The Green Papers
The Green Papers

Just how far is too far-- for both Governments and Persons?

by Richard E. Berg-Andersson Staff
Thu 27 Apr 2006

Take the following test: a simple question that can easily be answered either "True" or "False"--

True or False?

A State Government in the United States has no right to prevent someone from operating a motor vehicle without his/her having a valid driver's license.

The answer, of course, is "True": after all, a State of this Union has no such right...


did you say "False"?--

as, to be sure, most people likely would)...

because Governments don't have "rights", they only have "powers". A State Government has power to regulate motor vehicles and their operation; but it has no right to do so. This distinction between powers and rights (and, for that matter, a person's rights versus his/her privileges) is often largely lost within the everyday speech of the average American in which the term "rights" tends to be applied far more broadly than the constitutional and legal underpinnings of a person's Right would otherwise suggest.

The American Declaration of Independence itself speaks of "unalienable Rights" with which persons are "endowed by their Creator", but that very same document also refers to "Governments... deriving their just powers [emphasis mine] from the consent of the governed": thus, there is herein already a politicophilosophical distinction, despite the average American talking about how "the government has no right to..." or "the government has every right to..." in his or her everyday speech.

There are, in essence, three basic "elements" which we might (for lack of a better term) call "passive" within the politicolegal theories that, in general, color American Jurisprudence (I here use the term "passive" [in contradistinction to its opposite, "active"] because, in each case, the entity [whether the state or the individual] in question "enjoys"- passively- said element without any concomitant requirement that the entity so enjoying the element at all act on it- that is: the entity is not at all compelled to use said element the given entity might enjoy): government has power to do something; while a person (a term which comprehends the so-called "legal person", such as the organized business, not just the individual human being [thus, in this piece, I will use the term "Individual" (capitalized) more narrowly than the term "person"; likewise, I will use the term "State" (also capitalized) to refer to a constituent State of the American Union, while "government" will, more broadly, apply to any political entity]) has either the right to do something or a privilege of doing something. Thus, government has only "powers"-- it is only the person, in Constitutionalist (whether Republican or not) Democracy, that has either Rights or privileges (Rights being here capitalized- as it so often is in the Declaration of Independence- to make the case that they are to be better "secured"- to use the very language of that Declaration- against both governmental [and, in at least some cases, private] interference, by government itself, than mere privileges).

How, then, might one readily discern the difference between a person's "Rights" and that same person's "privileges"?

The test is, basically, this: if government can constitutionally- by law (whether statute or ordinance, rule or regulation)- stop you from doing something, it is a "privilege" and not a "Right"; if, on the other hand, a person can legally assert his/her(/its) own claim to be allowed to do something against the government's attempt to prevent that person from so doing, it is a "Right" and not a "privilege". The other key difference is that government can regulate (redefine and/or restrict) a "privilege" enjoyed by persons to a rather large degree, while the restriction of a person's "Right" by Government, while always theoretically possible, must be- almost by very definition- far more minimal in scope (though- in basic Constitutional Democratic political theory- any regulation or restriction by government, whether of a person's "Right" or a person's "privilege", is supposed to ever be reasonable- that is, such regulation must have a rational basis behind such a policy [of which more later]).

Put admittedly simply: one's "Rights" are more "secured" (protected) by government than one's "privileges".

For example, quite a number of my friends and acquaintances who are cigarette smokers are miffed at best, downright angry at worst, about the recent growth of State and local legislation around this Nation regulating (which, in many- if not most- cases, means prohibiting) smoking in, say, restaurants and other public places: most of these friends and acquaintances will often assert their "right to smoke" has been unduly violated by such laws. Their pet constitutional theory is, in a nutshell, that- since the State allows the sale, possession and use of tobacco by individuals (thus legally treating a cigarette quite unlike- say- cocaine, heroin or marijuana)- they have also been given a concomitant "right to smoke" by virtue of said State law allowing them to so purchase, possess and smoke tobacco products: while these smoking friends and acquaintances of mine acknowledge that a restaurant might well find it necessary, in order to please two important elements of its customer base, to provide a non-smoking section where, in a portion (even a larger portion) of the establishment, smoking is not permitted, they feel- strongly, I might add!- that, by not allowing for a smoking section in any similar establishment anywhere within the jurisdiction in which such smoking is so banned, this "right to smoke" is- improperly, in their opinion- left unprotected.

