First of all, just by way of general understanding, I think that much of the talk about "rights" fails because it is embedded in a far larger point of view, world view, what have you, that I don't accept. Human beings, as far as we know, have never lived in some fantasy land called "the state of nature". Human beings do not, as far as I am concerned, have some metaphysical properties that inhere in them precisely because they are human beings. It would be nice if this were true, but it isn't.
That being said, yes, I agree with Judge Bork, and would go even further and insist the entire Constitution of the United States is nothing more and nothing less than "ink blots on paper". All writing is just that and nothing more. This is bad how? Even this blog post is nothing more than a series of black dots on a white screen. Whatever "meaning" it may or may not have comes not from those dots, but from the readers who assign those dots a meaningful value, related to other such marks they have encountered before. In other words, it's all just words, and all words are nothing more than sounds we make or marks on some surface. Meaning comes from those who have assigned such to these marks (and for the monolingual amongst us, excludes other marks as meaningful for him or herself in the same way).
Having said that, I would reiterate the point I made in comments: There is a difference between rights and freedoms. The rights we as American citizens possess, if they are truly "natural" and, indeed, inalienable (according to Thomas Jefferson), should not only be recognized universally; there should be no reason to enumerate these rights because they would be an assumed part of our identity as human beings. Yet, I challenge any American to go, say, to Uzbekistan, and stand on a street corner and call the President of that country a dictator. I know I wouldn't do it, because I have no desire to end up in an Uzbek prison.
Traditional contract theory would say that the first Ten Amendments to the Constitution of the United States recognize the limits of state action in the face of our claims against the state, claims that inhere in us prior to our membership in a given society. Thus, the opening clause of the First Amendment reads, "Congress shall make no law . . ." Why can't it make such a law? Traditional contract theory would state that such a law would be a violation of natural law.
Now, it is a curious phenomenon that less than a decade after passing the first ten amendments to the Constitution, Congress indeed curtailed all sorts of rights in the Constitution, including freedom of speech, when it passed the Alien and Sedition Act. During the Civil War, Abraham Lincoln suspended the writ of habeas corpus in territory occupied by the Union Army, first Maryland, and later in occupied states that had surrendered. The Supreme Court endorsed this action ex post facto. Another Alien and Sedition Act was passed after the First World War, during the first Red Scare. The Smith Act of the early 1950's made membership in the Communist Party (CPUSA) illegal.
Don't even get me started on the PATRIOT Act. . .
That's just a sampling of ways our "rights" have been legally curtailed. Everything from search and seizure, trial by jury, speedy trials, to the general statements of the 9th and 10th Amendments have been abridged, ignored, set aside, violated, what have you, in the course of our history. For this reason - i.e., because the reality is far different from the theory about "rights" - I stated that the Constitution, at least as it pertains to individual liberty and justice before the law, is far more aspirational than descriptive. I don't think this is a bad thing; it would be nice to have a society as described in the Constitution. We don't, and tear ourselves in knots over what, exactly is, for example, an "unreasonable" search and seizure, what constitutes "probable cause" for a police officer to believe a crime is being committed, or what "the people's right to bear arms" means in light of the qualifying clause concerning "a well regulated militia" (the amendment that started this brouhaha).
At one point, Feodor asked if he had the "right" to walk down the street. No. He certainly has the freedom to do so. In traditional contract-theory language, neither he nor anyone else has a prior claim against the state inhering in him by nature to walk down the street. He has the freedom to do so, to be sure, provided he obeys all relevant laws and regulations pertaining to such activity. He has no right - no claim against the state's ability to so regulate - to do so. That is the difference, in traditional "rights" language, between a right and a freedom.
In a more mundane, contemporary understanding, I would say he has no "right" to walk down the street because such a right isn't in the Constitution.
Now, this is not to say that unenumerated rights haven't been found, or discovered, or claimed. For example, one of the more notorious discoveries was Supreme Court Justice William Douglas' discovery of a "right to privacy", existing in "penumbras and emanations" from various specific, enumerated rights.
TStockman mentions the following amendment:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Had Justice Douglas used the 9th in his argument, he might just have been on a little firmer footing. Yet, he did not. Rather, he divined the right of privacy, in essence, from shadows cast by some rights, and ejaculations from others. Since, to my knowledge, no new right has ever been delineated as flowing from the 9th - and since the lack of specificity leaves this Amendment, to my mind, utterly meaningless - I'm not sure arguing that we have various "rights" because one Amendment in the Constitution says such is possible is a good argument.
The question of what constitutes our freedoms, our rights, and even our understanding of the law has been in full force over the past week or so, with the release of previously classified legal memoranda from the Bush Administration Office of Legal Council (OLC) concerning what has euphemistically been termed "enhanced interrogation techniques". Now, to someone who might imagine that what is described crosses certain legal boundaries, these are onion-skin-thin rationalizations for torture. The entire process of setting down on paper these legal opinions was done to give legal cover to those who would actually perform them. Now, to most people with a lick of sense, the reasoning was so bad it would have been laughed out of any court of law. Yet, before Barack Obama could end the practices outlined (contrary to myth, the '06 curtailment did not end, only reduced the number, of "enhanced interrogations"; the OLC recommendations were still in force on January 20, 2009), his own OLC had to rescind those opinions, which they have done.
Rights, freedom - we are constantly in need of making sure that these words mean something for us. That is the struggle. We must always be moving toward the state outlined in the first ten Amendments to the Constitution. We should never, pretend, however, that our rights are anything more than the words of the Constitution, interpreted by Courts, or enacted under laws passed by Congress in light of those rights and freedoms.
