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Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett

Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. He argues that federal courts, under a “presumption of liberty” that the natural rights Constitution invests in the judiciary, have the power to strike down federal or state legislation that unnecessarily or improperly abridges natural rights.

But again I ask, how should we identify and specify the natural rights that “legitimate” governments guarantee and protect? The question seems nearly unavoidable. My memory from reading Barnett’s excellent book, Restoring the Lost Constitution, is that he gave a holistic answer:  the study of the nature of human beings in the world shows that we must respect rights if we are to pursue happiness and get peace and prosperity. And this is so much the case that governments are legitimated not by the consent of the governed (sorry, Founders), but by establishing and enforcing procedures that protect natural rights.

Of course, natural rights thinking and rhetoric were significant in the Founders’ account of limited government, so much so, that maybe there’s no need to identify or specify what these rights are in the originalist account of the Constitution that Barnett provides. The near ubiquity of belief in natural rights during the Founding period and the numerousness of natural rights would make it unnecessary to list them in the Constitution.

But, then, there’s the matter of the federal judiciary and its powers as conceived by Barnett. We can affirm that the Ninth Amendment assures citizens that just because certain rights are protected in the Constitution, this doesn’t mean that you have been denied all the unlisted rights. Likewise, in the companion Tenth Amendment, we have constitutional text providing that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” They obviously work well together. No power to act also means no obligation to obey unauthorized laws from the government. I don’t see where the Ninth Amendment tells us, though, what those other rights might be, or their origin, or who gets to protect them. We can certainly have a natural rights politics—which I favor in a measured way—without a natural rights jurisprudence.

I do wonder if one right retained by the people under the Ninth and Tenth Amendments is that of governing themselves in the states, which would preclude the federal judiciary from intervening in the states by bringing its version(s) of natural rights. And that maybe these amendments were ratified with the background understanding that liberty would emerge from the overall structure of the Constitution, with its qualified majorities, separation of powers, federalism, and overall checks and balances.

And I suppose that brings us to the Fourteenth Amendment’s Privileges or Immunities Clause.

Barnett thinks this clause concerns natural rights in the same way as does the Ninth Amendment. Maybe. There are a number of originalist accounts as to the textual formation of the Fourteenth Amendment. Kurt Lash argues that the Privileges or Immunities Clause was ultimately limited, by the Congress that approved the Fourteenth  Amendment, to incorporating the first eight amendments and other enumerated rights of the Constitution. There are other accounts of what happened that are worth considering. It could have been merely an anti-discrimination provision applied to every state and not a substantive natural rights clause. I suppose it could be both, although some sort of reconciliation and mediation between these two concepts would have to be proffered, not merely asserted.

So if judges, on the basis of a robust, natural-rights-protecting Privileges or Immunities Clause, can nullify state laws conflicting with said rights, we still need to know how judges will identify these rights. The answer may be to default back to the general account of rights that are protected insofar as they don’t hurt others in being exercised. State laws will withstand federal judicial scrutiny if they are needed to further citizens’ exercise of a right. I’m still not sure this gets us very far without knowing what, exactly, the rights are. Again, some caution here, on the scope of the power being proffered. Does it not rise to an almost independent judicial power that Thomas Jefferson warned against in his letter to Spencer Roane?

It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute . . . . Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is . . . that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action.

In refusing to define the nature, scope, and type of rights, though, there is always the basic problem of your opponents citing your newfound power, but replacing your application of it with their version of constitutional entrepreneurialism. For example, if we have a natural rights constitutionalism, but we just don’t know much about what those rights are, then what’s the firewall against a more Progressive version of natural rights being enlisted? The Constitution becomes the vehicle for securing our natural rights, which the judiciary is called to identify and protect, and that means an assortment of positive rights necessary to effectuate negative rights.

I suppose state common law, as noted by Barnett, is the best source for the rights embodied in the Privileges or Immunities Clause. But here we will encounter a fairly robust diversity of accounts of rights, and this would not seem to provide the surety of a uniform libertarian natural rights position. Each colony and then state had its own common law. Each evolved somewhat different conceptions from ancient rights of legal process to property. And England had traveled its own path still, such that many states outright prohibited the use of English precedents post-1776. I actually find this path a somewhat promising one, but, then again, I’m old school, since I favor the diversity of self-government within state jurisdictions. If that’s the drink being poured, well sir, make it a double.

