1776: The Ideas that Made the Modern World, Part 6: Natural Rights at the Founding

Episode Topic: Natural Rights at the Founding

How can the origins of American liberty help us chart the complex distinction between inherent human capacities and governmental regulations? Refine your perspective on the social compact, shifting your view of rights from mere judicial trumps to essential components of a self-governing society.

Featured Speakers:

• Jud Campbell, Stanford University

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This podcast is a part of the ThinkND Series titled 1776: The Ideas that Made the Modern World. 

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Transcript

Wrap Up And Thanks

1 0:01

Welcome

Speaker 2 0:01

everyone. I'm Philip Munoz. I'm the director of the Center for Citizenship and Constitutional, Government, and it's my pleasure to welcome you to our, twenty twenty-six True Lectures. let me apologize for the change of venue, uh, and the slight delay. but thanks for joining us and, uh, I hope the those who got the, the notice late, I'm sorry about the walk, walk over. the, the True Lectures aim to foster the development, uh, of scholarly manuscripts in American constitutionalism. there are-- uh, they're the center's, pre-preeminent academic event. we foster teaching of the American Constitution. We have our undergraduate minor. We, support faculty, we support graduate students, but we also support scholarship. And one of the ways we support scholarship is, are these lectures, which are designed to, find, the most promising academics and most accomplished academics and invite them to give three lectures, to produce, uh, to produce a serious, significant publication. and, um, when I had these lectures in mind, I actually had Doug Campbell in mind, and I-I'm just thrilled about today's, uh, today's event and this week's events. They, uh, are sponsored by just a wonderful couple, Tad and Jennifer True. The Trues are not here with us. they're from Wyoming, uh, and it's their benefaction. they approached me a number of years ago and said: "You know, what can we do to help Notre Dame?" And I said, "I've been waiting. I have an idea for you, and you're the only family that can do it, 'cause I wanna have the True Lectures at Notre Dame." Yeah. let me tell you about the rest of the week. So, today, Judd will lecture on natural rights and the founding. Tomorrow, same ti- same-- at, three thirty tomorrow We're gonna be in the football stadium in 1842. Uh, we'll-- Jed will give his second lecture, and then on Friday at 12:30 PM, we're in the, the main dome, room 200 in the main dome. Now, as most of you know, I usually only go over to the na- to the main dome when I'm in trouble. We've been invited, I think yeah. Uh, hopefully they'll let... Uh, after today's lecture and after tomorrow's lecture, there'll be a reception. You're all invited. Friday's lecture is earlier. It starts at 12:30, as I said. but we'll serve a lunch starting at noon. So, lunch will be available at noon. Please come for lunch. Also on Friday, we'll have two commentators, Philip Hamburger of Columbia Law School and, Thomas West of Hillsdale College. Philip Hamburger, I'm sure you know, is one of the most distinguished, uh, uh, legal minds in the nation, and Tom West is one of the most distinguished political theorists in the nation. Part of our idea is to bring people from disci- different disciplines together in conversation. So we'll have, uh, a lecture by Professor Ca-Campbell today, a second lecture tomorrow, a shorter lecture on Friday, and then commentary and conversation on Friday. So join us, tomorrow and Friday, uh, if you can. Uh, a thanks to my staff, uh, and the staff of the center, terrific, especially with the change in menu, uh, that we got you all here. I was worried about this this morning, but you, but you all made it. Okay. We have a, a tradition here, which is we have one of our students, uh, introduce, give the formal introduction to our visitors. Cody Cooper, first-year student, PhD student, uh, in constitutional studies, and she'll introduce

1 3:35

Professor Campbell. Cody?

34 3:45

Judd Campbell is a professor of law and the Helen H. Crocker Faculty Scholar at Stanford Law School. His scholarship explores American constitutional thought with particular attention to the history of rights. His scholarly articles, which have appeared in The Harvard Review, Stanford Law Review, and Yale Law Journal, explore older ways of thinking about natural law, natural rights, and general fundamental law, illuminating broad shifts in how Americans have understood constitutional law. Before joining the Stanford Law faculty in 2023, Campbell was a professor at the University of Richmond Law School. He was-- He's also been a visiting professor at Harvard Law School, New York University School of Law, and the University of Chicago Law School. Earlier in his career, he served as executive director of the Stanford Constitutional Law Center and clerked for Judge Diana Sykes of the U.S. Court of Appeals for the Seventh Circuit and for Judge José Cabranes of the U.S. Court of Appeals for the Second Circuit In 2025, Professor Campbell was awarded the Federalist Society's Joseph Story Award, which annually honors one early career scholar for exceptional achievement in legal scholarship, teaching, and public engagement. He also received Stanford Law School's 2025 Barbara Allen Babcock Award for Excellence in Teaching. Today, Professor Campbell will be delivering his first of three true lectures, which is entitled Natural Rights at the Founding. Please join me in welcoming Professor Campbell to Notre Dame.

