Anthony writes:
>> Why defend free speech if it's just a couple words some guys made
>> up and wrote down on paper? The very nature of the legal system in
>> the
>> United States of America is based upon natural rights. "We hold
>> these
>> truths to be self-evident". Self-evident. Not created by
>> congressmen.
In an effort to add some light rather than heat, let me say this in
response:
It is a common mistake to confuse the Declaration of Independence
(quoted above), which uses the rhetoric of natural rights, with the
U.S. Constitution, which does not use that rhetoric. The first was
published in 1776; the second was completed in 1787, with the Bill of
Rights added in 1791. The reason for the addition of the Bill of
Rights was precisely that the Framers and the voters came to believe
that no concept of "natural rights" was adequate to guarantee
protection of things like "the freedom of speech," even under a
government of limited and specified powers.
The Declaration of Independence is not part of "the legal system in
the United States of America." It's a rhetorical document, not a legal
one.
Of course, any historically informed reading of the Declaration of
Independence can see that its natural-rights rhetoric can be
understand in ways that are consistent with the explicit creation of
rights in the Constitution. To wit, we may be said to have the general
natural right to create our own specific Constitutionally and legally
guaranteed rights. (This is more or less what the Declaration of
Independence says.
But it's quite clear that the Declaration of Independence, standing
alone, has no legal force.)
It should be noted that the Constitution does not even grant rights
to Authors and Inventors. What it does, expressly, is give Congress
the power to create such rights (without specifying what those rights
might be). It would clearly be constitutional for Congress to change
rights in copyright, or even remove them. Such a change is not the
sort of thing that can be understood by any natural-rights theory of
copyright.
--Mike
