1776: The Ideas that Made the Modern World, Part 8: The Legacy of Natural Rights

Episode Topic: The Legacy of Natural Rights

How can we best understand self-governance and see a path forward for a free and flourishing society? Sift through the foundational ideas of the American project as you weigh the enduring power of natural rights. Navigate complex legal histories to grasp how ancient wisdom shapes our modern liberties.

Featured Speakers:

• Jud Campbell, Stanford University
• Philip Hamburger, Columbia University
• Thomas West, Hillsdale College

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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

Speaker 7 0:00

Good afternoon and welcome. My name is Don Stelluto, and I serve as the co-director for the Center for Citizenship and Constitutional Government, also known as the CCCG. On behalf of the CCCG, it is a pleasure to welcome those here and those watching today's lecture via live stream and its recorded form later. Before progressing any further, let me offer our thanks to the CCCG staff, Anna, Lauren, Harv, Helena, and Tyler. Without these folks, the things we do would not be successful. Inaugurated in the fall of twenty twenty-four, the True Lecture series is made possible by the generous support of Tad and Jen True. Their vision is that this annual lecture series would foster the production of scholarly manuscripts of great significance by major scholars that relate to the principles and practices of American constitutionalism. The Trues could not be with us here today, and on behalf of the center and all of us here, I extend our warm gratitude to Tad and to Jen, whom I know will be enjoying today's presentation soon. For those who participated in last year's inaugural True Lectures with Professor John Witte, it is a pleasure to note that his lectures on religious freedom have now been published as a wonderful new book with the University of Notre Dame Press. It is titled The Legal Foundations of Religious Freedom: Human Rights in the United States and Europe, and I recommend it highly. This is my copy. It is not for sale. And that's not to put any pressure on you, Judd The Dominicans, otherwise known as the Order of Preachers, often refer to a phrase derived from the Summa Theologiae of St. Thomas Aquinas that is intended to express an ideal in the Christian vocation. The phrase directs the individual to contemplate and to share with others the fruits of one's contemplation. This call to intellectual engagement for the good of others is a crucial part of the mission of the CCCG. For the past two days, we have listened, discussed, and contemplated together with our distinguished, distinguished guest, Judd Campbell. In a lecture Q&A, the post-lecture receptions, and in meals with students and faculty, the conversations have been rich and probative. Today, we complete our three days of thought and conversation sharing the fruits of our contemplation. Today, our shared, our shared contemplation with Professor Campbell will be enriched by two additional distinguished scholars who will serve as respondents and commentators. It is a pleasure today to welcome, I think to welcome back in, into this role Professor Tom West and Professor Philip Hamburger. Professor Tom West serves as the Paul Erman Potter and Don Tibbetts Potter Professor in Politics at Hillsdale College and Senior Fellow of the Claremont Institute. He is the author of The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, also Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America, and more than thirty scholarly articles. Professor Philip Hamburger is Maurice and Hilda Friedman Professor of Law at Columbia Law School. He also serves as a nonresident senior fellow at the American Enterprise Institute, also known as AEI, and the CEO of the New Civil Liberties Alliance, an organization dedicated to protecting Americans from threats to their constitutional freedoms. He has served on the board of directors of the American Society for Legal History and is a member of the American Academy of Sciences and Letters and of the American Academy of Arts and Sciences. Professors West and Hamburger will offer their responses immediately following Professor Campbell's lecture. After their comments, Professor Philip Munoz, the director of the CCCG, will moderate a discussion with all of our guests before opening the floor to questions and answers Judd Campbell is a professor of law and the Helen L. Crocker Faculty Scholar at Stanford Law School. His work focuses on constitutional history and First Amendment law. He is the author of articles in the Harvard Law Review, Stanford Law Review, and Yale Law Journal, and he brings to his scholarly work a range of related experiences, including clerking for Judge Diane S. Sykes on the US Court of Appeals for the Seventh Circuit, and for Judge José A. Cabranes on the US Court of Appeals for the Second Circuit, as well as his experiences as executive director of the Stanford Constitutional Law Center. The title of Professor Campbell's talk today is The Legacy of Natural Rights. Please join me in welcoming Professor Judd Campbell.

