The Imperative of Natural Rights in Today's World

If there is any group that really needs to understand the concept of natural rights, it is professors of constitutional law. The document they purport to teach was written by a generation who uniformly believed in natural rights, used the concept to justify a violent revolution from their mother country, and professed their continued commitment to natural rights long after the separation—a commitment that only intensified in the years leading up to the Civil War and the adoption of the Fourteenth Amendment. Natural rights are enshrined in the text of the Constitution in at least two places. First, there is the Ninth Amendment which reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Upon the evidence there can be no doubt that the rights "retained by the people" are natural liberty rights. The Fourteenth Amendment reads, in part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . ." The great weight of the historical evidence supports the conclusion that, in addition to certain positive rights of U.S. citizenship included in the Bill of Rights and other laws, "privileges or immunities" refers to natural retained liberty rights.

Yet few constitutional law professors know much, if anything, about this fundamental concept even as a historical matter, much less as a concept worthy of continued application in today's world. The prime evidence of their lack of knowledge is the fact that they use the terms "natural rights" and "natural law" interchangeably despite the historical and theoretical distinctness of these terms. For one thing, natural law is a much older notion than natural rights, but I will not dwell here on the intellectual history of these concepts. Nor will I attempt to do justice to the multiple variations on these concepts among philosophers. Instead, I will provide what I hope will be viewed as a readily accessible explication of these concepts that has as much practical application today as it did in the days of John Locke or James Madison. Although this is decidedly my take on natural law and natural rights, I think it is true to the heart of the concept and can be used to make sense of historical materials that are otherwise inexplicable to modern constitutional scholars. And this vision of natural rights is as important today as it was in 1776 or 1868.

Let me begin by stressing what natural law and natural rights share in common: a basic methodology. Both natural law and natural rights are what may be called normative disciplines, by which I mean intellectual constructs used to assess how human beings ought to act in pursuit of their objectives. Both employ a "given-if-then" analysis of the following sort: Given the nature of X, if you want to achieve Y, then you ought to do Z. Modern philosophers know this form of reasoning as a hypothetical [End Page 1] [Begin Page 4] imperative. While their method relies upon the nature both of human beings and of the world—a knowledge of which is informed by physical and other empirical sciences—natural law and natural rights theorists use this "value free" information in the service of human aspirations and goals, thereby combining (though not collapsing) the "is" with an "ought." (Though many versions of natural law theory also locate the goal or Y in the nature or end of human beings, the account presented here takes no stance on this further teleological claim.)

So understood, the natural law mode of reasoning can be seen as pervasive in human life. For example, it pervades the normative disciplines of agriculture, architecture, engineering, and medicine. These disciplines are normative in the sense that they instruct and guide human conduct by telling us how we ought to act. Each builds upon the knowledge conferred by the theoretical sciences, as well as on practical knowledge, to address their respective subjects: given the nature of human beings and the world in which we live, if you want to grow edible crops...