Speaker 4 5:22

Well, th-thanks so much, Cody, and thank you all for being here. and, uh, my special thanks to Professor Munoz and the Notre Dame Center for, uh, Citizenship and Constitutional Governant, Government for hosting these lectures, uh, to Tad and Jennifer True for their support, and to Professors Hamburger and West for their engagement. the overall theme of my lectures is natural rights and the Constitution. From our vantage point, this might seem like an odd pairing. Natural rights are in the domain of philosophers and theologians, and constitutions are in the domain of judges and lawyers. When I talk to law students about natural rights, I always lead with a disclaimer at the outset that it's totally fine to try this at home, just don't try it in court, 'cause judges are gonna have no idea what you're talking about. In part, that's just because of how judges and lawyers are trained. natural rights rarely come up in law school, uh, classes, at least at most schools. Uh, but more fundamentally, it's because constitutional rights are understood to be grounded in constitutional text. Even so-called unenumerated rights, like the right to marry, supposedly flow from the Fifth and Fourteenth Amendments' due process clauses. If I were speaking as a modern lawyer, there wouldn't be much to say about natural rights in the Constitution. But I'm not here as a modern lawyer. I'm here as an intellectual historian. And in these lectures, I'd like to explore how earlier generations of Americans thought about fundamental rights, including the relationship between natural rights and the Constitution. I'll have a few things to say about the content of particular rights, like freedom of speech and press, but mostly I'll focus on the concept of rights. Things like, where do rights come from? Whom do they apply to? How do they justify or limit governmental power? And who is supposed to define and enforce them? In modern constitutional law, we take the answer to these questions for granted Constitutional rights come from the Constitution. They apply to governmental actors. They operate as legally determinant trumps, limiting governmental power, and they're up to judges to define and enforce. An important piece of my argument is that aspects of each of these ways of thinking was present at the founding. And in fact, one of my principal arguments tomorrow will be that the federalism-based structure of American governance helped foster some of those ideas from the very beginning. But for the most part, Americans used to view fundamental rights very differently, and today I'll focus on recovering that older way of thinking. Tomorrow, I'll also argue that this way of thinking about fundamental rights remained largely intact throughout the nineteenth century, and that it wasn't until the twentieth century that our modern perspective about constitutional rights emerged. And on Friday, I'll briefly reflect on what this history might teach us today. Uh, I'm sure you're all familiar with the natural law rule that lectures have to be divided into three parts. so of course, I'll take that approach today. first I'll provide an overview of founding-era ideas about fundamental rights, identifying different types of rights, where they came from, how they were defined, and who enforced them. Then I'll focus more specifically on the relationship between fundamental rights and constitutional text. What was the point of enumerating rights, and how should we read the text? Uh, and then I'll wrap up today by discussing a few different parts of the Constitution that reflected this older way of thinking, and I hope that'll help some of the ideas sink in and also, uh, uh, offer additional evidence for one of my core arguments, which is that natural rights were a key component of the original constitutional design. Before proceeding, I want to say a couple quick things about method. First, my approach to the research has been both deductive and inductive, uh, examining works that founding-era elites widely read, uh, and then also looking at their own statements and actions. Of course, the founders didn't agree in every detail, but it's my view that there was a generally stable and coherent structure to their thinking about rights, and that by recovering that structure, we can better understand the times when they disagreed or innovated. That leads to my second point, which is about the method of the lectures. My main goal is to explain the ideas themselves, not to exhaustively survey all the evidence. For those who are interested, there are lots of, quotations and footnotes in my articles, but I suspect there's also real value in stepping back, stepping back to see the big picture. Uh, and I'm es- especially grateful that they have the opportunity to do that here.

Natural vs Positive Rights

Speaker 4 10:45

So to get things started, how did members of the founding generation view fundamental rights? For them, rights were divided into two broad categories. As Jim- James Madison explained in his speech introducing the Bill of Rights in 1789, people have natural rights and positive rights. So what were natural rights and positive rights? Natural rights were things that individuals could do in a proverbial state of nature without a government. These included the rights to think, to speak, to listen to a lecture, uh, and so on. These rights were limited then in two ways. First, by natural law, meaning notions of reason and justice and morality. For instance, nobody had a natural right to assault somebody or to defame their reputation. And then secondly, individuals could consent to give up aspects of their own liberty or property, although there were natural law limits on that, too. For instance, people could not agree to entirely abandon their rights and become slaves. So that was the basic idea of natural rights, rights that would exist in a state of nature, limited by natural law and by consent. Positive rights, on the other hand, were defined in terms of governmental authority. They were rules about what the government couldn't do or what it had to do, things like provide due process or not inflict cruel and unusual punishments. Many of those rights helped to secure natural rights, but because positive rights operated only against the government, these were not the sort of rights that had existed in a state of nature. With these definitions in view, the founders didn't have to catalog which rights were natural and which ones were positive. For them, it was intuitive. Natural human capacities were natural rights, whereas specific rules about the exercise of governmental power were positive rights. So where did these rights come from? Well, today, we imagine that fundamental rights come from the Constitution, which is why we call them constitutional rights. But for the founders, fundamental rights generally came from somewhere else. Natural rights, of course, were inherent in human nature. They were gifts of God, and they had, had existed in a hypothesized state of nature. And while many or all of those rights were thought to have been retained in an imagined social contract in which individuals unanimously agreed to leave a state of nature and create a political society, the rights themselves, uh, were grounded in natural law So in some sense, we have these rights grounded in natural law, but also we have them retained in a social compact. And in that way, natural rights of individuals became civil rights of citizens. That terminology sometimes caused the founders to say things that sound like they rejected natural rights. So for example, here's Gouverneur Morris: "He who wishes to enjoy natural rights must establish himself where natural rights are admitted. He must live alone." Morris has a point, but when I refer to natural rights, what I really mean is the natural rights that were retained in a social compact, not rights in a state of nature. Now importantly, that social compact, the hypothesized unanimous agreement to create a political society, was distinct from a second agreement where a majority of the members of the political society came together and agreed to create a system of government. That second agreement was often called a constitution. The key point here is that the founders thought that natural rights were recognized in an imagined social compact before the creation of a government in a constitution. It didn't come from the Constitution. But what about fundamental positive rights? Where did they come from? Well, those rights could be created by constitutional text, which is a possibility, uh, that I'll come back to later today. but many of these rights were also thought to predate the Constitution. In his initial Bill of Rights speech, for instance, Madison referred to the trial by jury as a right resulting from the social compact. For that reason, these positive rights were also viewed as rights of citizenship. After all, the social contract is the agreement by which individuals became citizens, sacrificing their natural independence in exchange for securing basic civil rights, including both natural rights and positive rights. So we've seen two different types of fundamental rights that were often thought to be grounded in an imagined social contract rather than in constitutional text. Let's now turn to the content of those rights, how, and how that content was identified. As I've already mentioned, rights in a state of nature were limited by natural law and by individual consent. In a state of nature, though, it was up to every individual to identify those limits. But several things changed upon entering into a political society. First, the social contract, granted the political society the authority to identify the natural law boundaries of natural rights So for example, even though individuals retained the natural right of self-defense, the political society could now collectively identify exactly when self-defense was necessary and when it would instead invade the rights of others. We can think of this as the authority to determine the dictates of natural law, not in the sense of making up those rules from scratch, but rather in the sense of specifying norms that were otherwise under determinant, consisting of broad principles rather than legal particulars. So that's the first aspect of the social contract, conferring authority on the polity to determine the natural law boundaries of natural rights. Second, individuals leaving a state of nature also conferred the power to regulate natural rights in promotion of the common good, meaning the welfare of the political society and its members. Writers had different ways of describing this power, but many denied that it diminished natural liberty. And in part, that's because people thought that even in a state of nature, individuals had reciprocal social obligations to each other. So being required to sacrifice for the common good didn't actually curtail natural liberty. Another justification for the regulatory power was consent. The idea here was that civil governance didn't involve a sacrifice of natural rights if the government... uh, excuse me, if the people themselves maintained control of their own rights through their own representatives. The founders said this constantly. So for instance, Massachusetts jurist The-Theophilus Parsons explained that, "In a government to be administered for the common good by the elected servants of the people, the people divest themselves of nothing." In other words, preserving natural rights was mostly about preserving self-rule. Now, from our modern vantage point, that doesn't make much sense. We view constitutional rights as individual entitlements that impose counter-majoritarian limits on legislative power. So this idea of legislatively authorized restrictions of fundamental rights may seem baffling. But keep in mind that folks in the 18th century had very different concerns. These Americans had just asserted their natural rights against imperial British rule, but that was not because all forms of taxation infringed upon natural rights. Rather, they opposed taxation without representation For these men, representation wasn't just a check against tyranny. Representation was the very essence of what it meant to have a free society composed of free men, people who continued to control their own natural rights. Of course, the founders didn't get too hung up on actual consent. Consent for them was often constructive. That attitude was on full display when it came to the political representation of groups like women and children, and it also explains why the people who opposed certain laws were still said to have consented to those laws. But the key point is that natural rights were not a set of legally determinant immunities. They weren't rights as trumps in the modern sense. I should note that a few natural rights were understood differently. These rights were often described as unalienable, which in this context referred to individuals' inability to transfer power over those rights to the political society, either because it was physically impossible to do so, like the power to, control one's own thoughts, or because that power would not advance the basic purposes of the political society, like conferring authority to compel individuals to worship at a particular church. So the government lacked general authority to regulate these unalienable rights in promotion of the common good. Uh, and then as previously mentioned, the founders recognized certain fundamental positive rights that impose more determinant limits on governmental power, things like jury rights and the ro- the rule against prior restraints on printers. Uh, as Professors Akhil Amar and Jamal Greene have pointed out, uh, these rights often facilitated republican self-government. Americans sometimes described these rights as being grounded in an ancient constitution, but usually their content came from political disputes in the, sixteenth and seventeenth century, England. They were sometimes mentioned in legal texts like the English Bill of Rights or Magna Carta, but the rights themselves didn't come from the texts. Another thing to mention about the substance of natural and positive rights is that they were often seen as a cross-jurisdictional species of general law, not as the local law of a particular jurisdiction. These were general fundamental rights, what had once been called the rights of Englishmen. It wasn't as if the constitutional drafters in each state just happened to recognize the same set of rights. Rather, these rights were r- grounded in natural law or grounded in a common jurisprudential heritage But this is where things get especially tricky because it turns out that the legal content of those rights often differed across state lines. So that seems weird. How could the same right differ in its content across state lines? Well, it actually made perfect sense at the time for a couple of reasons. So for one thing, justi- judges in different jurisdictions could simply disagree about the content of those rights. But even more importantly, recall that fundamental rights were often legally under determinant, which gave legislatures room to define and regulate those rights in ways that could vary from state to state. For example, Americans in every state enjoyed the right to own real property, but each state could establish its own rules about things like how to record deeds. Regulations of this sort were allowed so long as they promoted the common good and so long as the people themselves consented, either prescriptively through customary law or through their representatives in the legislature. And the details of some po- fundamental positive rights could also vary across state lines, like the mechanisms for jury selection.