Speaker 8 5:21

thank you so much and welcome back. Over the past couple days, we've explored the older idea that American citizens have certain fundamental rights grounded in each state's social compact and extended reciprocally across state lines through Article Four's conferral of general citizenship. These rights are implicitly recognized in the Ninth Amendment, and again in the Privileges or Immunities Clause of the Fourteenth Amendment. But neither of those clauses was thought to create new rights. Other parts of the Constitution's text identify certain general fundamental rights by name, but enumeration did not legally freeze those rights or necessarily spell out their content. Back when rights came before government, it was second nature to think that fundamental rights could be grounded in natural and customary law. And when those rights were under determinant, the people themselves re- retained the power of determining those rights, both through their legislative representatives and through prescriptive assent to customary law. At the same time, the written Constitution also reflected and helped inculcate a more positivist attitude toward fundamental law. For one thing, constitutional text could be used to create new rights or to add legal specificity to existing rights that were under determinant. But constitutional text was especially important when it came to federal limits on state power. As the Supremacy Clause says, and as Chief Justice Marshall's opinion in Barron versus Baltimore reaffirmed, those limits needed to be enumerated. For much of our constitutional history, these two paradigms coexisted: a social contractarian paradigm and an enumerationist paradigm. Now, sometimes written constitutions blended the two by using the text to clarify the content of existing rights, or by extending general fundamental rights to the citizens of other states, or by making those same rights enforceable in federal court against state governments. Of course, the widespread acceptance of these paradigms didn't settle everything. People often disagreed about the content of particular rights or how to read particular clauses. But while the underdeterminacy of social contractarian principles often helped facilitate these disputes, these underlying ideas also made those debates intelligible. Provisions that may look to us like an inkblot made sense for generations of Americans who took for granted things like the existence of natural rights. So what does that mean for us? To some extent, recovering these ideas can make interpretation easier for originalists or for others who seek to use history in modern constitutional law. By understanding how the founders thought about the nature of rights and different modes of enumeration, we can better uncover the content of their original law or more accurately appraise the original meaning of the text that they produced. Understanding these ideas can also reveal areas of high-level or mid-level agreement, even when people disagreed about the details. Although I didn't have time to develop it, the idea in this lecture, some of my earlier work shows how founding era disagreements about free speech and press were often predicated on a shared understanding of those rights as natural and customary rights. In any event, if you're inclined to use history, in modern law, it shouldn't take much convincing that knowing more stuff about our past is a good idea. But recovering the history of American rights jurisprudence also poses some very substantial challenges to modern interpreters who look to history. Many originalists think that uncovering the original meaning of the text is not only the most principled way of adjudicating cases, it's also a ref-- a reflection of what the Constitution is. The Constitution just is a historically enacted text, and so its meaning must be its original meaning Older ideas of rights complicate that simple story. For one thing, enumerated rights provisions often pointed the reader elsewhere to some other body of law. Rather than specifying what judges should do, the text says, "Go look over there." So should an originalist go look beyond the text just as its original meaning instructs? Perhaps so. But isn't the whole idea of looking to an evolving body of customary law or to some inchoate notion of natural rights, isn't that the very essence of non-originalism? As Justice Scalia said, "The Constitution is dead." Maybe he was right. But what if Scalia's way of thinking was itself just a historically contingent response to the jurisprudential revolution of the twentieth century, rather than a timeless feature of American constitutionalism? What's an originalist supposed to do then? Some self-described originalists are called original law originalists. These folks are trying to recover an older way of thinking about the limited hook of constitutional text. My good friends Will Baude and Steve Sachs, also occasionally my co-authors, are leading that charge with gusto. They're even questioning one of the most foundational decisions in modern law, the Supreme Court's 1938 ruling in Erie Railroad versus Tompkins, which embraced a binary vis- division between state and federal law, and which mostly rejected the idea of general common law. I think they have some good arguments, but it would be tremendously difficult to turn back the jurisprudential clock. Fully returning to earlier ideas would require significant changes, to our constitutional culture. It would require recovering older ideas about social contract theory and general fundamental rights and natural law. It would require changing how professors teach classes and how law- lawyers argue cases. But perhaps most importantly, it would require having a fundamentally different expectation about the role of the Supreme Court in our national life. Today, our legal culture generally celebrates the counter-majoritarian role of the Supreme Court, and that aligns with our cynicism about politics. The founders did share some of that skepticism, but they also envisioned a system of republican remedies for the diseases of republican government. Occasionally, that approach included specifying rights through constitutional text in ways that judges could enforce. But by and large, the founders deliberately avoided that path. Instead, they sought structural solutions, things like dividing powers across different governments and across different branches, ensuring civic participation in juries and militias, and safeguarding the educational and religious bulwarks of a free self-governing society. Throughout these lectures, I've tried to show that our Constitution's text is often premised on the existence of natural rights and that we can better understand that text by recovering earlier ideas of general fundamental law But the deeper point is that earlier ideas of constitutionalism were originally much broader and richer than simply interpreting and enforcing a text. For the founders, maintaining rights mostly entailed maintaining popular self-rule and maintaining the public and private institutions and broader civic culture that enable republican governance. So I'm enormously grateful to the Center for Citizenship and Constitutional Government for its efforts and for this opportunity, and I thank you very much for your time and attention. Thank you

Speaker 10 15:05

Good. Thank you, Judd The, uh,

Speaker 9 15:09

I wanna thank, Bill Lunos and Don Stelluto and the staff of the CCCG for this lecture series. and of course, Doug Campbell for his lectures, some of which I'll quote. So some of you, but weren't here for all three, so I'm gonna quote a couple passages from the earlier ones in, in my, in my comments right now.

Speaker 10 15:29

I'm not sure everyone can hear you. You may just make sure this time.