Of course, the problem is: no such "right to smoke" actually exists!--- Why?

Because-- well, notice the language I myself just used towards the end of my earlier paragraph: in my smoking friends' theory, the State has given them a "right"... but, again we go back to the Declaration of Independence (which, while it does not have the force of Law, contains [much like the Preamble to the later Constitution of the United States itself: for the Preamble also does not have the force of Law] a statement of the political philosophy behind the provisions embodied within the Federal Constitution [as well as within the Constitutions of the several States, present as well as past]) in which it is maintained, as a "self-evident" (as in: obvious) "Truth", that a person's "Rights" are "endowed by their Creator", not by the State. The purposes of government, so says the Declaration, is merely to "secure these rights" granted by a Higher Authority (or by Nature, or Providence, or the long process of evolution which has, nowadays, made that political animal known- in Constitutional Democracy- as "the People" out of a society made up of members of the species Homo sapiens-- take your pick!: regardless of your religious beliefs or lack thereof, regardless of your position on the debate over Evolution vs. Intelligent Design, it is all- as far as what is being discussed in this Commentary be concerned- one and the same). Well note, however, that government- indeed- secures (protects) Rights already granted: by the same token, government cannot grant such Rights itself!

But government can grant privileges (and, therefore, can also take them away!)

The test I cited earlier would be- in the case of an alleged "right" to smoke cigarettes- this: would it be unconstitutional for a State to completely ban the sale, possession and use of cigarettes?

Answer: NO! (else the State would also not be able to completely ban the sale, possession and use of any other mind/body-altering substance- for instance: cocaine, or heroin, or marijuana or- for that matter- baby food laced with rat poison).

Thus, under this test, smoking cigarettes is (so long as the purchasing, possessing and using of cigarettes- in and of itself- remains legal within a given jurisdiction) a person's "privilege", yes, but not a person's "Right". And, where something is a "privilege" and not a "Right", a sovereign government has power to regulate, or even prohibit, it. Thus, the State (or its administrative subdivisions [Counties, townships and/or municipalities], upon which the State might have so devolved said power by general law or through home rule provisions providing for local autonomy for at least some of these sub-units) has power to regulate smoking, just as the State also has power to regulate driving a car (since, under the same test, operating a motor vehicle is, in and of itself, also a "privilege" and not at all a "Right"-- thus, while an American has the Right to pretty much go anywhere he or she pleases [subject to minimal (and reasonable, as the reader will soon see) restrictions], that same American does not have any "right" to specifically drive a car in order to get there!).

Now, let's utilize the very same test with another example:

Would it be unconstitutional for my State (New Jersey) to ban my expressing my opinions herein via my typing this very piece?

Answer: YES!--- Why?

Because I do have a Right of Free Speech (as well as, since this piece has been posted on an Internet web site accessible to all who might wish to read it, Freedom of the Press [though, technically speaking, the Free Press here belongs not to me, but to an entity known as; this entity also owns the copyright re: what you are now reading: thus, in a very real sense, I do not even own the "Free Speech" you are here reading-- nevertheless, the Right of Free Speech itself that produced this very Commentary remains my own]) and I can legally assert this right of Free Speech (while 'The Green Papers' can, at the same time, assert its Freedom of the Press to publish [in the form of a posting on the WorldWide Web] said Free Speech of mine that is this very Commentary). This Right of Free Speech was not at all given (granted) to me by the State- it is mine merely by virtue of my being of the species Homo sapiens: yet, the State of New Jersey and its local civil divisions are still duty-bound to protect my Right of Free Speech against (in the case of this hypothetical) State or local authority and even against private persons who might not at all like what I have herein written (so long as I do not at all abuse said Free Speech, of which more shortly).

