[I]t would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.1
—JAMES IREDELL (1788)
WE HAVE SEEN how the argument from popular sovereignty or consent of the governed fails to legitimate legal commands in the absence of unanimous consent. These commands would nevertheless carry with them a duty of obedience, even without consent, if there is a procedural assurance that they do not violate the rights of the persons on whom they are imposed and that their requirements are necessary to protect the rights of others. But what are these rights?
In this chapter, I shall consider the conception of rights held by the people who wrote and adopted the original Constitution and also by those who wrote and adopted the Fourteenth Amendment. The relevance of this information to my overall thesis is as follows: If (a) the framers held certain views of rights, (b) their conception of rights was correct, and (c) they incorporated effective procedural protections of these rights into the Constitution, then the laws that are produced by this constitutional process will be binding in conscience.2
The first step in this analysis is to determine the founding generation’s views of rights. We shall see that they viewed natural rights as liberty rights—a concept of rights that, paradoxically, is both limited and limitless—and that they incorporated this view of rights into the text of the Constitution. I have defended these rights elsewhere and shall briefly summarize my arguments at the end of this chapter. The final issue—the procedural protections of these rights that are incorporated into the constitutional scheme—will occupy most of the rest of this book and will encompass issues of interpretive methodology, judicial review, and the proper interpretation and construction of particular substantive provisions of the text.
The founding generation universally believed that enactments should not violate the inherent or “natural” rights of those to whom they are directed. This is not to say that universal agreement existed about the precise content of these rights, though I believe there was considerable consensus about such rights in the abstract. Nor did everyone agree about the remedy that was appropriate for their violation. Still, the basic concept of natural rights was clear: Natural or inherent rights were the rights persons have independent of those they are granted by government and by which the justice or propriety of governmental commands are to be judged. To understand how the recognition of natural rights enhances legitimacy, we must be more specific about the sort of rights they are. As we shall see, they are the rights that define liberty, as opposed to license.
The founding generation’s commitment to natural rights is expressed in the Constitution itself. The Ninth Amendment to the Constitution reads: “The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.”3 When explaining to the House the nature of the various rights contained in the amendments he proposed be made to the Constitution, James Madison stated that “[i]n [some] instances, they specify rights which are retained when particular powers are given up to be exercised by the Legislature.”4 Madison’s notes for this part of his speech read: “Contents of Bill of Rhts.… 3. Natural rights retained as speach.”5 In other words, for Madison even some of the rights enumerated in the Bill of Rights, such as the freedom of speech, were natural “retained” rights.
Additional evidence that the term “retained” rights referred to natural rights can be found in the deliberations of the select committee that the House of Representatives appointed to draft amendments to the Constitution and on which Madison served. A draft bill of rights authored by fellow select committee member Representative Roger Sherman was found in the 1980s among Madison’s papers. Sherman’s second amendment read as follows:
The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States.6
Along the same lines, Madison proposed to Congress that the following be added as a prefix to the Constitution: “The Government is instituted and ought to be exercised for the benefit of the people; which consists of the enjoyment of life and liberty, with the right of acquiring and using property, and generally pursuing and obtaining happiness and safety.”7
Indeed, the evidence both that the founding generation were committed to natural rights, and that this commitment is reflected in the words of the Ninth Amendment, is so overwhelming that few deny it. Instead, the argument is made that the only natural rights that may be protected by courts are those that were specifically enumerated in the Constitution. The issue of judicial review based on unenumerated rights is one to which I shall return more than once in the course of this book. For the moment, however, I wish to examine why the framers did not include a complete list of natural rights in the Constitution. The simple reason is that they thought it would be impossible do so. Understanding why will help to illuminate the nature of the rights “retained by the people.”
When opponents to the proposed constitution objected that it lacked a bill of rights, defenders argued vociferously that any effort to enumerate rights would be dangerous because the rights of the people were literally boundless. James Wilson, a member of the Constitutional Convention and the first professor of law at the University of Pennsylvania, was an ardent adherent of natural rights. In his lectures on jurisprudence delivered between 1790 and 1792, he explicitly rejected the views of both Edmund Burke and William Blackstone and contended instead that “Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.”8 Nor for Wilson were these mere “theoretical” or “philosophical” rights with no real bite:
I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature. The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.9
Nevertheless, when defending the Constitution against those who complained about the absence of a bill of rights, Wilson explained, “there are very few who understand the whole of these rights.”10 None of the classical natural rights theorists, he said, claim to provide “a complete enumeration of rights appertaining to the people as men and as citizens.… Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.”11 And before the Pennsylvania ratification convention, Wilson observed:
In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.12
The same argument was made by Charles Pinckney in the South Carolina House of Representatives:
[W]e had no bill of rights inserted in our Constitution: for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated.13
Recall as well the colorful close of the quotation that heads this chapter, from future Supreme Court Justice James Iredell to the North Carolina ratification convention: “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”14
To today’s ears, this statement is startling. No matter how long a list of rights anyone might write, Iredell claimed he could add twenty or thirty more. What conception of rights could possibly lead someone of Iredell’s stature to make such a claim in so visible a forum? What conception of rights would lead a natural rights theorist like Wilson to deny that anyone in the Constitutional Convention would have presumed to enumerate all the rights retained by the people? And how could people with so expansive a view of rights, and who viewed them as so vitally important, have eventually adopted so short a list as those contained in the Constitution and the Bill of Rights?
One clue is to be found in the examples of natural “retained” rights provided by Roger Sherman in his proposed second amendment: “Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances.” Each of the rights on Sherman’s list—which was not intended to be exhaustive (“such are”)—are liberties or freedoms to believe or act in certain ways. They are not positive claims on government or on others.
The claim that natural rights are unenumerable and dangerous to enumerate makes complete sense if the term “inherent rights” or “natural rights” is used as a kind of synonym for “liberties” or Liberty (as distinct from license). That the term “natural rights” was synonymous with “liberties” is also exemplified in the official letter to Congress by the members of the Constitutional Convention who wrote that “[i]ndividuals entering into society must give up a share of liberty to preserve the rest.… It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.”15 Other direct evidence of the interchangeability of (natural) rights and liberties could be produced.16
According to this conception, natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within this rightful domain, other persons—including persons calling themselves government officials—should not interfere without a compelling justification. Because people have a right to do whatever they please within the boundaries defined by natural rights, this means that the rights retained by the people are limited only by their imagination and could never be completely specified or enumerated.
This conception of rights as open-ended liberties is illustrated by an exchange that occurred during the debate in the House of Representatives over the wording of what eventually became part of the First Amendment. At one juncture in the debate, Representative Theodore Sedgwick criticized the select committee’s inclusion of the right of assembly on the grounds that “it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the House to descend to such minutia.…”17 Representative Egbert Benson replied to Sedgwick that “The committee who framed this report proceeded on the principle that these rights belonged to the people; they conceived them to be inherent; and all they meant to provide against was their being infringed by the Government.”18
Sedgwick’s response to Benson is revealing of the conception of natural rights held generally at the time:
[I]f the committee were governed by that general principle, they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.…19
Notice that Sedgwick was not denying that one did indeed have a natural right to wear one’s hat or go to bed when one pleased. To the contrary, he equated these “inherent” rights with the right of assembly, which he characterized as “self-evident” and “unalienable.”20
Indeed, Representative John Page’s reply to Sedgwick both made this equation of liberty rights explicit and showed that there was no disagreement that “inherent” or natural rights was a reference to an open-ended liberty. “[L]et me observe to him,” said Page,
that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have also been prevented from assembling together on their lawful occasions, therefore it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights.21
Sedgwick’s point was that the Constitution should not be cluttered with a potentially endless list of trifling rights22 that “would never be called in[to] question”23 and were not “intended to be infringed.”24 Sedgwick’s argument implicitly assumes that the “self-evident, unalienable,” and inherent liberty rights retained by the people are unnumerable because the human imagination is limitless. All the actions one might take with what is rightfully his or hers can never be specified or reduced to a list. It includes the right to wear a hat, to get up when one pleases and go to bed when one thinks proper, to scratch one’s nose when it itches (and even when it doesn’t), to eat steak when one has a taste for it, or take a sip of Diet Mountain Dew when one is thirsty. Make any list of liberty rights you care to and one can always add twenty or thirty more.
