fbpx

Who Are the Guardians of the Natural Rights Polity?

webster-hayne-debate-painting_medium

The status of judges in the constitutional regime is fundamentally a question of the place of politics, rightly understood, in human life—a point illustrated by the thoughtful exchanges between Richard Reinsch and Randy Barnett in this space and at Volokh. Reinsch argues the danger of giving judges indeterminate power over unspecified natural rights. Barnett replies that these need not be specified; judges need only ensure that governmental power is reasonably used to promote permissible ends.

Theirs was a productive conversation, and it might be usefully expanded to the following question: Even granting a robust reading of the Ninth and Fourteenth Amendments, what is the basis, and what are the costs, of empowering judges to safeguard the rights therein contained?

To be sure, there are ample historical and theoretical reasons to disagree with a natural rights reading of the American Founding, including Reinsch’s reminder of consent as the basis of government and the fact that rights-based understandings often overlook the exchange—central to most state-of-nature theories, including Locke’s—of limitless natural for regulable civil rights.

But this dispute need not be settled to see the underlying issue. There is no reason there cannot be a natural rights politics as opposed to a natural rights jurisprudence.

Rights are not inherently judicial claims. We are only accustomed to thinking of them that way. Consider that the Supreme Court was almost wholly silent on the Bill of Rights for much of its first century even though early political commentary (see the debates over the Sedition Act) is rife with references to it.

It might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved. There is substantial evidence that this is what prominent Framers, including Madison, had in mind.

Try looking at the issue this way: Either judges are better at identifying rights (or, in Barnett’s case, reasonable uses of the police power) than the rest of us—or they aren’t.

If they aren’t, of course, the issue ought to be a matter of disputation in institutions arranged to encourage majorities to behave reasonably. After all, self-government is also a natural right; perhaps, on the Declaration’s account, the natural right.

The Constitution is a spare and relatively simple document. If the question amounts to a judgment call as to whether any given use of the police power is a reasonable means to pursue permissible ends, is there any reason that the wisdom needed to make that call is inaccessible to a thoughtful citizen deliberating in conditions that encourage sensible behavior?

Conversely, is there any reason to believe judges will make better decisions about rights, or about reasonable uses of the police power, than majorities so situated? In Federalist 51, Madison considers and rejects the option of protecting minorities by creating “a will in the community independent of the majority”—he means a royal veto, but our contemporary equivalent would seem to be judicial review—on the grounds that there is no certainty it will exercise its power well.

By contrast, the political model offers several advantages. One is that citizens’ errors are more easily corrected than those of judges: They require a mere election; judges must be willing to correct themselves, a time-consuming and chancy affair. Another is that the political model engages citizens in constitutional questions rather than encouraging outsourcing to the judiciary. Thus Madison, introducing the Bill of Rights, said one of its values would be educating the citizenry as to its rights and creating a ground for an appeal to the community in instances of violation. Instead, our contemporary ethos is to outsource, with the predictable result that the political branches more or less think they can do what they want and the courts will, if necessary, rein them in.

If judges are better at all this than the rest of us, two more options (apologies to Madison for copying his method) ensue. Either they are better at actually securing the results of their inquiries than the political branches or they aren’t.

The political theory of the Framers raises serious questions as to their superiority. What Reinsch calls “bodycheck constitutionalism”—Congress and the Executive in combat rather than collusion—is the intended model, which is why Federalist 84 says the Constitution, or in other words, the main body of it, is a Bill of Rights.

If, by contrast, judges are wiser and more effective guardians of rights, we are still left with what really amounts to the fundamental question: whether entrusting them with this vital function would obviate the need for politics in the noble sense.

Put otherwise, suppose a supercomputer could be devised that would reach the correct constitutional decision every time. Would we want to refer disputes to it? Call it outcome-based jurisprudence—the idea that what matters is the bottom-line result—a kind of judicial equivalent of the Progressive quest for scientific administration at the hands of experts.

