By Othman Mekhloufi | United States
The Constitution does not grant us rights. This is especially true of the words of the Bill of Rights. More importantly, those first ten amendments prohibit the government from infringing upon our natural and inalienable rights.
The Constitution and Natural Rights
The Bill of Rights does not grant us the right to speak or practice religion freely. However, it does prohibit the government from legislating against this liberty. The words of the First Amendment make this quite clear, as they emphasize what Congress cannot do, rather than what people may do. This rule applies to the entirety of the Bill of Rights. Thus, we see the constant repetition of phrases such as Congress shall make no law; shall not be infringed; shall not be violated. Much of the phrasing prohibits government infringement of natural rights.
When a piece of legislation becomes a law, the Supreme Court reviews it and decides whether or not it is constitutional. This process inherently keeps a logical government intact and was originally intended to keep a check and balance on the other two branches. It also prevents legislation which would contradict the Constitution from taking legal effect. However, the only way the Supreme Court can prevent such legislation from remaining in effect is by interpreting the document in an originalist, non-textualist way.
Textualist or Originalist?
The two most common methods to interpret the constitution are textualism and originalism. Originalism is looking at the document literally, in the way that the founders wrote it. Textualism, on the other hand, relates to interpretations that suggest the Constitution is a living and breathing document. A textualist interpretation of the constitution is the type the Supreme Court has held for a significant amount of time until now. With the confirmation of Justice Gorsuch and nomination of Judge Kavanaugh, it may shift to a more originalist bench.
The framers intended for justices to interpret the Constitution in the same way that they did. They did not, hence, design the document for it to evolve, but rather hoped it would stay as is, forever cementing the importance of the Bill of Rights.
The reason an originalist interpretation would protect natural rights comes down to the actual writing of the text and the way that originalism is an interpretive entity. The First Amendment, for example, has no exceptions to an originalist. A textualist bench, on the other hand, may be more willing to compromise those liberties in the name of national security, for instance. But the originalists are unlikely to do such a thing, and will, by definition, strike down legislation that goes against the exact words of the First Amendment.
A Violation of Natural Rights
With a textualist bench, natural rights would essentially be in jeopardy at all times. This is due to the fact that textualists’ personal beliefs often shape their judgments. This is a clear threat to liberty in the United States. We have seen this occur many times in the past as presidents have appointed Justices who have not fully adhered to the Constitution. Take, for example, the many unconstitutional gun control laws that have simply slipped through the Supreme Court.
Roe v. Wade is an exceptionally prominent Supreme Court ruling relating to textualism. The ruling states that access to abortion is a constitutional right, but it is objectively not. The Constitution, in fact, does not mention abortion at all. It does, on the other hand, attempt to safeguard life. Scientifically, a fetus is a living human. So, regardless of one’s stance on whether it should be legal, aborting a fetus is ending a life. It is definitely illegal to commit murder, but not unconstitutional, as the Constitution does not address murder. This then leaves the issue up to Congress, the makers of federal law.
The Constitution may always state the government cannot infringe upon natural rights. But, five justices can always interpret it to their likings and trump your God-given freedom. Clearly, only an originalist bench can guarantee that it will not infringe upon these liberties.
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