Taking rights seriously

In his 2008 book “Taking Rights Seriously,” the late professor Ronald Dworkin explored the origins and governmental treatment of human liberty. He argued that Thomas Jefferson — who wrote the Declaration of Independence — and James Madison — the scrivener at the Constitutional Convention and the author of the Bill of Rights — were clear in their articulations that the premise of America at its birth is that our rights are personal and natural because they come from our humanity, not from the government…

The Dworkin thesis is obviously not novel, but he wrote it toward the end of his illustrious career as a bulwark against those in government and academia who argued to the contrary. These folks claimed — and do so today — that the law is whatever those in power say it is, and the dead hands of the framers cannot control the living hands of those whom the people have elected. To these folks, the majority rules, even when it is tyrannical toward a minority.

This argument — that a popularly elected government can trump individual liberties — is utterly repugnant to the concept of natural rights and accepts as somehow lawful the horrific acts of popularly elected governments for which the 19th and 20th centuries are well known. This view also rejects the plain language and — since 1803 — consistent judicial recognition of the Constitution as the supreme law of the land…

No matter how well-intended is New York Gov. Andrew Cuomo, he is the chief executive of the government of the state of New York. He is not the legislature. He cannot write laws and cannot enforce whatever he has written. That is the least of his transgressions. The greatest of them is his interference with rights expressly guaranteed in the Constitution that he and all others in government have taken an oath to uphold.

I admire deeply Cuomo’s brilliant use of his bully pulpit to educate and intimidate the populace into commonsense behavior intended to limit the spread of coronavirus. But he cannot lawfully — nor could the legislature — interfere with the right to travel and to assemble peacefully because those liberties are guaranteed by the Constitution. They cannot be interfered with by decree or even by legislation, no matter the beneficial goal of the interference.

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