Contents
Introductory Remarks by David Theroux
Good evening, everyone. My name’s David Theroux and I think I know most of you. I’m the President of The Independent Institute. I’d like to welcome you, this evening, to our Independent Policy Forum program.
This evening’s program, as many of you know, is part of a new series of lectures, debates, and seminars that we are sponsoring. And in your packet, there is a flyer on tonight’s program, which also includes a schedule of upcoming events.
The next event is going to be with Gary Becker and his wife, Guity Nashat, which is going to be held in a little over a week. As many of you also know, the Institute is a public policy research institute. It’s an academic research institute. We sponsor many studies by scholars in the social sciences around the country. We have about 130 fellows, right now, in different areas. And we hold many events and media programs based on the results.
The Institute, itself, is an organization that is funded by different foundations, businesses and individuals. And we welcome you to become a member. There’s also information in your packet about that.
Human action and how societies are organized are fundamentally based on ideas. The idea of a free society, itself, has roots that go back, I suppose to antiquity, but with the Enlightenment, the idea of individual liberty really took off in earnest. There’s been a tradition of classical liberal scholarship, including that rooted in the work of Locke, Jefferson, Tocqueville, Acton, Montesquieu, and many others. Yet, for well over a century, scholars and intellectuals in much of Europe and in the United States have questioned such ideas as being, perhaps, outmoded or insufficient for being the basis of our more complex age. Other political systems have been proposed, including our current pragmatic system of special interest politics. And as we also know, it is not surprising that the twentieth century has witnessed the greatest tyrannies, wars, and human devastations in history.
Over the past 20-30 years in particular, a new group of scholars has come to challenge orthodox views that support the existing legal and political system. Although these scholars find their roots in the original tradition of Locke and company, this intellectual movement is now generating what we believe are the new powerful ideas of a very sophisticated nature that support the ideas and institutions of a free society.
The year before that he was the criminal prosecutor for the Cook Colony State Attorney’s Office, in Chicago. Professor Barnett has been a Visiting Professor at Harvard Law School, Northwestern University School of Law and the Universidad Francisco Marroquin School of Law in Guatemala. He graduated in Philosophy from Northwestern and received his J.D. from Harvard Law School.
In addition to his book, The Structure of Liberty, his other books include a book called Assessing the Criminal: Restitution and Retribution of the Legal Process, which is the first instance of when I met Randy. I met him actually at a conference based on that book, years ago. Another book is called The Rights Retained by the People, and Contract Cases in Doctrine and another book is called Perspectives on Contract Law. Randy has appeared on many national programs on television, including CBS Evening News, Fox In-Depth, The Ricki Lake Show. They’re not here, tonight, are they? I guess not.
And before moving to Boston University, he was also legal affairs contributor for WBEZ, which is the NPR station in Chicago, where he was responsible for the broadcast of a 15-hour series on the Bill of Rights. So I’m very pleased to introduce Professor Randy Barnett. [applause]
Well, it’s a great pleasure to be here and it was really wonderful of you, David, to put this program together. We have known each other a long time. And it’s nice to see you so prosperous in the setting that you’re currently in.
I have to say that I come here a little bit disappointed. I spoke, this afternoon, at Boalt Hall in Berkeley at the Law School. And I was really amazed, I was really shocked – the students there dress more upscale than the BU students do. And then I went up to Telegraph Avenue, which I used to love to go to.
The way I view Berkeley is that it was like the Williamsburg of the ’60s, where you could go back at any time in your life and revisit. In my case, [that was] my high school days and early college days, and everybody was in their period costumes, the way they are in Williamsburg, [laughter] and you have all the incense smells and the music and everything.
But it’s not happening there now. There are a few people, but I guess maybe the ’60s people are actually dying or something. They’ve gone somewhere else. The police are driving them out. But it’s now been yuppified – not completely, of course – you see occasional individuals, but I remember what it once was like, and it’s so sad because it was like a time capsule. Every time I went back there, I could feel like I was 17 years [old] again or 18 years old again. And unfortunately, I felt like I was 47 years old. Now, maybe part of it was simply that I was there when the students were there, and the students are dressed up more than they used to. And so, if I were there in the summer, like I have typically been there in the summer, that I would only get the street people and the ambience would be different.
But I have to say, I was deeply disappointed that capitalism has reached the streets of Berkeley. But I’m not disappointed by this event and I’m very pleased to be here to talk about my book, The Structure of Liberty.
Let me begin by talking a little bit about the problems I have with libertarians and the problems I have with conservatives and how my approach differs, or how my emphasis differs. And then talk a little about—I’m going tell you what I plan to talk about tonight.
The problem I have with libertarians—and I consider myself to be a libertarian—and I’ll probably be harder on libertarians tonight than I am on other groups, because I think there’s some need for improvement in the way we approach things. But the problem I have with libertarians is that I think libertarians tend to focus primarily on rights or justice and don’t emphasize or integrate within their view a commitment to the rule of law.
Now, it’s not that libertarians don’t believe in the rule of law. I think they probably do. The rule of law doesn’t do much work, doesn’t play much of an important role in overall libertarian political theory, which pretty much focuses exclusively on individual rights and justice.
By the same token, conservatives, I think, have the opposite problem. Conservatives focus almost exclusively on the rule of law and only peripherally on individual rights and the idea of justice.
Now, I’d say, unlike libertarians, I think there are quite a few conservatives who probably don’t believe in justice or individual rights, but most do. It just doesn’t do much work in the kind of approach they take, which is primarily focused on rule of law concerns.
Then, of course, there’s everybody else, who ignore both justice, based on individual rights, and the rule of law. Those are primarily people on the left, I would say, which are most of my compatriots in legal academia.
So this is the problem I have. And one of the things I set out to do in The Structure of Liberty, was to present an integrated account of justice and the rule of law. So the subtitle of the book is quite significant. I not only defend the libertarian principles of individual rights—I wouldn’t even say libertarian, I would say, at this point—classical liberal principles of individual rights. And I can say more about—in the question and answer period—how I use the term classical liberal versus libertarian. But I not only defend the classical liberal individual rights that comprise the liberal conception of justice, I also defend the rule of law and try to show how one thing relates to the other. Not only which is first and which is second, but also how they complement each other.
Tonight, I’m not going to talk about the rule of law part, except I’d be happy to talk about it the question and answer period. Tonight I am primarily going to focus on the justice part. And here’s what my objective is. Well, let me tell you what my problem is, first of all.
The book is about a lot of things. It covers a lot of ground. Not comprehensively in the sense that it presents every argument, but it is trying to present an argument, a multi-faceted argument on behalf of certain individual rights. Those are rights of several property—sometimes it takes the form of private property—freedom of contract, first possession, self-defense and restitution. Try to defend these basic, fundamental, natural rights and a particular conception of the rule of law from a number of perspectives.
And it is impossible to do justice. It’s impossible to summarize the argument in more than a couple sentences without getting myself in too deep. So then the question is: what can I accomplish in the 25 minutes that I have to talk to you that would actually get something done? And what I’m basically going to do is, I’m going to limit myself to pretty much what goes on in the introduction of the book, in which I talk about the conception of rights that I think I’m doing in the rest of the book.