What is this common-law background, however, that Barnett wants? Is it pre-1776? All the states together? Or perhaps a continuing and unfolding federal common law such as what the Federalists had wanted when they attempted to define federal crimes of sedition?

On the other hand, the Fourteenth Amendment is supposed to be a control on the powers of the states. Moreover, there is the matter of common law being superceded by state legislatures and state constitutions. As Nelson Lund notes, if we root the natural rights in state common law, have we somehow elevated state judges, if not state legislatures given their power to override common law judgments, to the highest level for a finding of rights? That would seem to make mincemeat of the fighting Fourteenth.

Barnett contests, I take it, that the state governments have general and unreserved powers to regulate the health, safety, and morals of the community owing largely to the police power and the general authority it provides. The Constitution left this power in the state governments intact. Barnett is saying that the rights protected by  the Privileges or Immunities Clause are excepted from this general power. What is the scope of the police powers, though? The Constitution is silent. I suppose a Lockean-rights theory can be marshaled here, but how that’s rooted in the Constitution isn’t evident.

It goes without saying that states do limit their police power and protect the individual rights of their citizens. Barnett provides some examples in his response. Moreover, we can easily observe that it has always been the responsibility of states to enforce these provisions as they see fit.  As Justice Chase wrote in Calder v. Bull (1798):

It appears to me a self-evident proposition, that the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States.

I’m not sure that is satisfying, though, to Barnett.

And perhaps we can end with the questions of abortion and gay marriage, which, I suspect is what so much of this is about. The conventional understanding of the police power would afford states the ability to regulate in those matters if they wanted. I’m comfortable with that diversity. My home state of Tennessee will have a different legal answer for who counts as a person than will the states of New York or California. Likewise on marriage. Under the conception of natural rights nationalism, would this freedom of the jurisdictions to self-govern on these subjects be offered? If not, why not? Could it be that a natural right is being abridged? If so, then we will need the origin, nature, and specificity of the right being appealed to.

Justice Kennedy has said that prohibitions on the legal recognition of gay marriage are basically a pretextual basis for discrimination. He is dealing, in effect, with bigots all the way down. Is Kennedy right? If so, then aren’t we right back to the point I made in my initial post: ever new dimensions of liberty arise, and a wise justice knows of their substance.

We are told that a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government. I won’t believe this until they tell me what rights they see.

Reader Discussion

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on February 05, 2015 at 14:18:17 pm

I suggest you refer to Blackstone's Commentaries on the foundation of English common law and natural law: Scripture. This sounds funny to our ears, but it did not to the Founders' ears. http://blackstoneinitiative.com/about/.

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David Linton
on February 05, 2015 at 14:33:57 pm

Natural Law absent religious / moral sentiment = "natural rights jurisprudence (nationalism) with all its attendant problems.

Those problems may be attributed to the sheer "indefiniteness' of what are natural rights. Put aside for the moment the artificial dichotomy, so popular amongst many *interpreters* between fundamental and other unenumerated rights. It ultimately is of little import; yet it does allow a certain caste of interpreters to marginalize or expand these *rights* as it suits their own rather definite desires as to what our Constitution and our Government is, or should be.

I have over time come to see the futility of these various interpretive schools - each positing a "clear and final" answer or approach. Yet, all of them fail the test posed by the very *indefiniteness* of the Constitution. Yes, we may argue that there is a need for The Law to be universal, general and somewhat unspecific. This is certainly true on a statue level, even though we recognize that such statutes also breed conflicting opinions / results.
It is more generally assumed that Constituent Law (US Const.) ought, and of necessity must be, indefinite.
Yet, is this so? We know the results of this vagueness and generality. All sorts of mischief is conjured up by "clever" lawyers / judges of both poles of the political axis.

Perhaps, we should ask what was it that made the Founders AND Ratifiers (to include the People) confident that what they had created was sufficient to insure liberty and just government. I would begin by saying that the arguments from structuralism (separation AND specialization of powers) is certainly to be considered amongst those confidence generating elements / considerations. List the others, if you may - consent, equality, etc., etc. - it matters not! All of these can, and have been used as the predicate for a school of interpretation / adjudication.

And:
they all miss the mark and fail the test of indefiniteness. That is to say, they all lead to somewhat "open ended" expansions or contractions of liberty based upon the preference of the adjudicator.

Did the Founders recognize the potential for such abuse? I suspect that they did. We often hear quoted Madison and Jefferson's insistence upon the need for virtue in the citizenry. What is this plea by these men than a recognition that there is something "above" and beyond the scope of the Constitution's structure and / or clauses that is necessary for ordered liberty.