The problem, therefore, with any explicit protection of these liberties is that the liberty of the people can never be completely enumerated or listed. An enumeration of rights is likely to be taken as evidence that the people surrendered up to the general government any liberty that is not on the list. With the inevitable danger created by any limited enumeration of unlimited rights specifically in mind, James Madison devised what became the Ninth Amendment. As he explained to the House when introducing his proposed amendments:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but I conceive, that it may be guarded against.25
That Madison and Sherman spoke of “retained” rights and that this word is used in the Constitution also supports the view that natural rights are liberty rights. For these are rights that people possess before they form a government and therefore retain; they are not the “positive” rights created by government. To be clear, I am not claiming that all constitutional rights are liberty rights. On the contrary, there are unquestionably positive rights created by the Constitution, and by other laws, and enforceable duties to respect these rights that government owes its citizens. I am claiming only that the natural “rights … retained by the people” to which the Ninth Amendment refers are liberty rights.
This was not the last time Madison would have opportunity to discuss the Ninth Amendment on the floor of the House, but we shall wait to examine his next reference to it until chapter 9 when we consider how the Ninth Amendment can best be put into practice to protect the liberty rights to which it refers.
This conception of natural rights as liberty rights was not abandoned after the founding period. It was held, perhaps even to a greater degree, by the framers of the Fourteenth Amendment. Recall John Page’s reference to “privilege” in his discussion of the right of peaceable assembly that became part of the First Amendment. The terms “rights,” “liberties,” “privileges,” and “immunities” were often used interchangeably or in a cluster. This terminology is reflected in what is known as the Privileges or Immunities Clause of the Fourteenth Amendment, adopted in the wake of the Civil War: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
The Fourteenth Amendment was enacted to ensure the constitutionality of the Civil Rights Bill of 1866 and to prevent future Congresses from reneging on its guarantees.26 The bill provided federal protections against infringement by state governments of the rights “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.”27
As Michael Kent Curtis has shown, “privileges or immunities” was a common way of referring to “civil rights,” which included the legally protected rights one received in return for surrendering to the government the natural right, or “executive power,” to enforce one’s own rights.
Both in his prototype and in his final version of the Fourteenth Amendment, [Senator John A.] Bingham used the words privileges and immunities as a shorthand description of fundamental or constitutional rights. Use of the words in this way had a long and distinguished heritage. Blackstone’s Commentaries on the Laws of England, published in the colonies on the eve of the Revolution, had divided the rights and liberties of Englishmen into those “immunities” that were the residuum of natural liberties and those “privileges” that society had provided in lieu of natural rights.28
If the framers of the Fourteenth Amendment meant to protect natural rights—or even civil rights—why did they use the term “privileges or immunities” instead? The short answer is that they did so because, while “privileges or immunities” includes natural rights, it is a broader term that includes additional rights.
To appreciate this, we must begin by considering what was then a controversial interpretation of Article IV, Section 2 of the original Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” From the earliest days of the United States some argued that this provision referred to the fundamental or natural rights that belonged to every citizen of the United States. That this was truly the original meaning of the Privileges and Immunities Clause in Article IV has been contested.29 It is not seriously disputed, however, that some time after ratification it came to be widely insisted by some judges, scholars, and opponents of slavery that Article IV was indeed a reference to natural rights. Nor is it disputed that, whenever it first developed, the members of the Thirty-ninth Congress meant to import this meaning into the text of the Constitution by using the language of “privileges” and “immunities” in the Fourteenth Amendment.30
The antebellum argument that privileges and immunities included natural rights was made famously in 1823 by Justice Bushrod Washington, while sitting as a circuit court trial judge in the case of Corfield v. Coryell. Because this language was so often repeated by those seeking to find federal protection of fundamental rights, especially by members of the Thirty-ninth Congress, I present it in full:
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”31
While this passage includes reference to what were considered natural or inherent liberty rights, “privileges or immunities” here unquestionably refers also to such positive civil rights as the “protection of government” that one receives in exchange for surrendering one’s power of enforcement. As employed by Justice Washington, it is a broader term that also includes other fundamental rights created by state and federal constitutions, such as “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.”32
Chester Antieau observed that “it would be almost impossible to overestimate the importance of the above quotation upon American law.”33 Of greatest relevance, Corfield was repeatedly cited by some members of the Thirty-ninth Congress as constitutional justification for their passing the Civil Rights Act of 1866, which provided in Section 1 that
[S]uch citizens, of every race and color, without regard to any previous condition of slavery … shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.…34
Most, if not all, of the rights on this list are unenumerated liberty rights of the sort accepted at the founding. That the statute sought to protect blacks by holding states to the protection afforded the rights of whites in no way undermines the fact that most of the “privileges or immunities” protected by this statute were natural liberty rights.
Senator Lyman Trumbell, a former justice of the Illinois Supreme Court, was the principal draftsman of both the Thirteenth Amendment prohibiting involuntary servitude and the Civil Rights Act of 1866. As chairman of the Senate Judiciary Committee, he took the floor of the Senate to argue that Congress had the authority to pass the Civil Rights Act under, among other provisions, the Privileges and Immunities Clause of Article IV: “What rights are secured to the citizens of each State under that provision? Such fundamental rights as belong to every free person.”35 To establish this interpretation, he cited several judicial opinions and then offered, in its entirety, the quotation from Washington’s opinion in Corfield that appears above.36
In another speech advocating the override of President Johnson’s veto of the Civil Rights Act, Trumbell posed the question, “… what rights do citizens of the United States have?” He answered, “They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights enumerated in this bill, and they belong to them in all the States of the Union.”37 As examples of “natural rights” and “inalienable rights” he offered these: “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.”38
Along the same lines was the speech by Representative James F. Wilson of Iowa, who was coauthor of the Thirteenth Amendment, manager of the Civil Rights Bill in the House, and chairman of the House Judiciary Committee. Wilson argued that “civil rights are the natural rights of man; and these are the rights which this bill proposes to protect every citizen in the enjoyment of throughout the entire dominion of the Republic.”39 After elaborating at length on these rights, he concluded, “Before our Constitution was formed, the great fundamental rights which I have mentioned, belonged to every person who became a member of our great national family. No one surrendered a jot or tittle of these rights by consenting to the formation of the Government.”40 Without “the power … to secure these rights which existed anterior to the ordination of the Constitution,” the government would be “a failure in its most important office.”41
After the Civil Rights Bill was vetoed by President Johnson on the grounds that it exceeded the constitutional powers of Congress, Representative William Lawrence, Republican of Ohio and a former state court judge, rose to advocate overriding that veto. After a lengthy examination of the authorities on behalf of the proposition that “[l]egislative powers exist in our system to protect, not to destroy, the inalienable rights of men,”42 he concluded that
It has never been deemed necessary to enact in any constitution or law that citizens should have the right to life or liberty or the right to acquire property. These rights are recognized by the Constitution as existing anterior to and independently of all laws and all constitutions. Without further authority I may assume that there are certain absolute rights which pertain to every citizen, which are inherent, and of which a State cannot constitutionally deprive him.43
Lawrence also cited with approval Justice Washington’s opinion in Corfield, while elaborating that though the “Constitution does not define what these privileges and immunities” in Article IV are, they “are of two kinds, to wit, those which I have shown to be inherent in every citizen of the United States, and such others as may be conferred by local law and pertain only to the citizen of the State.”44 This statement by Representative Lawrence confirms that “privileges or immunities” was a reference both to inherent or natural rights and to various rights or privileges created by the positive law of particular governments.