The Constitution of my own State of New Jersey (the current one dating from 1947) says- in its Article I (interestingly, actually titled "Rights and Privileges")- Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press... (from Paragraph 6); even were my State's Constitution silent re: these Liberties (to use the New Jersey terminology), the United States Constitution, in its famous First Amendment, reads Congress shall make no law... abridging the freedom of speech, or of the press... and the Federal courts have, over time, since ruled that these Freedoms (to use the Federal terminology) are made applicable to the several States of the American Union via certain provisions in the 14th Amendment to the Federal Constitution, most notably that (the so-called Due Process Clause) stating No State shall... deprive any person of... liberty... without due process of law. Even in its decision in a case in which said decision went against the person asserting his Right of Free Speech against a criminal conviction based on his having abused said right [Gitlow v. New York (1925), 268 U.S. 652], the Nation's Highest Court was forced to note that "[f]or present purposes we may and do assume that freedom of speech and of the press... are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."

Of course, in actual application, it is not all that simple!...

First of all, the Court's opinion in Gitlow went on to note that "[i]t is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution [NOTE from REB~A: notice the specific use of the word "secured"- and not "granted"- here, clearly implying that the Constitution protects Rights (as opposed to privileges) which pre-existed even that document], does not confer an absolute right to speak or publish, without responsibility, whatever one may choose [NOTE from REB~A: this principle is that reflected in the "responsible for the abuse" language quoted earlier from the New Jersey State Constitution], or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom." At the same time, the same opinion anticipates the difficulty inherent in government attempting to regulate such freedoms as they are, at one and the same time, obliged to so "secure", for- so the opinion in Gitlow goes on to note- "[t]he State cannot reasonably be required to measure the danger" [to government or to the People at large] from abuse of freedoms and liberties "in the nice balance of a jeweler's scale".

Secondly, even the most free government can, at the last, end up going much too far with the proverbial "clampdown". For example, the Constitution of the German Reich of 1919 that governed the so-called "Weimar Republic", which its framers openly intended to be the best possible example of European Democracy in its time, stated- in its Article 118- that "[e]very German has the right within the general laws, to express his opinion orally, in writing, in print, pictorially, or in any other way" and "[n]o circumstance arising out of his work or employment shall hinder him in the exercise of this right, and no one shall discriminate against him if he makes use of such right"; yet, tell me now: of what possible efficacy was this particular constitutional guarantee once Adolf Hitler, having- a mere decade and a half later- claimed the title of Führer for himself, had rammed liberty-restricting legislation through his rubber-stamp, Nazified version of the Reichstag, a legislative body itself only legally authorized to sit under that very same document!

The protection of Freedom and the preservation of Liberty is therefore, in any event, only as good as the People's Vigilance, for- just like what I am typing into the very program converting these words into visible print on a computer screen- Constitutionalist Democracy is rather subject to the same "Garbage in, Garbage out" process. But the key difference- visible throughout the discussion in the last several paragraphs- between a person's "Rights" and that same person's "privileges" is that government clearly has power to regulate a "privilege" it itself has, by law, granted; whereas a person can assert- subject to the limitation that government is, indeed, a human institution (thus, one subject to human foibles and fallibility in its determining the actual efficacy of just such an assertion)- a "Right" against a government which did not, in fact, at all grant said Right in the first place and yet is, at the same time, required to "secure" and, thus, do its utmost to preserve and protect it.

