CHAPTER 5 Are There Natural Rights?

It is never out of season to recall James Wilson’s line that the purpose of the Constitution was not to invent new rights “by a human establishment,” but to secure and enlarge the rights we already have by nature.¹ In radical contrast, the celebrated William Blackstone said in his Commentaries on the Laws of England that when we enter civil society, we give up the unrestricted set of rights we had in the State of Nature, including the “liberty to do mischief.”² We exchange them for a more diminished set of rights under civil society—call them “civil rights”—but they are rendered more secure by the advent of a government that can enforce them.

There has been a curious forgetting, among lawyers and judges as well as ordinary citizens, that there was a serious dispute at the time of the Founding about the rationale and justification of a “Bill of Rights,” and that the reservations did not come from men who had reservations about the notion of “rights.” The concern, rather, was that a Bill of Rights would work to mis-instruct the American people about the ground of their rights.⁶ That concern can be glimpsed—and confirmed—in that line we hear so often in our public arguments, when people earnestly insist on claiming those “rights we have through the First Amendment.” Do they really think that without the First Amendment they would not have a right to speak and publish, to press their views in public, to assemble with others who share their views? That was precisely the point made by Theodore Sedgwick when the First Congress was presented with the proposal for a Bill of Rights.

But the challenge may quickly arise: If you are saying that those deep principles of a regime of law were there before the Constitution, and they would be there even if there were no Constitution, are you saying that we don’t really need the Constitution? And the answer, of course, is no. The purpose of a constitution is to establish a structure of governance consistent with those deep principles that define the character of the regime. The current Constitution is our second constitution; the first one—the Articles of Confederation—had fanned centrifugal tendencies that undermined the sense of one people forming a nation with a national government.

On the night he was elected president in November 2008, Barack Obama remarked to a throng in Chicago that we had built this country “for 221 years… calloused hand by calloused hand.” In striking contrast, Lincoln said at Gettysburg, “Four score and seven years ago our fathers brought forth, on this continent, a new nation.” Counting back 221 years from November 2008, Obama put the beginning of the nation at the drafting of the Constitution in 1787. Counting back 87 years from Gettysburg, Lincoln found the beginning of the nation in the Declaration of Independence in 1776. It was then that we had the articulation of that “proposition,” as he called it, that determined the character of this new regime arising in America: “that all men are created equal,” and the only rightful governance over human beings “deriv[es] its just powers from the consent of the governed.” The Declaration provided those defining principles around which the Constitution would be shaped.

The Constitution was grounded in principles that were already there, but it supplied a structure, and that structure made a profound practical difference: I really do want to know—and so should everyone else—just whom the army will obey as commander in chief if the president dies. And I really want to know whether a state may make its territory available as a military or naval base for another country without the permission of the national government. The path to the enactment of Obamacare was given a serious jolt when the Constitution, for the fifty-sixth time, through peace and war, served up a midterm congressional election. That was a jolt of restraint emanating from the Constitution, but we may no longer notice the midterms as a constitutional happening because we are not litigating over this critical part of the Constitution. But the animating purpose of this whole project, as the Declaration said, was to “secure these rights,” the rights flowing by nature to ordinary men and women to govern themselves.

In his famous Cooper Union speech in February of 1860, Lincoln drew attention to those black slaves who had the wit not to throw in with John Brown and his reckless, lethal escapade. As ignorant as they were, he said, and as unlearned in books, they could see that the schemes of this white man, touched with madness, were not going to conduce to their well-being.⁹ That is to say, even as unschooled as they were, they were still, as human beings, “moral agents”: they had a vivid sense of their well-being, of their interests, and of right and wrong.

And so why does it not make sense to say, with Theodore Sedgwick, that in a regime of freedom—what we used to call a “liberal regime”—we begin with the premise that even ordinary men have a presumptive claim to pursue their sense of the ends rightful for them? The burden of justification would lie then with the law when it restricts that freedom, even in the most prosaic dimensions.