Even more important to understanding the original meaning of the term “privileges or immunities” were the explanations later offered by members of Congress when discussing the Fourteenth Amendment. After reading the same quotation from Justice Washington’s opinion in Corfield, Senator Jacob Howard, Republican and former attorney general of Michigan, stated: “Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution.”45 He then continued: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.”46
After listing these rights,47 Howard noted the fact that courts had rejected the abolitionist argument that the Privileges and Immunities Clause of Article IV protected the rights of citizens from infringement by state governments.
[I]t is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them.…48
Thus the need for the Privileges or Immunities Clause of the Fourteenth Amendment:
Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees … but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.49
The same sentiment was expressed by Congressman Frederick Woodbridge, Republican of Vermont. The “object of the proposed amendment,” he said, was to give “the power to Congress to enact those laws which will give to a citizen of the United States the natural rights which necessarily pertain to citizenship,” or, in other words, “those privileges and immunities which are guaranteed to him under the Constitution of the United States.”50 That this represented a substantial change in the relationship between state and federal governments is difficult to overemphasize.
I have seen little in the historical record to suggest exactly how the rights “retained by the people” referred to in the Ninth Amendment compared with the “privileges or immunities” protected by the Fourteenth. The natural implication is that because both phrases originally referred to background, natural, or inherent rights, both provisions refer to the same set of unenumerable rights though they differ on the jurisdiction created for the protection of these rights. Just as the Fourteenth Amendment extended protection of the enumerated rights of the first eight amendments to violations by state governments, so too did it extend federal protection of the preexisting unenumerated rights “retained by the people.” The quotations from Justice Washington and others suggest that “privileges or immunities” is a broader term including both natural or inherent rights as well as those particular “positive” procedural rights created by the Bill of Rights.
This was the view held by Ohio Senator John Sherman, a Republican member of the Thirty-ninth Congress and future secretary of state who, some years after the ratification of the Fourteenth Amendment, pointed to the Ninth Amendment as evidencing the existence of “other rights beyond those recognized”51 in the Bill of Rights. Speaking to the Senate in 1872 in support of a civil rights bill to guarantee blacks and other citizens equal access to public accommodations—rights nowhere mentioned in the Constitution—Sherman contended:
[T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights, (because I do not distinguish between them, and cannot do it,) of citizens of the United States, such as are recognized by the common law, such as are ingrafted in the great charters of England, some of them in the constitutions of different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered.52
Sherman conceded that “[t]here may be sometimes great dispute and doubt as to what is the right, immunity, or privilege conferred upon a citizen of the United States.”53 Nevertheless, the task of identifying that right must fall “from time to time [to] the judicial tribunals.”54 To determine these rights, immunities, or privileges, judges
will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers to the Declaration of American Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of Lords Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens.55
If the founding generation that adopted the Ninth Amendment and the generation that adopted the Fourteenth Amendment were correct about natural rights, then constitutional legitimacy requires a lawmaking process that provides an assurance that the rights retained by the people, or the privileges and immunities of citizens, will not be disparaged, denied, or abridged. Whether such a process includes the direct protection of unenumerated rights by judges, however, is a separate question that we shall consider later in this book.
There are those, of course, who admit the founding generation’s widespread commitment to natural rights, while diminishing its importance to matters involving the Constitution. They point to statements saying that people give up some of their natural rights when they enter into society and form a government. They also point to laws that restricted freedom as evidence that natural rights were not thought to impose any legal or enforceable constraints on government. Sometimes it is claimed that the professed commitment to natural rights was rhetoric to justify a revolution, but when it came to governance, this rhetoric was muted or abandoned entirely.
There is no question that the founders sometimes spoke of surrendering one’s natural rights. They also enacted laws that some, then and now, might think violated natural rights. If, however, we approach these statements and practices with the same sympathy for natural rights that was felt by the founding generation and the framers of the Fourteenth Amendment, we may find that they are reconcilable with a strong commitment to the rights retained by the people.
Let us begin with statements saying that one gives up one’s natural rights when one enters into society or when one forms a government. Such statements were surely common. “What is government itself but a restraint upon the natural rights of the people?” rhetorically asked a member of the New York ratification convention. “What constitution was ever devised that did not operate as a restraint on their original liberties?”56 Robert Barnwell asserted to the South Carolina ratification convention that in “the compacts which unite men into society, it always is necessary to give up a part of our natural rights to secure the remainder.”57
Sometimes these statements may even mean what they appear to say. Then, as now, there is not complete unanimity on any issue if we move beyond abstractions and generalities. But for every statement to this effect there are many more that refer to the natural rights still possessed by the people. This is significant because, when these statements were made, popular governments existed and no one was thought to be in a state of nature.58
Typical is the statement by the ratification convention of Virginia that formally accompanied its ratification of the Constitution—a statement also copied and adopted by the ratification conventions of North Carolina and Rhode Island: “That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”59 To make sense of natural rights we should not use the aforementioned sorts of statements to discredit statements like these. Rather, we should appeal to a conception of natural rights that reconciles them both; and there is more than one way to reconcile them.
First, most references to giving up one’s natural rights when entering into society say, as does Barnwell’s, that one surrenders only “a part of our natural rights”60 while retaining others. Only those rights whose alienation is necessary to form a government are yielded. Typical of this idea is the official letter to Congress by the members of the Constitutional Convention (which I cited earlier to illustrate how the word “rights” was synonymous with the word “liberty”):
It is obviously impractical in the federal government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all—Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.61
So, for example, taxation by anyone except the government is theft and a violation of one’s natural rights. When one forms a government with powers of taxation, one might be seen as giving up one’s natural right to the possession and use of property to the degree that some taxation is necessary to pay for government. The same would be true of the power of eminent domain. Your neighbor cannot condemn your land for private use, but the government can take it for public use (provided just compensation is made). One way to handle the problem of government’s possessing powers that ordinary citizens lack is to say that, when government is formed, certain rights are “surrendered up.”
What supposedly follows from statements about surrendering natural rights is that, despite the fact they are devised to constrain governments, natural rights no longer appear to operate as an effective constraint on government. This conclusion is unwarranted. At the time of the founding, almost no one claimed or believed that one surrenders all one’s natural rights up to government, but only those that were necessary. One cannot infer, then, from the fact that some natural rights were surrendered up, that other rights still retained by the people can be denied or disparaged with impunity.
Rather, the rights that are retained remain the measure of whether government is acting properly or improperly in the exercise of its delegated powers. As Madison explained to the Constitutional Convention, though the national government was formed to accomplish a variety of objects or ends, first among them was “the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than any thing else, produced this convention.”62
Moreover, as was made clearer in the discussions of natural rights in the Thirty-ninth Congress, to the extent one surrendered one’s natural rights, one received “civil rights” in return. The most important power surrendered to government is what Locke and others called “the executive power” and what is sometimes called the “police power.” This is the power to enforce or “police” one’s rights when they have been violated by others. Indeed, John Locke argued that it was the “inconvenience” of exercising the executive power in the state of nature that justified the creation of an “impartial magistrate”—that is, government.
The particular problem with individuals retaining the executive power is that they are then the judges in their own cases.
