Monday, October 21, 2013

Spontaneous Limits

Earlier this month, Don Boudreaux made an interesting observation over at his blog, Cafe Hayek. In reading John Marshall's opinion in Marbury v. Madison, he found the following sentence striking:

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten the constitution is written.
Boudreaux sees this as evidence that the restraints existed before the document outlining the restraints. This seems true to me. It is an important point in an age where shrill voices attempt to receive acclaim for blaming our current problems on the Constitution's restraints of government.

Of course, Marshall leaves open the possibility that a constitution is getting the limits wrong (and the rest of the opinion would appear to support this conclusion, since it creates a massive change to the Constitution). So we can debate whether the "real" restraints are more- or less-draconian than those currently found in the Constitution; that's still open for interpretation.

Whence these restraints? Well, they have to come from something that predates the government they are said to restrain. That can be God, or it can be the human rights of the individuals creating the government. But it can't be the government's sell-restraint. It is not the largesse of the government that gives us what rights it deigns allow us. Rights come from the primary rights-giver that existed before government.

Many people like to point out there's no right to privacy in the Constitution. Under Marshall's reasoning, this does not mean man has no right to privacy, only that the Constitution does not now include such a right. If I have such a right, it is not a gift of the NSA, nor can it be negated at the NSA's discretion. And if there is a fundamental right to an abortion, it is not now in the Constitution, but its inclusion or opposite-of-inclusion (I don't have time to look that crap up; I'm late for swimming with my son) has no bearing on its existence.

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