I am a textualist, and the text of the Ninth Amendment says that the enumeration of certain rights does not indicate that no other rights exist. (1) Being primarily a textualist, I am also a bit knowledgeable about history. Many of the Founding Fathers were believers in natural law. (2) I am tempted by and interested in the subject of this debate regarding natural law and constitutional law, and I think the work that Professor Arkes is doing in trying to explore the limits of natural law and its contours is very important. The Constitution aside, there is something fundamentally right about the idea that we have rights that inure to us because of who and what we are as human beings.
I am tempted. But my mission is to raise a little skepticism about the contours of natural law and perhaps to suggest some caution. Although I don't oppose the approach, I think it's important to be careful what you wish for. You might actually get more than you want.
There are a few problems I want to identify at the outset. First, one prominent natural rights regime is based on a theory that we came out of the state of nature, brought with us certain rights, and never gave up those rights upon entering society,
except to the extent society could better effectuate them. (3) The reality, of course, is that there never was a state of nature. Human beings have always lived in society, so the idea is really more philosophical than historical.
Because the state of nature is a construct, we don't have any real history of what the state of nature was. We therefore need to start with some sort of agreement as to what rights we had in that theoretical state that never existed, which leaves a lot of room for play. Having been around judges for a long time, I must say that when you give judges room for play, you are taking your life in your hands.
We also must realize that the idea of what those natural rights are has changed, and will continue to change, over time. Let me give two simple examples. Cast your mind back to the time when the Constitution and the Bill of Rights were adopted. At that time the right to vote, which today everyone would say is the right of every law-abiding adult, (4) was limited to white men. Women were not allowed to participate, nor were people of color or Indians. But it wasn't only minorities who weren't allowed to participate; not even all white men could vote. In many places, you had to own property to vote, and the idea that people who didn't have a house would participate in the political process was heresy. (5)
Few people today would suggest that it is not a natural right of citizenship to be able to vote and participate in the political process. Never mind what the Constitution...