I easily grant, that Civil Government is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great, where Men may be Judges in their own Case, since ’tis easily to be imagined, that he who was so unjust as to do his Brother an Injury, will scarce be so just as to condemn himself for it.63
When “surrendering” one’s executive power to government, however, one receives in return a “civil” right to have one’s retained rights protected by the police power now in the hands of the civil government. This civil right to “the protection of the laws” is the root of the Equal Protection Clause of the Fourteenth Amendment that mandates that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”64
Thus, in return for the surrendered natural right of enforcement, government assumes a positive obligation to protect the unsurrendered rights retained by the people. Those retained rights remain a measure of the propriety of government enforcement, since it is for their protection that the executive power is surrendered in the first instance. As Locke explained:
The Supream Power cannot take from any Man any part of his Property without his own consent. For the preservation of Property being the end of Government, and that for which Men enter into Society, it necessarily supposes and requires, that the People should have Property, without which they must be suppos’d to lose that, by entring into Society, which was the end for which they entered into it, too gross an absurdity for any Man to own.… Hence it is a mistake to think, that the Supreme or Legislative power of any Commonwealth, can do what it will, and dispose of the Estates of the Subject arbitrarily, or take any part of them at pleasure.65
But even this account of exchanging natural for civil rights underestimates the role played by natural rights in civil society.
To understand better how delegated governmental powers can be squared with retained rights, those seeking historical context must also take into account the law governing agency relationships or what is still sometimes referred to as the law of “master and servant.”66 The founders were accomplished private lawyers, familiar with eighteenth-century agency law and, not coincidentally, they also often professed their belief in the “agency theory” of government. The idea that government officials are the agents or servants and the people are the principals or masters, however quaint it may seem to political sophisticates today, was widely held. Benjamin Franklin articulated this popular view to the Constitutional Convention: “In free Governments the rulers are the servants, and the people their superiors & sovereigns.”67
By definition, a principal “surrenders” certain powers to her agent. If I designate you my agent to sell my car, you now are in possession of the power to sell, which formerly only I had possessed. It is even possible that I delegate my exclusive power to sell the car to you and that, by the terms of our agreement, I no longer may rightfully sell the car to a third party. Think of authors who routinely give an exclusive license to a publisher to publish an article or book, which the author may then not republish on his or her own.
Yet, just because certain powers (or rights) are delegated does not entail that the agent is now the master. For, according to agency law, the agent is to exercise those powers only (a) “on behalf of” and (b) “subject to the control of” the master or principal.68 Of course, the principal does not literally control the behavior of the agent—there would be no advantage to entering into a principal-agent relationship were that the case. Instead, the agent must yield to the control of the principal when the principal exerts it. And even when operating on his own, the agent must always exercise the powers delegated to him “on behalf” of the interests of the principal and can be held responsible for any breach of this fiduciary duty.
It would be more accurate and much neater if we were to speak not of rights delegated to government but only of powers. Unfortunately, language then, as now, is not always used with precision. Though it must be admitted that statements can be found that speak of alienated “rights” when “powers” would have been the better term, one thing is remarkable: The framers of the Constitution were rigorously consistent in referring to the “powers” of government and the “rights” of the people. The Constitution refers to powers—and only powers—being delegated to government, whereas rights are retained by the people (and powers reserved to them as well). The best theory of this usage is that only powers, not rights, are delegated to government and that all rights are retained by the people as a measure of the propriety of the exercise of governmental power.
Then there is the matter of “inalienable” rights, that is, rights that cannot be surrendered. How can this concept be squared with statements about surrendering natural rights and the enactment of freedom-constraining laws? One way to understand this is to think of inalienable rights as somehow more fundamental or important than trivial or trifling natural rights, and then posit that, while the latter can be surrendered and restricted, the former cannot. However, this formulation is misleading.
Instead, it is better to say that inalienable rights are more abstract than other specific natural rights or liberties. These inalienable rights can be classified as the rights of several property, freedom of contract, self-defense, first possession, and restitution. Together, these abstract natural rights define a boundary or jurisdictional space within which people should be free to make their own choices.
The specific choices people make within this jurisdictional space are the more particular natural rights or liberties. For example, the abstract and inalienable right to the possession, use, and enjoyment of several property includes the particular right to read a book in one’s own house or to go to bed when one wishes, though such specific “trivial” rights are impossible to list and may themselves be alienated. Moreover, my inalienable property rights to the exclusive use and enjoyment of my body do not prevent me from waiving this right by consenting to get in the ring with Muhammad Ali. As was noted in chapter 2, I can exercise my inalienable natural right to freedom of contract and agree to live in a residential community like Leisure World that restricts how I may alter the external appearance of my house and may even restrict ownership to people over a certain age.
It is common to see statements to the effect that one’s right to do something is subject to the “laws of the land.” For example, while Locke argued that one completely surrendered the executive power to enforce one’s rights by punishing one’s attacker or extracting reparations from him, he contended that one “gives up” the natural right of self-preservation “to be regulated by Laws made by the Society, so far forth as the preservation of himself, and the rest of that Society shall require.”69 Likewise, in Corfield, Justice Washington says that “the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety” is “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”
Such statements raise the issue of the reasonable regulation of one’s natural rights, a subject to which we shall return later in this book. One ought not, however, look to regulations that exist at the time of the founding as evidence of the limits of or nonexistence of natural rights. This would be to employ the modern and euphemistic meaning of “to regulate” as “to prohibit.” In contrast, “to regulate” literally means “to make regular.” As will be shown in chapter 10, this was (with some exceptions) the general sense in which the term was used in the Constitution. According to this usage, an inalienable right could be retained and its exercise still be regulated by the law of the land.
Assume that there is a natural and inalienable right to possess, use, and dispose of several property. Someone wants to transfer her property rights in a tract of land to her son after her death so she executes a document called a “will.” How this document will be interpreted and enforced in a court of law requires the articulation of certain rules or laws governing what constitutes a valid will. Requirements of formality, for example, may be devised specifying the need for two or more witnesses to a signature. Such rules or laws regularize will making. The power to regulate will making in this sense does not, however, include the power to rewrite wills to contradict the demonstrable intent of the testator, nor the power to prohibit the making of wills altogether, nor the power to confiscate a percentage of the decedent’s property in estate “taxes.”
That the reasonable regulation of natural rights is essential to their efficacious exercise and enforcement in civil society does not entail that these rights are surrendered completely to the government. On the contrary, these rights remain the object and measure of any regulations. That is, the protection and facilitation of everyone’s retained rights in civil society is the purpose of any “police” regulation by law, and this object or end is the measure of whether a particular regulation is or is not reasonable.
By this account, some natural rights can be surrendered to government in order to better secure those that are retained. As was said by Samuel Nasson, at the Massachusetts ratification convention: “When I give up any of my natural rights, it is for the security of the rest.”70 But it is better to adopt the terminology of the Constitution itself and speak of (limited) powers being delegated by the people—or principals or masters—to their servants or agents in government. The rights that are retained provide the measure of how these powers should be exercised. The “police power” to enforce or regulate a retained right is not the power to confiscate, prohibit, infringe, or abridge its exercise.
Locke made a similar point when he claimed that whatever liberty or powers are given up when one enters society are given up
only with an intention in every one the better to preserve himself and his Liberty and Property; (For no rational Creature can be supposed to change his condition with the intention to be worse) the power of the Society, or Legislative constituted by them, can never be suppos’d to extend farther than the common good; but is obliged to secure every ones Property by providing against [the] … defects … that made the State of Nature so unsafe and uneasie.71
It is also worth noting that Locke distinguished the two powers that were given up, either entirely (the executive power) or to be regulated by law (the power of self-preservation), from a third species of natural rights that he does not claim a person surrenders either upon entering civil society or upon forming a government. This third species is “the liberty he has of innocent Delights.”72 We might also call this the right to the pursuit of happiness. Provided that such pursuits do not unjustly interfere with the rights of others, the civil authority has no role in the prohibition or even the regulation of “innocent Delights.”
