From the Right



What Ever Happened to the Freedom of Speech?

Judge Andrew P. Napolitano on

"Congress shall make no law ... abridging the freedom of speech."

-- First Amendment to the U.S. Constitution

Here is a pop quiz: If the states ratified an amendment to the Constitution repealing the First Amendment, would we still enjoy the freedom of speech? That depends on which value prevails: Are our rights only what lawmakers have written down, or are they personal attributes immune from governmental reach?

When James Madison was crafting the First Amendment, he insisted that the word "the" precede "freedom of speech" in order to manifest the Framers' belief that the freedom of speech preexisted the government. The First Amendment is a negative right. It doesn't grant the freedom of speech. It negates Congress from abridging it.

What is a right, and where does it come from? A right is an indefeasible personal claim against the whole world. It does not require a government permission slip or any precondition or community consensus -- only the ability to reason. It belongs to every human by virtue of our existence.

Privileges -- like voting in a government election or driving an automobile on a government roadway -- come from the government. Rights come from our humanity.


If you accept the existence of the natural law -- a body of unchanging moral principles universally knowable by the exercise of reason -- you accept that natural rights are ours to exercise whether the government is expressly prohibited from interfering with them or not.

Thus, under the natural law, murder would still be wrong and unlawful, even if the government were to permit itself and others to kill, as, of course, governments do.

Under the natural law, the answer to our pop quiz is that because the freedom of speech is a natural human right, it exists and is immune from governmental interference whether the prohibition on interference is written down or not.

Is natural law in the Constitution? Yes. The Ninth Amendment -- Madison's crown jewel -- recognizes the existence of personal human rights too numerous to articulate, and it prohibits the government from denying or disparaging them.


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Bob Englehart Bill Day John Deering Dave Granlund Jeff Danziger Dick Wright