But Aristotle teaches that the political life—the use of logos to pursue questions of the good and bad and just and unjust—is best for man. Much of the debate about judicial restraint comes down not merely to prudential calculation—are judges better at defining and protecting liberty than anyone else—but rather to underlying principle. Under that principle we must ask, regardless of whether judges are better, if it is healthy to defer to them.

Generally, there are reasons to doubt whether judges will reach the right decisions more often than will deliberate majorities. It seems safe to trust Aristotle more than either of them.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 13, 2015 at 10:25:31 am

Professor Weiner makes a good point. Natural rights theory provides the means to defend liberty by particularizing it. Natural rights become legal rights only when written into law. Thus, the Bill of Rights gives legal force to the most important natural rights, but does not limit what may be justly called natural rights. Judges should enforce legal rights, not philosophical ones.

read full comment
Image of Ron Johnson
Ron Johnson
on February 13, 2015 at 12:35:16 pm

Machiavelli speaks of the *decimvir*, a body of ten "wise lawgivers, who under Roman Law were empowered with refining the laws of the Republic. Ole Nick points out that since they were empowered to shape the law they were, as one would expect, able to undermine the law.
Modern Americans, being somewhat more efficiency oriented, have decided we can do it with just NINE!!!! and even then we only need five - thus, we may be twice as efficient as Rome in undermining our own laws and Republic.

On a more serious note:
I rather like the notion of "particularity" advanced by Ron Johnson above. could it be that under such a method, we could once again find that there is actually some substance to the Ninth and Tenth Amendments? and that the remainder of the Constitution and BOR actually define what the fundamental rights are both as direct expositions in the BOR and certain specific clauses in the Constitution and via the structural limitations imposed on the governemtn and the LIMITED but express grant of DELEGATED POWERS. Under such a construction, the Constitution itself is THE Bill of Rights under which the Federal Government must operate.

read full comment
Image of gabe
gabe
on February 13, 2015 at 14:19:58 pm

[…] Law & Liberty Greg Weiner has posted Who Are the Guardians of the Natural Rights Polity? in which he makes the following […]

read full comment
Image of Volokh Conspiracy: The majoritarian fable | Local National News
Volokh Conspiracy: The majoritarian fable | Local National News
on February 13, 2015 at 18:52:27 pm

Randy Barnett's response http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/13/the-majoritarian-fable/ was decisively more detailed than mine might have been, and for that, it is all the more effective for the tone that is the same as mine would have been.

There is something to be said for the idea that simply refusing the government a power could be more effective than declaring rights. However, mission creep is alive and well; I call it "going TSA." This while acknowledging that USG mission creep is as old as the Constitution itself.

The true fix is going to be the awakening of people intentionally put to sleep, and in that sense, the true guardians of liberty would indeed be the people acting sensibly. Thus, mission creep would be prevented by "eternally vigilant" people, and authoritarianism would be balanced by a very strong dose of real liberalism (not this faux liberal nonsense we see perpetually doing all manner of authoritarian sorcery).

But many are asleep, including the "best and brightest" even in the liberty-loving side of the legal profession.

The US idea of freedom is that one needn't fear majoritarian twitches; they cannot overwhelm rights. Moreover, you can do anything you want if it isn't illegal. Further, it can't be illegal unless there's a victim.

Obviously, we're far afield from that kind of ideal. Worse, even when the majority manages to speak with strength, things like Obamacare, wildly unpopular, get passed.

The defenders, the true guardians need something that works about like pitchforks to push back the mission creepers. Barring that, I'd rather see the 9th Amendment applied against the states in this manner: if you can't prove that there's a victim (never mind that sick doctrine of "a compelling state interest"), then prosecution has no case and the law barring the outlawed act or item is void.

read full comment
Image of kldimond
kldimond
on February 13, 2015 at 19:57:17 pm

OK, OK. The fog is lifting. I'm beginning to get a handle on what is meant by "rights." There are three kinds that are germane to this conversation: Natural rights, legal rights, and assumed rights.

