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03/28/2019

Will Foster on Eric Segall on First Amendment Originalism
Michael Ramsey

Will Foster comments: 
 
I noticed you commented on Eric Segall's positive review of Jud Campbell's natural rights work on your blog. Admittedly, I have not yet had time to do more than skim Prof. Campbell's work, but I am already very skeptical of his conclusions (largely for the reasons you mention), thoroughly-supported though they may be. 
 
One historical document that I think supports your skepticism: James Madison's speech introducing the Bill of Rights (I am not sure if Prof. Campbell mentions it in his articles). Due to length I added some ellipses but I believe this excerpt accurately represents the full quote; emphasis is mine:

The first of these amendments, relates to what may be called a bill of rights ... I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great-Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite ... 

But altho' the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find that altho' some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least controul; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

Given all this discussion of protecting the minority from the majority, preventing the people from legislative abuses of power, etc., I find it very hard to believe Campbell's claim that the protection of natural rights was thought to lie entirely or almost entirely with the legislature -- the very body Madison was afraid of. Of course, Madison was not the only person who spoke on this topic in the Founding era. Maybe his views were idiosyncratic (although I somewhat doubt it). Unlike Prof. Campbell, I haven't done very much research on the topic.