How Rights Were Enforced

Speaker 4 23:49

Before turning to the second part of the talk, I wanna say just a couple things about the enforcement of rights. Today, we take for granted that it's up to judges to interpret and enforce constitutional rights, but at the founding, judicial review was much more limited. Federalist 51, for example, is all about constitutional enforcement, but Madison's essay doesn't say anything about judicial review. Instead, the principal way of maintaining rights was through institutional design and through civic culture, things like separating powers horizontally and vertically, holding regular elections, and promoting civic virtue and education. Many of the founders viewed judicial review as an additional way of safeguarding some fundamental rights, at least in certain ways. I'll have more to say about that soon, but it was a far less important way of enforcing the Constitution. All right, so let's now turn to the question of constitutional text. The founders often denied that rights came from the text. So as George Nicholas said during the Virginia ratification debates, "A bill of rights is only an acknowledgment of preexisting claims to rights in the people. They belong to us as much as if they had been inserted in the Constitution." Or as Roger Sherman of Connecticut remarked in the first Congress The people are secure in them whether we declare them or not. But if fundamental rights didn't come from the text, what was the point of writing them down? Well, in our legal culture, we tend to associate three different things: enumerated rights, legal determinacy, and judicial review. Constitutional rights are treated as textual objects whose force comes from their enumeration, as legal objects defined through interpretation, and as judicially enforceable objects. These all go together. In other words, enumerating rights creates a new boundary between law and politics. But back at the founding, enumerating rights was only sometimes paired with legal determinacy and judicial review. Just to be clear, the punchline here is not that the founders fully rejected judicial review of fundamental rights. That's not my view. Rather, I'm arguing that there was a more contingent relationship between enumeration and judicial review. Uh, and then my narrower claim is that James Madison and the other folks in the first Congress who drafted the Bill of Rights mostly rejected a mode of enumeration that would have shifted the boundary between law and politics. It's true that some of the rights mentioned in the Bill of Rights already had legally determinant content under customary law. For instance, the freedom of the press entailed at least a prohibition on prior restraints that required publishers to get advanced permission before printing pamphlets and so on. But the point of the speech and press clauses was not to remove from the realm of politics all questions about governmental authority over expression. So that's the narrower claim, that the Bill of Rights was mostly designed to declare existing rights and not to adjust the boundary between law and politics by textually specifying those rights.