When my late friend Robert Bork was a judge on the D.C. Circuit Court of Appeals, he wrote an opinion sustaining the right of a sculptor under the First Amendment to express himself in his art. But the First Amendment was really made for political speech and for arguments in a free press. It was a stretch to connect that concern to the freedom of the sculptor to express himself. But the conclusion would have made far better sense with the premises that Theodore Sedgwick sought to put in place: Yes, people could claim a presumptive freedom to pursue their interests in sculpture or writing, in cooking or plumbing, as long as they did nothing wrongful, nothing that the law could be justified in barring. No matter how prosaic the activity, people may have decent reasons for pursuing it and the law would bear the burden of establishing the justification for any measures that would restrict that freedom. One night in Washington I was put out of my apartment in the middle of the night because a fire had broken out in my building. I joined friends and neighbors outside as the firefighters dealt with the danger and probed its source. Clearly, my “liberty” had been impeded. But I didn’t fly to the charge that my “rights”—either my natural rights or my constitutional rights—had been violated. For the regulations that restrained my freedom for a moment had the most obvious justification: the need to secure my safety and the safety of others. In another instance I encountered a young man outside the Wardman hotel on Connecticut Avenue, about to descend into the subway with a bicycle.

I mention these simple cases to point out that these are decisions that ordinary people make every day about restrictions of freedom that we must impose on ourselves at every turn. Like the young man with the bicycle, we instantly weigh the more or less obvious justifications for the restraints—and we find nothing inscrutable about making these judgments. These judgments are not inscrutable because they engage the common sense that Thomas Reid pointed to, the things that ordinary people take for granted as they get on with the ordinary business of living.

But those simple cases can also yield, in a flash, some understandings of “rights” that are only dimly understood. For one thing, it is a grave mistake to speak of a natural right to concrete objects, such as cars or houses or money. The range of our rights may be as vast as the range of things that are conceivable to do with our freedom, whether spending hours trying to compose an opera or doing impersonations of Elvis Presley. But then, in every one of those dimensions, our “rights” will hinge on whether the law is justified or unjustified in restraining our freedom to pursue these passions. That youngster going into the subway knew that he had a rightful freedom to take his bicycle into the subway during the afternoon, but he had no such “right” during the rush hour. It is a critical point to bring to students at the threshold of their studies that we cannot give a moral account of any act by simply describing the overt movements that form the act. Have we said enough, for example, to describe a “theft” if we say that “Smith went to the garage of his neighbor, Jones, and took the hose hanging on the wall”? For one thing, Jones might have had permission to use the hose.

We may replicate the same kind of analysis in virtually every instance in which our freedom is engaged. When the matter is seen through this perspective, a “lie” is not any and every act of speaking falsely. One would not be obliged to spill out the truth to one’s father about the surprise party that is being planned for his birthday. Nor should one feel embarrassed about turning on lights in the house when one is not home, and in that way misleading potential burglars. To call something a “lie” is to cast a moral judgment, and it makes sense to cast that judgment when people speak falsely for the purpose of defrauding or willfully misleading for the purpose of accomplishing wrongful ends. Even Kant did not think we were obliged to tell the truth to the thief who had us by the throat: “I need not tell him the truth, because he will abuse it; and my untruth is not a lie (mendacium) because the thief knows full well that I will not, if I can help it, tell him the truth and that he has no right to demand it of me.”¹⁰

Would we really stamp as “immoral” those householders in Copenhagen who did not tell the truth about the Jews they were hiding to the Gestapo at the door? Quite the opposite: for those householders to tell the truth to the Gestapo would have made them accomplices in the project of genocide, the unconditional, categorical wrong of killing the innocent. Here, as in any other instance, the judgment of a wrong will have to pivot on the question of whether the act was finally justified or unjustified.¹¹

That recognition of a categorical moral truth, or a moral axiom, provides one of the anchoring grounds for the principles we seek to apply to particular cases. I mentioned earlier that proposition that James Wilson and Immanuel Kant both regarded as a first principle of our moral and legal judgment: that it makes no sense to cast moral judgments of praise or blame on people for acts they were powerless to effect. I pointed out earlier that the axiom does not relieve us of the need for imagination and judgment as we unravel the facts of any case: Was Jones under hypnosis, or in the intensive care unit, when the crime was committed? There may be many contingencies at work, facts that have to be read and understood, but the one thing that will never be contingent, never in doubt, is the principle itself: if Jones really was incapable of effecting a criminal act, he cannot be rightfully accused and convicted of wrongdoing.

