It is never out of season to recall James Wilson’s line that the purpose of the Constitution was not to invent new rights “by a human establishment,” but to secure and enlarge the rights we already have by nature. In radical contrast, the celebrated William Blackstone said in his Commentaries on the Laws of England that when we enter civil society, we give up the unrestricted set of rights we had in the State of Nature, including the “liberty to do mischief.” We exchange them for a more diminished set of rights under civil society—call them “civil rights” but they are rendered more secure by the advent of a government that can enforce them. To which Wilson responded, “Is it part of natural liberty to do mischief to anyone?” When did we ever have, as Lincoln would say, a “right to do a wrong”? The laws that restrained us from raping and murdering deprived us of nothing we ever had a “right” to do. And so when the question was asked, What rights do we give up in entering into this government?, the answer tendered by the Federalists was, “None.” As Hamilton said in Federalist no. 84, “Here … the people surrender nothing.” It was not the purpose of this project to give up our natural rights. And so what sense did it make to attach a codicil, a so-called “Bill of Rights,” reserving against the federal government those rights we had not given up? How could we do that without implying that in fact we had given up the corpus of our natural rights in coming under this Constitution?
There has been a curious forgetting, among lawyers and judges as well as ordinary citizens, that there was a serious dispute at the time of the Founding about the rationale and justification of a “Bill of Rights,” and that the reservations did not come from men who had reservations about the notion of “rights.” The concern, rather, was that a Bill of Rights would work to mis-instruct the American people about the ground of their rights. That concern can be glimpsed—and confirmed—in that line we hear so often in our public arguments, when people earnestly insist on claiming those “rights we have through the First Amendment.” Do they really think that without the First Amendment they would not have a right to speak and publish, to press their views in public, to assemble with others who share their views? That was precisely the point made by Theodore Sedgwick when the First Congress was presented with the proposal for a Bill of Rights. Was it really conceivable in a republic and a free society that people would not have these rights even if they were not set down in a constitution? As John Quincy Adams would later argue, the right to “petition the government” was implicit in the very logic of a republican government. That right would be there even if no one had thought to set it down in the First Amendment. It would be there even if there were no First Amendment. It would be there, in fact, even if there were no Constitution.
But the challenge may quickly arise: If you are saying that those deep principles of a regime of law were there before the Constitution, and they would be there even if there were no Constitution, are you saying that we don’t really need the Constitution? And the answer, of course, is no. The purpose of a constitution is to establish a structure of governance consistent with those deep principles that define the character of the regime. The current Constitution is our second constitution; the first one—the Articles of Confederation—had fanned centrifugal tendencies that undermined the sense of one people forming a nation with a national government.
On the night he was elected president in November 2008, Barack Obama remarked to a throng in Chicago that we had built this country “for 221 years … calloused hand by calloused hand.” In striking contrast, Lincoln said at Gettysburg, “Four score and seven years ago our fathers brought forth, on this continent, a new nation.” Counting back 221 years from November 2008, Obama put the beginning of the nation at the drafting of the Constitution in 1787. Counting back 87 years from Gettysburg, Lincoln found the beginning of the nation in the Declaration of Independence in 1776. It was then that we had the articulation of that “proposition,” as he called it, that determined the character of this new regime arising in America: “that all men are created equal,” and the only rightful governance over human beings “deriv[es] its just powers from the consent of the governed.” The Declaration provided those defining principles around which the Constitution would be shaped. Lincoln explained the relationship, drawing on Proverbs 25:11, “A word fitly spoke is like apples of gold in pictures of silver”: “The assertion of that principle [‘all men are created equal’] at that time was the word, ‘fitly spoken’ which has proved an ‘apple of gold’ to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.” The Constitution was made for the Union, not the Union for the Constitution. The Union was older than the Constitution, and after all, the Constitution said in its preamble that it was brought forth “in Order to form a more perfect Union.”
The Constitution was grounded in principles that were already there, but it supplied a structure, and that structure made a profound practical difference: I really do want to know—and so should everyone else—just whom the army will obey as commander in chief if the president dies. And I really want to know whether a state may make its territory available as a military or naval base for another country without the permission of the national government. The path to the enactment of Obamacare was given a serious jolt when the Constitution, for the fifty-sixth time, through peace and war, served up a midterm congressional election. That was a jolt of restraint emanating from the Constitution, but we may no longer notice the midterms as a constitutional happening because we are not litigating over this critical part of the Constitution. But the animating purpose of this whole project, as the Declaration said, was to “secure these rights,” the rights flowing by nature to ordinary men and women to govern themselves.
This exclusive excerpt constitutes chapter 5—“Are There Natural Rights?”—of Mere Natural Rights: Originalism and the Anchoring Truths of the Constitution by Hadley Arkes (Regnery Gateway, 2023).