The book is really not a philosophy book per se. I think it’s a book in applied philosophy. But the first chapter is a little more philosophical and because of that, for some people, the first chapter is a little more difficult. So I can tell you this. If you hear my lecture tonight, hear my talk tonight, you’ll have no problem with the first chapter. You can just breeze through it—and I think you’ll understand it pretty well, anyway—and then you can hit what really is the meat of the argument, which starts in Chapter 2.
So the subject of the first chapter, which is called “Liberty Versus License.” The subject of the first chapter defines what natural law is and what natural rights are and how these two concepts relate to each other. Because one of the things that I’ve noticed, amongst legal academics, who talk about natural law and natural rights, is they tend to run these two concepts together and treat them interchangeably and use one term or the other term without giving it much thought.
Now, you might be wondering why it is legal academics would be talking about natural law or natural rights, at all. In fact, the idea of natural law and natural rights has suffered a bit of a revival in recent years. And several symposia and law reviews have been devoted to the subject. It actually is no longer a fringe-type concept to be discussed amongst serious legal academics and jurisprudes [sic]. And it, particularly, arises in the context of Constitutional law.
And that’s sort of the hook that I think is necessary to understand how it’s relevant today. Because the Constitution was written by people who uniformly—if they agreed about nothing else—agreed about the existence of natural rights. The initial Constitution was written by such people and equally importantly, in my view, the 14th Amendment was written by the same people who had similar commitment to natural rights. And the idea that this document was written by people who assumed the existence of natural rights, should certainly inform any reasonable interpretation of that document.
And even if you didn’t believe that, you have to have some familiarity with natural rights to understand at least one or two of the passages of the Constitution, most notably, the privileges or immunities clause of the 14th Amendment and the 9th Amendment, which reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” For those of you who have not committed that particular part of the Constitution to memory, I’ll say it again. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
What are those other rights retained by the people that should not be denied or disparaged by virtue of the facts that some rights were enumerated in the Constitution? What are those other rights? While there is unanimity of opinion amongst Constitutional scholars, there is an overwhelming consensus that this is a reference to natural rights. There are some dissenters from that, but I think that they are—even people who take a traditionally conservative view of the 9th Amendment and its role in adjudication—can see that historically, this is a reference to natural rights.
Then the next question is: Are natural rights justiciable? Are they something that you can cite in a court? That’s what the debate’s about, not whether this is reference to natural rights. And so there is, in fact, a reference to natural rights in the Constitution. And I believe the privileges or immunities of citizenship are also a reference to natural rights. And I think that’s also been pretty well established by historical work.
And so it’s important for us to know, as citizens today, what natural rights are, at least what kind of things they are. What kind of claims they are, particularly, in an age when we’ve lost touch with that idea, when we really don’t—even people who like natural rights, even people who are sympathetic toward the idea – don’t have a good understanding, I think, of what they are.
So tonight, that’s my purpose. My purpose is try to explain natural rights. And in order to explain natural rights, I also have to talk a bit about natural law and how they’re different.
So let me begin by talking about natural law. Natural law is not, I think, best thought of as a body of doctrine or a set of rules or commands. Natural law, I think, at least in the first approximation, is best thought of as a method of reasoning, as in natural law method of reasoning. It’s a way of reaching conclusion. It’s a way of reasoning towards conclusion. And it’s a particular way, which in the book I call, “given-if-then” reasoning.
“Given-if-then” reasoning. How does it work? Basically, “given-if-then” reasoning works as follows. Given certain facts of that matter, if you want to accomplish certain ends; then, you had best respect certain means, you had best adopt certain means. It’s very simple, very common-sensical. If given certain facts of the matter, if you want to achieve certain ends; then, you had best follow or adhere to certain means. It’s a very pervasive way of thinking.
A natural law approach to “given-if-then,” what makes it natural law is the idea of what goes in the given. And what goes in the given is, given the nature of human beings and the world in which we find ourselves, if you want to accomplish certain ends, then you must adopt certain means or respect certain means. So it’s the nature of the given that makes this a natural law reasoning. A natural law reasoning approach.
Now, the first thing I want to argue. The first thing I want to suggest to you is that this is a pervasive way of thinking, not limited to what you would normally limit natural law thinking to, like ethics, politics, law, or something like that. In fact, I would say that any normative discipline, to use a word that was coined by George Smith, an old friend of mine. Some of you may know who he is. Any normative discipline would use “given-if-then” reasoning, such as—by normative discipline—is a discipline that’s trying to tell us how we ought to behave, how we ought to act in the world.
Agriculture is a normative discipline. Given the nature of human beings in the world in which we find ourselves, including soil conditions, weather conditions, seed, all this kind of stuff I know nothing about, being a good city boy from Chicago. Given all of those conditions, if you want to raise crops for human consumption, then you had best respect certain principles of agriculture.
Architecture, another normative discipline. Given the nature of human beings in the world in which we find ourselves, including the nature of building materials, the nature of physics, and other kinds of scientific principles; given the nature of those things, if you want to build buildings to serve a useful purpose, like having a meeting room of this sort, then you had best respect certain principles of architecture.
Medicine, given the nature of human beings in the world in which we find ourselves, if you want to make sick people well, or prevent well people from getting sick, then you had best respect certain principles of medicine. All of these are disciplines that use natural law methods of reasoning.
I say this to you because I want you to know it’s nothing mysterious or mystical about it. It’s more than just common sense. Common sense could refer to a lot of things. But it’s quite familiar to us. It’s a quite familiar way of thinking and reasoning. Given certain facts of the world, if you want to accomplish certain ends, then you must respect certain means.
Now, what is typically associated with natural law, as a separate area that we’re no longer thinking about—architecture or engineering or any of those sorts of things—what’s typically associated with that is something about ethics; what we might call natural law ethics. Now, what differentiates each natural law subject from the other is what goes in the “if.” Sometimes, it’s what goes in the given, but what goes in the given—what’s relevant in the given, depends on what you’re trying to accomplish.
So what is natural law ethics? Natural law ethics is the following inquiry. Given the nature of human beings in the world in which we find ourselves, if you want to live a good life, then you had best adhere to certain principles of virtue and you should avoid certain vices. You should act in a good manner and not act badly. And a natural law approach to ethics answers that question. How should we live? How should we live in order to pursue a good life?
Now, how you formulate that if—of course, natural law people sometimes disagree about—is it live a good life or be happy, however you want to formulate it. But however you formulate it, that’s what the subject of natural law ethics is about. Given the nature of human beings in the world in which we find ourselves, if you want to live a good life, if you want to be happy, then you must respect these basic principles or means in order to do that. Do good, avoid evil and be virtuous, and avoid vice, etc.
So that’s pretty much it. I think it’s pretty cut and dry. Now, you can disagree with whether it’s a workable form of inquiry, whether there are any such principles. My book really isn’t about that. My book is not about natural law ethics. I only raise the issue of natural law ethics to distinguish natural law ethics from natural rights because I view these things as different.
And why are they different? Both disciplines use the same method of reasoning, the natural law method of reasoning, but they have different subject matters. There’s a different thing that goes in the “if.”
And what is it that goes in the “if” of a natural rights analysis? Given the nature of human beings in the world in which we find ourselves, if you want a society in which people can pursue happiness, peace, and prosperity while living in close proximity to each other, then you had best respect certain means. And in this case, I would say, then you had best respect certain principles of justice and, also, of the rule of law.