Few who caution us against taking the founders’ expressed commitment to natural rights out of context address the views of those who wrote the Fourteenth Amendment. Even if their commitment to natural rights was more “liberal” and less “republican” than that of the founders, it is they—not the founders—who wrote the Fourteenth Amendment. When we consider the protections of “privileges or immunities” provided by the Fourteenth Amendment, it is their conception—not the founders’—that represents the original meaning of that phrase.
Finally, basing constitutional legitimacy on natural rights does not automatically mean that judges should use the concept of natural rights to decide actual cases or controversies. The argument to this point is only that, to be legitimate, a constitution must offer the assurance that the lawful commands it issues to the citizenry have the qualities that make law binding in conscience. Perhaps direct discussion of natural rights by judges would enhance legitimacy; perhaps natural rights would best be protected if judges ignored them altogether. This is a matter I shall consider at greater length in part III. I raise the issue now only to note that it would not be inconsistent with the conception of legitimacy presented here to maintain that unenumerated natural rights are best protected by mechanisms other than direct judicial enforcement.
In light of this, it would not be surprising to learn that the founding generation held a diversity of views on judicial review. Whether or not this was the case, however, the issue of constitutional legitimacy for us today is whether the Constitution, as amended, defines lawmaking procedures that, if followed, are capable of producing lawful commands that bind in conscience. This issue is not addressed by a historical analysis of whether the founding generation thought that natural rights were or were not to be directly protected by the judiciary.
Rather, the question of legitimacy facing us has two components: First, whether the system of lawmaking they devised and enacted—as amended—has the qualities necessary to impart the benefit of the doubt on lawful commands. Second, assuming that the system they enacted is legitimate, whether the lawmaking system in existence today adheres to that which was enacted. These are questions to be addressed later in this book.
In the previous section, I identified a conception of natural rights that squares the founders’ well-known commitment to these rights with the ideas of surrendered powers and reasonable regulation by the laws of the land, rendering otherwise disparate statements concerning natural rights and government powers coherent and explicable. It would seem more difficult to square the founders’ belief in retained natural rights with their universal belief in popular sovereignty or the consent of the governed. Understanding how each person can possess natural and inalienable rights and yet consent to surrender a portion of these rights to a central authority is not the problem. As previously noted, a rights holder may consent to alienate some of his or her rights while retaining the remainder, or may be thought to retain all his or her fundamental rights consensually delegating certain powers to agents. The problem is understanding how the founders could have considered the consent of the majority to bind the minority; or how the consent of one generation can bind that of another; or how the consent of men can bind women.
In this regard, I think the founders were wrong, but for the right reasons. They saw that people had natural rights that could be alienated only by their consent. Because they believed that (a) it was necessary to form some type of government, (b) any government would necessarily require the surrender of some rights or powers, and (c) only consent would justify such a transfer, they further believed (d) there must be a type of consent that would to do the job. Majority consent was accepted then—as it still is—as the only way to get from point (a) to point (d). Because they held to this assumption of necessity, they no more would have questioned the “consent” that is sufficient to legitimate a government than most people would today. All that distinguishes between them and today’s popular thought is that they believed that an enlightened “electorate” need not be everyone, whereas today there is a belief in (nearly) universal suffrage.
Still, both the founders and most today may be wrong in two different ways. First, it may be possible to organize a legal system in such a manner that everyone does consent in a real way to its operation. This is the suggestion I made briefly in chapter 2, and that I have pursued elsewhere in greater detail.73 If such a system is feasible, the governmental legal system with which we are familiar might be both unnecessary and improper—or at least less legitimate than this polycentric alternative.
Second, as I also argued in chapter 2, there may be a way to legitimate to some degree even a governmental legal system without the consent of the governed. A legal system that provides assurances that it does not violate the background rights retained by the people—that the “quality goes in before the name law goes on”—is legitimate despite the fact that it did not originate in consent. If either of these possibilities is justified, then an argument based on the supposed necessity of recognizing majority will or “popular sovereignty” as real consent is less compelling than the founding generation appreciated or is appreciated by most today.
On the other hand, the initial ratification of a constitution by a majority of elected delegates to conventions or by a popular referendum may contribute to, though not establish, the legitimacy—as I am using the term—of a resultant constitution. Such an adoption process may make it more difficult to put in place a lawmaking system that is illegitimate, not because it lacks the “consent of the governed,” but because it is procedurally inadequate. Presumably, those people who vote for a lawmaking system would not do so if it did not provide the requisite assurances that the laws that would be imposed upon them would be just.
Of course, it is not at all clear that this adoption process would provide equal confidence that laws imposed upon persons and groups who were never asked for their consent are also just. Nevertheless, it may be that if the procedural protections afforded by the original constitution are later extended to those who did not consent, such a lawmaking process might become as legitimate for them as it is for those who originally did consent. Why might this be?
While the consent of some does not of itself provide a lawmaking process that is legitimate for everyone, a ratification process that requires the “consent” of a large group of ratifiers might serve to induce a deliberative process that would help assure that as to them the resulting system has the procedural features that are the source of legitimacy. When these protective procedures are then extended to others who were not a part of the initial “consenting” group, they may nevertheless provide procedural legitimacy to enactments imposed on those who did not originally consent. To be clear, it is the nature of the lawmaking and enforcement procedures, not the partial consent that brought them into existence, that would make laws binding in conscience on those who never consented—though without the initial partial consent, these procedures might never have been devised and enacted. In this way, even partial consent can contribute indirectly to the establishment of a legitimate legal system.
The existence of that initial partial consent, however, is neither sufficient nor necessary to provide whatever legitimacy a legal system may have. (Consider, for example, Japan’s constitution, which was written by U.S. Army lawyers and adopted by a captive parliament.) For all its advantages, however, the requirement of popular ratification is not an unmixed blessing. Recall that it was the need to win majorities of Southern delegates in their state ratification conventions that prevented the Constitutional Convention from doing more to prohibit the manifest injustice of slavery. The Fourteenth Amendment would never have received approval from the requisite number of states, had the Thirty-ninth Congress not used the Union Army to “reconstruct” the governments of the Southern states and made their ratification of the Fourteenth Amendment a condition of seating their representatives in Congress.74
In the end, if their commitment to natural rights led them to devise and enact a scheme of lawmaking that would impart legitimacy on validly enacted laws, it does not matter that the founding generation and those who enacted the Fourteenth Amendment may have been wrong about popular sovereignty.
Just as we do not have to accept the founding generation’s view of popular sovereignty, we do not have to accept their belief in natural or inherent rights. We are free to ask whether or not these beliefs were correct. Though the rhetoric of “natural rights” has largely been lost, most people still believe that “first come rights, then comes government.” That is, they reject the theory that the rights of the people are merely a grant or dispensation of government. Most share the founders’ view, implicitly at least, that people have rights and they form governments to better protect these rights. Witness the popular support for “human rights” that governments everywhere, it is contended, may not transgress.
The widespread acceptance of “first come rights, then comes government” was displayed during the controversial confirmation hearing of Robert Bork. During his testimony Judge Bork was grilled by Senate Judiciary Committee chairman Joseph Biden about the meaning of the Ninth Amendment. After first asserting that he would be “delighted” to use the Ninth Amendment, “if anybody shows me historical evidence about what [the framers] meant,”75 he then offered the following widely discussed analogy:
I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.76
Popular reaction to this argument was not favorable. That this was the wrong answer is illustrated by the testimony of every Supreme Court nominee who was asked about the Ninth Amendment after Bork. No one again tried to argue that the meaning of this express provision of the Constitution is unknowable or unimportant.
