INTRODUCTION I. REHNQUIST--THE YOUNG POLITICAL PHILOSOPHER A. Looking for the Moral Basis of Rights B. Pragmatism Is No Substitute C. The Majority Is Not Enough--or Is It? D. The Most Basic Moral Right--Freedom from Coercion E. Additional Moral Rights Derived from the Basic Moral Right To Be Free from Coercion II. REHNQUIST AS JUSTICE A. Rehnquist's Theory of Rights in Court B. A Novel--but Unsuccessful--Attempt To Better Identify Majority Choice C. Moral Versus Legal Right and the Distinction Between Positive and Negative Liberty CONCLUSION INTRODUCTION
William Rehnquist had so long and effectively played the role of fair-minded Chief Justice--his ideological opposite William Brennan calling him "the best chief under whom [he] served" (1)--that sometimes his substantive legacy is overlooked. (2) It should not be. Coming to the Court in 1972 from the Office of Legal Counsel, (3) he began as a lone dissenter, but by the time of his death in 2005, he had brought at least a slim majority of the Court around to his own thinking. (4) His jurisprudential perspective emphasized a government of enumerated and separated power, where state and local authority was respected, and the judiciary reserved its authority to a historically faithful understanding of the Bill of Rights and the Fourteenth Amendment. (5)
The Chief was a gracious and unassuming man who hid beneath a shy, quiet demeanor, an ironic sense of humor, and wit. He enjoyed history, and during the last dozen years of his life, he authored four volumes which achieved wide readership in the legal community and beyond. (6) The point of reference of this Article, however, begins much earlier, with the twenty-four-year-old Bill Rehnquist pursuing a master of arts degree in political science at Stanford. (7) In a previously unpublished, but truly gifted study, (8) Rehnquist works out an elaborate theory of political right, which would significantly shape his subsequent law study and his extended thirty-three-year tenure on the Supreme Court. More detail of his theory is below, but it will be quickly perceived that Rehnquist, the philosopher, unlike his later judicial self, was neither a positivist nor a moral relativist.
In brief overview, the Rehnquist theory aims to identify moral rights as informed by human nature. Man's difficulty, Rehnquist argues, will not be the existence of objective value, but that value's knowability and demonstrability. As a consequence, men find themselves in disagreement over basic ideas of the good, and without government, these conflicts would be settled by force and coercion. In light of these considerations, Rehnquist deduces that the most basic moral right is freedom from coercion. Additional right claims, to be legitimate, must likewise avoid imposing upon or coercing others, and they therefore consist of negative, rather than positive, liberties--freedom of speech, worship, and fair play (due process)--all described by Rehnquist as ends in themselves. While he conceives that favorable political arguments may be made for positive liberties, these liberties must await legislative adoption. Majority approval for the young philosopher, however, does not signify that one claim is morally superior to another. In this way, Rehnquist rejects laissez-faire freedom of contract claims as moral rights, since they depend too greatly upon advantages previously granted legislatively. Private property is protected as a moral extension of a person's labor, but the particular institutional design of property is legislative only and may prudentially be amended. Once granted, however, property interests ought not be subject to diminution by discretionary agents of the government. As readers familiar with the Rehnquist Court perhaps have already discerned, there is substantial, but not complete, overlap between the young man's theory and the older man's application. Before making this comparison, however, it is appropriate to examine more closely an elegantly advanced theory of moral right by someone who was destined for high office and who obviously facilitated that destiny with rigorous intellectual preparation.
REHNQUIST--THE YOUNG POLITICAL PHILOSOPHER
Philosophy, opines graduate student Rehnquist, can be disappointing. It often begins strong, critiquing the ancient theories, but ends with a whimper or, worse, by repeating ancient errors. To not fall into this common trap himself, Rehnquist admonishes that a theory of political rights is necessarily "a theory of human nature." (9) By this, Rehnquist appears to be giving lie to later criticism that his jurisprudence is relativistic or wholly positivist. He makes the point more explicit by reminding his reader that theory must be tailored for human nature, not the other way around. What's more, an understanding of human nature is not to be entirely somber and rationalistic, but must include the "emotional side of human nature." (10) To fail to leaven one's understanding of the human person with sentiment will doom one's writing to an unexamined library shelf. Whether out of emotion or notoriety, Rehnquist's theory of rights was not entirely overlooked. Professor Thomas Merrill dusted it off less than a decade into the late Chief Justice's service in the center chair to argue that Rehnquist employed a "pluralist" perspective in statutory interpretation. (11) However, Merrill's use of the Rehnquist theory is fleeting. Moreover, he too casually portrays Rehnquist as a "moral skeptic," (12) taking no account of the natural law understanding of political right Rehnquist displays throughout his thesis.