Three Types of Rights Clauses

Speaker 4 27:26

To begin, let's consider three different types of enumerated rights provisions. The first was a purely declaratory provision, one that simply reaffirmed the existence of a natural right or a positive right without textually clarifying its content and without creating any new law. So, for example, many state constitutions had clauses that reaffirmed the rights to life, liberty, and property. The text of these clauses didn't create new rights or textually clarify the content of existing rights. The clauses were purely declaratory. Second, constitutional gra- drafters could create declaratory provisions that not only reaffirmed existing rights- But also used the text to clarify the existing legal content of those rights. So for example, various state constitutional clauses reaffirmed the inalienable right of religious conscience and worship, while also clarifying that the natural law boundaries, existed that limited those rights. New York's Constitution of 1777, for example, mentioned that, "The freedom of conscience shall not be so construed as to excuse acts of licentiousness or justify pr- practices inconsistent with the peace or safety of the state." Uh, in his book on Religious Liberty and the American Founding, Professor Munoz persuasively argues that these provisos were not legally necessary because natural rights automatically had natural law limits. But the text nonetheless served a potentially useful function. It supplied evidence not only of the right's existence, but also of its limits. Third and finally, the text could create a new right or add new legally determinant content to an existing right that was under determinant in some way. Because these provisions often added specificity to under determinant rights, I'll call them specificatory provisions. unlike declaratory provisions, specificatory provisions created new fundamental law. An example of a specificatory provision was Article Six's prohibition on religious qualifications for holding office. This rule was related to the principle of free exercise, but it wasn't yet recognized as a feature of customary law. So in that sense, the text created new fundamental law. Now, I should note that it was possible for a provision to be both declaratory and specificatory in some way, and that the line between these different categories wasn't always clear. But conceptually, it's important to separate them, both because the three different types of provisions had different legal consequences, and because in the late 1780s, different people wanted different types of clauses. Some of the founders wanted declaratory rights. For instance, the Anti-Federalist writer, Federal Farmer, called for declaratory articles that explicitly declared that Americans had certain rights. He explained that, "We do not by declarations change the nature of things or create new truths, but we give existence, or at least establish in the minds of the people, truths and principles which they might never otherwise have thought of or soon forgot." In other words, declarations of rights would remind people of their rights, but they wouldn't create new law. By contrast, Thomas Jefferson favored a specificatory approach. For instance, in his notes on Virginia, he called for a new rule stating that publishers who operated printing presses should not be held liable for what they printed unless it included false facts. Jefferson imagined that constitutional text could fix every essential right on a legal basis, and he later explained in a letter to Madison that one of the advantages of enumeration was the legal check which it puts in the hands of the judiciary. Now, scholars have interpreted Jefferson as saying that enumerating rights would make those rights judicially enforceable. In other words, his statement seems to reinforce this common link between enumeration, legal determinacy, and judicial review. In my view, that misses the underlying logic of Jefferson's position. Jefferson was presupposing a certain type of enumeration, namely that the amendments would create a textual formula that judges could then apply. But notice the implicit premise of his argument. Rights had to be specified by the people before they could be judicially enforced. Jefferson was saying that if the amendments created a verbal formula specifying limits on legislative power, then judges could step in. By implication, though, he was also saying that such a formula was at least sometimes necessary for judicial review. And it turns out that the Federalists who controlled the first Congress really didn't want specificatory amendments. This was already readily apparent during the ratification debates. For example, James Iredell acknowledged that the framers could have determined what punishments could or couldn't be imposed on criminal defendants by exhaustively listing all the permissible or impermissible forms of punishment. But he said that providing such a labyrinth of detail in the Constitution would have been perfectly ridiculous. Another person who mostly opposed specificatory amendments was James Madison. He was famously skeptical of parchment barriers, and he also worried that textual formulations of rights were impractical and potentially even dangerous In 1787, he explained to Thomas Jefferson that he was sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are likely to ever be by an assumed power. Now today, many people like the idea of preserving rights in constitutional amber to prevent their fu- future erosion. Madison didn't share that view, and that makes sense if we recall that he had a teleological view of history, thinking that people's views about rights had improved over time, and that, that was certainly true w- back when he was writing. Of course, if you think that understandings of rights will improve in the future, it'd be really foolish to try to fix them in stone in the present. Madison did try to add a few specificatory clauses, most of which the first Congress quickly deleted, but by and large, he proposed declaratory amendments that simply reaffirm natural and customary rights. As he put it, "Congress should enumerate simple acknowledged principles, not ones of a doubtful nature." For instance, rather than following Jefferson's suggestion to specify exactly when pl- printers could be held liable, Madison and his colleagues simply stated that Congress shall not abridge the freedoms of speech and press. This was a purely declaratory provision, one that merely asserted the existence of certain fundamental rights that everybody already accepted. It didn't textualize or set in stone a particular understanding of those rights, and it didn't implicitly transfer to judges an authority to determine the content of those rights when they were under determinant. But then why enumerate rights at all? What good would it do? Well, most Federalists thought that a Bill of Rights was totally unnecessary, and some even pointing out that declaring natural rights would imply federal power to protect them. But Madison had a few reasons to enumerate rights anyway. First was political necessity. His constituents back in Virginia demanded adding a Bill of Rights, uh, and he thought that adding, amendments would help undercut the lingering anti-Federalist opposition, particularly in North Carolina and Rhode Island, which hadn't yet ratified the Constitution. second, enumerating rights would facilitate the political enforcement of rights, since it would help reaffirm the existence and fundamentality of those rights, exactly as Federal Farmer had mentioned during the ratification debates. This was Madison's main argument when he first introduced the proposed amendments on June 8th, 1789 Saying that a Bill of Rights would have a tendency to impress some degree of respect for rights, to establish the public opinion in their favor, and rouse the attention of the whole community. The third reason that Madison had for enumerating rights is one that he mentioned in the same speech, saying that enumerating rights would facilitate judicial review because judges would consider themselves, in a peculiar manner, the guardians of those rights. Now, along with Jefferson's earlier letter, Madison's comment is one of the very few Founding Era statements that links enumeration to judicial review. Scholars often cite it as evidence that enumerating rights makes those rights judicially enforceable. But in my view, Madison wasn't saying that enumeration was legally necessary or legally sufficient for judicial review. Rather, he was making a practical point about judicial psychology. He was saying that enumeration would help encourage judges to exercise judicial review when they were already supposed to do so. There's several clues. For one thing, his statement is framed exactly in those terms, talking about how judges would consider themselves, not about how num- enumeration would alter their legal duty. And this is, understanding makes sense in context. Judicial review was extremely controversial in the 1780s, and there was good reason to worry that judges wouldn't always uphold their duty to enforce fundamental law. Alexander Hamilton emphasized that point in Federalist 78, uh, as a reason for creating lifetime judicial appointments to help embolden judges to do their jobs. And this wasn't the only time that the founders added constitutional text in order to bolster judicial review. The s- uh, Supremacy Clause of Article VI says not only that federal law preempts state law, but also that state judges have an obligation to enforce federal law. Of course, that second clause is legally unnecessary. Obviously, state judges must apply federal law if it's supreme over state law. But from a practical point, the second clause in the Supremacy Clause was really important back at a time when judicial review was so deeply contested. The same thing is true of rights provisions that reaffirmed the existence of legally determinant rights. This interpretation of Madison's comment on June 8 is reinforced by the broader framing of his speech. So he opened by saying that the amendments would have a salutary tendency And would tend to prevent the un- the exercise of undue power. He went on to admit the force of the standard federalist argument that a Bill of Rights was unnecessary, but he said that enumeration would have, to a certain degree, a salutary effect against the abuse of power. Madison wasn't claiming that rights enumerations were strictly necessary, legally or otherwise, but it could still have some positive benefits, mostly for civic culture, but also for judicial review. Uh, in response to my argument about the declaratory nature of most parts of the Bill of Rights, my friend Joel Alicea at Catholic Law School recently defended a more textually focused approach to the Bill of Rights in his Herbert Vaughan lecture at Princeton last year. Uh, he's publishing his remarks in the Notre Dame Law Review in an essay called Bruen and the Founding Era Conception of Rights. Uh, it's a great piece of scholarship. I highly encourage you to take a look. Essentially, what Professor Alicea argues is that it makes sense to rely substantially on the text because the drafters of the Bill of Rights chose their words carefully. unfortunately, his evidence consists of a really questionable source. He cites an article of mine from last year where I wrote that congressmen who created the Bill of Rights remained attentive to their text and sometimes expressed profound concern about the wording of the amendments. so please try to put aside any doubts you might have about the reliability of that source.

