Politics & Power Quote by William J. Brennan, Jr.

Brennan is doing a quiet bit of constitutional jujitsu here: he takes the most familiar American legal object, the Bill of Rights, and flips it from a gift to a restraint. The sentence is built to drain the romance out of “creating” rights and replace it with something sterner and more durable. If rights aren’t manufactured by government, they can’t be conveniently unmade by government. That’s the point, and Brennan lands it with a judge’s measured cadence rather than a politician’s flourish.

The specific intent is strategic. Brennan is defending an interpretive posture where the Constitution’s legitimacy doesn’t hinge on a frozen list of permissions handed down in 1791, but on the idea that liberty exists first and law comes second. That matters in the late-20th-century fights Brennan lived through: incorporation of rights against the states, privacy, criminal procedure, the Warren Court’s expansion of protections for defendants, and the backlash that followed. “Presumed to be preexisting” is the key phrase: it smuggles in natural-rights language without preaching it. “Presumed” sounds modest, even empirical, but it carries a heavy implication that courts have a role in recognizing rights the text doesn’t exhaustively enumerate.

The subtext is a warning aimed at majorities. If the Bill of Rights is read as a creator, then rights become policy choices. Brennan insists they are boundaries. Government, in this telling, is not the author of freedom; it is the perpetual suspect.