And yet, it is not virtue that I believe they had in mind as the guide to the conduct of a Republican form of government and the proper sustenance of liberty. Virtue is also somewhat open to various interpretations. We have Aristotle's, Plato's, Machiavelli's, amongst others from which we may choose. We must also remember that both Madison and Jefferson also offered the belief that religion was necessary for the proper maintenance of a Republic. While some claim these men were Deists (a dubious supposition), it is clear that the Founders recognized that ultimately there was a certain continuity of moral sentiment, a "Common Mind" that was essential for both a virtuous citizenry and government. This moral sentiment was to be found in "revealed" religion. It offered, with the obvious doctrinal differences, an entire framework of though, philosophy, and behavior that would be supportive of the Republican form of government. This was the "lodestone" undergirding liberty and its expression in the US Constitution.
Does it so state this?, clearly, no. Yet, it is clear from both the First Amendment and the "religious test" clause that religious sensibilities were crucial to engendering the virtue that this new Republican government would require.

So what does this mean for interpretive methodologies? Should we consult the Bible, the Torah?
Clearly not - rather one may also want to gain a sense or understanding of what the "moral / religious sentiment was at the time of the Founding. There was a fairly clear consensus on what was moral, proper and effective in fostering both liberty and a good society. (Again, I am not referring to doctrinal issues).

All of these popular interpretive methodologies are susceptible to expansion / contraction as is evidenced by the pros and cons of the fine debaters we see on these pages and others. Yet, it can be argued that the "religious / moral sentiment" basis is also open to such difficulties. Indeed, on one level, that may be so. Yet, in a more fundamental sense - it is not. There were (are?) moral truths that once were shared by the overwhelming preponderance of the citizenry.

Does one not find it curiously strange, that with the demise of the importance of revealed religion as an important constituent of the Common Mind, that all sorts of Constitutional misadventures have not only occurred but been fostered by those seeking to make "definite" their own vision of what liberty and government should be?

Even if Jefferson and others were Deists, how was it that they recognized that liberty would be on fragile footings without a clear religious / moral sentiment inculcated into the people.
Perhaps, our "adjudicators and interpreters" should consider that which these great men thought of fundamental importance. It may help to solve the problem of *indefiniteness*, if only by some small measure.

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gabe
on February 05, 2015 at 14:53:25 pm

David:

Wish I had seen your comments / link before I typed my own as I had intended to comment on the connection between Common Law judges, many of whom were un-educated* in the law and the prevailing moral sentiment / religious sentiments upon which they based much of their decisions.
I believe that this same approach, or something similar was at play when the Founders did their work.

I wonder sometimes if both Strauss and Jaffa were not in fact arguing that Law must in fact be predicated upon Revelation and Reason - not just philosophy.

thanks for the link.

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gabe
on February 06, 2015 at 20:57:32 pm

Oh, what a tangled web we weave ...

Let's put the "bill of rights" thing into perspective. It does not define a set of rights.

Rights are grants.

I do not own land. I own rights to land. My state owns the land and grants me rights to it. I can transfer my rights to someone else because I own those rights. I cannot grant rights to my neighbor's land because I do not own those rights. I can transfer my rights to someone else, in which case they are no longer my rights.

I can grant someone a right, such as mineral rights, without transferring it completely in which case I retain the rights, but I extend those rights to another party. As long as I can revoke the rights of the other party at any time, I own the rights. They descend from me. This is what we are concerned with in this discussion.

A liberal government cannot extend rights such as the right to keep and bear arms, or the right to assemble to petition government, because government does not own those rights to begin with. The free people who form and keep the government own those rights. Those rights were never given to the government to begin with.

When did we ever surrender our freedom of religion to the government? When did we ever surrender our ability to defend ourselves to the government?

The terminology in the "bill of rights" is deceptive. A bunch of people in early America wanted a bill of rights, similar to bills found in other governments. In other governments those bills were properly bills of rights because those governments did in fact own those rights. They descended from the government and the government could remove those rights at any time.

The authors of the original "bill of rights" added language to the beginning of the bill:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

The original amendments were not about defining the rights of the citizens. They were about creating confidence in the new Constitution. The authors of the Bill of Declaratory and Restrictive Clauses (the bill's correct name) kind of slipped a fast one in. They took the concept of "ability" and replaced it with the word "right." For example, the amendment reads:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Replace "right" with "ability:"

"A well regulated militia, being necessary to the security of a free state, the ability of the people to keep and bear arms, shall not be infringed."