Why Framers Stayed Silent

Speaker 4 41:27

Uh, instead, I'd like to focus on two problems with Professor Alicea's argument. So first, although congressmen did revise the text, uh, in ways that sought to correct misstatements about existing law, they did not attempt to fully express the scope of existing rights. And then second, the drafters were especially careful to avoid specifying how the government could regulate those rights. We know this because they said so. As James Madison explained in a letter to Jefferson, "My own opinion has always been in favor of a Bill of Rights, provided that be, it be so framed as to not imply powers not meant to be included in the enumeration." The Federalists also made clear that they were unwilling to reopen debates about the scope of federal power. So in this sense, in this situation, it made sense to simply reaffirm existing rights without saying anything about countervailing powers. Consider, for example, the right to keep and bear arms. The English Bill of Rights and other contemporary sources like Ba- Blackstone's Commentaries indicated that this was a right that was regulable by law. But Madison had a very good reason not to say anything about that. Just imagine if he had written an amendment that said, "The right of the people to keep and bear arms may be regulated by law, but shall not be infringed." That declaratory statement would have been accurate, but it also would have been political malpractice, potentially implying a far broader federal regulatory power than Congress possessed under Article 1, which is exactly the type of power-enhancing implication that Madison wanted to avoid. And none of the Federalists in the first Congress were interested in trying to delineate exactly how Congress could regulate gun rights under Article 1's power over the militias. Better to just stay totally silent about that and simply reaffirm the right. This strategy is replicated in the First Amendment, which just states the existence of certain rights without trying to specify anything about their scope or about any governmental power that might exist to regulate them. I won't go through the entire Bill of Rights, but it's worth noting that if we look at the drafting process as a whole, the first, the parts that eventually became, uh, the first eight amendments were really thin at the outset. They totaled up to, uh, 611 words. And then f- the first Congress, in its drafting process, just trimmed them down. The final result is 413 words long. Over and over again, the drafting process was about simplifying and shortening the text. Now, my point here is not to say that the Bill of Rights text can't ever be useful. As I noted before, even a declaratory text can sometimes provide evidence of the r- uh, existing law. Rather, my point is that the absence of a textually specified limit to a right or the absence of a textually specified power to regulate that right tells us very little, because the drafters mostly avoided those issues and instead just pointed the reader elsewhere to a body of preexisting law. For this reason, some Anti-Federalists were upset with the amendments. Richard Henry Lee of Virginia wrote to Patrick Henry saying, "Some valuable rights are indeed declared, but the powers that remain are very sufficient to render them nugatory at pleasure." Now, none of this is to deny that most of the amendments referred, at least in some way, to customary rights or inalienable natural rights that operated as exceptions to governmental power. For example, even if the government had a broad power to create, uh, and enforce copyright rules, it couldn't create a system of prior restraints. But by and large, those limits on governmental power did not come from the text, and I think we misconstrue the underlying rights if we expect the text to tell us even presumptively what those rights entail and how they can be regulated. Of course, none of this makes any sense without the appreciating that fundamental rights can come from somewhere else other than text. To wrap things up, I wanna highlight two parts of the Bill of Rights that reflect this older way of thinking, uh, and we'll see some more examples tomorrow.

First Amendment Puzzles

Speaker 4 46:38

Let's start with the First Amendment speech and press clauses, which say, "Congress shall make no law abridging the freedom of speech or of the press." There's lots that one might, might say about this, but to keep things brief, let's focus on just two puzzles. So first, the members of the first Congress said nothing at all about what the freedom of speech or of the press referred to. Nothing about what that phrase meant. This would be extremely odd if Congress were creating new rights. But the text of the amendment, and especially the word abridging, seem to refer to rights that already exist. And now that we understand basic principles of social contract theory, we can understand why that would be so and why members of the first Congress said nothing at all about the content of those rights. The clauses were purely declaratory. Second, what do we make of the fact that the amendment singles out Congress? Some people have argued that this means that the president and judges can't violate the First Amendment. But from a historical standpoint, this seems misguided. After all, the text refers to underlying rights that weren't limited to Congress. Now, the drafter still had good reason to single out Congress. For one reason, for one thing, that was the only branch that had the authority to pass laws that regulated natural rights. It also made sense to, uh, frame the clause as a limit on governmental power rather than as a declaration of the natural right of speech, which could have implied a federal power to protect that right Even against private abridgment, and maybe even against state abridgment. But that's exactly the sort of power-enhancing implication that Madi- Madison and his colleagues wanted to avoid. So specifically saying that Congress cannot abridge those rights was a really smart, um, move. The First Amendment secures natural rights like speech, but only against the federal government, not against state governments or private actors. Still, it's a mistake to read the First Amendment as somehow limiting the scope of the underlying right rather than simply reaffirming its inviolability. Everybody, including the president and including judges, bears responsibility for not abridging the freedom of speech.

