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Natural Rights, Substantive Due Process and Originalism
Michael McConnell

[Ed: For this guest post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor at Stanford Law School, Director of the Stanford Constitutional Law Center, and Senior Fellow at the Hoover Institution.  This is a comment on the exchange between Richard Reinsch and Randy Barnett, noted here.]

Originalists should beware of any claim that substantive due process has roots in natural rights jurisprudence from the founding period. To our founders, the social compact was an exchange. Certain natural rights were relinquished in exchange for a more effectual protection for the natural rights which were retained (plus positive rights). The only way to know what rights were relinquished and what rights were retained is to examine the terms of the Constitution (and the relevant state constitution). Substantive due process, by contrast, posits that some (unspecified) set of rights are so fundamental that they cannot be relinquished. It is not logically possible to treat “natural rights” as congruent with “substantive due process rights” because this would render the social compact unintelligible.

That is why defenders of the Constitution said a bill of rights would be harmful. The enumeration of some natural rights would, by the expressio unius principle, relinquish the others. If natural rights may be relinquished by inference, they surely may be relinquished by explicit legislation that comports with constitutional allocations of power. The founders believed that natural rights would be protected by a combination of a carefully limited enumeration of powers and a robust republican form of government.

The Ninth Amendment was Madison’s solution to the expressio unius problem. Because of the Ninth Amendment, it would be a mistake to assume that because a subset of natural rights were expressly enumerated, the others were denied or disparaged. But this did not transmute unenumerated natural rights into constitutional rights. They remained natural rights, which would control only when specific, properly enacted positive law did not abrogate them. Unenumerated natural rights have the same legal status they had before enactment of the bill of rights.

I will not multiply citations of authority, but this understanding of natural liberties finds corroboration in the impeccable authority of the transmittal letter from the Constitutional Convention to the Congress on September 17, 1787: “Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.” In other words, in the making of a constitution, the people “give up” a share of their natural liberties “to preserve the rest.” Which rights are given up and which are preserved is a political choice, dependent on circumstance and constitutional objectives, made through constitution drafting and subsequent legislation.

Our founders believed in natural rights. They also believed that natural rights were trumped by specific and authorized positive law. The notion that substantive due process is a modern version of natural rights theory is historically inaccurate.