So what differentiates a natural law ethics analysis—which is what most people mean when they think of natural law? Natural law tells you how you should behave. Natural rights does not necessarily tell you how you should behave. What natural rights tells you is, what the conditions which are necessary to being able to pursue happiness, peace, and prosperity while living in close proximity to other people. So it does presuppose a social context. It presupposes that we are not isolated atomistic individuals. In fact, the idea that classical liberals’ theory is based on atomistic individualism couldn’t be farther from the truth. If we were atomized or isolated individuals, we wouldn’t need a rights theory, we wouldn’t need any way of protection from other people. It’s the very fact that our actions do have consequences for other people that creates the need to carve out some space in which we’re protected from the actions of other people.
So what the subject of a natural rights analysis is, what that space is. What is the space that is necessary that people should be able to pursue happiness, peace, and prosperity while living in close proximity to each other?
And if I had to encapsulate the relationship between natural law ethics and natural rights, it would be this. Natural law ethics purports to tell us how we ought to exercise the liberty that’s defined by natural rights. Let me say that again. Natural law ethics purports to tell us how we should exercise the liberty that’s defined and circumscribed by natural rights.
So in this way, you can see that they are really not the same thing at all. They’re different subjects. One is a guide to how we should act, that either is or is not useful. And I take no position on whether it is useful or not, in this book. And the other, in fact, is an inquiry that, I think, is highly useful to help us define or circumscribe the area within which people can be at liberty to do what they wish.
Now realize, of course, that at the same time, you are defining an area within which people are at liberty to do as they wish. You’re also defining limits or boundaries on that liberty. And that’s why the opening chapter of the book is called “Liberty Versus License.” Because stepping beyond the boundaries defined by these rights into someone else’s boundary is, in fact, to engage in licentious behavior rather than to exercise one’s liberty.
So liberty, as defined by natural rights, not only circumscribes an area within which one is free to do as one wishes, but it also identifies boundaries or constraints on that freedom. It does both at the same time. And that’s true of the most radical libertarian view, as well, even though at this point I’m only talking about the kind of natural rights that all classical liberals would subscribe to.
Now, let me say a few things about why I think this approach, which I consider to be a pretty ordinary, easily accessible approach—not a mystical approach to natural law – has advantages over other ideas or other conceptions you might have heard about when you’ve heard the terms natural law and natural rights.
First of all, one thing that people say about natural law—let’s just talk about natural rights, at this point—is: Where are these natural rights? Can I see them? Can I taste them? Can I touch them? Just where are these things? As though we’re talking about imaginary fictitious things.
And I say to them: “Where are the principles of engineering? Where are the principles of agriculture? Where are the principles of medicine?” I can’t see them, taste them, touch them. They are, in fact, principles of human invention or human development. You don’t find principles of engineering in rocks and trees. They are a human construction. But, they’re not arbitrary, either. It’s not simply a matter of human will. It is a matter of human invention, of the means that have been invented to accomplish certain ends given certain facts about the world. And so, the fact that you can’t see, taste or touch natural rights should not be a barrier to us in understanding what they are.
Another misconception about natural rights, that you hear, or natural law, that you hear, I get this a lot from my students. I, primarily, give this talk to students and so I don’t know how much you share this preconception—and I’m going to ask you whether you do, and that is that somehow they are divine in origin or they must be divine in origin.
Is there anybody here who has heard that association or thought about that association? Right. It’s a mysterious association. I know where it comes from. Historically, it comes from the fact that, in a time when all of the enlightened intelligentsia ceased to be interested in natural law, the Catholic Church maintained its interest in natural law. And so, most natural law theorists were in the Catholic Church, and so, there is this historical association with a particular religious group who kept the idea alive when other people lost interest in it. But there is no—even within the doctrine of—even within Thomistic Catholic natural law doctrine—necessary connection between natural law and God. And why is that?
Take Thomas Aquinas, for example. Thomas Aquinas distinguished between three kinds of law—divine law, natural law, and human law. Thomas Aquinas knew the difference between divine law, natural law and human law. And what was different about them was their source, where they came from, and how you knew them. Divine law came from God. Natural law came from the order that was in the universe or in the world that we lived in. And human law came from humans, they were the commands of human beings. And you came to know what was required of you with human law, based on promulgation. That’s how you knew what the content of human should be. It had to be published, otherwise you’d never know what it required of you.
You got to know the content of Divine law by revelation. That’s why you had to study the Bible and other authoritative sources, because divine law had to be revealed to you—that’s how you got to know what God’s law was, directly.
Natural law, however, because it was based on the order that was in the world, was knowable through reason. You could simply inquire and determine what the order in the world was and, in my view, figure out what means—given the nature of that order—what means were necessary in order to accomplish certain ends. God didn’t fit into the picture, except in the following sense.
God was the explanation for why there was order in the universe, why the world was an orderly place. But that was true at a time when God was responsible for the order that physicists study and the order that biologists study and the order that physicians study. In other words, God was the source of all the order. And so, all the other disciplines also had God standing behind them as the explanation for why the world was orderly. But there’s no necessary connection between the explanation for why the world is orderly and what is the consequence of a world that is orderly. So if, in fact, you have a different explanation, a non-divine explanation for why the world is orderly, God doesn’t have to figure into this picture at all. It could, as an explanation, but it isn’t necessary to.
So there is no necessary connection, in my view, between a natural law method of reasoning and natural rights and any kind of divine command that stands behind them.
Now, let me now basically tell you. I’m just going to tell you what the thesis of my book is. I’m not going to defend the thesis. I’m not going to even explain the details of it. I’m just going to tell you what the argument that follows this introductory chapter that lays this thing out.
And then I’m going to talk about some of the limitations on natural rights theory, which I think, once again, I have to say libertarians are sometimes not aware. And again, I know a lot of the stuff that I say about libertarians from introspection and from my own personal history and development. I’m not speculating about some other person that I don’t recognize as myself.
My thesis in The Structure of Liberty is that—once again, it’s given the nature of human beings in the world in which we find ourselves—if you want a society in which people can pursue happiness, peace, and prosperity while living in close proximity to each other, then you had best respect the liberal conception of justice as defined by certain individual rights and the rule of law, which defines certain procedures that are associated with the legal system. What is the given? What is the nature of human beings in the world in which we find ourselves?
One of the things that’s always frustrated me about natural law and natural rights reasoning for well over 20 years—25 years, we’re now at 25 years or more, close to 30 years—I’ve been exposed to natural law reasoning and arguments about natural law. One of the things that’s always frustrated me about it is the tendency to discuss things at the level we’ve just talked about and never to go beyond that to talk about, well, what is the nature of human beings and the world in which we find ourselves such that if you want to accomplish certain ends then you must respect certain means.
We just never get that far. We’re always arguing about what natural law is. Do you have to touch it, taste it? How does it relate to utilitarianism and all the others? But, we never actually get to do the work about identifying what the nature of human beings are such that there are implications.
Well, that’s what my book is about. My book really isn’t about everything I’ve just said to you. That’s what the introduction of the book is about and I have to, in some sense, apologize to you for having that introduction—it’s necessary because of my academic friends, my academic colleagues, my academic compatriots. Because in academia, you find that if you make an argument on behalf of something, a normative argument, a moral argument of any kind, academics won’t pay any attention to what your argument because they’ll sit there and their minds will be warring, trying to categorize the kind of argument it is.
