So, 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.Privileges such as voting or driving a car come from the government. Rights come from our humanity. Madison included the word “the” before “freedom of speech” in order to underscore its natural — not governmental — origins.
So, 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 have done and continue to do. 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.
Under positivism, the answer to our pop quiz is that the freedom of speech would be fair game for the government to abridge.
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