When you move from a general claim that “first come rights, then comes government” to a discussion of what these rights may be, there is also a general consensus that they include the rights of person and property that enjoin murder, rape, robbery, and theft—acts that are universally prohibited. Nor does anyone claim that government officials should be able to murder, rape, or steal. This consensus quickly breaks down, however, as the list of “human rights” is expanded. The lack of consensus is aggravated by the open-ended nature of the term “rights” itself. Philosophers often define rights as “justified claims” and anything might be the subject of such a claim. One could claim a right to a million dollars, a right to an organ transplant, a right to unfettered views of the sunset, or a right to affordable access to opera. No wonder a basic commitment that “first come rights, then comes government” yields no consensus on the content of all these rights. Failure to agree upon the complete set of rights, however, should not conceal the fact that there is surely a consensus as to some.
We saw earlier how the classical conception of natural rights or liberties, as understood by the founders, could not be limited to a specific list and was, in this respect, unbounded. Paradoxically, this approach also provides a minimalist conception of background rights about which a general consensus probably exists. Whatever else people may believe they have a right to, most all people believe that they have the right to make their own choices and act as they please with what belongs to them; that they can do as they will with what is theirs provided their actions do not harm others.77 There is good reason for this belief.78
People living in every society confront certain pervasive obstacles to the pursuit of happiness. These problems can be categorized as problems of knowledge, interest, and power.79 The first problem of knowledge is enabling people to act on the basis of what they know about their particular circumstances while somehow taking into account all the personal and local knowledge of others of which they are hopelessly ignorant. The problems of interest include the “partiality problem.” The partiality problem is to allow all persons to pursue their own interests while somehow taking into account the interests of those who are remote to them.
The way these problems are solved is the recognition and protection of a bounded freedom to make choices and act upon them. This bounded freedom is called Liberty (as opposed to an unbounded freedom called “license”). The recognition of “liberty rights” of this kind provides the inescapable means by which these and other social problems are solved.
According to this account, natural rights are the set of concepts that define the moral space within which persons must be free to make their own choices and live their own lives if they are to pursue happiness while living in society with others. They are rights insofar as they entail claims on other persons—including those who call themselves “government officials”—that ought to be enforceable. They are natural insofar as their necessity depends upon the nature of persons and the social and physical world in which persons reside. In sum, as Madison stated in his speech to the House, “the pre-existent rights of nature” are “essential to secure the liberty of the people.”80
A respect for these rights is as essential to enabling diverse persons to pursue happiness while living in society with others as a respect for fundamental principles of engineering is essential to building a bridge to span a chasm. This type of justification for rights was offered by Elizur Goodrich in a sermon delivered to the governor and legislature of Connecticut on the eve of the Constitutional Convention. His account is worth quoting at length:
The principles of society are the laws, which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse. These laws may be considered as principles, in respect of their fixedness and operation; and as maxims, since by the knowledge of them, we discover those rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature. They are as fixed and unchangeable as the laws which operate in the natural world.
Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world. He who neglects the cultivation of his field, and the proper time of sowing, may not expect a harvest. He, who would assist mankind in raising weights, and overcoming obstacles, depends on certain rules, derived from the knowledge of mechanical principles applied to the construction of machines, in order to give the most useful effect to the smallest force: And every builder should well understand the best position of firmness and strength, when he is about to erect an edifice. For he, who attempts these things, on other principles, than those of nature, attempts to make a new world; and his aim will prove absurd and his labour lost. No more can mankind be conducted to happiness; or civil societies united, and enjoy peace and prosperity, without observing the moral principles and connections, which the Almighty Creator has established for the government of the moral world.
Moral connections and causes in different circumstances produce harmony and discord, peace or war, happiness or woe among mankind, with the same certainty, as physical cases produce their effect. To institute these causes and connexions belongs not to men, to nations or to human laws, but to build upon them. It is no more in the power of the greatest earthly potentate to hinder their operation, than it is to govern the flowing and ebbing of the ocean.81
Notice that Goodrich was not analogizing the “principles of society” to the natural laws one finds in the hard sciences like physics or chemistry. Instead, he analogized them to what we might call the “normative disciplines”82 of agriculture, engineering, and architecture. Unlike the natural sciences, each of these disciplines seeks to guide human conduct by providing certain principles of action. In normative disciplines, the justification of these principles takes the following form: Given the nature of the world, if you want to accomplish certain ends, then you had best respect certain means. Goodrich’s argument on behalf of certain “principles of society” takes the same form.
The argument in defense of natural rights is that, given the nature of human beings and the world in which we live, if you want a society in which people can pursue happiness, and in which civil society can enjoy peace and prosperity, then you had best respect certain rights. In particular you need to protect the bounded freedom of individuals to make their own choices based on their personal and local knowledge in pursuit of their own interest. The proper boundaries of freedom are provided by the rights of several property, freedom of contract, first possession, self-defense, and restitution. These are the fundamental—and, in the abstract, inalienable—natural rights that all societies must recognize to some degree or they will cease to be functioning societies. The term for properly bounded freedom is Liberty.
Natural rights must be distinguished from “natural law” ethics (or what some refer to as natural right).83 Natural law ethics or “natural right” is a method of assessing the propriety of individual conduct. This method is used to stipulate, for example, that persons should live their lives in certain ways and not in others.84 The concept of natural rights, in contrast, while sharing a common intellectual ancestry and methodology with natural law, addresses a quite different problem. Natural rights do not specify what the good life is for each person nor how each person should act, but what moral “space” or “jurisdiction” each person requires in order to pursue the good life in society with others.
In short, natural law ethics tells people how to exercise the Liberty or bounded freedom defined by natural rights. Whereas natural law ethics assesses the propriety of individual conduct, natural rights assesses the propriety or justice of restrictions imposed on individual conduct.85 Of course, the same conduct—murder, for example—might be thought to violate natural law because it is “bad” (persons should not kill others except in self-defense), and violate natural rights because it is unjust (persons have a right not to be killed except in self-defense). The reasons why actions are bad, however, are not always the same as why they are unjust.
Moreover, it has long been recognized that many actions that are bad are not unjust, in the sense that they violate the rights of others. For example, natural law theorist Thomas Aquinas, writing centuries before natural rights developed as a separate subject of study, argued:
Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Therefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain, and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft and the like.86
On rare occasion, it may not be bad to act unjustly—as for example when, in an emergency, one wrongfully takes property that belongs to another to save one’s life. The goodness of such an act does not necessarily negate its wrongfulness.87
Contrary to the claims of critics of classical liberalism, then, natural rights are not conceived of as “presocial”;88 nor do they assume “atomistic” individuals. Rather, natural rights are those rights that are needed precisely to protect individuals and associations from the power of others—including the power of the stronger, of groups, and of the State—when and only when persons are deeply enmeshed in a social context. Such rights would be entirely unnecessary if individuals were not in society with each other, or if the actions of some persons did not adversely affect the welfare of others.
Further, when the difference between natural rights and natural law ethics is understood, it becomes plain that a constitutional commitment to protecting natural rights does not entail any general mandate to legislate morality. In this regard, it is confusing and unhelpful that many legal academics use the terms “natural law” and “natural rights” interchangeably.89 Rather than imposing moral duties on persons to live their lives in certain ways, natural rights protect persons from the State and from each other.
For this reason, the constitutional protection of these rights may include both a “negative” duty of government to refrain from infringing these rights and a “positive” duty upon government to protect the rights of its citizens from infringement by others.90 Both of these duties are reflected in the thesis presented in chapter 2: to bind in conscience a law must be necessary to protect the rights of others without improperly violating the rights of those upon whom it is imposed. Of course, to claim that a constitution imposes positive duties on government is not to concede that it imposes positive duties on the citizenry. In the main, as discussed in chapter 1, the Constitution “constitutes” the government of the United States and regulates its powers; it does not purport to regulate the rights of the people.