Natural rights refers to those the unalienable rights referred to in the Declaration of Independence. They are considered as rights granted by God. Legal rights are granted by government.

Assumed rights are rights we take. We assume rights when there is no counter force that can stand against us when we proclaim something to be our property. I wander onto a piece of land unclaimed by any nation. I claim it as my own. I have assumed a right to the land, and I can continue assuming that right until someone else comes along and takes the land from me, or until I just up and walk away from it and stop preserving my claim to it.

The rights of the people described in the Constitution are not natural rights or legal rights. They are assumed rights.

God grants us the ability to communicate, so communication (speech) is a natural right. Likewise, God grants us the ability to make choices, so choice (liberty) is a natural right. And God grants us the desire to improve our lot in life, so the pursuit of happiness is a natural right.

The Constitution describes the assumed right of speech, not the natural right of speech. That Constitutional right does not refer to our actual ability to communicate.

The BODARA (the Bill of Declaratory and Restrictive Amendments, aka "The Bill of Rights") attempts to deny government the ability to take and assume certain rights that the people have already assumed. It was not intended to grant to the people the assumed rights enumerated in the BODARA. Those rights were assumed before the Constitution was written.

Government was (and still is) known for its desire to usurp certain assumed rights from the people. The BODARA was an attempt to address those well known desires. Unfortunately in attempting to restrict those desires it instead opened the door to giving the government those rights, because it is a writing in the Constitution and therefore subject to interpretation by the government. If the BODORA had instead been written as a set of restrictions on government without the interpretable context of assumed rights, government would not be able to usurp and assume those rights using interpretation.

So I must reject the position of the various authors here who define Constitutional rights as natural rights. Rather, I must believe that the Constitution refers to assumed rights.

This, I think, helps answer Rappaport's earlier question about the relationship between the Declaration of Independence and the Constitution. The Declaration helps define our assumed rights.

If we were a Catholic nation, our paradigm of assumed rights would be different than if we were a Muslim nation. Likewise if we were a communist nation. Just as multiple people in an unclaimed wilderness may declare rights to different parts of the land, so do different cultural paradigms declare different paradigms of assumed rights.

As a libertarian nation our paradigm of assumed rights is defined very much by the law of nations and enlightenment thinking. It gives us a paradigm founded in the rational instead of the religious or ideogogical. The Declaration helps define our nation as a rational libertarian nation. Where the Constitution addresses the people's assumed rights (for better or worse), those rights are of the libertarian paradigm. When questions about the Constitution's assumed rights of the people arise, they are interpreted in the context of the assumed rights found in the Declaration as well as other documents (along with other personal interpretations provided by officeholders in government individually or in groups).

read full comment
Image of Scott Amorian
Scott Amorian
on February 14, 2015 at 14:28:32 pm

That makes no sense. Where is the Constitutuon in all this, Senator? Why was the Privilleges or Immunites Clause written out of the Constitution shortly after the 14th Amendment passed. These are the questions you and your fellow senators need to think about.

read full comment
Image of Brandon
Brandon
on February 14, 2015 at 15:30:08 pm

Greg--

A very minor point: i do not think the Sedition Act of 1798 is the best example to support your claim that rights are not inherently judicial. I agree much with the claim, by the way. However, in 1798 some of the strongest defenses of the Act came from Federalist judges, in instructions to grand juries. I would not wish to minimize the role that judges had in explicating and defending the law. Two in particular--Judge Addison in Pennsylvania and Judge Iredell in North Carolina, are especially worth reading. But there were numerous others. Granted, the distinction between politics and law is neither fixed nor impermeable, but still--Federalist judges acting in judicial settings exercised an important role in the debate, that I think bleeds over sufficiently to term "judicial."

None of which detracts from the argument you are making.