But at the same time, the corollary kicks into place as well: if it is wrong for me to be punished for an act I was incapable of committing—and if that judgment is grounded in a necessary truth—then it can be said just as aptly that I have a right, in fact an absolute right, grounded in a necessary truth, not to be punished for something I had no power to effect. And just as the axiom itself is never in doubt, the right that flows from that axiom must bear the same qualities: it too will never be in doubt, never contingent on circumstances.

To get clear on that grounding point is to remove a vast amount of confusion from the usual discourse we hear on “rights.” The “freedom of speech” under the First Amendment was never thought to cast a constitutional protection on any and all acts performed through speech. As John Marshall famously said, anyone who publishes a libel in this country can be “sued or indicted”—sued for destroying the reputation and business of a person, or indicted for the criminal libel of stirring tumults in the community, perhaps by inciting attacks on religious and political minorities.¹² Justice Scalia was making the same point when he explained that we can take seriously that right in the Second Amendment “to keep and bear arms,” and yet that presumptive freedom may still be restricted in many plausible ways, with provisions on licensing and precautions for safety.¹³ That “right” to bear arms is no more categorical or beyond challenge and restraint than the right to speak and publish. Absolute rights can arise only from axioms, which alone give us rights that hold true of necessity, under all conditions. Those axioms in turn give us the body of principles that come into play when we test, in a demanding way, the justifications that are offered for the law in any case when it restricts our freedom. Detached from those axioms, or those standards for judging, there is nothing categorically right or wrong about speaking, publishing, sculpting, playing baseball or football. By the same token there is nothing that removes any of these acts from the domain of moral judgment. When key members of the Chicago White Sox colluded with gamblers to “throw” the World Series of 1919 and become the Black Sox, the law suddenly became engaged in a new regime of moral supervision of sports. The courts would later undo some of the moral restraints that were called into question. And yet, at another point, the law would find grounds for judging the system of contracts that kept ballplayers “owned” by one team, without the standing of free agents to make contracts guided by their own interests.

But the key point that illuminates this whole dimension of freedom and moral judgment may trace back indirectly to Kant. From Kant’s writing on the categorical imperative, Daniel Robinson offered this concise rendering: “In every setting in which the will is impelled by desire, there is a course of action that ought to be taken.”¹⁴ The corollary, of course, is that for every class of acts we can name, there is a subset of them that ought not be done. I found that idea a bit baffling at first, for wouldn’t there be a vast domain of things in our lives that just don’t generate serious moral questions? I can choose the peanut butter sandwich or the coq au vin; I may choose a suspenseful game of bingo over Beethoven’s Ninth Symphony; I could fall at any moment into a preference for things coarser rather than finer, but I wouldn’t be making any immoral choice, would I? The point may become clearer if we widen the lens and consider for a moment anything that may fall under the class of, say, cooking or cuisine. Here we might get a jolt of recognition if we recall the late Michael Flanders’s song about “The Reluctant Cannibal”: the youngster causing serious concern on the part of his parents because he would not even consider eating “the roast leg of insurance salesman.” Our moral judgments in certain domains are so obvious that we have woven them into our practical lives without much awareness that we have indeed truncated or limited the range of our choices in this way. And we have done that in every domain of our freedom. Whether we are dealing with cuisine or baseball or performing surgeries, these acts could all be directed to wrongful and hurtful ends. We may just be unaware that, for anything we can name, we have made the choice to deny ourselves the wrongful or illegitimate uses of those things. Our choices have been narrowed for us by moral judgments so clear that they usually remain unspoken—and unnoticed. But at times the law will mark the boundary in a way we can notice.

