It is modern liberalism, not classical liberalism, that blurs the distinction between the state and society, and that destroys ordered liberty.
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.