Because, if they can figure out the kind of argument it is, they have a whole repository of tools by which they can deconstruct that particular kind of argument. They’re trained. They’d have certain objections to be made—if it’s a utilitarian argument, or if it’s this kind of an argument—they know how to react. They don’t have to hear the substance of the argument, they can just talk about the method.
And so, when originally formulated, this thesis—and I just was trying to argue the thesis—all the discussion was, “Well, what is it? Is it this, is it that, is it this, is it that?” And I kept saying, “Well, it’s not what I’m about. I’m talking about the argument.” They wouldn’t listen to the argument. So for the academics, I had to have an introductory chapter, which talked about the kind of argument it is. It’s a natural rights argument. This is what a natural rights argument is. Here’s why it’s significant. It was necessary for them.
Then, in Chapter 2, I could bring in the actual analysis. The analysis that I found tended to be lacking in discussions, even sympathetic portrayals, of natural law and natural rights. What is the nature of human beings? That’s what the thesis of the book is. Going into the nature of human beings in the world in which we find ourselves. And here’s the angle I took.
There are certain pervasive social problems that every society must solve somehow if people are to be able to pursue happiness, peace, and prosperity while living in close proximity to each other. And the best way of solving these problems is adherence to a particular conception of justice based on individual rights and certain procedures associated with the rule of law.
So the book is organized around those social problems, and they come in three basic categories. And I passed out this handout to you—I’m not going to give the analysis, that’s on that handout—that is an overview, that’s an outline of the three basic problems and which aspect of justice solves which problem and which aspect of the rule of law solves which problems.
And these problems come in three categories: problems of knowledge, problems of interest, and problems of power. And classical liberals are unique, insofar as they have taken seriously all three of these problems. Other philosophies take more seriously one or the other or some subset of them or maybe none at all, but classical liberals have a tendency to take into account all three problems, problems of knowledge, problems of interest and problems of power.
Now, I’m not going to tell you what those problems are tonight. I can’t do it. When I lecture for various institutes, on this subject, I usually take two or three hours to go through these problems. I lecture for Cato University; I talk about this. I’m going to be doing so in San Diego, this summer, as a matter of fact, where I’ll actually be lecturing about this subject, as well as a lecture on Constitutional theory. And I do it in Europe.
But I don’t have time to do that, but, basically, I talk about three problems of knowledge, three problems of interest and two problems of power and why it is the liberal conception of justice, based on the rights I’ve mentioned to you—several property, freedom of contract, first possession, self defense and restitution are necessary to solve those problems, and why the rule of law’s also necessary. So that’s my thesis.
These are problems every society must solve. If you understand what the problems are, I’m going to argue, you have to concede, they must be solved somehow and that this is the best way of solving them. And in fact, it’s essential that they be solved and this is the essential way of solving them. And any society that ceases to respect these principles altogether would probably fall apart. So that means that any functioning society, even the most socialistic, are respecting these principles to some degree or they wouldn’t function at all. But they could function better if they respected them better, that’s the basic theory.
OK, so that’s my thesis for the book. You have to, unfortunately, read the fly-over chapters between the first chapter and then, the last concluding objections chapter. I just fly over countries, so that’s why I had fly-over on my mind today. And also, my commentator, my professorial commentator at Berkeley read the first chapter and the last chapter, so I was able to talk about the fly-over chapters in the middle that actually have the argument in it.
In those chapters, I try to argue why these are pervasive problems every society must face, and why this is the best way of solving them. But let me, before I—I really do want to get to your comments and questions, and they can go beyond this—we can talk about other things, Constitutional issues or other things you want to talk about. I do want to talk about a few misconceptions that I think people have about the value of natural rights, the value of justice. And I think these are misconceptions that libertarians have a tendency to have more than other people.
The first thing I need to tell you is that the rights that are identified in the way that I do so, the rights that are identified by a natural rights analysis are very abstract, they are very general. And because these abstract—first of all, they’re based on abstracted facts, facts that are basically true of everyone and, therefore, they yield very abstract conclusions. These abstract rights do not apply themselves automatically or cannot be applied directly to very many fact patterns, to very many social problems, directly.
They can be applied to the most basic ones like don’t murder anybody, don’t steal from somebody, etc. And that’s what philosophers have a tendency to talk about, these basic prohibitions that would seem to be associated with these rights. But what lawyers know—and this is something that I didn’t realize until I went to law school—what lawyers know is that what real life throws up to us is extraordinarily complicated. Real life is a complex thing. All of these tools that we’re talking about, these intellectuals tools, they’re a way of simplifying what’s very, very complex. And real life throws up extremely complicated problems.
I’m not going to be able to defend this assertion to you, but let me at least tell you what my view on this is. I discovered this when I was a first-year law student—I’ll tell you how in a minute—here’s my position. You cannot deduce anything but the most basic rules of law directly, logically from these abstract rights. I think libertarians are under the impression that if you really knew rights well enough, you could then deduce what the positive law in a particular legal system should be, you could deductively, from first principles, derive that.
Where I first began to doubt that was true was when I was a first-year law student. I went to law school, I was bombarded with hypothetical questions to try to test my understanding of particular principles. What I believe in. What I didn’t believe in. I was, by this time, quite a committed libertarian. I really believed that my professors were generally Left-wing and they were probably wrong. But I needed to figure out what was right and what was wrong, and I found I had a very hard time doing that. What would property rights say about this? What would freedom of contracts say about that? It was very hard to tell. Those of you who haven’t gone to law school won’t be able to quite understand this because you don’t know all the particular kinds of fact patterns that come up in law school, that are quite complicated. And I thought maybe it was just me.
And early in my first year of law school, I made acquaintance with somebody, John Hagel, who I became fast friends with. We co-edited Assessing the Criminal, and put on the program that David came to. And he was a good friend of Murray Rothbard. In fact, I had met him because I had written a letter to Murray Rothbard. Those of you who don’t know who Murray Rothbard was, he was the pre-eminent libertarian economist and, to some degree also, legal theorist for a long period of time.
And I had written a fan letter to Murray when I was an undergraduate, saying, “I’m going to go out East to law school. Maybe one day I’ll meet you.” And Murray never wrote back, but he did show the letter to this friend of mine, who was starting law school with me at the same place. And so he looked me up and he ended up taking me down to New York. And the first time I got down to New York, I met Murray Rothbard. We ended up back in Murray’s apartment because Murray Rothbard—me and my friend, both of us were first-year law students. We were in different sections, but we’d both been bombarded by the same kind of problems. And we just started bombarding Murray with the problems that we had like, “Well, what’s the answer, Mr. Libertarian?” And he had no answers. He didn’t have any more answers than we had. “What? I don’t know what?” Those of you who know Murray know his cackling voice.
And this was quite a revelation to me. Whoa, it wasn’t just me. And it took me many years to understand what that was about. I didn’t immediately know what that signified. But what it did signify, I believe, is the limitation of abstract principles of rights, abstract individual rights. You cannot deduce rules of law.