Ninth Amendment Revival

Speaker 4 49:30

Now let's conclude with the Ninth Amendment, which says that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." From a legal standpoint, this amendment is basically just ignored today. Uh, Justice Goldberg famously mentioned it in his concurring opinion in Griswold v. Connecticut, uh, about 60 years ago. But for all practical purposes, it is dropped out of the Constitution. That's because we've lost the founders' way of thinking about rights, so people don't understand what the Ninth Amendment is doing. Robert Bork famously analogized it to an inkblot. But the pr- provision made perfect sense in a legal culture that viewed rights as having been recognized in a con- in a social contract prior to the adoption of a constitution. Some of those rights were natural rights, others were fundamental positive rights. And what the Ninth Amendment says is that the existence and fundamental status of those rights isn't affected by whether they're enumerated or not. The amendment reaffirms that founding era rights generally did not come from constitutional text. As we'll explore tomorrow, this older way of thinking about general fundamental rights remained a centerpiece of constitutional thought all the way up until the turn of the 20th century. But things also worked differently in the context of federal limits on state power, uh, so I'll look forward to taking that up, tomorrow afternoon. Thanks so much.

Q&A Text And Meaning

Speaker 2 51:16

All right, we have, uh, some time for some questions. Do we have a, a microphone? Okay, uh, Lillian, who's a senior that's, uh, with the center. The, the microphones are as much, are really for the recording, not so much for the room. So when, if you have a question, if you could just stand and tell us who you are And, Lillian, maybe you go that side of the room.

Speaker 5 51:34

Thank you, Professor Campbell, uh, for the wonderful talk. My name's Tommy. I'm a law student at, at NDLS. you said that part of the reason, lots of the Bill of Rights are kind of vague or under determinant is because it would be political malpractice to clarify, uh, with kind of more. Isn't that a good sign that, like, the original public meaning or the general public meaning of the document was in fact that it was a trump over the government because that's what, Madison's voters and constituents wanted? And so the fact that there was this kind of obfuscation that you, you point to in your speech is a pretty good sign that actually it was understood that these, that this text had, like, real teeth because that's why it was passed in the first place, and that was a predicate for the Constitution being ratified. Am I missing something there about that relationship?

Speaker 4 52:22

So I think it's right that the, reason why they enumerated certain rights and not others is that they thought that the rights they were enumerating were especially important to enumerate. And one of the reasons why they might be especially important to enumerate is that they reflect some sort of limitation on governmental power. So I definitely agree with that. the core claim is that the limits that they, recognize are limits that come from somewhere other than the text. So when you have the right to, free expression, uh, whe- let's say the freedom of speech, uh, in particular, uh, that is very likely, given the context, gonna entail some sort of limit on governmental power. And then the question is, well, what is that limit? And I think it's really important when we're trying to answer that question not to get too focused on the text, as they aren't using the text to try to express what those limits are. So I think it's entirely fair to say, as a general matter, the various provisions of the Constitution, including the Bill of Rights, are likely to reflect some sort of limitation on power. I wouldn't say that that's always true, but I think it's likely to be, true of at least most of the provisions, and so you might use it as a rule of thumb getting started. But I would, uh, just caution against using the text itself as the way of identifying what those limits are. So if we just read the text and we say, "Well, the text itself says you have the free, Congress shall not pass any law abridging the freedom of speech," if we just focus on the text, we might be led to the position of somebody like, let's say, Justice Black- Who thought, "Well, all we need to do is identify what speech is, and then we just say the government doesn't have power to restrict that." And that, I think, is not a valid way of interpreting what the framers were up to. It's possible, of course, that that could be what the First Amendment means, but it would mean that because of something other than the text itself. The text itself is not giving us the answer to the question, what are the limits on governmental power that are recognized by this, this instrument?

1 54:45

Can I get a quick follow-up there? Yeah. Of- Is that, is

Speaker 2 54:46

that for every part of the Bill of Right? So the Takings Clause, property cannot be taken except for public use without just compensation. Would the public use have really no meaning?

Speaker 4 55:00

well, I wouldn't say it has no meaning, but I would say it very likely is just reflective of a background principle that the government, whenever it acts, has to be aiming to promote the public good. So it's possible, of course, that you could do research and background law and find that public use has some sort of more specific legal definition. Uh, it's possible that it has a reference to something broader that's not just a governmental, the govern- rule that the government must aim to promote the public good. But when you're reading a text like that, the way that you would, assuming the text is declaratory, the way that you would try to identify what those, uh, principles are that delimit what the government's power is to take property, is to look to the background principles, not to look to the text itself, uh, as supplying those limits. That said, the text itself can be evidence of what those limits are. So in the First Amendment context, we have nothing to indicate what the government's power is vis-à-vis restrictions of freedom of speech. With respect to the Takings Clause, we at least have a textual signal that in some way the text, uh, excuse me, in some way the, uh, the government's power, to engage in eminent domain is limited to contexts in which there is, in some

1 56:16

way, public use. Zach?

Speaker 6 56:23

Hi, Professor Campbell. Thanks for your talk. I am Zach Coddington. I'm a third-year PhD student in Con Studies here. and the question I wanted to ask is, you mentioned Jefferson and his concern for specificatory rights really wants to limit the judiciary- Mm-hmm uh, with sort of more legislative specification. I'm wondering how you see that same concern play out for Madison. Mm-hmm. Is Madison's interest in declaratory rights also signaling a willingness to give more latitude to judges in determinations about these rights? Yeah, just interested in that.

Speaker 4 56:57

Thanks. Yeah, so my take on his comment is that he's not addressing that problem And so it's possible, it's possible for reasons that we'd have to get into behind the statement itself that Madison favored giving judges more power or giving judges less power. I just don't think the statement that he's offering in the first Congress is about that, that what he's trying to say is, "Here's a reason to you people who are really resistant to the effort to create a Bill of Rights at all, that you might wanna create it. Now, what is that reason? Well, you know this thing that you guys like 'cause you're, like, kind of elitist and skeptical of popular authority and so on, you guys like judicial review. So I'm gonna offer you a reason that sort of resonates with where you're at. And even though I personally," now I'm Madison, "even though I personally am kinda skeptical about judicial review," which is something he expressed in a debate about the removal power like four days before, "even though I'm personally kinda skeptical about it, here's an argument that might help win you over." So I think he's doing a move there that is not entirely reflective of where he's at personally. I think he remains kinda skeptical of judicial power generally. Not to say he's, like, denying the ability of judges to engage in judicial review ever, but he's just a guy who thinks that political authority, is and ought to be principally in the hands of the people themselves through