That's better. The authors simply substituted a technically correct term with a politically correct term to create confidence in the new Constitution. This made some people happy, but it also opened a can of worms. To minimize the effects of the can of worms the authors added IX and X, and then everyone was reasonably well satisfied. The "rights" people got their "rights" bill, and the "ability" people got the "rights" people to shut up without seriously damaging the Constitution.

A liberal constitution such as ours works well when it stays within the limits of defining the organization of government and the rights granted to government by the people. A constitution is not well suited to things like defining the rights of the people, or creating law. This is because pre-governmental rights and laws require firm enforcement and the only substantive form of enforcement of a liberal constitution is the ability of the people to vote undesirables out of office, which is definitely not firm enforcement. Pre-governmental rights are enforced by God and God alone (except for civil rights, but that is another topic for another day). Laws require police, courts and a penal system. A liberal constitution stands on the border between anarchy and law. Once enacted a constitution becomes the foundation for law, but it is not itself really law, at least not in the sense of being enforced law. Once law is established under a constitution, post-constitutional (legal) rights come into being. The Bill of Declaratory and Restrictive Clauses reinforces the fact already in the Constitution that our government is not granted the right to enact laws that limit specific freedoms of the people.

Many of the issues I see with respect to the federal government and the Constitution and rights center around this intentional confusion of terms. The "rights" defined in the Bill of Declaratory and Restrictive Clauses are not rights at all.

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Scott Amorian
on February 07, 2015 at 10:04:00 am

Reinsch seems preoccupied by what might be called the "Justice Kennedy Problem"-- the possibility that judges will invent "natural" rights to further their policy preferences and aggressively defend them, regardless of whether those rights have any foundation in the Constitution. While this is a valid concern, it's not relevant to the question of what the Constitution actually requires and it isn't inherent to natural rights constitutionalism.

Reinsch says that he won't believe that "a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government" until he knows what rights will be protected. But if the republican government we have is one in which judges are empowered to protect natural rights, only a faint-hearted commitment to originalism would justify judges in declining to protect natural rights on the grounds that judges will abuse that power. If we're serious about ensuring that Americans receive the full measure of protection that the Constitution guarantees them, we can't ask for assurances that we'll get all the results that we like. We need to do the hard work of determining whether, in fact, judges are empowered to protect natural rights, and what they are. If they are, the possibility of abuse is no grounds for judges shirking their constitutional duty.

Further, Reinsch conflates constitutional theory with the activity of judging. Judicial engagement is a means of approaching constitutional cases, not a theory of what rights the Constitution protects. It posits that judges should, in every constitutional case, seek to determine, on the basis of record evidence, whether the government is pursuing constitutional ends through constitutional means-- and that they should do so without bent or bias in favor of government. Reinsch doesn't separate the question of whether the Constitution empowers judges to protect natural rights from the question of how they should actually judge. One could take the position that the Fourteenth Amendment does in fact protect natural rights, but also contend that judges should not be engaged-- that they should be highly deferential to the political branches. Similarly, one could take the position that the Fourteenth Amendment does not protect natural rights, but also contend that judges should be engaged in every case in which genuine constitutional rights are at stake. The "Justice Kennedy Problem" is thus not a necessary consequence of natural rights constitutionalism.

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Evan Bernick
on February 07, 2015 at 13:38:23 pm

" The “Justice Kennedy Problem” is thus not a necessary consequence of natural rights constitutionalism." - perhaps, but would you concede that it is a somewhat more likely outcome than other methods. After all, such "engagement" has provided us with H (ilarity) Lee Saroakin positing a natural right for a homeless, unwashed individual to exercise his *right* to effusively announce his presence in a Public Library; or for several Black Robes of Scotus to declare capital punishment an abridgement of rights despite clear statutory support in the Constitution.

I suspect that what most fear is the seemingly boundless bundle of rights which have in recent times announced themselves (via Judicial edict / fancy) to the world and most would argue for not the reduction of a judicial duty to "do the law under the law), i.e. protect natural rights, but rather that the term / class is so downright indefinite that we must first seek to define, delimit and constrain this ever growing bundle.
I suppose that in uncertain times, uncertain results are expected to follow. We live in uncertain times in part due to the loss of a Common Mind which heretofore had guided not just Judges at Common Law, but the citizenry in their civic behavior. One must therefore ask, is it judicious, is it prudent to allow for further *uncertainty* by investing in the Judiciary the sole, or perhaps primary, duty of enforcing these somewhat ill-defined *rights*?
This concept of judicial engagement may contain within it, a level of energy, that when exercised in the pursuit of "guaranteeing" (expanding?) natural rights may prove to be far more energetic than any of us intended and certainly more than the Founders, rather practical men, (well grounded in the Common Mind) had envisioned. Let us be careful, lest we slip from a Burkean conception of change to a utopian one.

