25/05/23, 13:43 Are There Such Things as “Natural” Rights?

– Religion & Liberty Online

RELIGION & LIBERT Y ONLINE

Are There Such Things as

“Natural” Rights?
by HADLEY ARKES • April 27, 2023

A new book by eminent legal philosopher Hadley

Arkes, Mere Natural Rights, puts forth the case for
the “self-evident truths” of “mere natural law” as the
foundation of our constitutional system, without

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25/05/23, 13:43 Are There Such Things as “Natural” Rights? – Religion & Liberty Online

which “originalism” is doomed to failure as a

coherent judicial philosophy.

t is never out of season to recall James Wilson’s line that the purpose of the
I 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

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25/05/23, 13:43 Are There Such Things as “Natural” Rights? – Religion & Liberty Online

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.

n the night he was elected president in November 2008, Barack Obama

O 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

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25/05/23, 13:43 Are There Such Things as “Natural” Rights? – Religion & Liberty Online

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).

HADLEY ARKES

Hadley Arkes, the Edward N. Ney Professor of Jurisprudence and American Institutions
emeritus at Amherst College, is the founding director of the James Wilson Institute on
Natural Rights and the American Founding. His previous books include First Things: An
Inquiry into the First Principles of Morals and Justice and Natural Rights and the Right
to Choose.

POSTED IN Natural Law

TAGGED constitution, Hadley Arkes, Mere Natural Rights: Originalism and the Anchoring Truths of
the Constitution, natural law, natural rights, originalism

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25/05/23, 13:43 Are There Such Things as “Natural” Rights? – Religion & Liberty Online

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