Remedial Constitutional education for Markos Moulitsas

As many of you still shun Twitter, I must share with you the wit and insight of nutroots commissar Markos “Kos” Moultisas on Rick Santorum’s Super Tuesday speech:

Following widespread mockery from the right, Kos did what he always does… dig himself a deeper hole:

Apparently, Kos was never taught that the Founders of our nation believed in natural rights, although this is obvious from the opening of the Declaration of Independence:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

(Emphases added for easier nutroots comprehension.) Of course, the Declaration is not the Constitution, even though many of the same people were involved in both projects. However, as Kos cites the Preamble to the Constitution, it is worth noting as the Supreme Court has, that “[a]lthough that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments.” That “We the People” formed a government simply does not mean the people or the government are necessarily the source of rights mentioned in the Constitution.

Kos obviously is unaware of the debate over whether the Constitution should be amended to include what is now known as the Bill of Rights, let alone the role of natural rights in that debate:

The Federalists contended that a Bill of Rights was unnecessary because in their view the federal government possessed only limited powers that were expressly delegated to it by the Constitution. They believed that all powers not constitutionally delegated to the federal government were inherently reserved to the people and the states. Nowhere in the Constitution, the Federalists pointed out, is the federal government given the power to trample on individual liberties. The Federalists feared that if the Constitution were to include a Bill of Rights that protected certain liberties from government encroachment, an inference would be drawn that the federal government could exercise an implied power to regulate such liberties.

Alexander Hamilton, one of the leading Federalists, articulated this concern in The Federalist No. 84. Why should a Bill of Rights, Hamilton asked, “declare that things shall not be done which there is no power to do?” For instance, Hamilton said it was unnecessary for a Bill of Rights to protect the Freedom of the Press when the federal government is not granted the power to regulate the press. A provision “against restraining the liberty of the press,” Hamilton said, “afford[s] the clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government.”

The Federalists were also concerned that any constitutional enumeration of liberties might imply that other rights, not enumerated by the Constitution, would be surrendered to the government. A Bill of Rights, they feared, would quickly become the exclusive means by which the American people could secure their freedom and stave off tyranny. Federalist James Madison argued that any attempt to enumerate fundamental liberties would be incomplete and might imperil other freedoms not listed. A “positive declaration of some essential rights could not be obtained in the requisite latitude,” Madison said. “If an enumeration be made of all our rights,” he queried, “will it not be implied that everything omitted is given to the general government?”

Madison ultimately became an advocate for a Bill of Rights. Kos should read Madison’s arguments, as Madison noted that not all of the rights mentioned in the Constitution are natural rights. For example:

Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.

Madison won the day in part by proposing what became the Ninth Amendment, which provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment in particular was to remind future generations of statists like Kos that our rights predate government. The Bill of Rights was largely intended to secure pre-existing rights against the new government. For example, this is why the First Amendment does not state that it creates a right to freedom of speech, but declares Congress shall make no law abridging our freedom of speech. That Kos seems so ignorant of these concepts is ironic in light of the role they played in the Supreme Court’s decision of… Griswold v. Connecticut, a case which Kos no doubt supports as much as Rick Santorum does not.

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