BTW: I see lately that George Will and others such as Barnett are being credited with this "engagement" theory - was it not Hadley Arkes who first proposed this?

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gabe
on February 08, 2015 at 13:13:39 pm

”The “Justice Kennedy Problem” is thus not a necessary consequence of natural rights constitutionalism.” – perhaps, but would you concede that it is a somewhat more likely outcome than other methods."

I don't think so. It's not as if judges that are determined to create rights ex nihilo have had any difficulty doing that over the years, even without a natural rights constitutionalism underpinned by originalism to help them out. I just don't buy that, say, reviving the P or I will enable them to do anything that they can't already do. In fact, by avoiding the issue, those who favor constitutionally limited government are put on the defensive. Nature abhors a vacuum, and treating the P or I as an inkblot and SDP as illegitimate but binding precedent may well mean Progressivism on the installment plan.

"I suspect that what most fear is the seemingly boundless bundle of rights which have in recent times announced themselves (via Judicial edict / fancy) to the world and most would argue for not the reduction of a judicial duty to “do the law under the law), i.e. protect natural rights, but rather that the term / class is so downright indefinite that we must first seek to define, delimit and constrain this ever growing bundle."

I'm all for doing this- but Reinsch seems unwilling to go thus far until he knows what results he'll get-- which may be "prudent" from a certain perspective, but is hardly principled constitutionalism. Why should identifying privileges or immunities be any more difficult than interpreting such broadly-worded clauses as the Necessary and Proper Clause?

"Is it prudent to allow for further *uncertainty* by investing in the Judiciary the sole, or perhaps primary, duty of enforcing these somewhat ill-defined *rights*?"

Well, it's their job to interpret the Constitution. They don't have a monopoly on constitutional interpretation-- last in time doesn't mean judicial supremacy-- but if indeed the Fourteenth Amendment protects natural rights that can be grounded in text, history, and the political thought of the Framers, they're not doing the bare minimum if they're avoiding certain parts of it for fear of opening a Pandora's Box.

Look at McDonald. Scalia doesn't believe in substantive due process. Alito doesn't believe in substantive due process. Both of them acquiesce in it because, well, precedent. Only Thomas says, hey, let's be originalists about this-- everyone knows that Slaughterhouse was wrong and botched the P or I. We have an opportunity to figure out what the P or I means. Let's do that hard work. I think that's the right approach.

"I see lately that George Will and others such as Barnett are being credited with this “engagement” theory – was it not Hadley Arkes who first proposed this?"

Actually, it was Clark Neily who popularized the concept, in "Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government." Although Barnett has endorsed it and there are certain similarities between Arkes' and Neily's approaches.

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Evan Bernick
on February 10, 2015 at 13:51:38 pm

Ahh, but whose scripture? Surely Christian you may say, but beyond that, what version of the text? King James? I doubt that was in much favor among Pennsylvanians, for instance, at the founding. There was already at the time a flowering abundance of new translations rising up, and choosing a particular translation amounts, in effect, to choosing a particular protestant sect who favors it to be the arbiter of our extra rights, and surely if the Establishment Clause forbids nothing else, it would forbid that. What then, do we use the Greek and the Hebrew directly? Should we select judicial candidates on the basis of their facility in Koine Greek and biblical Hebrew? If Christians don't universally agree on doctrine, and they don't, even though they're reading from the "same" Bible, then they won't be able to universally agree on which natural rights are valid and which are not. The whole digression into natural rights as biblical precepts is unworkable and flatly incongruous to a Constitution that allowed each state to establish a different sect as its peculiar religion.

Furthermore, Blackstone's focus on scripture was as the repository, primarily, of natural "law," not rights; and he didn't have to deal with an Establishment Clause, seeing as the head of the official Church of England and that of the English state were one and the same. Even given those caveats, he still believed the natural law only gave moral force to the dictates of parliament where they overlapped and were otherwise a force upon the conscience alone.

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Matt L

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