Constitution

Thought on Constitutional Rights

Rousseau

In his Giles Hickory letters published during the debate on the Federal Constitution (and on whether it should include an enumerated bill of rights) Noah Webster wrote

I know it is said that other nations have lost their liberties by the ambitious designs of their rulers, and we may do the same. The

experience of other nations furnishes the ground of all the arguments used in favor of an unalterable constitution. The advocates seem

determined that posterity shall not lose their liberty, even if they should be willing and desirous to surrender it. If a few

declarations on parchment will secure a single blessing to posterity, which they would otherwise lose, I resign the argument and will

receive a thousand declarations. Yet so thoroughly convinced am I of the opposite tendency and effect of such unalterable declarations,

that, were it possible to render them valid, I should deem every article an infringment [sic] of civil and political liberty. 

 

Webster was a true critic of constitutional systems and a strong proponent of a more representative and malleable form of government and governing charter. His was not a libertarian view of government, at least not the anarchic and all but lawless form of libertarianism subscribed to by modern conservatives and Free Market cultists. This is the sort of libertarianism that errs on the side of protecting human decency and using the mechanisms of government to protect and expand upon liberties and rights, and to protect their exercise in the public realm. Not an individuated liberty, but a societal and collective one based on the philosophy of the social contract.

James Madison, on the other hand, had a very different view on the subject of rights. In the National Gazette he wrote

In its larger and juster meaning, [property] embraces every thing [sic] to which a man may attach a value and have a right; and which leaves to every one else the like advantage.  In the former sense, a man’s land, or merchandise, or money is called his property.

In the latter sense, a man has property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

 

The equation of landed and capital property with intellectual, religious, personal freedom and the needs of common man for his welfare creates a system wherein the rights of man can be parceled, packaged, and negotiated over. Every court is a court of property, all law is property law, all rights are subject to constitutional justification, codification, negotiation i.e. all rights derive from a contract, being in this sense a contract concerning business affairs and services demanded and expected. The Enlightenment as applied through constitutional law by the founders turns man into a commodity and universalizes the notion of a liberal political economy. Man as merchandise, rights as property, laws as contract, life as waste land made civil and useful by exploitation…

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