The brute fact is that, as Kant saw, there is nothing we can name—no act, no thing—that cannot be part of a means-end change leading in a wrongful direction, a direction leading to harms inflicted without justification. The skill of driving may be used to drive an ambulance to save lives or to drive a getaway car for the Mafia. A pen could be used to write a donation to a charity or to commit a fraud.

The upshot then: Unless we have in hand a “right” that is anchored in those “first principles” of our judgment, as Alexander Hamilton called them, we are dealing with a limitless array of freedoms that may be directed to ends rightful or wrongful. Those freedoms may be plausibly restricted at many points for good reasons. The question of “rights” will always hinge then on whether those reasons for restricting freedom are justified or unjustified. And we gauge that matter of “justification” in the most demanding way by those measures of common sense that are anchored in the axioms of moral judgment. We know, for example, the axiom that would establish the deep wrong of harming people on the basis of race—and with that, the justification for the laws that seek to bar it. We have seen also the inescapable wrong of drawing moral inferences about people on the basis of attributes that cannot possibly have a deterministic control of anyone—attributes such as height or weight, color, wealth, deafness, Down’s syndrome. But those anchoring principles would also contain a subset that could be expressed in this way: “Since we are obliged, by the logic of morals, to do what is good and refrain from what is bad, we are obliged, where we can, to do more good rather than less, and less harm rather than more.”¹⁵ When William Blackstone in his Commentaries sought to explain “the law of nations,” he found the beginning of the law in “this principle, that different nations ought in time of peace to do one another all the good they can; and, in time of war, as little harm as possible, without prejudice to their own real interests.” This was not a principle arising merely from any agreement among nations. It arose rather, as he said, from “the law of nature and reason.”¹⁶ The Marxist regime in Cuba came under rightful public censure years ago when it shot down a small plane that had wandered into Cuban airspace. The moral principle that came into play was that the Cuban authorities should have used non-lethal methods first to bring that plane down to ground or to chase it out of Cuban airspace.

That is to say, the axioms of Natural Law encompass a commonsense principle of scaling the measures of the law to the gravity of the wrong. The “justifications” for the law will then track the spectrum of what are widely recognized in common sense as “injuries.” The justifications may come with different levels of gravity, but a justification there must needs be in gauging whether the law is treading on genuine rights or barring the wrongful uses of freedom.

With that sense of the ground of our rights, we can pierce the cliches that have arisen over those venerable lines in the Declaration of Independence: that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….” The Declaration asserts our right to life. But it was never understood to mean that the government could secure to us a right to life everlasting. Nor could it mean that the government may not oblige its people to risk their lives at times in defense of their country. Nor that the government may not take life at times, rightly, in the form of capital punishment.

Nor, for that matter, does the right to liberty mean that people have a claim to liberty unrestricted, for any law restricts the freedom of people, even the laws that put up traffic lights. And, of course, when we bar people from doing wrongful things, whether in stealing, murdering, or plagiarizing, we demonstrate that the right to freedom can never encompass “the right to do a wrong,” as Lincoln had it. James Wilson put that question as a challenge to Blackstone: When did we ever have “a liberty to do mischief”? The laws that restrain us from murdering or raping or committing any other species of wrongdoing do not deprive us of anything we have ever had a natural right to do. What makes more sense is that the government seeks to protect us in our natural right not to have our lives or property taken, our liberties restricted in a lawless way, without justification. The respect for “equality” needs to be seen, I think, through the same lens. Lincoln caught it in this way:

[The authors of the Declaration] did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness in what they did consider all men created equal,—equal in certain inalienable rights, among which are life, liberty, and the pursuit of happiness. This they said, and this they meant. They did not mean to assert the obvious untruth that all were then actually enjoying that equality, or yet that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.¹⁷

We seem to recognize, in a commonsense way, that with all of the people who pass before our visual screen, not every one of them has a claim to exactly the same measure of respect and affection. We have reasons, after all, for finding some of those people more worthy of our respect and admiration. And when we make those judgments, we are not denying some principle deep in the character of our regime.

