Republicanism and Natural Rights at the Founding
32 Constitutional Commentary 85 (2017)
28 Pages Posted: 28 Jan 2017
Date Written: January 27, 2017
Today we tend to think about natural rights as non-positivist claims to limits on governmental authority — typically claims derived from religion, morality, or logic. These “rights,” by their very definition, exist independent of governmental control. Indeed, that is what makes them “natural.” This Essay, responding to Randy Barnett's Our Republican Constitution, sketches a different view of Founding-Era natural rights, their relationship to governmental authority, and their enforceability. With the exception of certain “rights of the mind,” natural rights were not really “rights” at all, in the sense of being determinate legal privileges or immunities. Rather, embracing natural rights meant embracing a mode of reasoning. And the crux of the idea — in stark contrast to the modern notion of “natural rights” — was to create a representative government that best served the public good. The Founding-Era idea of “natural rights” thus called for judicial deference to legislative judgments, and it favored broader governmental power just as much as limits to that power. In short, natural rights called for good government, not necessarily less government.
Keywords: natural rights, republicanism, liberalism, judicial review, originalism, Randy Barnett
JEL Classification: K10
Suggested Citation: Suggested Citation