1 58:24

representatives,

Speaker 4 58:25

and then he's making an argument as to how this is gonna be, uh, he's making an argument that'll resonate with his audience. Now, really importantly, there are a lot of pe- like, I'm basically alone in interpreting Madison's statement in the way that I'm interpreting it as not an embrace of the view that enumeration creates judicially enforceable rights. That's the conventional view of what Madison was saying. I just wanna emphasize, though, if that's what he's saying, his argument is in no way gonna convince any Federalist because the Federalists think the enumeration of rights is unnecessary, right? Like, so the, the conventional understanding of Madison's argument is a perfectly plausible reading of, the three lines of text in isolation, but it does nothing to advance the actual, argumentative aim of his speech, which is to convince a set of people to pass an amendment that they think is unnecessary. So if his argument is you really need to pass this amendment because otherwise judges aren't gonna be able to take hold of the, fundamental rights and apply them against state legislation, that argument is not gonna convince anybody in the first Congress who isn't some way already committed to the view that, uh, you need to have these rights, and the people he needs to convince are the people who think that we don't need to have these rights, namely his Federalist colleagues. Uh, so I- in my view, Madison personally is sort of still on the skeptical side, uh, but he's making an argument that's gonna Better resonate with the people that he's trying to convince in the first Congress

Judges Versus Legislatures

1 1:00:03

Get a- another student question, Luke Thompson. Yeah, thanks so much for your,

Speaker 7 1:00:11

for your talk. I'm a, uh, my name's Luke. I'm a first-year JD-PhD student here. uh, you mentioned in your talk that you don't want your intellectual history to be taken to deny the judicial enforceability of these natural rights. Um, and what, like it makes sense in terms of like the kind of categories of inalienable rights that there's, there's, there's some level of judicial enforceability there, and the positive rights determine enough it makes sense.

Speaker 4 1:00:30

Yeah.

Speaker 7 1:00:30

But in the other rights, it seems that in order to be enforced, they have to be determined to some degree. Right. And it just seems like the very task of determination to me seems like c- like characteristically legislative, like it's prudential like taking- Yes the principle into a, a particular case. Uh, in part, in, well, yeah, into a particular like, specification of that. Right. So do you have any, um, thing to say about how that instinct perhaps relates to the founding view or, or, or just generally?

Speaker 4 1:00:54

Yeah, good. So I'll talk a little bit about this tomorrow in reference to the Calder v. Bull, debate between Justice Chase and Justice Iredell. I'll just say sort of, stepping back from the specifics of that debate, that we can think about this, in terms of the legislature being principally responsible for determining rights because the legislature is the representative of the people, and it's ultimately the people's authority to determine their own rights, right? That's, that's in large part what I'm trying to say is like the rights themselves are not just about limitations on government, they're about the idea of self-possession of political authority, and that to have rights is about the authority to engage in legislation with, through representative legislatures. So principally, that authority has to be vested in representative institutions or potentially in, uh, the people themselves through prescriptive, development of customary law. so, uh, that's right. And what that means is that judges cannot be the first movers. Judges cannot be the ones who take a under determinant right and specify the details because that would be contrary to the basic point that the people themselves have to maintain their own rights. So this, the kinda notion that the Warren Court develops that when a right is enumerated, it essentially operates as a delegation of power to judges to map out exactly what that right entails in particular situations because we're skeptical of governmental power. that's the narrative that we generally adopt as modern lawyers coming out of all these really foundational cases that gunder- undergird like the way that constitutional law is taught today And that, that's fine. You guys can agree or disagree with that approach as a matter of normative judgment, but it's, in my view, not the way that the founders are thinking. So then do-- is there any room for judge, judge, judges to step in and, and question those determinations? and the answer is maybe, maybe, because you could think that even though legislatures have authority to act on behalf of the people themselves, that they're fallible, and sometimes they act for corrupt reasons. And so if they act-- if the legislature is acting in promotion of the public good, if they're doing the job that they're sent there to do, then that's that, and the response, if they've gone awry, is to elect new legislatures to change the law. But there might be, there might be situations where the legislature has acted in such a manifestly unreasonable way, or where the evidence of corruption or the evidence of partiality is so manifest that judges can step in. And so this becomes a really big deal in the 19th century. It's like the core thing that is animating the debates during the Lochner era and the core thing that's animating the debates about the scope of the police powers. Clearly, the framers of the 14th Amendment think that judges could recognize that a law that disables people from exercising civil rights on the basis of race is an arbitrary law. So stay tuned. We'll, we'll think through this a little more tomorrow.

1 1:04:22

Thank you. Open it up to, uh, Pr- Professor O'Connor. Yep. So I'm Dave O'Connor from the philosophy

Speaker 8 1:04:30

department, and I'm a fellow of the center. I, I was really interested in the brief comment you made about Madison's teleological view and about why you'd want to avoid, uh, overspecification or, at least specification that took on the wrong type of authority, in order to allow a kinda teleological development of the understanding of a right. th-that strikes me as a really interesting view. One way to understand that teleology would be that we'd get more and more reasonable or more and more rational. Another way might be more organic, that we'd kinda grow into it in a certain way. But another way to understand it is less teleological, that we want to allow space for politics to really happen, for political competition, for us to fight over it.

Speaker 4 1:05:35

Right.

Speaker 8 1:05:36

And, That might or might not. That kind of privileges politics over constitutional interpretation.

1 1:05:44

Yeah.

Speaker 8 1:05:44

That's my own view and part of what I don't like it when I hang around with lawyers. They, they give power to themselves by making constitutional interpretation, especially in the form that judges use, to, uh, try to control politics or to act as if they've opted out of it.

1 1:06:04

Yeah.

Speaker 8 1:06:05

And so I'm, I'm very interested in how you understand the teleological development of the doctrine of rights. How much of it is, so to speak, to protect vigorous competition, which, that's not teleological- Right in a sense. Right. I'm confident we'll get more and more rational.

1 1:06:31

Right.