But let us now go back to the whole notion of governmental "powers":

The "passive" politicolegal elements I cited earlier in this piece each have a concomitant (again, for lack of a better term) "active" component ("active" because it is the active, yet [or so one hopes!] careful, use of the "passive" elements that is the very essence of their enjoyment): a personal "Right" (as has heretofore been touched upon) implies "responsibility"; a personal "privilege" implies an "obligation" (for instance, if you enjoy the privilege of driving a car, you have an obligation to operate it safely, as a reasonable person would so define the term "safe"--- driving while intoxicated, for example, is an obvious dereliction of said obligation and may subject the offender to civil, if not also criminal, liability-- so is driving 90 miles per hour in a 65 mph speed limit zone [the argument that one actually has the skill to go 90 on an Interstate that other drivers might well lack being of no legal or constitutional import]); likewise, a governmental "power" implies the existence of a "duty".

One of these "duties" of government is the duty to be "reasonable" in the use of its powers (indeed, unreasonableness is the very definition of the American concept of "abuse of power" [for example, note the language in the 4th Amendment to the United States Constitution: The right of the people to be secure... against unreasonable searches and seizures, shall not be violated...; I, rather recently, spent an entire Commentary addressing a perceived abuse of governmental power involving this same Amendment])

In an even more recent response to a vox Populi, I referred to what I called the "STOP sign test" and wrote the following about said test:

"Every State in the Union has a statute or regulation on the books which requires the erection of octagonally-shaped red signs with the large, white letters "S-T-O-P" at many intersections of roads where there is no stoplight regulating vehicular traffic. Every State, further, has a law on the books which reads something to the effect of At a STOP sign, a driver shall bring his vehicle to a full and complete stop. Generally speaking, the vastest majority of Americans think such a law (along with its concomitant signage) is, in and of itself, a good policy- a sound policy both practical and efficacious; political arguments over STOP signs (or, for that matter, the related stoplights) tend to most often revolve around where (or where not) these signs should be placed in and around a community, not over whether or not there should even be STOP signs.

One can, I suppose, argue that running a STOP sign (that is, failing to come to a full and complete stop at an intersection so regulated) is unethical or even immoral- that doing so violates the "values"... of the community, but running a STOP sign is, as far as government is concerned, merely illegal: any morality and ethics involved has nothing at all to do with it! The purpose of a STOP sign is not, as is commonly supposed, to make it more likely that you do not get into an accident and possibly injure or kill yourself; rather, it is, in part, to make sure you do not injure or kill others (whether in other vehicles or pedestrians) and, above all, to make sure that the flow of traffic is not impeded (in other words: the illegality of running a STOP sign is far more about making sure that a driver approaching a given intersection is not late getting to work than about another driver at the STOP sign possibly harming himself or herself, let alone others). Government has no other care as regards a STOP sign, nor should it (this is precisely why a driver pulled over by a cop after having run a STOP sign cannot legally evade the resultant moving violation citation on grounds that no one else- vehicle or pedestrian- was anywhere near the intersection in question; after all, a car entering an intersection with no one else around is not at all unethical or immoral!: but Law is the law, regardless of the morals and ethics- the values- of the actual situation... this is precisely what "rule of Law" means).

The legal term or art for what I have here called "the STOP sign test" is "Rational Basis": that is, a policy of government, at least in theory, must have a "rational basis" in order to pass constitutional muster-- in practice, however, we all argue about just how rational- or irrational- a given policy might, in fact, be!"

And, thus, my cigarette-smoking friends and acquaintances so argue (as they are, indeed, perfectly free to argue) that the policy, enshrined in many a State and local law, of not allowing restaurants to even provide a smoking section for them might well be irrational and, to their minds, fail the Rational Basis test (though there are certainly the many who think otherwise: principally, those who lobbied legislators to adopt such laws)... at the same time, however, there still remains no (precisely because there never ever has been a) Right for them to smoke, even though the cigarettes they smoke are themselves legal.

I will now, for the time being, spare the poor reader who has already had to wade through all my verbiage in order to get to this point and let him or her know that I will continue my discourse on Liberties, Rights and Powers and their respective relationships to government and persons within the general concept of Constitutionalist Democracy in a future Part TWO.

Modified .