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Who’s supposed to
protect our rights?

By John Silveira

Issue #102 • November/December, 2006

Who is supposed to protect our rights? The President? The Congress? The courts? The police? Before you answer, let me remind you of something: Our rights are supposed to protect us from the President, the Congress, the courts, and the police.

Now, most people think it's the job of the Supreme Court to protect our rights. But you know something? There's no provision in the Constitution for the courts to adjudicate our rights. I know the Supreme Court makes rulings on them all the time. It has for the last 200-plus years. But the idea that the Court, a branch of the federal government whose members are appointed by the President and confirmed by the Senate, is allowed to decide which rights we are allowed to exercise is a tradition, not a part of the original Constitution. It's not even a constitutional amendment.

Where did the idea of the Supreme Court making these decisions for us come from? Actually, it came from the early days of the Republic when, in 1803, with the decision Marbury vs. Madison, the concept of judicial review was established. Judicial review wasn't a big hit at first, but it grew until, today, the overwhelming majority of Americans believe that the courts are supposed to be the adjudicators of our God-given or natural rights.

The good news is that the Court used to (usually) rule for the individual and against the government when questions of individual rights were brought before it. The bad news is that since the early part of the 20th century, and especially since the explosive growth of Big Government that started during the Great Depression, the courts have reversed that trend and typically now rule against the individual and for Government.

So, if not the courts, who's supposed to decide what our rights are? We are. And the reason we are in danger of losing our rights like this is because We the People don't stand up to the very people our rights are supposed to protect us from.

Okay, you may stand up, and certainly I do, but the fact is, a handful of people here and a handful there cannot protect the rights of a nation of 300 million people if the overwhelming majority of them don't care. The obvious question now is: Can the citizens actually make a difference? Can they get control of and protect their rights? Of course they can—if they care.

Let's do a thought experiment. It'll be an easy one. Let's say the Congress writes into law that the United States will, from this moment on, officially be Moslem (I could have said Buddhist, Baptist, Jewish, or whatever, but I think you see where this is going) and the practice of any other religion is to be prohibited. How many people do you think would go around saying, "Well, it's official. Congress has made it a law, and the courts have rules, that I can't be Catholic (Mormon, Methodist, etc.). Guess I'll no longer worship as I please."

Compliance, of course, would be nearly zero. No matter what the courts did, no matter who the police arrested, there would be no compliance with the law. In fact, it may go beyond noncompliance. There could even be open revolt.

On the other hand, say just Unitarianism was outlawed. Well, there may be protests, there'd even be court arguments by the ACLU, but most people would go on about their business because, well, let's be honest, most of us aren't Unitarians, so we wouldn't care.

And this is how we are losing our rights to free speech, a free press, our rights to bear arms, and even our rights to worship as we wish. They've taken them away a little at a time. Free speech? It's not removed all at once. In politics it's now restricted to "free speech zones." Congress passes a law making it illegal to criticize incumbents by name for their performance for 60 days before an election (the McCain-Feingold law, which, in effect, says you can't place ads to tell people who's screwing up in office in the 60 days before an election when it would most matter because that's when people are most apt to be paying attention). Did you stand up and yell, "No!" They passed this despite the fact that the Constitution plainly states:

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.

Where were you when your representatives and senators passed the PATRIOT Act, taking away even more of your rights? Where were you when your President signed it into law? What about when the RICO Act, which denies we have any property rights, was passed in 1970? Were you yelling and screaming when Congress, the President, and the courts were denying you have a right to your house, your car, and even your cash? Where were you when the DEA, the FDA, and the courts said you have no right to determine what you put into your body. Get it? You don't own that—your body—anymore either. You did, but not now. Where are you every time your Supreme Court says it's okay if yet another right is abrogated? I would imagine you didn't care when they did any of these things because you didn't think any of them affected you. I would guess you probably didn't even know what was being taken away.

Okay, some of us screamed, some of us protested, but a handful of us alone can't save the rights of 300 million.

Once again, who's supposed to protect our rights if it's not the job of the very people those rights are supposed to protect us from? That's right, we are.

And, if in a year, five years, ten years...the voting booth, the letter writing, and resistance don't work, remember what Thomas Jefferson said: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Read More by John Silveira

Read More Opinion / Commentary

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