What is a constitutional right, anyway?

In our three-branch system, no government actor is above the law — meaning everyone who holds public office must be made accountable to the people if democracy is to survive and flourish. The federal government is basically a tri-headed monarch, with each head empowered to check the other two. This structure of government is one of the two primary axes of constitutional law.

The other axis of constitutional law has to do with “rights.” Most Americans know they have something called constitutional rights. But when surveyed in 2017, over a third of us couldn’t name a single right guaranteed by the First Amendment to the Constitution. More than half wrongly believed that illegal immigrants have no rights under the U.S. Constitution at all. And only a quarter could name all three branches of the federal government.

To make matters worse, the Trump administration’s assault on the rule of law has skewed the very concept of “rights.” Just a few days ago, Trump goaded Twitter followers to boycott CNN’s corporate parent, ATT, as punishment for alleged “bad, Fake News.” His assault on the free press is so ubiquitous that we forget that First Amendment protects the individual from an overbearing government — not the other way around.

As Justice Hugo Black explained in his 1964 concurring opinion in New York Times Co. v. United States: “In the First Amendment [t]he Government’s power to censure the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.” 

Trump has stoked other distortions about individual rights under the Constitution, including the grotesque myth that Mexicans are drug dealers, criminals and rapists undeserving of fundamental dignity and humanity. Immigrants have constitutional rights too, folks. Trump’s callousness toward people of color born abroad is so infectious that the White House’s recent decision to deny education, recreation and legal assistance for immigrant children at the southern border barely registers in our collective American consciousness. 

Why are constitutional rights such a big deal?

Well, the framers of the original Constitution didn’t include language enshrining individual rights because they figured that the structure of government — the system of checks and balances established by the tri-headed monarch — would protect against government abuses. 

But then in 1791, the Bill of Rights was added, articulating certain things that individuals “get” to enforce against the government. Rights aren’t tangible. 

In general, what “constitutional right” means is that if the government starts to bully the proverbial little guy, the little guy can go to court and get an order stopping the government from bullying and/or forcing it to pay the little guy money for his injuries. If the little guy doesn’t bother to go to court to enforce his rights against the bullying government, the rights cease to mean anything. They lose their currency. 

The Bill of Rights includes the First Amendment along with other protections that many Americans find important, such as the Second Amendment’s right to bear arms and the Fourth Amendment’s ban on warrantless and unreasonable searches and seizures of an individual’s property (and physical selves). To put it bluntly, rights are all about keeping the government off the backs of individuals. This allows us to go about speaking, worshipping, thinking, deciding, shooting and procreating (or not) without the government telling us we can’t — or punishing us for doing so anyway.

Not all “rights” are explicit in the Constitution, mind you. But we still walk around thinking that we own the unspoken ones, too. We believe  —and rightly so — that we have a right to decide how to raise our own children, and a right to decide whether to get certain medical treatment for ourselves. We believe we have a right to travel from state to state without facing government barricades that keep us within the confines of a particular city or county or state.

These rights (like the right to abortion) are nowhere in the text of the Constitution. But would we really be okay with five justices on the Supreme Court declaring that, if a future government decides to trample on those freedoms, the Constitution would have nothing to say about it?

Of course not. We have our constitutional rights, right?

There are also certain implied values — some might refer to them as a sort of “natural” law — that many of us believe are core to our humanity. Dignity, respect, honesty, hard work — we all have our lists of what good character means. These kinds of values are not articulated in written laws, either. But we expect our fellow human beings and our elected leaders to honor them — to at least some meaningful degree — in a functioning democracy.

If we don’t take steps to collectively protect our collective rights — by stopping the government from squashing them against any individual in America — then we will ultimately lose our own individual freedoms. We can’t pick and choose who gets to have rights and get away with it. The framers of the Constitution knew this. Regular folks back then knew about their rights under the Constitution too, often by heart. 

It’s time for modern Americans to become constitutionally literate. Before it’s too late. 

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published in June. Follow her on Twitter @kim_wehle.

This is the second piece in a series by Wehle on constitutional literacy. Read her analysis on constitutional literacy.