Let me give you an analogy that I think everyone, lawyer, non-lawyer can understand. There is a natural law of traffic flows, a natural law of traffic. The natural law of traffic says, “All the traffic’s got to flow on one side of the street in the same direction on one side of the street, on the same side of the street.” That’s the natural law of traffic. The natural law of traffic does not say which side of the street it should be, so long as you pick one of the sides, it doesn’t matter, as far as the natural law is concerned, which side it is.
Now, natural law, therefore, is what philosophers would call under-determinate. It’s not indeterminate, it’s under-determinate. It doesn’t get you down to a unique single rule of law, which is, “drive on the left side,” or a unique single rule of law called “drive on the right side.”
But what it does do is rule out other rules besides, “drive on the left side, drive on the right side,” that violate that natural law of traffic. And, for example, the rule says, “drive on whatever side you feel like that day,” or “drive on the left side for five minutes, then drive on the right side for five minutes.” These rules and the myriad other rules that are so ridiculous, you’d never think about them except if you have to come up with hypothetical rules of this kind. They’re all excluded. They all violate the natural law of road-making.
So natural law is useful in excluding a bunch of stuff that doesn’t work. It’s just not definitive in telling you which is the rule you should adopt, providing you adopt one that’s within the frame that is defined by natural law.
And the same thing is true of natural rights. Natural rights provides a frame within which you can identify rules of law or—that rules of law are consistent – whereas outside the frame, they’re inconsistent. So there’s a lot of points within the frame and, then, there’s an infinity of points outside the frame. Natural law allows you to identify points outside the frame, but it doesn’t help you pick one point inside the frame.
For the lawyers in the crowd, let me give you a more “lawyer-ly” example than that. I teach contract law and, basically, that means I teach the Anglo-American law of contract, which is a particular body of doctrine or rules, specific rules, like the doctrine of consideration, for example, or the parole evidence rule. We have a bunch of rules we teach.
The American law of contracts is completely different than the French law of contracts. French lawyers learn a whole different set of rules than we have. I’m not sure that every rule is different, but the whole set is organized around different principles. There’s a different set of rules.
Nevertheless, if you plug the same fact pattern into French contract law as you plug into American contract law, you’re going to get the same results 98 percent of the time, 95 percent of the time, an overwhelming percentage of the time, because both laws of contracts are basically sound. They’re both, basically, consistent with natural right. The natural right at issue here is freedom of contract. Contract law still is pretty good. It’s one reason I teach it. It’s still a pretty good classical liberal subject. And the doctrine is still pretty classical liberal. And that’s true, I think, in most places. And so, no matter how different the laws are, they basically accomplish the same objective.
And that’s what I mean by underdeterminate. You can’t deduce the doctrine of consideration—for the lawyers among you—from the natural right of freedom of contract. You cannot logically deduce it. You can understand it. The principle of freedom of contract can help you understand that rule of law, but you’re not going to determine that’s what the rule should be as a matter of logical deduction from natural rights.
OK, that’s the first thing I want to say. The next thing I want to say—and this is the note on which I’m going to end, which brings David’s organization into the picture—because natural law is very abstract—the way you yield it, the way you reach this conclusion—is by abstracting from the particulars to see what are features that are common to human beings at all places at all times. That’s going to eliminate a lot of particular instances, a lot of particularity. And then you’re going yield very abstract principles that, themselves, will apply in all places at all times, only apply very abstractly.
The virtue of this is—I’ll get back to libertarians again, I don’t do this for all audiences but this audience, I think, it might be appropriate—what I think that libertarians have a tendency to do, is to think that—and now, of course, they’re quickly disabused of this when they actually talk to other people—if they can just identify the right natural right or the right “right” that that should win the argument on any public policy issue, when in fact it hardly gets you anywhere in a public policy discussion.
You say, “Well, I have a right of property, private property, and that’s the reason why you can’t tell me how much to charge as rent for my apartment.” That’s not going anywhere in a public policy argument with almost anybody, except somebody who already accepts the right, in which case, you’re not arguing with that person.
And so why is that? I think there’s a reason for that. And the reason for that is, they’re so abstract. They don’t tell you any— [break in audio]
The liberal conception of justice functions like the cheat sheet on a multiple choice exam. Having a cheat sheet on a multiple choice exam is extremely useful. It tells you what the answer is. It tells you what the answer is without having to—or at least it suggests to you, until you further think about it because sometimes you might actually refine your view of what natural rights are based on further thought—but at least suggests to you what the answer is without having to know anything about land, rent, drugs, or whatever other issue you’re talking about. It’s a very handy tool. It’s a very handy tool because it keeps you on course.
It used to be considered a virtue to be a person of principle. Now, you get dismissed as being doctrinaire or ideological, but to be a person of principle meant you had certain basic principles that kept you on course. But the point I’m trying to make to you is that these principles are not enough. They are simply a guide. If you ever get into a public policy debate, what you need is public policy research.
So, for example, one of the only public policy issues that I do talk about publicly is drug legalization. I don’t do it all the time, but I’ve written about it and I’m willing to talk about it, primarily drawing upon my experiences in law enforcement. That gives me a special standing to talk about it in some circles that other people might not have.
But when I talk about drug legalization I don’t talk about the fact that I know drug prohibition is probably bad because it violates freedom of contract. That’s what natural rights would tell you. Drug prohibition is bad because it violates freedom of contract. It violates the freedom to contract, which is half of the freedom of contract I talk about in this book, because it prevents people form entering into particular kinds of transactions, particular types of exchanges. So that should tell you, right off the bat, something’s fishy with this. It’s probably a very, very bad idea.
But I don’t talk about that when I debate drug legalization or drug prohibition. I talk about what I know about drugs; what I know about prohibition; what I know about the corrosive effect on law enforcement; etc. And that’s why public policy analysis of this kind done by the Independent Institute or in the Cato Institute and other public policy think tanks is vitally important. But it’s a two-way street.
Public policy institutes themselves, I think, have to be guided by these basic principles in the choice of what topics they research and, to some extent, in the choice of what evidence they look for. Having a set of principles helps you identify evidence that is relevant, that other people miss because they don’t have that set of principles. It also has a tendency to keep you honest. If you have a pretty good idea of what the answer is, you’re not as likely to go off the reservation to some ridiculous answer because you already had a predisposition of what that answer is.
It’s not exactly a self-fulfilling prophecy, I don’t think. But I do think it helps guide you, keep you honest. And it keeps your research on-track. But there’s no substitute—when you actually get into a debate with anybody about anything—there’s no substitute for knowing what you’re talking about. And that, unfortunately, is not something that an abstract natural rights analysis can really help you with, at least on a case-by-case basis.
So with that, with that plug for what you do, I’d be delighted to entertain any comments or questions that you might have. And you don’t have to worry about the subject matter. If I can’t answer it, I won’t. Yes?
The term legality compossible, I don’t know what that means.
Randy E. Barnett
Compossibility. Compossibility is a fancy word that was coined by an English philosopher named Hillel Steiner. And Robert Nozick uses a similar word in Anarchy, State and Utopia, called “compossibility.” It’s actually a very simple concept.
It’s a formal requirement of a rights theory, for reasons that I argue in the book are necessary; a formal requirement of a rights theory that all rights be able to be exercised without conflicting with each other so that they be compossible. That everybody who’s acting within their rights could act within their rights, and nobody’s actions would conflict with anybody else’s. So a compossible theory of rights will coordinate human action because if you actually do what you’re supposed to do, your actions aren’t going to conflict with anybody else’s. That’s what it is. Yes.