Speaker 4 1:06:32

Yeah. No, thank you. I, I mean, I think there's, there's a combination of things going on in Madison's thought. so one is, he does have this view that the way that we can learn things, that there is a nature of politics, and the way we can learn things about the nature of politics is by studying history, by studying development, and that we can-- So, like, when he goes to, Philadelphia, he's engaged in this effort to create a, as best he can, perfect system of government. What does he do? Well, he studies all of these various confederations throughout history. And so that's reflective of a certain attitude about the nature of politics, that it's, like, more or less stable. uh, and yet there's this view that it's been improving, that we have come to a better understanding, of various things, including especially things concerning religious liberty over time. And so I, I do see that as reflective of this kind of mentality that it's not about God, like, moving all of the chess pieces around the board, but there is this sense that there is something there when we go back to study the nature of law. that said, I very much agree that Madison is also very interested in preserving self-rule for rinci- principle, for reasons based on representative government. that view is also very well reflected in James Wilson's thought, that James Wilson really doesn't have a emphasis in his-- He writes a ton about constitutional law and about law generally, and he's not focused on trying to codify rights. And that makes a lot of sense if you're somebody whose primary interest is in preserving rights through republican self-rule. so that, that's definitely where he's coming from. I'll, I'll add one other thing, that's, that's kind of interesting about this because Jefferson is also committed to republicanism, but wants to fix these rights in place. He wants to resist the sort of continuation of ordinary politics in the way that you favor. so what's up with that? Well, remember Jefferson's also the guy who wants to have a new constitution every 19 years, and so his mechanism for creating exactly the sort of recurrence to public opinion and to, the power of the people is not through the development of ordinary law over time, but through the regular development of fundamental law, um, which Madison thinks is a really bad idea. I'm kind of on Madison's side of that thing, that, that fight. But, uh, but notice the area of agreement, which is nobody here is saying, "Yeah, what do we really need? We need to give power to judges to make up legal rules that will limit democratic authority." nobody's saying that, and it's really an unthinkable thing, to make that sort of argument at the founding era. And I think that's a really revealing fact about founding era political culture. It's not to say that they disagreed with the idea that judicial review exists. Of course they agreed with that idea. but how and when did they agree with that i- idea? What did judicial review entail? And what I'm trying to say is it was there, but it was only in certain situations that judges could step in. and so we need to keep in mind the sort of broader, focus of their, their political thought and constitutional thought on the idea of self-rule. All

Speaker 2 1:10:11

right. Uh, Mr.,

1 1:10:12

Mr. Graff, right here in the front, and just wait for the microphone.

Speaker 9 1:10:17

Hello, I'm Warner Graff. I'm an '86 grad. eh, question on semantics or maybe definitions. Uh-huh. I've, I've seen positive rights juxtaposed against negative rights before- Yeah not necessarily natural rights. So it's a two-part question. On the, on- Yeah the, the difference between negative and natural rights, I looked it up while you were talking, so it, it, it said that natural rights were inherent in the personhood and negative rights were, uh, a little bit broader in that those rights could not be infringed upon by another person or another entity. So I don't know if you agree with that or not, but that's what was on Wiki. There's, there's a bunch

Speaker 4 1:10:54

of- And it- different dichotomies, and the one that I'm trying to focus on here is the difference between rights, so between natural and positive, is the difference between rights that are inherent in humanity, that exist in a situation where there is no government And those rights that are defined specifically in reference to governmental power. Okay, it- And so that's the key distinction. Now, the rights that you have against government could be negative in the sense that you mentioned, or they could be positive in the sense that, like, the government has a responsibility to provide you with an education, or the government has a responsibility to provide you with a universal basic income or something like that. And I, I was not trying to say anything about that dimension of negative versus positive.

Speaker 9 1:11:44

Okay. And that, and that was actually my second question. The, the positive rights that you articulated were positive rights that, if I understood you correctly, were... And it had a positive connotation. They were your agreement to be a citizen, therefore, the government has some rights to curtail in some way your natural rights. The positive rights, as I've heard before, is almost antagonistic. It's like, like you said, if you, you don't have a rightness, it's almost like a false right. You don't have a right to healthcare because it imposes a burden upon your neighbor to either pay for it or to conscript somebody to provide the healthcare. And so the positive right was actually alw- alw- I've always viewed as, as more Soviet, right? Like more negative. And, and I haven't seen it. So did you, you purposely make that distinction? Is that distinction well known and I just didn't know about it before?

Speaker 4 1:12:29

Yeah. So what I would say is, in general, the way that most of the founders are thinking about the rights that we're talking about when we, when I was referring to positive rights, is that most of those rights are gonna operate either as limitations on government, so that would be a sort of negative, way of thinking about, or that they're operating as things that the government has to provide you when it limits your negative liberty, uh, w-when it limits your liberty or property in some way. And so most of these rights are things that in some way are traceable back to a kind of basic natural rights framework. The exceptions to that are the situations where the rights themselves are in some way tied to duties that involve civic participation. So you may have, in some way, a right to, uh, it, it, A lot of people think you have a right to vote, for instance, or you have a right, jury service or militia service or something like that. And so that, that's where the kind of negative versus positive thing, breaks down. I do think this will be a helpful time, though, to add one kind of general point of clarification. This is just for the law nerds in the group, so don't worry if you don't totally follow this. But the, the, the use of positive that I made in my talk is related to the idea of positive law or positivism. So it's not about negative versus positive, it's about the idea that there are, Certain sources of law that might exist outside of a particular human society, and then there are certain sources of law that are created by that human society. And when I was talking about positive rights, mostly I was just talking about the way of defining what the right is, rather than talking about the source of the right in, in type of law. tomorrow, uh, actually, especially on Friday, I'm gonna talk a little bit about posi- the development of an attitude, uh, that we often call positivism, which is the i-- as used in some writings, is about the source of law being only an enacted law, that positive law is stipulated law by somebody with authority to promulgate law. So the legislature creates positive law, and one of the ways that some people define positivism is in reference to the idea that the only valid source of law is legislatively enacted law, or the only sort of law is, it might also include constitutions that are enacted, or it might include even judicial opinions that create law on a sort of quasi-legislative basis. One of the things that I'm trying to emphasize in the lecture today is that the founders don't have that view. The founders think that positively enacted law by legislatures, by constitutional drafters and so on, is one way of making law, but it's not the only way of making law. You can also have law that is recognized through prescription, and you can also have law that is recognized as being part of the positive law implicitly because of this underlying social compact. So it's a way of thinking about the sources of law that are kind of different than the way that people often talk about today when they talk about the only sources of law being positive.

Speaker 2 1:16:17

Before we, uh, thank our speaker, two invitations and three thank yous. The invitations are to tomorrow. The, lecture title tomorrow is Federalism and the Decline of Natural Rights. Yeah. Correct? Uh, three thirty over in, uh, eighteen forty-two. Eighteen forty-two is in the football stadium. You definitely do not have a natural right to be in eighteen forty-two. second invitation, we have a nice reception, prepared for you. Which leads me to my first thank you, which is, especially to the staff who, especially with the, the room change, has, has been working very hard, including on setting up our reception to Cody Richards for the introduction, uh, and then especially to my students in the 1776 course. Right now we're doing a one credit course, uh, called 1776 and the ideas that made, uh, uh, the modern world. And, the students from that course are coming to, either this lecture or tomorrow's lecture or Friday. So a special thanks to the, uh, undergraduate students here from, from my course. And please join me in thanking Judd Campbell.