The status of judges in the constitutional regime is fundamentally a question of the place of politics, rightly understood, in human life—a point illustrated by the thoughtful exchanges between Richard Reinsch and Randy Barnett in this space and at Volokh. Reinsch argues the danger of giving judges indeterminate power over unspecified natural rights. Barnett replies that these need not be specified; judges need only ensure that governmental power is reasonably used to promote permissible ends.
Theirs was a productive conversation, and it might be usefully expanded to the following question: Even granting a robust reading of the Ninth and Fourteenth Amendments, what is the basis, and what are the costs, of empowering judges to safeguard the rights therein contained?
Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.
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.
In a detailed historical review of Timothy Sandefur’s new book entitled The Conscience of the Constitution, Adam Tate raises the practice of federalism as a principled method that representatives used in the early republic for handling difficult issues. Rather than face political paralysis or endure efforts at national coercion via constitutional provisions regarding slavery or religious freedom, for example, Tate notes that the Founders looked to the states and their separate interests as the best solution. So Tate argues that there was no natural rights code of law with exact specifications nationally applied.
If we were such a republic, then why were natural rights not relied upon in the tough cases and appealed to with precision? If there was consensus on natural rights as the baseline, then surely it would have governed these disputes, rendering them noncontroversial. More plausible is that the natural law and natural rights were seen as an ultimate source of law, but what this meant in concrete application was not firmly agreed upon by the Framers. As a result, particular resolution of constitutional questions via a detailed code of natural rights wasn’t ventured.
Timothy Sandefur’s The Conscience of the Constitution contributes to the debate over the best way to limit the powers of the United States government in order to secure liberty. Sandefur, a lawyer and legal scholar, believes that “American constitutional history has always hovered in the mutual resistance of two principles: the right of each individual to be free, and the power of the majority to make rules.” (1) For Sandefur adherence to the natural rights theory of Declaration of Independence manages the tension between the two principles.
This edition of Liberty Law Talk is with Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. A 2013 Bradley Prize recipient, Levin connects us with the actual contest between Burke and Paine as they debated the central claims of the French Revolution and much of modern political thought with its focus on rights, individualism, the social contract vs. Burke's more expansive notions of social liberty, the contract among the dead, the living, and those yet to be born, and his belief in prescription or the notion that change should be…
Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.
Much of President Obama’s speech commemorating the 1963 civil rights March on Washington deserves praise–or at least admiration. Speaking from the Lincoln Memorial, he began by reciting the most famous lines from the Declaration of Independence. He reminded his cynical audience that the cause of civil rights comes from the heart of our national existence. And he reinforced that principle by later quoting Lincoln, in his brief speech on the meaning of the Declaration, that “the weights should be lifted from the shoulders of all men, and that all should have an equal chance.”