Audience Member #2
What chance do you think that there is that the 9th Amendment and the privileges and immunities clause will actually be revived?
Randy E. Barnett
A lot better than I thought it was when I first started writing about it, which was in 1988 or 1989. A couple things have happened since then.
First of all, the 9th Amendment has been used by the Supreme Court in a meaningful way in the Casey vs. Planned Parenthood case, which was an abortion case. But they actually used the 9th Amendment. It was a jointly-authored opinion by Justices O’Connor, Souter and Kennedy. In the actual—not in the footnote—in the actual text they cite the 9th Amendment as authority for the proposition that liberty is not limited to the liberties that are listed in the Bill of Rights. They use it exactly the way it ought to be used—it ought to be used in other ways, too—but they used it perfectly appropriately.
That I think is a pretty good sign. And I do think, by the way, it resulted from—where did that come from? I don’t think it just happened accidentally. It came, I think, as a result of the confirmation of each of these three Justices, which followed the confirmation hearings of Robert Bork. Robert Bork was asked what he thought the 9th Amendment meant.
Well, let me back up for a minute. Let me tell a little story about how I got to be a 9th Amendment scholar. I was asked by the Federal Society to come and talk to the National Student Symposium. I’d never been invited to any Federal Society event, before. I really wanted to accept. But I was asked by a former student of mine from Institute for Humane Studies, not from where I was teaching, who went to Stanford Law School. I said, “Look, Brian, you know I don’t do Constitutional law. I’m not interested in Constitutional law.” I am now but this is what got me started.
And the reason I wasn’t interested in Constitutional law was that I lost all interest in Constitutional law in law school when I took Constitutional Law [laughter]. I had Larry Tribe as a Constitutional Law professor, but that’s not the reason. He was actually a very good Constitutional Law professor. All I had to do was read Supreme Court opinions, in which every good part of the Constitution was explained away or explained into oblivia. And then I thought, “What good is this? It’s a waste of time. It doesn’t matter what you write down, they’re going to find some different way of interpreting it so they get the result they want. And so I’m going to worry about something else.” And contract law was something I thought was worth worrying about. There actually is law there to worry about.
So I said, “Brian, I’m not interested in this.” He said, “Oh, come on, you can say something. Only 10 minutes.” And I was on a very distinguished panel. Frank Easterbrook was on this panel, who, for those of you who don’t know, is a former professor of law from the University of Chicago Law School now on the 7th Circuit Court of Appeals. He was then on the 7th Circuit Court of Appeals. And I wanted to accept. The conference was on the 1st Amendment. This was a panel on “Freedom of Association.”
And so I was writing this thing on freedom of association, which I didn’t know all that much about, but I was defending freedom of association. And I got to the end of this. I had a misconception of the Federal Society. It turns out the Federal Society, as those of you who know—I now know—is an amalgam, it’s a coalition of libertarians and conservatives. I really thought it was all conservatives, not a coalition. And so I thought this was going to be a relatively hostile audience for what I had to say.
And so I got to the point where I’m talking about freedom of association. Well, freedom of association isn’t mentioned anywhere in the Bill of Rights per se. It’s supposed to be part of the 1st Amendment, but it doesn’t say “freedom of association” in the 1st Amendment. So I got to the line in my talk where I said, “I know what you’re thinking”—which actually was a crib from Dirty Harry—“I know what you’re thinking. What gives lifetime-appointed judges, federal judges, the power to make up this kind of right?” So that was my setup line.
Well, when I gave this talk, Frank Easterbrook was sitting next to me on the panel—and there were 400 to 500 people there—at Stanford Law School. And Easterbrook was sitting next to me. We were both sitting at the table, at the time we were giving this talk. And I gave this talk and I got to the point where, “I know what you’re thinking. What gives lifetime-appointed federal judges the power to decide that there’s such a right, this unenumerated right?” And Easterbrook goes like this—he pantomimes—he’s kind of a demonstrative fellow—he went like this—like, “and the answer is—” So this was in front of 400 people, right. “And the answer is—” he has this big smile on his face.
And so I said, “Well, in the Constitution it says: ‘The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people’.” And the audience just exploded in applause. I was flabbergasted. [laughter] Believe me, I did not expect this reaction. I mean cheering, “Yeah! Yeah!” And I said, “Whoa!”
Years later, people come up to me and they say, “I was at the Federal Society, where you debated Frank Easterbrook on the 9th Amendment.” [laughter]. It was no debate. We weren’t even talking about the 9th Amendment. He did this, I said that, that was whole debate. But I had to decide at that point whether I wanted to pursue this as a scholarly exercise. Because I’ve got lots of things to do with my time, and I want to use it productively.
This is actually an answer to your question. Was it worth my time? Was it worth scarce time to devote energies to this if it’s such a—I knew what the reputation of the 9th Amendment was—it’s an oddball provision that nobody talks about. What are you going to argue, the 9th Amendment? The arguement of last resort never works. I wasn’t going to devote years of my life and my reputation, which at this point was pretty fledgling, to this idea if there wasn’t some prospect of improvement.
And here’s the calculation I went through, at the time. First of all, it was a matter of principle, in some sense. I had just gotten tenure, so I said, “I got tenure. That’s got to be good for something.” And secondly, I said, “They haven’t repealed it. [laughter] With tenure, I ought to be able to talk about any part of the Constitution that actually hasn’t been repealed, so that gets me off the ground.”
Now, whether it’s a good idea or not, here was the calculation I went into. I said, at that point, basically making two arguments vociferously. One is an argument in favor of original intent. The other one is an argument in favor of a narrow construction of individual rights. And they’re making both of these arguments very forcefully. It’s only a matter of time before people on the Left, who basically run the intellectual agenda of academia, are going to realize that the 9th Amendment is a way to confound the Right, that they can just say, “Well, what do you say about this because here’s original intent, and yet, it’s a broad thing for individual rights.”
And I said, “When the time comes for the Left to make this move, it would be nice if I were already there with my scholarship, having already written about the 9th Amendment, then I could be the guy.” So that was the tactic, that was the entrepreneurial calculation.
So as a result of this, I began writing an article on the 9th Amendment, which ultimately was accepted by Cornell. It was also the introduction—I got a book contract to do an anthology on the 9th Amendment. And then I commissioned a symposium issue of the Chicago Kent Law Review, where I, then, taught on the 9th Amendment, where I got to invite and pay all these prominent people to write about the 9th Amendment, which everybody, I should tell you, was really anxious to write about, at that point. I got a great reception. Almost everybody I asked to write about it said yes.
So I had all these projects in the works. Nothing had quite come out yet but they were all commissioned. People had been written about. They were in process. And then Robert Bork gets nominated to the Supreme Court, and it’s on C-SPAN, because now we have C-SPAN, so we can watch this stuff. And so it’s on C-SPAN.
And what happens to Robert Bork?—Joe Biden, the Chairman of the Senate Judiciary Committee—and I personally think Biden acted exemplary in this whole process. I think a lot of other people should be condemned for the way they dealt with this, but not Biden. I think Biden was a real mensch about this whole thing.
