Rights guaranteed by the Constitution (but not created by it)

By NH State Rep Mike Sylvia

Recalling that our constitution provides, “All men have certain natural, essential, and inherent rights…” I’d like to expand on this concept of rights. I say concept because rights are an idea, as opposed to a real physical thing. Most would agree that our natural rights are part of being human. Far too often people use a shortcut when speaking about our rights and use the phrase ‘Constitutional Rights.’ This would imply that without the Constitution, we would have no rights. The truth is that we had our rights prior to the formation of government, in fact, government could not exist without the rights that we used to form governments.

Governments are another concept created from the human mind, it too is nothing more than an agreement among people. “…all government of right originates from the people, is founded in consent, and instituted for the general good,” Article 1, of our NH Constitution clearly supports this idea.

Article 10 of the NH Constitution guides us in the event of government’s failure:

“Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”

Getting back to the proper yet unwieldy phrase ‘rights guaranteed by the Constitution,’ we can be reminded of the purpose of government:

the protection of our natural, essential, and inherent rights

If you can hold this idea within your imagination and then open your eyes to see our governments of today, I think you might agree that government has taken on a life of its own. It began morphing itself long ago when we went from the law of the land that would fit in a shirt pocket and was then expanded into large volumes of statutes, codes, ordinances, regulations and assorted rules for every sort of jurisdiction. We have gone from the land of liberty where you were free to do as you pleased, acting responsibly, to a nation where if it is not explicitly allowed, it is forbidden.

It was not actually government coming to life and taking over yours, it was people in government using the powers found in those ideas, taking on more authority than they had been given. Slowly and steadily statutes would be added, usually to support and detail the broad language of the Constitution, occasionally statutes would cross the line and violate the Constitution. One example of a legislature improperly applying a tax was castigated by the court in State v. Express Co.:

“when there is a plain and unmistakable conflict between the legislative act and the constitution, however ungrateful the task, we are bound to say that the law must give way, and the constitution be given its full; force and effect.”

How often, and how many statutes are put in place, in violation of the constitution? How long are they in effect until someone steps forward, at great expense, to challenge such ill-conceived statutes? What part of our 64 Titles, 678 Chapters of RSA’s remains unchallenged?

Do not mistake my tone of concern for one of pessimism; I have hope for the restoration of liberty, and I am committed to being part of the solution.