When this conception of natural rights is understood, it is easier to see why constitutional legitimacy requires that they not be violated. At the same time lawmakers claim that the subjects of their laws have a moral duty of obedience, they also invariably claim that their laws advance the general welfare or the common good. Indeed, if pressed, many would make the latter claim in defense of the former—that is, people have a duty to obey the law because adherence to such laws does advance the general welfare. Yet if the arguments on behalf of these natural liberty rights that I have summarized here are correct, then laws that violate these rights do not advance the general welfare or common good. Indeed, they harm it, and by so doing undermine the justification for claiming a duty of obedience. Thus human laws that violate natural rights are not obligatory; only those human laws that respect natural rights can be obligatory.
This suggests yet another reason why legal rights should not violate natural rights. In chapter 1, I considered and questioned the claim that the authority of lawmakers can be grounded on the “consent of the governed” to the lawmaking regime. To the contrary, the obligation of lawmakers to respect natural rights rests, at least in part, on the “consent of the governors” to respect these rights. For do not lawmakers explicitly or implicitly claim that their laws promote the common good and are not unjust? By doing so are they not consenting to adhere to principles of justice that, if violated, would thwart the common good?
For example, the Preamble to the U.S. Constitution explicitly claims its purpose to “establish Justice, ensure domestic tranquility, … promote the general Welfare, and secure the blessings of Liberty to ourselves and our posterity.…”91 Do not lawmakers in the United States who take an oath to uphold the Constitution explicitly obligate themselves to pass laws that actually do establish justice, do ensure peace, do promote the general welfare, and do secure liberty? Are not laws that fail to accomplish these ends both unnecessary and improper? If a proper respect for certain natural rights is necessary to accomplish the ends for which government was established, then these background rights must be respected by lawmakers if for no other reason than because those who claim authority to make laws have promised or consented to do so.
Just as you need not agree with my conception of justice to accept the view of constitutional legitimacy I advance here, you need not accept my particular defense of natural liberty rights retained by the people to accept these rights themselves. So long as you find persuasive some justification of these rights, you should view the Constitution as legitimate if it provides adequate procedural assurances that enacted laws properly respect the rights of those on whom they are imposed and are necessary to protect the rights of others. We now turn our attention to some of these procedural assurances. In particular, we need to examine the manner by which the text of the Constitution should be interpreted and construed and whether, properly interpreted, the scheme established by the Constitution permits the judiciary to assess the necessity and propriety of laws enacted by Congress.
1 Elliot, Debates, 167 (James Iredell, North Carolina ratifying convention, Tuesday, July 29, 1788).
2 Under the analysis of the previous chapter, it is open to someone to contend that the Constitution is legitimate because it provides effective procedural protections of rights other than those to which the founders adhered, but that is not the thesis I shall develop.
3 U.S. Const., Amend. IX (emphasis added).
4 Joseph Gales and William Seaton, eds., The Debates and Proceedings in the Congress of the United States, vol. 1 (Washington, D.C.: Gales and Seaton, 1834) [hereinafter Annals], 454 (statement of Rep. Madison) (emphasis added).
5 “Madison’s Notes for Amendments Speech 1789,” in Randy E. Barnett, ed., The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Fairfax, Va.: George Mason University Press, 1989), 64. The next type of rights mentioned both in his speech as delivered and in his notes is “positive rights, which may result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature” (Annals, 1:454).
6 “Roger Sherman’s Draft of the Bill of Rights,” in Barnett, Rights Retained, 351 (emphasis added).
7 Annals, 1:451.
8 James Wilson, “Of the Natural Rights of Individuals,” in The Works of James Wilson, vol. 2, ed. J. D. Andrews (Chicago: Callaghan and Company, 1896), 307.
9 Ibid., 335 (citations omitted). Wilson’s lectures also undermine the claim that by the time of the Constitution, Americans had lost their Lockean and revolutionary ardor for natural rights in favor of a more conservative Blackstonian positivism that favored legislative supremacy.
10 Elliot, Debates, 454 (remarks of James Wilson).
11 Ibid.
12 Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution, vol. 2 (Stevens Point, Wis.: Worzalla Publishing, 1976), 388 (statement of James Wilson to the Pennsylvania ratifying convention, November 28, 1787).
13 Elliot, Debates, 4:316 (Friday, January 18, 1788).
14 Ibid., 167 (James Iredell, North Carolina ratifying convention, Tuesday, July 29, 1788).
15 Madison, Notes of Debates, 627 (emphasis added) (letter of Constitutional Convention to Congress). I shall return to this quotation and its reference to “surrendered” rights in the second section of this chapter.
16 See, e.g., Elliot, Debates, 2:201–2 (Speech of Oliver Wolcott to the Connecticut ratifying convention, Friday, January 18, 1788, discussing whether the proposed Constitution “secures the liberties of the people, or whether its tendency be unfavorable to the rights of a free people”). Ibid., 311 (“What is government itself but a restraint upon the natural rights of the people? What constitution was ever devised that did not operate as a restraint on their original liberties?”).
17 Annals, 1:759 (statement of Rep. Sedgwick).
18 Ibid. (statement of Rep. Benson).
19 Ibid., 759–60 (statement of Rep. Sedgwick).
20 Ibid., 759 (statement of Rep. Sedgwick).
21 Ibid., 760 (statement of Rep. Page).
22 For a discussion of the founding generation’s view of “trivial rights,” see Philip A. Hamburger, “Trivial Rights,” Notre Dame Law Review 70 (1994): 1.
23 Annals, 1:759 (statement of Rep. Sedgwick).
24 Ibid., 760 (statement of Rep. Sedgwick).
25 Ibid., 456 (statement of Rep. Madison).
26 See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986), 71–91.
27 Act of April 9, 1866, 14 Stat. 27.
28 See Curtis, No State Shall Abridge, 64 (emphasis added).
29 Compare Chester Antieau, “Paul’s Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four,” William and Mary Law Review 9 (1967): 5 (contending that the clause referred to natural rights), with David S. Bogen, “The Privileges and Immunities Clause of Article IV,” Case Western Reserve Law Review 37 (1987): 796 (arguing that the clause was “not a reference to natural law, but was solely concerned with creating a national citizenship”). In accord with Antieau is Michael Conant, “Antimonopoly Tradition under the Ninth and Fourteenth Amendments: Slaughter-House Cases Re-Examined,” Emory Law Journal 31 (1982): 785.
30 This is conceded even by those who deny the original meaning of “privileges and immunities” in Article IV was a reference to natural rights. See Bogen, “The Privileges and Immunities Clause,” 843: “This array of arguments [that the clause referred to natural rights] proved persuasive to a generation confronted with the moral breakdown of society represented by slavery. Slavery was constitutional, but contrary to fundamental principles of natural law. The symbolic honor and integrity of the Constitution could be saved by identifying it with fundamental rights. This the framers of the Fourteenth Amendment attempted to do in the privileges and immunities clause of that amendment.”
31 6 F. Cas. 546, at 551–52.
32 Whether the right to vote was among the privileges or immunities protected by the Fourteenth Amendment later became a matter of some controversy. But there is little doubt that the right to a jury trial, though not a natural right, was considered a privilege or immunity of citizenship by the authors of the Fourteenth Amendment.
