You Don’t Have a Constitutional Right to Free Speech

by Derek Hunter

You’ve undoubtedly heard someone, maybe even yourself, say that you have a Constitutional right to free speech, right?  While that seems to make sense, it’s not true, or at least wasn’t before the government got so big that it started intruding into areas of our lives in which it has no business; and it is part of a modern mentality that has the potential to harm our individual liberty.

To understand what I’m talking about, the first thing you have to understand it that the Constitution does NOT grant you rights, it protects the rights you inherently have from government intrusion.  The First Amendment in the Bill of Rights is this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.  

Just look at the part that addresses speech, “Congress shall make no law…abridging the freedom of speech…”  Nowhere does it say that you are granted the right of freedom of speech, it says you have it, were born with it, and the government cannot do anything about it.  But that’s not how it’s viewed or even talked about by politicians these days.

rockwell_freedom-of-speech

By saying that someone has a Constitutional right for free speech implies that it is granted to you and, therefore, can be taken away at some point by amending the Constitution.  While legally this is possibly true, trying to get that amendment passed would have about us much of a chance as getting a safe driver of the year award named after the late Teddy Kennedy.  But the mentality that uses and teaches that erodes, even a little, our basic liberties.

While our Founding Fathers agreed that our basic right to free speech was granted by God, you don’t have to be religious to embrace the idea that we were born with it. In fact, avowed leftist atheists are often the ones wrapping themselves falsely in the First Amendment with the claim that the government protects what they have to say. But it’s not exclusive to leftists, people on the right often cite this mythical right granted them.

So what’s the problem with it?  Who cares if they know the truth as long as the outcome is the same?  It feeds the mentality that is becoming more and more prevalent in society today; that you don’t have natural-born rights, that your rights are granted to you by the government.  This leads to people looking to the government to solve more problems and involve itself in more issues than it was ever intended to, or is Constitutionally allowed to.

Once someone feels indebted to the government for the right to speak their mind, it’s not too great a leap to expect food, shelter and even health care from it, too.  Good things will flow from the government if you believe good things are already flowing from it.  If you do not have a fundamental understanding of where your basic rights come from, and that our government was founded upon those principles, it’s natural that you would look to government for more.

But our government is a limited one, or at least is supposed to be, and was founded to be bound by the Constitution to prevent it from doing most things, not to become most things to anyone. 

Even President Franklin Roosevelt understood the limited powers of the federal government when he proposed his “second Bill of Rights,” a list that included health care, by the way.  While he didn’t propose amending the Constitution to include these “rights,” the mere fact that he had to propose them is acknowledgment that they did not exist in the Constitution.  If they did there would be no reason to propose them, he’d simply have to point them out to a public that had spent more than 150 years missing them in our founding document.

Modern liberals understand this, too, or at least used to.  In 2004, Congressman Jesse Jackson Jr. proposed amending the Constitution to add a right to health care for all Americans. It when nowhere, but the act of introducing it was passive acknowledgement that it doesn’t exist.

Jackson’s flaw is that of many liberals in this country; not that they want to help people, but that they want to use the power of government to do it.  The Constitution expressly limits what the federal government can do.  It isn’t a rough outline of somewhat good ideas, or even a framework in which government should attempt to exist unless it is found to be too constraining.  It is not a “living document,” it is the shackles placed on what our Founders feared could grow into the type of monster they had just rebelled against.

The Tenth Amendment, often ignored by courts and politicos (what I refer to as the red-headed step-child of the Constitution), plainly states this philosophy:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

If the Constitution does not explicitly give the federal government the power to do something, it doesn’t have it, the states and the people do. The government, as the Constitution stands now, could no more legitimately take away your right to free speech than it could provide you with health insurance or vote to make the sun rise in the west.

So next time you hear someone talk about their “Constitutional right to free speech,” correct them.  While it may seem minor, it is a fundamental piece of their liberty they are ceding to a misunderstanding of our country.  And once one piece goes, it’s a lot easier for others to follow.


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Posted Sep 13th 2009 at 7:12 am in History, Justice/Legal | 129 Comments