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02/03/2015

Richard Reinsch and Randy Barnett on Constitutional Rights and Natural Rights
Michael Ramsey

At Liberty Law Blog, Richard Reinsch: The Book of Judges.  He begins:

The restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire. In writings both academic and popular, many libertarian and classical liberal scholars clamor for the supposed symmetry of substantive due process or the bold recovery of an expansive listing of natural rights that is, we are told, embodied in the 9th Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Even George Will has reversed his own prior position on judicial restraint to now favor “judicial engagement” to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities, or what some might call the carefully qualified majorities of our republican constitution.

...

One wonders if the debate, though, on the status of natural rights in the Constitution and the press for their recognition by the federal judiciary is merely a symptom of the fundamental displacement of Madisonian constitutionalism. If so, we might see the judicial engagement camp trying to pull liberty from the wreckage of a Progressive, centralized Constitution that in divers ways abandoned the structural guarantees of individual freedom its Framers gave it. In short, these scholars are better seen as entrepreneurs of a new constitutional order, as opposed to being involved in a recovery effort of a Lost Constitution.

And in conclusion:

Rather than enlist in this project, and its perils, we do better to rearticulate that, however paradoxical it may seem, liberty flows out of the constraints in the very design of the Constitution. That road is a difficult one—making sense of a paradox is not for amateurs— but it avoids the near-certainty of the arrival of confusion and danger that flow from a judiciary creating and articulating rights by its own lights.

Randy Barnett (not surprisingly) has a response: Another defender of “judicial restraint” attacks a straw man.

Also from the comments at Liberty Law Blog, Evan Bernick:

The possibility that judges may invent “natural” rights that have no foundation in text, history, or the political philosophy that informed the Constitution does not justify treating the concept of natural rights as illegitimate. The Constitution cannot be understood without natural rights. The Fourteenth Amendment is, in fact, designed to protect those rights. We tried leaving the states to secure rights on their own. It resulted in majoritarian tyranny that nearly destroyed the nation.

Although there may be some talking-past-each-other going on here, I think this is a useful way to reframe part of the judicial activism/judicial restraint debate.  The extent to which judges should enforce natural/unenumerated rights is distinct from (but overlaps with) the question of how aggressively judges should intervene against political majorities.  At bottom, the natural rights question is one of the Constitution's meaning: one might believe that judges should intervene aggressively against political majorities (on the basis of the Constitution's meaning) and yet not think the Constitution incorporates natural rights.  Similarly, one might believe in a natural rights basis of the Constitution and still think the implementation should largely lie with the people (acting through the political branches).