Natural Rights, Anyone?
It's no fun to point out that the Declaration of Independence has no legal force, so let me take a different tack.
The declaration's invocation of "unalienable rights" was not just filler, of course, it was fundamental to the Founder's political philosophy. I would argue that the Founders sought to embed the Declaration's recognition of natural rights into the Constitution first via the Privileges and Immunities clause of Article IV and then, when that wasn't explicit enough for anti-federalists, they proposed the ninth amendment protecting unenumerated rights "retained by the people.". In fact the entire Bill of Rights assumes a natural rights background, for it never purports to create rights, it simply protects those rights from federal interference.
Both the ninth amendment and "privileges and immunities" have become dead letters in our jurisprudence. Many conservatives are afraid to revive them, for fear of unleashing more judicial activism. But if we're originalists how can we let any part of the text languish? Especially ones so near and dear to the great Declaration?
- Comment (7)
- · Quote
- · UnfollowFollow (3)
Comments:
Aug '10
Re: Natural Rights, Anyone?
Heck yes, bring back a strong natural rights philosophy. The entirety of Constitutional rights and federalism is meaningless without it.
The problem, as always, is recognizing way too many rights. The short version of natural rights is to start with the right to life and build from there; you can get to liberty, property, pursuit of happiness, self defense, and (limited) freedom of movement easily and logically.
The temptation to jump to positive rights is where trouble creeps in. Ask people to start defining rights and they'll toss in stuff like food, economic freedom, justice, health care, freedom from offense, etc that is based off a wish list instead of actual natural rights.
Conservatives and originalists have a solid case for reviving the negative natural rights doctrines. But I don't know what real world mechanism you would use to "activate" them, short of a judicial overhaul.
Jul '10
Re: Natural Rights, Anyone?
It's interesting that Justice Thomas, in his concurring opinion in the McDonald v Chicago case, argued for the privileges and immunities clause of the 14th amendment to be the basis of protecting gun rights of citizens, arguing to overturn the Slaughterhouse cases. I've not seen a lot of comment on that part of the opinion (not having particularly looked for comment), but with that concurring opinion, perhaps the privileges and immunities provisions of the constitution aren't completely comatose.
Aug '10
Re: Natural Rights, Anyone?
By the way, in an Uncommon Knowledge episode discussing the American welfare state, William Voegeli identifies a turning point in the American conception of inalienable rights:
"I think a very astute thing that Franklin Roosevelt did was to reformulate the progressive endeavor in Jeffersonian terms. Instead of saying that we are getting away from Madison’s constitution he constantly framed the New Deal project as an endeavor to update the concept of inalienable rights to the circumstances of the twentieth century. So there were going to be rights to certain social welfare benefits and the government’s job was to guarantee and secure those rights."
The move towards positive rights actually started a few decades earlier. But it's always worthwhile to highlight the pile of long term damage FDR inflicted on the structure of our government.
Re: Natural Rights, Anyone?
Blue ant - exactly right. FDR's "second bill of rights" outlined his agenda to create positive rights dressed up in Madisonian terms. The Warren court started to implement that agenda by, eg, finding a "property right" in welfare benefits, but the Burger court pulled back from the brink. It's the fond wish of many Obamites, including reg czar Cass Sunstein and failed judicial nominee Goodwin Liu to jumpstart that agenda.
Aug '10
Re: Natural Rights, Anyone?
Adam, whenever I hear Cass Sunstein start in on his "paternalistic libertarianism", it makes my skin crawl.
His side has a big advantage: a clear path to pushing their version of rights. We all know how judicial activism works for the living Constitution. But even if the Supreme Court got stacked with a few ideological clones of Clarence Thomas, can you think of a way to start building jurisprudence in a way that would roll back the post-FDR acceptance of positive rights?
I can't imagine a SCOTUS that started explicitly endorsing a slate of limited negative rights, with full knowledge that they would be undermining the rationale of major federal entitlement programs. I could construct a plausible fantasy scenario, but I don't see any logical progression to get there from today's setup.
There's probably a legislative path, though I'm not sure what it would entail. Like you pointed out, there's a major Constitutional clause and a whole Amendment that should do the job, but it doesn't seem to be enough.
May '10
Re: Natural Rights, Anyone?
Bob Forrester,
Justice Thomas' concurrence in McDonald invoking Privileges & Immunities got a lot of positive attention, including from some liberal commentators, e.g., Jack Balkin (Look here: http://balkin.blogspot.com/2010/06/mcdonald-more-important-in-theory-than.html ) Another interesting thing about this concurrence it that it was necessary for the Supreme Court's pro-incorporation decision in McDonald, in combination with the 4-vote plurality relying upon the Due Process clause. Thus, appellate courts cannot throw it in the wastebasket, as they might if the plurality had been a 5-member majority.
Jan '11
Re: Natural Rights, Anyone?
We're severally outnumbered. Most people (even conservatives), when pressed on an issue of state involvement, will say, "Yeah, that probably should be regulated." or "Yeah, I'm kind of glad there's laws against that." These people vote for representatives and expect to be represented well. One can argue about whether or not the United States is heading in the right direction but if they're honest about it, they're, for the aggregate voter at least, being represented just how they wish to be.