In a recent column about Western governments' treatment of terrorists, the incomparable Thomas Sowell writes:
So many "rights" have been conjured up out of thin air that many people seem unaware that rights and obligations derive from explicit laws, not from politically correct pieties. If you don't meet the terms of the Geneva Convention, then the Geneva Convention doesn't protect you. If you are not an American citizen, then the rights guaranteed to American citizens do not apply to you.
First of all, let me say that Dr. Sowell is someone who I greatly admire and with whom I agree a great deal. However, the argument above, while in the context of rightly argued condemnation of the release of Abdel Baset al-Megrahi, is misguided when explaining the nature of rights.
The beauty of the American Revolution and the genius of our founding as a nation was the concept of natural, inalienable rights. These rights exist independent of government and its laws. We institute the government to protect these rights against those who would violate them. Therefore, government exists because of our rights, not the other way around.
To say that rights "derive from explicit laws" is to confirm the worst fears of those who opposed the bill of rights when the ratification of the U.S. Constitution was being debated. Many were worried that if amendments were added guaranteeing our right to free spech or due process, that the bill of rights would be viewed as an exhaustive list, and that rights that were not included on such a list could only be granted at the whim of politicians. To assuage such fears, the 9th Amendment was added, which reads:
The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
If we are to concede to the viewpoint that rights can only be valid if endorsed by written laws, then the statists will have the authority to trample individual liberty in countless forms. Constitutions like those of the United States were meant to give explicit rights only to governments; that is governments may only do what is permitted to them by the constitution written by free individuals. Individuals (and state and local governments) hold all other rights.
My right to freedom of speech and worship does not come from the 1st Amendment - it is only codified by it. Likewise for my right to bear arms. However, if we are to operate on the assumption that my rights are only derived from what is explicitly stated in the constitution or by statute, then where is my right to trade and commerce with my fellow citizens? My right to donate to the charity of my choosing? My right to have children? My right to freedom of association and movement?
Nonsense. My right to these things are inherent by virtue of my existent. They are "self-evident." No law can erase them.
Battles over the right to bear arms have largely focused on the wording and intent of the 2nd Amendment. This too is misguided. The right to personal protection is a natural right given by our creator, and exists regardless of what some law or circuit court says.
That is not to say that Dr. Sowell is incorrect in his assertion that Megrahi's release was a gross miscariage of justice and an offense to the innocent. Nor that enemy combatants should pay, in many cases harshly and swiftly, for their attacks on our country. However, this is because such individuals, like any petty criminal down the street, did indeed have rights, but that by virtue of their actions they lost them. This is the argument conservatives should use that not only keeps Americans safe and our system of justice intact, but preserves our freedom.
If we fall into the trap that the statist has set that government may do whatever it wants, but that the rights of individuals are restricted to what is spelled out by law, then we have already lost the battle against a leviathan government. Where is the explicit right to property? To dissent? There is none. Nor do we need it to know these rights exist.