Republicanism and natural rights at the pounding.

AuthorCampbell, Jud
PositionBook review

OUR REPUBLICAN CONSTITUTION: SECURING THE LIBERTY AND SOVEREIGNTY OF WE THE PEOPLE. By Randy E. Barnett. (1) New York: HarperCollins Publishers. 2016. Pp. xiv + 283. $26.99 (cloth).

Americans mostly take constitutional legitimacy for granted, leaving the Supreme Court and its illustrious bar to do their work without concern for political philosophy. A great strength of Randy Barnett's scholarship, including his latest book, Our Republican Constitution, (3) is his sustained effort to dislodge that philosophical complacency. Barnett calls on us to consider why our Constitution is legitimate before we decide how it should be interpreted.

In this sense, Barnett brings us closer to an eighteenth-century intellectual world commonly known as "the Founding." Constitutionalism at the Founding was intimately tied to questions of political philosophy, based in part on the idea of "natural rights." Constitutional historians have disparaged the importance of natural rights, (4) but Barnett deserves credit for pushing back. Natural rights featured prominently in FoundingEra constitutional thought. (5)

But what were natural rights? Today we tend to think about natural rights as non-positivist claims to limits on governmental authority--typically claims derived from religion, morality, or logic. The claims might be legal (e.g., "natural rights are enforceable in court"), or they might simply be philosophical (e.g., "a government that disrespects natural rights is unjust or illegitimate"). But these "rights," by their very definition, exist independent of governmental control. Indeed, that is what makes them "natural."

Yet language often shifts over time, and it might turn out that "natural rights" carried a very different meaning over two centuries ago. As historian Jonathan Gienapp cautions, "the first key to understanding the American Founding is appreciating that it is a foreign world." (6)

This Essay sketches an alternative--and perhaps quite unfamiliar--view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. (7) With the exception of certain "rights of the mind," (8) natural rights were not really "rights" at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant embracing a mode of reasoning. And the crux of the idea--in stark contrast to the modern notion of "natural rights"--was to create a representative government that best served the public good.

Individual liberty mattered, of course, and the Framers indeed wanted to insulate politics from the whims of capricious majorities. But the overriding goal of their efforts was to improve representation, not lessen it, and to ensure that the general welfare was the government's paramount concern. The Founding-Era idea of "natural rights" thus called for judicial deference to legislative judgments, and it favored broader governmental power just as much as limits to that power. In short, natural rights called for good government, not necessarily less government.

SOCIAL-CONTRACT THEORY

The Founders spoke about their "natural rights" with a familiarity that Americans have long since lost. Recovering that concept requires going back to its origins in social-contract theory.

Social-contract theory, which underpinned most of Founding-Era constitutionalism, (9) was organized around different stages of political development. The theory began by imagining what things would be like without a government--a condition known as a "state of nature." Properly understood, this inquiry was hypothetical rather than historical. (10) The idea of a state of nature was "abstract," James Otis explained in his famous Rights of the British Colonies Asserted and Proved, acknowledging that "men come into the world and into society at the same instant." (11) Yet that idea remained useful, Otis insisted, because "the natural and original rights of each individual may be illustrated and explained in this way better than in any other." (12)

In a state of nature, individuals were thought to have certain freedoms or liberties--commonly known as "natural rights." (13) By definition, these "rights" existed without reference to governmental authority. They were simply freedoms that individuals enjoyed vis-a-vis each other, subject only to the confines of "natural law"--roughly defined as the requirements of reason, justice, and morality. (14) As James Wilson explained, "natural liberty" was the "right" of every person to act "for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours." (15)

Social-contract theory then hypothesized that individuals, recognizing the benefits of collective action, would "join in one body ... to manage, with their joint powers and wills, whatever should regard their common preservation, security, and happiness." (16) This imagined agreement was a "social contract" (or "social compact"), and it required the consent of every individual. (17) The result was a single entity--a body politic--composed of all the members of the political society. In the words of the Massachusetts Constitution of 1780, "The body politic is formed by a voluntary association of individuals. It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." (18)

Like the state of nature, the social contract was imaginary but nonetheless had powerful implications for the proper scope of governmental power. "HOWEVER the historical fact may be of a social contract," English jurist Richard Wooddeson explained, "government ought to be, and is generally considered as founded on consent, tacit or express, on a real, or quasi, compact. This theory is a material basis of political rights; and as a theoretical point is not difficult to be maintained." (19)

At the next stage of political development, the body politic formed a system of government in an agreement known as a "constitution." Unlike the social contract, which required unanimous consent, the constitution required only the consent of the body politic, based on majority rule. (20) Even after the formation of government, however, the body politic still retained supreme political authority, or "sovereignty." (21) James Wilson summarized the idea nicely in his law lectures:

While those, who were about to form a society, continued separate and independent men, they possessed separate and independent powers and rights. When the society was formed, it possessed jointly all the previously separate and independent powers and rights of the individuals who formed it, and all the other powers and rights, which result from the social union. The aggregate of these powers and these rights composes the sovereignty of the society or nation. (22) This was the crux of popular sovereignty--that sovereignty resided in the body politic, or "the people themselves," and that members of the government exercised power merely as agents of the people.

To be sure, as Barnett highlights, James Wilson's opinion in Chisolm v. Georgia famously described individuals as "original sovereigns," noting that "[t]he sovereign, when traced to his source, must be found in the man." (23) But Wilson clarified that his use of the term "sovereign" was idiosyncratic, (24) referring to the source of governmental legitimacy rather than the possessor of supreme political authority. Putting aside terminology, Wilson's point was conventional. The people, as a collective body politic--not legislatures or kings, and not individuals--possessed the supreme power under a social contract, even though that authority was founded on the presumed consent of every individual. (25)

FOUNDING-ERA RIGHTS

In modern legal thought, the rights listed in the Constitution stem from a common source: their enumeration. For the Founders, however, bills of rights declared rather than created most rights. (26) And these declarations typically included two different types of rights, each with its own origin and structure. Declarations of rights, one commentator noted in 1787, combined protections for "natural liberty ... retain[ed]" with "some particular engagements of protection, on the part of government." (27) Or, as Thomas Jefferson put it, bills of rights declared both "unceded portions of right," like "freedom of religion," and "also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right," like "trial by jury, Habeas corpus laws, [and] free presses." (28)

These different types of rights corresponded to the different stages of political development in social-contract theory:

  1. In a state of nature, individuals had natural rights. Natural rights were easy to identify because they were things that people could do without a government, like eat, pray, or speak. "A natural right is an animal right," Thomas Paine succinctly explained, "and the power to act it, is supposed, either fully or in part, to be mechanically contained within ourselves as individuals. (29) Or, as Zephaniah Swift put it, natural rights were "the enjoyment and exercise of a power to do as we think proper, without any other restraint than what results from the law of nature, or what may be denominated the moral law." (30)

  2. When forming a political society in a social contract, individuals agreed to retain some of their natural rights. These retained natural rights, William Blackstone noted, comprised "natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public." (31)

  3. Either when forming a political society or when constituting a government, the people might also recognize certain fundamental positive rights to limit...

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