Joe Biden gets into a Constitutional discussion with Robert Bork, in which he asks him, “Well, what do you say about the 9th Amendment? How do you read the 9th Amendment?” And he was coached to do that by a Duke Law professor. It wasn’t something Biden thought of by himself. But he was coached to do this by a Duke Law professor.
And so he asked this question and Bork was completely confounded. I had predicted the Left would use this against the Right. I didn’t predict the Left would use it against the Right on C-SPAN, in front of a national audience. [laughter]
And what was Bork’s response when he was asked about the 9th Amendment? Well, he fumbled and mumbled a bit and he said number of things. For example, he said, “Well, I don’t know what it means and if someone would tell me what it means I would be happy to use it, but I just don’t know what it means.” And then he offered what became a famous metaphor, which has been of great use to me, as you can imagine. He said, “It’s as though you had a copy of the Constitution and there was an inkblot on it and you couldn’t read what was under the inkblot. I don’t think judges should make up what’s under the inkblot.”
Well, it was an interesting little metaphor. It may have been spontaneous. But it was the wrong answer. It was the wrong answer, legally. It was the wrong answer politically. It was the wrong answer philosophically. You don’t just take the Constitution and say, “It’s like there’s an inkblot on it, you can’t read it.” We can read it. You can’t read it. [laughter]. We can read it.
And that just sparked this big interest. And after that, every Supreme Court nominee was asked about the 9th Amendment. Well, O’Connor, I guess, was already on the Court. All of them were. Kennedy was. Souter was, for sure. And I think Souter might have been the next appointment—I can’t remember now—Kennedy was the next appointment—but whatever—they both were asked about it. And they had to come up with a better answer because they’d been taught what the wrong answer was by example. [laughter] So they had to have a better answer. So they actually had to think a little bit harder about it and talk to some people who knew more about it.
And they started saying stuff like, “Well, yes, it means something.” Well, then they had the opportunity in Casey to use what they had now. Not only is this respectable, but they were forced to answer this question this way because of what had happened to Bork. And they did.
Now, as for the Privileges or Immunities Clause [of the 14th Amendment], a very interesting thing has happened about that. And for those of you who are not lawyers—I left my copy of the Constitution upstairs because I haven’t memorized it—but the Privileges or Immunities Clause says words to the effect that, “no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States.”
Prior to the 14th Amendment, there was no federal jurisdiction to protect—except in rare cases like the contracts clause, which is in the body of the Constitution—but generally speaking, there was no federal power to protect individuals from having their rights violated by their own state governments. That was not part of what federalism was understood, based on a famous case called Baron versus Baltimore.
Some people argued that it was wrongly decided. I think it might have been probably rightly decided. But whether it was right or not, that was settled law. It was something that the radical Republicans, in the Reconstruction period were—actually, they were against it before the Civil War and they became against it afterwards – they were bound and determined to reverse Baron versus Baltimore and say, “Yes, the federal government could protect individuals from having their rights violated by their state governments.” And that’s what the 14th Amendment was intended to do, and, particularly, is what the Privileges or Immunities Clause was intended to do, for those of you who didn’t know what this was about.
An interesting thing has happened. I think there is now a consensus by right-thinking, meaning Left-thinking, law professors that’s what the Privileges or Immunities Clause meant. I don’t get an argument—nobody argues about that any more. I mean, there’s a couple historians who qualify it. But I’ve just been at one conference after another or one context after another, where eminent, prominent people, Larry Tribe, among other people argue, “yes, that’s probably what it meant.”
And because good historical work has been done by a progressive scholar whose book I highly recommend to you called, No State Shall Abridge. His name is Michael Kent Curtis. He’s a professor now at Wake Forest, but he actually wrote this book when he was in practice. He’s kind of a country North Carolinian lawyer. I say political progressive, generally an ardent Clinton supporter, all that. Thinks Ken Starr is the devil incarnate. But he’s written this brilliant book called No State Shall Abridge, in which he talks about what the original meaning of the 14th Amendment, Privileges and Immunities Clause. I think it’s prevailed. I think it won out.
Now, I don’t know how long it’s going to take, I’m not promising you that the court is going to follow this; but that seems to be a prerequisite. The first step to getting judicial change is getting academic change. It’s also happening, by the way, in the area of the 2nd Amendment. It’s not quite as far along because there’s a lot more politics involved. But there is a pretty overwhelming consensus amongst people who have studied the 2nd Amendment, regardless of their political views, that it protects an individual right. I’m not optimistic that this court would find that, but it’s a prerequisite for any future court to find it, that there becomes a scholarly consensus on the subject. So the short answer, summary, is I’m optimistic for that reason.
David Theroux
We have two more questions.
Audience Member #3
In your book, you quote John Locke.
Randy E. Barnett
You bought a copy of my book?
Audience Member #3
Right. On page 4, where you have, from the Second Treatise the quote that “the state of nature has a law of nature to govern mankind and that being all equal and independent.” I guess that’s the given—“no one ought to harm another in his life, health, liberty or possessions.” So it seems that I have two parts. The first part is: would you say that is a natural law that no one ought to harm another?
Randy E. Barnett
I think that’s a very general; I would say that’s an unsatisfactory formulation of what natural rights are. And the reason I say that is because harming is too general. We harm each other in many, many ways that I think we have a right to do. That’s the problem with the million-harm principle. It’s just too general and not specific enough. So I would say that read, literally, I don’t agree with that principle, but I think Locke is not speaking literally there. I think he has a more specific view of what harm would be that you find elsewhere.
Audience Member #4
So you would call that a natural right not a natural law, that statement that no one ought to harm another?
Randy E. Barnett
It could be, truthfully, it could [be] either because there could be an idea that to live the good life, you shouldn’t harm other people. And there also could be a natural right against being harmed by other people. So it can be either.
Audience Member #5
The gist of my question, where you differentiated natural law and natural rights – and here was an example where it seemed to me, they were quite close.
Randy E. Barnett
Well, there’s an overlap. I do think an appropriate view of natural law ethics would say you shouldn’t violate natural rights. I think that would be one of the things that acting virtuously would mean, “don’t violate other people’s rights.” But you would do that so that you can be happy. So that you could live the good life. You would do that for your own sake. You would do that for the sake of your own ethics. You would not do that because that’s the way of solving great social problems, I don’t think. That’s why you have natural rights is to solve the social problem of human interaction.
I should also say that the quote does illustrate one thing, and that is, that people, even historically, who talked about natural law and natural rights, sometimes used those terms interchangeably. And you have to look at the context, sometimes, to see what they’re really talking about. So it’s not as if you go back in the historic literature, you’re going to get a neat distinction between the terms, as I’m drawing them. But I think it’s useful to have a neat distinction between terms, if we can find one.
Audience Member #6
I’m going to drag you back into the 9th Amendment for a moment.
Randy E. Barnett
That’s fine.
Audience Member #6
A couple of years after the confirmation hearings, Judge Bork was quoted as saying that he thought that what was intended, originally, in the 9th Amendment was to incorporate the rights found in state constitutions. Do you think that is historically accurate and is it inconsistent with your formulation?
Randy E. Barnett
As all things with Judge Bork, and I can talk about this at greater length, if you want. I don’t have a very high opinion of him as a scholar or a judge, maybe not so much as a judge, but as a scholar.