We see some people licensed to practice medicine and perform complicated surgery on others; we see others who fail the test of competence and are not licensed. Some are confirmed in the practice of their profession; some have been barred from that vocation. They have different rewards and disappointments; they have suffered unequal results. Have they been treated unequally, or have they been treated according to the same standard applied equally to all, yielding different results in different circumstances?

Seen through this moral lens, “natural rights” would mark a claim to be treated in all instances, in all dimensions of our lives, with justification. That would be especially the case in those instances in which we are faced with harms or with diminutions of our safety, our freedom, our earnings, or our property. Our “natural right” is then, at root, a right to be treated justly, with reasons that can establish the ground of justification for the restriction of our freedom in any of its dimensions, whether in the crafting of sculpture, the shining of shoes, or the braiding of hair.

When James Wilson said that the Founders had not brought forth a new government for the sake of inventing new rights, he was restating the argument in the Declaration of Independence: that the purpose of any legitimate government is the securing of those rights we have by nature; that governments lose their claim to exist when they show their want of interest or competence in securing those rights. But the point that curiously needs to be made in our own day is that this function of securing natural rights was not assigned distinctly to the judicial branch. This dominating purpose, or telos, applies to every branch of our government, to the executive and legislature no less than the judiciary. No recent incident illustrates that point as readily as an incident that occurred in New York City a few years ago, when the authorities were suddenly alerted to the danger of a terrorist bringing a hidden bomb onto a subway train during the rush hours. The police instituted a regimen for searching briefcases and bags that passengers were bringing onto the trains. The American Civil Liberties Union (ACLU) instantly moved into action, insisting that these searches offered potential threats to “constitutional rights.” But which “constitutional rights”? The assumption, quickly engaged, was that it was that right in the Fourth Amendment not to be subjected to “unreasonable searches” of “persons… papers, and effects.” And yet, what is curiously screened out here is the American Founders’ understanding of natural rights. What was strikingly missed was that the government ordering the inspecting of the bags was acting to protect the right of ordinary persons not to have their lives taken in a lawless way, with no justification. And that was not a right only for citizens. The authorities evidently thought they were obliged to protect the lives of all persons entering the subways. Which is to say, they were operationally protecting the “natural rights” that flow to all human beings.

Andrew Bailey is a distinguished professor of computer science at Williams College, but when he was a youngster growing up on our street in Amherst, son of a professor of mathematics, Andy mowed lawns in the summer to make money. His plan was to buy a spiffy English racer. Toward the end of the summer he had enough money, and he bought that racer. And at the end of the summer, someone stole it. As it turned out, then, Andy Bailey had been working all summer for the thief. As John Locke would have explained it, the thief had appropriated to himself Andy’s labor for the whole of the summer: Andy had been converted into a slave of the thief.¹⁸

The very existence of a government that could protect its people against theft was itself a force for protecting its people from involuntary servitude—long before the Thirteenth Amendment. This is what James Wilson and the Founders understood when they wrote in the Declaration of Independence that the very purpose of government, its rationale and justification, was to protect natural rights. This is what Alexander Hamilton meant when he said in Federalist no. 84 that “the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS,”—for the Constitution establishes a government with the strength and competence to protect us in these natural rights, the rights that were there even before the government was put into place.

But again, we are not identifying discrete classes of things to be protected. The question of rights will always pivot on judgments about the restrictions on freedom, the takings of property, the acts of taking of life, that are justified or unjustified. That is what the government of New York supplied when it explained the purpose for which it ordered the inspection of personal bags—and why those measures were reasonably taken for that legitimate end. And that was the purpose of a regime conceived and dedicated to the protection of ordinary people from having their lives taken in a lawless, unjustified way.