Anthony writes:

...

Actually, the difference is quite relevant in a courtroom, especially when dealing with constitutional issues. That's why I find it nearly impossible to believe that Mike doesn't understand this. How in the world can you defend people's constitutional rights if you think they're made up out of nowhere? 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.

It is a common mistake to confuse the Declaration of Independence (which Anthony quotes 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.

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's a rhetorical document, not a legal one, which may be why Anthony prefers quoting the Declaration to quoting the Constitution (in whose Amendments "the freedom of speech" is guaranteed). 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 naive natural-rights theory of copyright.

Trying to cite the Declaration of Independence as the basis for your legal defense in a criminal case -- "Hey, I was just exercising my right to resist a bad king!" -- is a good way to guarantee going to jail.

--Mike