33 Antieau, “Paul’s Perverted Privileges,” 12.
34 Act of April 9, 1866, 14 Stat. 27.
35 Congressional Globe, 39th Cong., 1st sess., 474.
36 Ibid., 475.
37 Ibid., 1757.
38 Ibid.
39 Ibid., 1117.
40 Ibid., 1119.
41 Ibid.
42 Ibid., 1832–33.
43 Ibid., 1833.
44 Ibid., 1836.
45 Ibid., 2765
46 Ibid.
47 Including the “personal” right “to keep and bear arms.” Ibid.
48 Ibid.
49 Ibid., 1265–66 (emphasis added).
50 Ibid., 1088 (emphasis added).
51 Congressional Globe, 42d Cong., 2d sess., Appendix, 26.
52 Ibid., 844.
53 Ibid.
54 Ibid.
55 Ibid. Senator Allen Thurman, an Ohio Democrat and former member of the Ohio Supreme Court, agreed with Sherman that the retained rights referred to in the Ninth Amendment are held by the people “against the Government of the United States by as good a title as they hold them against the world. They belong to them as people or as individuals. They have never surrendered them to any Government, and they do not hold them by the grace of any government whatsoever; they hold them because they were and are their inherent natural rights which have never been surrendered” (ibid., Appendix, 26). Nevertheless, Thurman also contended that these are not rights the people hold “as citizens of the United States, but so to speak, in despite of the United States” (ibid.). Thurmond was also concerned with the indefiniteness of identifying such extratextual rights. “Where are we to find a definition of them?” he asked. “The Senator from Massachusetts finds the definition in the Declaration of Independence; another Senator finds it in something else; and so on to the end of the chapter; and we have nothing certain, nothing definite, nothing upon which any man can rely” (ibid.).
56 Elliot, Debates, 2:311 (New York convention, Wednesday, June 25). Notice, too, that this statement also equates “natural rights” with liberty.
57 Ibid., 4:295 (South Carolina convention, Thursday, January 17, 1788).
58 For the founding generation, the “state of nature” described the relationship between two or more persons who lack an established, common legal authority. See John Locke, Two Treatises of Government (1690), ed. Peter Laslett (Cambridge, Mass.: Mentor, 1963), 370 (“[W]here-ever any two Men are, who have no standing Rule, and common Judge to Appeal to on Earth for the determination of Controversies of Right betwixt them, there they are still in the state of Nature, and under all the inconveniences of it”). Therefore, because they were subject to no common law and subject to no common magistrate, princes or heads of state might still be considered in a state of nature with respect to each other. Furthermore, Locke contended that absolute monarchs “however intitled, Czar, or Grand Signior, or how you please, is as much in the state of Nature, with all under his Dominion, as he is with the rest of mankind” (ibid.).
59 Elliot, Debates, 3:657 (Friday, June 27, 1788). Notice how the draft bill of rights by Roger Sherman mirrors this statement except for the use by Sherman of the word “retained,” which links this sort of statement to the rights “retained by the people” in the Ninth Amendment.
60 Elliot, Debates, 4:295 (emphasis added).
61 Madison, Notes of Debates, 627 (emphasis added) (letter of Constitutional Convention to Congress).
62 Madison, Notes of Debates, 76 (statement of J. Madison).
63 Locke, Two Treatises, 316–17.
64 See Steven J. Heyman, “The First Duty of Government: Protection, Liberty and the Fourteenth Amendment,” Duke Law Journal 41 (1991): 507.
65 Locke, Two Treatises, 406–7.
66 The rhetoric of “master/servant” is today limited to doctrines governing employer-employee relationships and primarily when employers are liable for the tortious acts of their employees, as opposed to when agents may bind their principals to contracts. See Harold Gill Reuschlein and William A. Gregory, The Law of Agency and Partnership, 2d ed. (St. Paul, Minn.: West, 1990), 102 (“[A] servant is one who works physically for another, subject to the control of that other who is called a master”).
67 Madison, Notes of Debates, 371 (statement of B. Franklin).
68 For a general overview of agency law, see Randy E. Barnett, “Squaring Undisclosed Agency Law with Contract Theory,” California Law Review 75 (1987): 1969.
69 Locke, Two Treatises, 398 (emphasis added).
70 Elliot, Debates, 2:134 (Massachusetts convention, Friday, February 1, 1788).
71 Locke, Two Treatises, 398.
72 Ibid., 397 (“For in the State of Nature, to omit the liberty he has of innocent Delights, a Man has two Powers”).
73 See Barnett, Structure of Liberty, 257–97 (discussing the merits of a “polycentric constitutional order”).
74 See Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press, Belknap Press, 1998), 110–11.
75 Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings before the Senate Comm. on the Judiciary, 100th Cong., 1st sess., 1987, 249 (testimony of Robert Bork, September 16, 1987).
76 Ibid.
77 Unfortunately, not everyone who believes this is crazy about other people’s doing what they will with what is theirs, however.
78 Though I do not base any of my arguments for rights on the existence of a consensus on their behalf, anyone who does contend that consensus is crucial should consider this implication: the only consensus about particular rights that can plausibly be claimed to exist is for the core liberty rights that the founders thought were natural. Where consensus breaks down is on whether to add rights to this core. This is not to claim, of course, a consensus that such liberty rights may never be regulated.
79 The arguments that follow are taken from my much more extensive treatment of the basis and nature of natural rights in Barnett, Structure of Liberty.
80 Annals, 1:454.
81 Elizur Goodrich, “The Principles of Civil Union and Happiness Considered and Recommended” (delivered May 10, 1787), in Ellis Sandoz, ed., Political Sermons of the American Founding: 1730–1805 (Indianapolis, Ind.: Liberty Press, 1991), 914–15 (emphasis added). Lest this quotation reinforce a modern misconception about traditional natural rights theory, note that although Goodrich identifies God as the original source of the laws that govern in the moral world, so too does he identify God as the source of the laws that govern agriculture and engineering. With both types of principles and laws, once established by a divine power they become part of the world in which we find ourselves and are discoverable by human reason. Thus, today one can no more disparage natural rights because eighteenth-century thinkers attributed their origin to a divine power than one can disparage the laws of physics because eighteenth-century scientists believed that such laws were also established by God. Whatever the source of these moral laws, Goodrich’s argument is that they must be respected if individuals are to pursue happiness and civil society to achieve peace and prosperity. This view of moral laws assumes, of course, that happiness, peace, and prosperity are appropriate ends. Should anyone question this assumption, additional arguments will need to be presented.
82 The term is George Smith’s.
83 See, e.g., Michael McConnell, “A Moral Realist Defense of Constitutional Democracy,” Chicago-Kent Law Review 64 (1988): 89 (consistently referring to natural right as opposed to natural rights). Few of the founding generation used the term “natural right,” referring almost always to “natural rights.”
84 See, e.g., Henry B. Veatch, For an Ontology of Morals: A Critique of Contemporary Ethical Theory (Evanston, Ill.: Northwestern University Press, 1971).
85 I do not claim that everyone, or even most people, use all these terms in precisely this way. I claim only that the subject of natural law ethics is distinguishable from that of natural rights and that this terminology best describes the difference between them. Moreover, running these two modes of thought together leads to serious confusion.
86 Aquinas, Summa Theologica, 232 (emphasis added).
87 See Barnett, Structure of Liberty, 170–72.
88 These rights are, however, conceived of analytically as pregovernmental. Perhaps the charge that liberals conceive of rights as presocial is persistent because some critics of liberalism are so committed to statism that they equate government with society.
89 See Randy E. Barnett, “A Law Professor’s Guide to Natural Law and Natural Rights,” Harvard Journal of Law and Public Policy 20 (1997): 655.
90 See Heyman, “The First Duty of Government,” 510 (“[T]he classical conception of liberty was not merely negative, but had a crucial positive dimension—the protection of individual rights under law”).
91 U.S. Const., Preamble.