I figured I ought to expand on the constitutional theory from my last post. It’s a point of some debate, at least within the public at large, and I’m really not sure what case law exists (if it does at all) to expound on the subject (although I’m reasonably sure there has been quite a bit of it).

During her keynote speech to “Tea Party Nation” in Nashville Saturday, former Alaskan governor and media sideshow Sarah Palin elicited cheers when she complained vociferously about the fact that a Nigerian man from Yemen named Umar Farouk Abdulmutallab — now more commonly-known (and more easily-pronounced) as the Underwear Bomber — has been granted legal representation in criminal proceedings against him stemming from his failed attempt to blow up a passenger jet as it landed in Detroit Christmas day.

Our U.S. constitution,” she called it, pointing out veterans in the audience, and derisively lambasting the president for extending its protections to non-citizens.

I hate to project too much into anything Palin says, because I’m not convinced she does a whole lot of deep thinking about it, but the fact is, her statement expresses a very specific — and foundational — legal theory on what the constitution is and how it works. This theory, roughly, is that by virtue of being a United States citizen, a person is granted specific rights that he or she would otherwise not have. Being a citizen of the United States is like being a member of an exclusive country club — by becoming a member, you gain access to things like the nice golf course, the well-appointed bar, and Miranda warnings. The key element here is that citizenship theoretically confers upon someone something they didn’t have before.

I don’t think that’s what the framers had in mind. Perhaps a legal scholar or con-law student could correct me on this if I’m wrong, but my understanding of the framers’ own words is that the constitution does no such thing. Rather, it recognizes rights already inherent in human beings. The most often cited passage from the Declaration of Independence reads,

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.

This is exactly the opposite of Sarah Palin’s understanding of the idea of “rights.” The framers of the constitution based much of their thinking on the work of John Locke, who, among others, established the notion of an individual’s rights being established within himself. In his Second Treatise on Government, Locke wrote:

[E]very man has a property in his own person. This nobody has any right to but himself. The labour of his body and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer; no man but he can have a right to what that is once joined to….

If this seems a bit esoteric, the fundamental point of Locke’s thinking here is that a man’s “possession” of himself is inherent to his existence. No one may “grant” a man possession of himself; by virtue of being, he possesses himself.

This may come across as a bit tautological,  but it’s worth bearing in mind. (The framers themselves, it’s worth pointing out, might have done well to bear this bit of Lockean wisdom in their minds when it came to discussing their plantation staffs.)

All this is basically to say that the constitution of the United States isn’t a list of benefits you are granted when you become a citizen, but rather a recognition of rights you have innately. It expresses the way that the United States’ government is going to behave vis a vis its citizens.

Consider the contrary: Let’s say, for argument’s sake, that the government did actually dispense rights to its citizens. The implications of this would be drastic, and negative: it would mean that the government would be the arbiter of rights, that it would be able to determine worthiness for specific rights, granting them here and taking them away there. The citizen himself would have no standing to “demand” his rights be respected, because if his rights were “granted” by the state, then the state could just as easily take those rights away.

This is the very definition of totalitarianism, and I don’t think anyone is really arguing for that. But when we’re talking about the way the constitution works, it’s important to follow thoughts to their logical conclusions.

Let’s shift gears for a bit, and return to the present and concrete. As a reporter covering a small town police beat a couple years ago, I sat in court watching a steady parade of rapists, child molesters, wife beaters, drug dealers, and miscellaneous thugs march through the county court. Many were imprisoned or otherwise punished, and the occasional few were acquitted and set free — in other words, afforded their constitutionally-recognized rights to due process.

Does the rapist qua rapist “deserve” or “earn” this right to months of legal wrangling and trial by jury? Not at all — he’s in court because he’s very seriously abrogated the rights of someone else, and the state’s role is to protect the innate rights of the victim. His status as a citizen isn’t at issue. A criminal is someone who violates the innate rights of another person, and we lock them up to make sure it doesn’t happen again. The criminal’s “innate rights” to freedom are being denied to him, sure, but that’s in order to protect the rights of others.

Which brings us to the Underwear Bomber, and hopefully the end of this lengthy post. Sarah Palin scoffed at the fact that he had “lawyered up,” taking advantage of a constitutionally-guaranteed right to legal counsel. This may offend the sensibilities of those who pragmatically want to see terrorists (who really are just a specific brand of criminal, at least in this case) locked up or killed as quickly as possible, but the Tea Partiers might take solace in the fact that by granting this man counsel, the government — which they seem to be so hell-bent against — is taking on the role prescribed to it by the very framers of the constitution they say they love so much. There could not be a better example of government acting in its proper, limited capacity.

Again, consider the counter-factual: in cases where the government determines, on its own, that a person has committed a terrorist act, and further decides to deny him the rights of counsel and trial, it is overstepping its constitutionally-described role, and instead becoming a totalitarian entity that grants and takes away the rights of individuals under its power.

We don’t give trials to rapists and Underwear bombers for their sake. We do it for ours.


Note: I defer to the opinion of any constitutional law expert who might stumble across this post. My experience with the subject is limited to having sat around in several courtrooms, both military and civilian, and having read a bunch of dusty old books approximately 10 years ago. Corrections and clarifications are welcome and encouraged.