It’s not his idea. There’s one article that he used in saying that in Tempting of America, which was written by a guy named Russell Kaplan, whose article—it was published in the Virginia Law Review, one of the only examples—one of the few examples of pre-Bork 9th Amendment scholarship. And I do put it in the first volume of my anthology on the 9th Amendment, because I think it was a classic article. I think it’s wrong.
Let’s put it this way, it overstates the case. It may very well be that the rights retained by the people do not refer only to natural rights. I don’t know that I believe they refer only to natural rights, only that they include natural rights.
The evidence Russell Kaplan offers for the idea that they would include—truthfully, I haven’t read Kaplan’s article in probably 10 years, because it’s not in play at the moment. But the evidence that he argues does not prove that—does not exclude the possibility—in other words there is no evidence that says, “We don’t mean natural rights.” None whatsoever. Zero evidence of that. All the evidence, one way or the other, is circumstantial. And his evidence might show that some people had in mind Constitutional rights, but not that other people didn’t have natural rights.
As I said at the time, there’s not unanimity. I had Russell Kaplan’s article in mind when I was thinking that there was not unanimity. In fact, I think the overwhelming authority is that these rights include natural rights, including, for example, James Madison, when he introduced the Bill of Rights in Congress. He talked about the pre-existent rights of nature. So it was on their minds.
And there’s another piece of evidence, which I include—I can’t remember if it’s Volume I or Volume II of The Rights Retained by the People—is a discovered copy of another draft of the Bill of Rights that was written by Roger Sherman, who served on the committee to draft the Bill of Rights, along with James Madison. And his 2nd Amendment talks about that people have certain natural rights that they retain when they enter into society. So it explicitly links natural rights with retained rights.
From a draft of the Bill of Rights that was in the room, it was found amongst Madison’s papers. For many years, nobody knew what it was. It was only identified as Roger Sherman’s draft in 1989, because prior to that nobody knew what it was because Madison had a copy of it and they had to be identified as Sherman’s. Up until that point, people could argue, by the way, this shows how willful some of this argument is because no matter how many smoking guns I produce, somebody has another argument. “Well, that doesn’t mean that.”
I have a running battle with this one other Constitutional scholar named Thomas MacAffee. And I keep producing one definitive piece of evidence and then he has some convoluted explanation around it. So it shows that there’s no evidence that will satisfy him.
But I think a piece of paper from the Committee that drafted the Bill of Rights that links natural rights, called “Natural Rights Retained,” is enough to tell you that retained refers to natural rights, perhaps among other things.
Audience Member #7
[inaudible]Randy E. Barnett
No, no, that was pretty much a Madisonian initiative. Not entirely, but there were precursors from it. The 9th Amendment was entirely a Madisonian invention. He invented that. There was no precursor—People have tried to find precursors but the precursors they find are primarily precursors of the 10th Amendment. There were some things that might have given him the idea, but it was a Madisonian solution to a Madisonian objection to the Bill of Rights.
Madison, along with other Federalists, had a very specific; well, we shouldn’t say that. Back up a minute. The Constitution, as you know, was ratified with no Bill of Rights. The Anti-Federalists used that to great political effect in opposing the ratification of the Constitution on the grounds that it lacked a Bill of Rights. Therefore, the Federalists, who are the people who supported the Constitution, had to come up with an argument as to why the Anti-Federalists were wrong about why there had to be a Bill of Rights.
And they came up with two arguments. Madison did, among others. But Madison believed them and he argued them vociferously. One is that a Bill of Rights is unnecessary because it was a government of limited powers and it was never granted the power to violate rights. Two, a Bill of Rights would be dangerous because if you enumerate some rights, later on it would lead to the construction that these are the only rights you have. Those are the arguments made as to why you didn’t need a Bill of Rights.
That argument didn’t win. If the Federalists hadn’t promised a Bill of Rights, the Constitution would not have been ratified at the critical key juncture. So they promised to have a Bill of Rights later. They said, “Ratify now. We’ll give you a Bill of Rights later.”
Madison, by the way, was one of the few people who really worked hard to keep that promise. The rest of Congress—the First Congress—wasn’t interested in the Bill of Rights. Madison kept getting up in front of Congress. He kept saying, “Well, it’s time to take up the Bill of Rights.” And all the other Congressmen kept saying, “No, no, don’t bother us now. We don’t even have taxes, yet. First things first.” [laughter]
So they weren’t interested in that, but Madison kept coming up. “I beg the indulgence of the House. We need to do this. There are people out there who don’t trust us, and we need to prove to them. They’re bone fides. There are some states that haven’t come in yet. We’ve got to prove to them we were honest.”
And eventually they said, “OK, fine. We’ll form a committee. You can be the head of it. You go off and do a Bill of Rights. [laughter] Come back and tell us about it.” And so they did that.
And he came back with this 9th Amendment and he said, when he introduced the 9th Amendment in the First House, when he was explaining his proposal, he said, “Look, there’s one objection to having a Bill of Rights that I’ve always considered the most persuasive.” He didn’t say, “because that’s the objection I made.” And that is the idea that there will be an inference that if you enumerate some rights the rest of the rights would be, in his words, “surrendered up to the general government.” And he says, “That I believe I’ve rectified, as the gentlemen might see by looking at the—” and then he named the passage, it wasn’t called the 9th Amendment then. So then he did that. OK, so that was a Madisonian invention.
One more little thing about the 9th Amendment. Another smoking gun, which never satisfies the opposition. One smoking gun is this piece of paper. There’s another smoking gun and I didn’t discover this, but this was completely ignored except for one person is where I got it from.
Madison used the 9th Amendment in a Constitutional argument in Congress, on the floor of Congress, when he gave a speech saying that the First Bank of the United States, the bill that was pending for the First Bank of the United States was unconstitutional. He used lots of arguments. He gave a brilliant speech. And I reproduced that speech in the second volume of The Rights Retained by the People, which unfortunately I think is out of print. And in this speech, among other things, he uses the 9th and 10th Amendments.
And this had been completely [ignored]—it’s not ignored any more, but it had been completely ignored by all but one scholar, who had it mentioned in a footnote, which I read when I was doing my 9th Amendment work. It took me several years to follow up on the footnote. It just didn’t register with me. Eventually, I did, and there it was, the smoking gun. Madison uses the 9th Amendment. And how does he use it? And he also explains how it relates to the 10th Amendment, which I think is also interesting.
What does the 10th Amendment say? He says, “The 10th Amendment says that Congress can only act within its enumerated powers.” That’s pretty much what the 10th Amendment says. And he also, by the way, when he introduced the 10th Amendment said, “That was a mere truism. It didn’t need to be put in there, but we’re going to put it in there because people want it put in there.”
A lot of states wanted that put in there, by the way. That was not an invention of Madison. He thought that was a truism. Congress can only act within enumerated power. “The 9th Amendment,” he says, “argues against a latitudinarian interpretation of those powers.” In other words, don’t interpret them broadly. Interpret them narrowly.
And so, it does real constitutional work, according to Madison, the guy who invented it, in the only known instances in which it was used in Constitutional argument. And I think the reason for that is because the means by which you protect the rights retained by the people is by construing powers narrowly. That’s what he thought. And so had argued against a latitudinarian interpretation of constitutional powers. [Applause]
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