authority to decide what power We the People consented to give. The Court decides what the Constitution means, what the law is. This is the concept of judicial review and the legacy of Marbury v. Madison. It is the Court's unique function to determine whether it, or either of the other branches, has been granted the power, by We the People, to act in a particular circumstance.

...It should be obvious that the Constitution, as the source of all governmental power, must necessarily apply to all governmental action. The crime of Bush's enemy combatant detention program is that Bush claimed the power to act outside the Constitution. Such power simply does not exist.

...How did we get so confused? In part, I blame the Bill of Rights. It should never have been adopted. Beware of lists. Lists can provide useful examples to explain an underlying, abstract concept, but all too often the concept gets lost in the debate over which examples to include and which to exclude from the list. The list becomes exhaustive instead of illustrative. This was the danger Hamilton warned us about when he argued that a Bill of Rights was unnecessary and potentially harmful.

...We have failed to heed Hamilton's warning. The idea that because specific protections exist, the government necessarily holds the power to affect the protected rights took hold. That misconception, in turn, led to the idea that if the Constitution doesn't afford specific protections, the government is free to act. Both are baseless, ignorant conclusions stemming from the fundamental misconception that the Constitution exists to protect individual rights. It does not. The Constitution exists to delineate the power of our government to act.

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The proper focus on governmental power is also obscured by the analysis we undertake to determine the scope of that power. Where the government does have the power to act, the scope of that power is limited by balancing the competing interests of individual rights vs. the common good. Our rights are not absolute. They may be infringed, or even denied, when necessary to promote the common good through the legitimate exercise of governmental power. Finding the fulcrum point for that balancing act depends on the nature, scope and relative importance of the individual right being affected and the competing societal interest being furthered by the government's action. In short, you can't determine how far the government can go in its exercise of legitimate power until you determine which individual rights are being impacted and to what degree. It is an exercise in labeling and classification, NOT an exercise in creating or denying rights.

Perhaps the most egregious example is Roe v Wade. Everyone understands that Roe created a right to privacy. That's simply wrong. The right to privacy has always existed. Roe decided the extent to which the government can interfere with that right in the course of exercising its legitimate power to regulate abortion. Whether they called it the right to privacy, or the right to dominion over one's body, or the right to expel tissue from one's uterus, is irrelevant. What was important was whether the individual's interest in not being subject to governmental interference outweighed society's interest in regulating the individual's behavior. But that analysis was lost in the debate over whether to include the "right to privacy" on the magic list. It is discussions of this sort that have shifted the focus from the exercise of power to the protection of rights.

Viewed from a frame focused on the existence of power, the Bill of Rights is more accurately a list of specific limitations on the exercise of governmental power. This is not a distinction without a difference. It is a shift in focus, and the different frames can and have lead to dramatically disparate results.