Well wishes!
Kevin

read full comment
Image of Kevin R. hardwick
Kevin R. hardwick
on February 14, 2015 at 15:38:29 pm

How do due process rights fit in to you typology? These are rights that have no meaning apart from the existence of civil society. Some of them--the right to trial by jury, for example--are requirements that the government inconvenience other people in irder to provide an important protection to me.

read full comment
Image of Kevin R. hardwick
Kevin R. hardwick
on February 14, 2015 at 15:43:51 pm

The original purpose of Declarations of Rights was pedagogical, not judicial. Limited government does not, in the end, derive from clever checks and balances in well designed constitutions, although those help. Rather, it stems from a vigilant citizenry. Declarations of Rights remind the people of the source of govermental authority, and of those principles to which a republican citizenry must be committed.

read full comment
Image of Kevin R. hardwick
Kevin R. hardwick
on February 14, 2015 at 16:32:36 pm

Kevin:

(Perhaps, this is nitpicky, not my intent)

"..judges acting in judicial settings exercised an important role in the debate, that I think bleeds over sufficiently to term “judicial"

Yes, Judges, then and now, did and do play an important role in *rights* - but, this is not to say, I think, that rights are in any way, justifiably, a judicial claim; nor does it provide any greater support for such a claim to take notice of the fact that Judges "judge" even if it is in the "hope for" fashion to which Barnett subscribes: " judges need only ensure that governmental power is reasonably used to promote permissible ends.." I think many of us would argue that such a judicial method is a fiction in the modern judiciary.
It is the reality of what many jurists do today that gives substance (and sustenance?) to the claim that rights are judicial claims. Again, I will use an extreme example to illustrate the point: H. Lee Saraokin's ruling that an offensively pungent homeless man had a *right* to disrupt the general order of a public library. From where does one derive this right of "effusivity." if not from the tortured logic / will of a Judge?
The examples you cite of Federalists judges is rather an example of judges simply doing the law under the law - that is reading the constitution and finding that the government is either within permissible grounds or it is not. To the Federalists Judges, I would add a long unbroken chain of British Judges who over the centuries *defended* the traditional rights of Englishmen. As noble as the efforts were, they did not, in and of themselves, create any rights - only call to attention that the Crown had exceeded its grant of authority.
What Saraokin and his ilk are doing is creating out of whole cloth a new "texture" of rights.
Thus I am still unclear how it is that a judge doing his job can be said to be exercising the inherent judicial power to confer rights. At most, one can say that the Judge is called upon to recognize a claim of rights by a citizen - but again this in no way makes the right a judicial claim / power.

read full comment
Image of gabe
gabe
on February 14, 2015 at 17:32:17 pm

Gabe--

No argument with any of your comments above. I intended my observation to be purely a kind of historical footnote. Judges, officiating in courtrooms, played an important role in the controversy over the Sedition Act of 1798. So this particular episode is not the best warrant for Greg's argument, with which I am also in agreement.

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on February 14, 2015 at 17:42:09 pm

Gabe--

Ok, so I read your comment with insufficient care. As Greg quite rightly noted, when we leave the state of nature and enter into the social compact, we exchange (some of) our natural rights for civil rights. Civil rights, it seems to me, are guaranteed by the rule of law. If this is so, then surely civil rights must be to some degree properly the object of jurisprudence.

I think that conventionally, anyway, the rule of law does not confer civil rights--the social compact does that. "We the people," in our sovereign capacity, confer civil rights. But the law does confirm them, and judges certainly must interpret and apply the law.

Not all rights are civil, of course. But those that are do, it seems to me, have a legitimate sense in which they are properly jurisprudential.

Where am I going wrong here?

