INDIVIDUALS WITH ENUMERATED RIGHTS, OR A GOVERNMENT OF ENUMERATED POWERS?

"Inside Higher Education" has reprinted a speech delivered by law Professor Leonard Kaplan at the Madison, Wisconsin, Rotary Club in November.

Professor Kaplan reviews the controversy that followed reports he had disparaged Hmong people and Hmong culture in a class discussion, and goes on to make some very interesting assertions about academic freedom and freedom of speech. Without getting into the original controversy, I'd like to point out some of the oddities in some of his underlying conceptions.

Kaplan makes this broad claim:

In the United States, we claim enumerated rights held personally by each citizen, but not necessarily by everyone who lives here, since citizens may have rights that non-citizens do not. As these rights are constitutionally based, they are subject to review by the U.S. Supreme Court, and the rights analysis of many major political and social issues is, in fact, contested. The Supreme Court is currently reassessing basic questions of rights; abortion, affirmative action, stem cell research, church and state relations, habeas corpus, national security, executive power in an age of perpetual terrorist threat and even academic freedom are examples of the sensitive issues with which we are faced.

Isn't that amazing? Doesn't he have it exactly bass-ackwards?

According to Kaplan, "we claim enumerated rights held personally by each citizen" and these rights are "constitutionally based" and "subject to review by the U.S Supreme Court."

He is wrong about every single one of those assertions.

According to the Declaration of Independence:

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 is to say, the rights of individuals are not based in any government document, in any social compact, or in any constitution. The rights of individuals are an endowment from their Creator, and those rights are unalienable by any government or any constitution. In fact, the legitimate purpose of government is to secure those God-given rights, and a government has only those powers that individuals delegate to it.

The United States Constitution thus begins, "We the people," and goes on to describe a government of enumerated powers that free individuals voluntarily create in order to "secure the Blessings of Liberty for ourselves and our Posterity."

The federal government is a government of enumerated powers. As stated in the IXth and Xth Amendments:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The powers of the Federal government are only a subset of the rights and powers of the people (and of the States), and are derived from the rights of individuals, not vice versa.

Thus, no branch of the Federal government, including the Supreme Court, has the legitimate authority to abrogate the rights of individuals that are an endowment of the Creator.

As Alan Keyes tirelessly points out, despite the ridicule to which he is subjected, the open and repeated acknowledgment of the unalienable nature of the rights God gave His creations protects Americans from the excesses of a tyrannical government, whether that government is a monarchy, and autarchy, or a democracy.

The Constitution represents an effort to put together a framework of government that reflects and respects the basic understanding of justice and right that is succinctly articulated in the Declaration. It is, to the Declaration, what an architect's drawing is to the principles of engineering. The architect, with an understanding of those principles, puts together a framework in which those principles are embodied in a viable or workable model. And that is, of course, what our Founders were seeking to do when they put together the Constitution of the United States. . . .

It [therefore] seems to me it is impossible to understand the meaning of the Constitution, or the meaning and intention of the Founders in putting it together, if you don't do it against that background [of the Declaration]. And this is why it surprises me, sometimes, when we encounter people who otherwise have the reputation of being conservative in their understanding of the Constitution who reject that entire background as irrelevant.

. . . I would have problems if one is going to say it is possible to interpret the Constitution without reference to the philosophy of government whose principles are succinctly stated in the Declaration.

The purpose of the Constitution was not to grant rights to the people, for they already had those rights, but rather to define the structure of the Federal government, and curtail attempts to credit that government with excessive powers. The language of the Bill of Rights does not grant rights to the people, but forces the government to respect the rights that the people already enjoy.

Professor Kaplan goes on to make this further astonishing remark:

The background for my class on February 15 was a text by Schlomo Avineri that I had assigned earlier in the semester: Hegel’s Theory of the Modern State. I use the text in my course to establish some of the historical roots of the liberal state and to consider certain problems identified by the 19th century German philosopher, G.W.F. Hegel. Hegel developed a critique of what was then shaping up as the liberal state in Europe, not only in Germany, but also England, France, and the United States.

How about that? Hegel on the "roots of the liberal state." Not any of the British thinkers whose philosophies actually informed the composition of the Constitution, but a continental philosopher whose work provided the underpinning for the 20th century's worst tyrannies.

Hegel’s ethical state would not only recognize each person as an individual, but would also make available the material conditions necessary for each person to thrive.

Contrast that with the principles enshrined in the Declaration and the Constitution. Our founding documents envisage a society in which the State gets out of the way and respects the unalienable rights individuals to pursue happiness while protecting their lives and liberties. Kaplan's Hegelian State is responsible for providing the results.

You can read the rest of Professor Kaplan's apologia here. I am sure he is a strong proponent of all of the good things that the Rotarians of Madison, Wisconsin believe in. It is a pity that he presents such a distorted view of the basis of our free society.