A closer look at the young Rehnquist's work demonstrates not a denial of objective good, but a candid acknowledgment that knowledge of that good is incapable of proof without faith-based acceptance of the most scholastic principles. (13) Rehnquist recognizes this as a significant problem since the inability to clearly demonstrate that a government is honoring rights associated with the truth of human nature leaves unanswered the question of why that government should be obeyed. (14)
After his walk through the work of many political theorists who have attempted to answer this question, Rehnquist rejects the "fiction" of the social contract as having little historical accuracy. Rehnquist argues that one cannot grasp an understanding of rights without some assumption about the type of government in which those rights will be asserted. To illustrate, Rehnquist holds out "Roman law as pure legalism" (15) until it is supplemented with the natural law insight of the Stoics. The concept of natural law supplies something remarkable, records Rehnquist: "the possibility of a disparity between legal rights and moral rights." (16) This supposition--that human law is subject to evaluation by a "higher" law--is elaborated in medieval thought and brought forward by modern writers like Jacques Maritain. Maritain, (17) Rehnquist observes, finds positive law needing to affirm certain natural rights that inhere in human dignity and are traceable to God. The reformation, however, writes Rehnquist, brings on "that perennial western malady, the revolt of the individual against the species." (18)
The path then leads through Hobbes and Spinoza, whom Rehnquist finds transform natural right into a mere assertion of individual power lacking in moral content. Locke is an antidote, returning to a Creator-based understanding of natural right, but one that Rehnquist finds is far more individualistic than that subscribed to by the medievalists who understood man as seeking (or actually being in) harmony with his community. Rehnquist characterizes the writing of Rousseau to be "Janus-like," sometimes pointing to unbridled individualism, and on other occasions, extolling an idea of "general will" which Rehnquist finds highly suspicious--constraining man against his own judgment, "forcing him to be free." (19) Rehnquist resists this incipient, totalitarian ideal by positively referencing Kant for recognizing the need for political theory to be premised upon "some objective moral value." (20) A theory of rights without this support, writes Rehnquist, is "doomed to failure." (21) Worse, a theory of rights without a moral base may be prepared to annihilate man in favor of Hegel's philosophy of "the all-embracing state," which others assert to be the basis of "the first World War." (22) Finally, before turning more directly to his own theory of the moral basis of rights, Rehnquist briefly comments upon John Austin, the father of modern positivism. Contrary, again, to later descriptions of Rehnquist's jurisprudence, he assesses the notion that rights are whatever is legally enforceable to be an unhelpful idea and not vital to his study. (23)
Looking for the Moral Basis of Rights
Having explored the concept of right, Rehnquist probes whether some rights ought to, as a matter of morality, be recognized. Again, Rehnquist begins with human nature, itself, and in particular man's summum bonum (ultimate aspiration). Rights are desired in aid of this goal, which Rehnquist posits will differ for each person. Because Rehnquist conceives this pursuit as highly individual, a necessary precondition to this goal is freedom, which he finds to be an elusive and abused concept. Rehnquist chooses to define freedom as "the absence of external restraint," (24) not because it has a distinguished academic pedigree traceable to Isaiah Berlin, (25) but because that definition avoids the pitfalls of positive liberty claims that might force people to be free on the terms of the elites. (26)
Rehnquist's negative definition of liberty will figure prominently within his theory of rights and, later, in his jurisprudence. Since that is so, it is worthwhile to pause briefly to note that Justice Stephen Breyer's recently published theory of "active liberty" (27) is directly at odds with Rehnquist's more modest definition. Even as the idea of negative...