Thanks!
Kevin

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on February 14, 2015 at 19:44:37 pm

Kevin:

I can't say that you are going wrong. I think perhaps it is a question of emphasis - that being is it the judge who makes the right or even the law (speaking theoretically and absenting the long history of common law) - or is the role of judge to simply assure that those *rights (whatever they are), which have been recognized by the civil authorities as of some importance, are respected by the government or other civil actors.
The former perspective may prove to be a bit too *energetic* in terms of *rights* whereas the latter, it appears to me, is more prone to moderation. Perhaps, it is the difference between Paine and Burke.

But no, I would not say you are wrong - and perhaps (probably) my points are more rhetorical.
BTW: How is school - heavy load - have only seen you infrequently - miss your posts)
take care

read full comment
Image of gabe
gabe
on February 15, 2015 at 00:45:22 am

Gabe--

I so much enjoy conversing with you. You make me think--which I intend as a high compliment. And you model appropriate civic conversation, for which I and I hope every one else here is grateful.

I just have been buried, mostly in a good way. I am teaching a class focused on understanding Madison's contribution to the Philadelphia Convention, which, given its profundity, I am trying to give more than usual care to doing it justice. It is an upper division history class, but one populated by only a handful of history or political science majors. Most of my students are from the various preprofessional majors, and are taking the class because the university is named after Madison, and it seemed like a good idea to know something about the guy. I feel an even greater than usual obligation to do right by such students, since this may well be one of the only upper level humanities classes many of these students will ever take.

Anyway, I am as well as can ge expected--I much hope the same for you!

Well wishes,
Kevin

read full comment
Image of Kevin R. Hardwick
Kevin R. Hardwick
on February 15, 2015 at 10:24:49 am

Kevin (and Gabe),

Thanks much, and good to see you in this space. Re: the Federalist judges, certainly we can't, and shouldn't, exclude judges from this process. But a couple of points come to mind. One is that the knock on the Federalist judges in many of these cases (e.g. Chase) is that they abused their authority, isn't it? Second, we might understand the real power to have been exercised ultimately by juries, acting under the tutelage of judges--no small power for the judges, but pedagogical nonetheless, as you usefully note in your comment in the thread above. Jury nullification seems to have been much of what Jefferson and Madison seek in these cases. Third, and most important, there is a difference between precedent accumulating upward from *individual* cases and abstract constitutional doctrine being delivered top-down in Supreme Court opinions. The former is a form of judicial decentralization that, e.g., Madison seems to endorse when he says he would prefer the Marshall court deliver its opinions seriatim. Interestingly in this regard, Madison says the Sedition Act episode *vindicates* the Constitutional regime even though the solution was plainly political (the 1800 election) not judicial: i.e., no exercise of judicial review over it.

read full comment
Image of Greg Weiner
Greg Weiner
on February 15, 2015 at 11:37:04 am

With a vigilant and informed citizenry, perhaps any form of government works. Of course, such a citizenry is also empowered and the government disempowered. Frankly, the more I argue for the idea of a strong judiciary to defend rights against the depredations of the other branches, the more I find myself running and not walking into the camp of Murray Rothbard and Hans-Hermann Hoppe-- "government IS a crime."

I'm fairly sure that government emerged from dominance to begin with. Some of that predatory dominance was physical prowess and some was the ability to get others to see things upside down--"black is white, day is night and I'm not feeding ON you, but rather serving you"--thus sorcery.

What I end up with is this: how do the vigilant folks keep the thralls from empowering the sorcerers--from BEING the power of the sorcerers? The majority will always be thralls or predators (often switching back and forth--the other side of a thrall is a tyrant); history proves it.

So, without a countervailing force bigger than the uncollected and minority unenthralled individuals, how can the people be the guardians?

Thus, short of developing some kind of "trap door" technology that will automatically dump a human-depredating human into some abyss, I keep coming back to such things as constitutions and judiciaries.

Now, it would be great if the Grand Jury really were; we'd have a lot fewer nonsensical criminal laws and ridiculous cases getting to the higher courts. But sorcerers have fomented a revolution that replaces the Grand Jury with the DA and the ... I'll call the current version of grand jury the Thrall Jury, by which a ham sandwich can be indicted.

