Young Mr. Rehnquist's Theory of Moral Rights: Mostly Observed

Abstract

William Rehnquist’s jurisprudential perspective emphasized a government of enumerated and separated power, where state and local authority was respected, and the judiciary reserved in its authority to a historically faithful understanding of the Bill of Rights and the Fourteenth Amendment. Coming to the Supreme Court in 1972, his career on the Court began as a lone dissenter, but by the time of his death in 2005, he brought at least a slim majority of the Court around to his own thinking.

In the thesis the future Chief Justice wrote as a twenty-four year old student pursuing a Master of Arts degree in political science at Stanford, William Rehnquist works out an elaborate theory of political right. The Rehnquist theory, as detailed in his thesis, aims to identify moral rights as informed by human nature. Rehnquist deduces that the most basic moral right is freedom from coercion. To be legitimate, additional rights claims must avoid imposing upon or coercing others. Therefore, such rights consist of negative, rather than positive, liberties, such as freedom of speech, worship and due process.

This theory would significantly shape Rehnquist’s subsequent law study and his extended thirty-three year tenure on the Supreme Court. In this article, Professor Kmiec compares and contrasts Rehnquist’s theory as a young masters student to his jurisprudence as Chief Justice. Professor Kmiec concludes that there is substantial, but not complete, overlap between the two.

Keywords: William Rehnquist, political rights, moral rights, human nature, Stanford, thesis

JEL Classification: K10, K19, K40