Yes, very conflicted. In a way. Both are important. Structure does feed a certain bias in the way things work, even in human organizational structures such as government, checks and balances, etc. And you and I agree; it's going to be up to awake citizenry, but there needs to be structural defense of the awake ones because clearly, the sleeples, sheeples, rule democracy while sorcerers oversee.

read full comment
Image of kldimond
kldimond
on February 15, 2015 at 15:38:03 pm

Greg:

Am wondering if this is at all helpful in providing some insight into the problem of *abstract constitutional doctrine* you mention as well as the problem of top down judicial law giving.

It is taken from an old piece I am currently reading:
http://www.constitution.org/lrev/aynes_14th.htm
title: " On Misreading John Bingham....."

In Adamson v. California:

"Concurring with the Adamson majority, Justice Frankfurter DISMISSED statements by Bingham and other legislators and argued that JUDICIAL OPINIONS contemporaneous with or just subsequent to ratification MORE RELIABLY INDICATED THE MEANING of the Amendment than "[r]emarks of a particular PROPONENT OF THE AMENDMENT, no matter how influential." [40] According to Frankfurter, decisions such as the Slaughter-House Cases [41] demonstrated conclusively that the Privileges or Immunities Clause of the Fourteenth Amendment did not incorporate the Bill of Rights." (Bold face mine)

So here we have it - our law is not to be the outcome of a political process, no matter how influential, no matter what the proponents intend (or at least say that they intend) - rather, it is to be the outcome of what a judge thinks or more accurately desires it to be. (Hey, maybe Slaughterhouse was wrong or based on faulty reading of the Constitution)

Frankfurter (and his student Fairman) go on to argue that if incorporation could not have been intended because this would have overturned many provisions of existing State constitutions (grand / petit jury provisions, etc) which were at odds with Federal guarantees.
Well Geez Louise. guys - What the HELL did they think the rest of the Amendment was about - if not overturning provisions of state constitutions (and innumerable state statutes respecting slavery, etc etc).
Heck, one could argue (and I think rightly so) that the intent was not only to negate provisions of State Constitutions but to OVERTURN the entire system of State Government and impose a somewhat more republican form of government.
Frankfurter appears to have missed what was right in front of his nose - of course the Congress sought to overturn State Constitutions - was the war about anything else (from a structural / legal perspective)?
Yet, we see in plain sight the arrogance of the Judiciary - "We care not what the Legislature envisions / intends - We are the Lawgivers"

read full comment
Image of gabe
gabe
on February 15, 2015 at 21:16:21 pm

In my typology (thank you for the correct term) natural rights are those unalienable rights that define us as human beings.

Legal rights are defined by government, by process of formal law and adjudication and a penal system. Government uses law to give the legal right. Government can remove the legal right. Therefore government is the owner of legal rights.

The rights addressed in the first ten amendments are choices. You are granted a choice of having a trial-by-jury, or not. You are granted a choice to keep your stuff private, or not. These are legal rights. Government’s requirement to use due process is not a right granted to you, it is a requirement of government. Your legal right in this circumstance would be for you to have an ability to choose to address government wrong doing if it did not exercise due process.

read full comment
Image of Scott Amorian
Scott Amorian
on February 15, 2015 at 21:30:33 pm

"And you model appropriate civic conversation, for which I and I hope every one else here is grateful."

Obviously, you missed some of Gabe's comments, directed at the Justices.

read full comment
Image of Scott Amorian
Scott Amorian
on February 19, 2015 at 15:28:26 pm

[…] all that, argues political science professor Greg Weiner. At Law & Liberty, Weiner argues for reflexive judicial restraint in the face of government restrictions on liberty, on the grounds […]

read full comment
Image of Professor: Who Needs Judges? Let's Put Our Constitutional Rights to a Vote — LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives
Professor: Who Needs Judges? Let's Put Our Constitutional Rights to a Vote — LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.