Speaker 9 15:33

All right. Is this better? Okay. It's refreshing to encounter a law professor who actually understands and seems even to sympathize with the founder's social compact theory. Uh, I think of Eric Claes and Philip Hamburger as two of the only others. I mean, there's some... I'm sure they're out there, but, there's, it's a handful. I'll start with some areas of agreement, and here I'll quote, Judd's earlier talk. "Nat- natural rights," he said, "were things that individuals could do in the proverbial state of nature without a government." So ba- he's sketching the basics of the founder's theory here. These natural rights included the right to think, to speak, and so on. Natural human capacities were natural rights. These rights were limited in two ways. First, by natural law, meaning notions of reason and morality and justice. For instance, nobody had a natural right to assault others or to defame their reputation. And second, individuals would, could consent to give up some aspects of their own, of their own liberty or property, although there were natural right, right limits on those, on those, on that sort of thing too. Uh, for instance, people could not agree to entirely abandon their rights and become slaves. So this, I, all, all of this I agree with. Uh, the question though is, why individuals would give up any of their natural rights to government, and, uh, a- and here, I didn't see this question discussed. I think, I think the, uh, the big question that's, I think, and that, that for me divides, Dr. Campbell's approach with mine, Professor Campbell's approach with mine is, is, uh, is, is what do we look to to understand the Constitution and natural rights? Uh, and his view, broadly speaking, is look to the provisions in the Constitution that, uh, allu- that are, that in some ways can be seen to be pr- limiting government on behalf of natural rights or, or else, point towards general constitutional, rights of citizenship that was the broad background assumption for the natural rights thinking of the, of, of lawyers in the first century or so of our existence. whereas I am looking more towards what I regard as the elephant in the room, the big question: What does the government actually need to do to support and protect us, to protect our rights to life, liberty, and property? and- And, uh, so I'll start then, I, I'll start then with Madison, a quote from Madison. "If men were angels, no government would be necessary." but men are not angels. And, in a state of nature, says Madison, "The weaker individual is not secured against the violence of the stronger, and that's why we need government to protect the weaker." Hamilton, in The Federalist, puts it this way: "Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint." what these, what these founders were saying is that government is, is instituted to impose violence, prisons, and war on men with unruly passions, and that's what protects our rights paradoxically, right? So mostly when we talk about constitutional rights protections, they're not about that. They're about restraint, gov- restraining government in, in terms of going over, going too far in that direction, excessive use of violence and constraining. Uh, but the fundamental way to protect rights is, is that, is, is through that constraining, use of coercive power in se- in securing natural rights. now, there are two ways in which the government compels the, passions of men to conform to the dictates of reason, or two, or two broad policy areas, I guess I should say. One is in foreign policy. Defense against violence from abro- from abroad is the first and most urgent means of securing our rights. This is not commonly noted, but it is. you might be killed if somebody invades. Uh, and so right to life has to be protected by armed forces. the, the Massachusetts preamble, which I found to be a helpful, uh, Massachusetts Constitution in general, but, but the preamble and the Bill of Rights a helpful overview of a lot of these features of the founding that I'm talking about here. The preamble clarifies government's foreign policy role in the following way: "To secure the existence of the body politic and to protect it." That's it. Uh, and, and of course, Massachusetts also adds that policy, of course, is delegated to the federal government, and so we're not going to do that here in Massachusetts. But that's the first task of government at some level, has to be done. The second means of securing our rights is domestic policy, to protect citizens from violence against other citizens. This requires, above all, firm enforcement of criminal laws that punish harm to life, liberty, and property, and it also requires civil law courts to enable lawsuits for, to recover damages in cases of injuries that don't, that don't rise to the level of crimes. And society has, And so, and so what Massachusetts Constitution does, uniquely is just spell those two things out. Uh, and on, with regard to the criminal law, quote, Every individual in society has a right to be protected by it in the enjoyment of his life, liberty, and property according to standing laws. So that's the criminal law, that's punishing crime against, uh, person and property. P- secondly, Mass- Ma- uh, Massachusetts adds, "Every subject of the Commonwealth ought to find a definite remedy by having recourse to the laws for all injuries or wrongs which he may receive in his person, property, or character," unquote. So there's the civil law, civil lawsuit. in sum then, government's principal means to secure natural rights would be, uh, in this view, in this view, this approach, preparing for and fighting wars and law enforcement. A- and, and these... And then broadly speaking, in our original con- founding, these two things were delegated to two different levels of government. Broadly, the federal government handled foreign policy, the states handled domestic policy. And through this division of labor, the federal and state governments together secure our rights. Now, all of this requires great powers on the part of government, both- at both levels. Government, of course, by, by exercising coercive power against, foreign enemies or against criminals, become- is capable of becoming the enemy of the natural rights that it is given those great powers to protect. And here's where many of those constitutional rights that Dr. Cam- uh, that, that Campbell, uh, talked about come into play. Due process limits in particular on prosecutions and lawsuits serve this purpose. trials and punishments certainly are necessary, but those who are accused must be given the opportunity to defend themselves in court All right, now let's turn to consent. Campbell puts a lot of weight on consent, and he mentioned that today in the, in the summa- in the summation he presented. government by elected representatives in his account is fundamental to securing rights, which I think is true. On the other hand, he says representation what was the... On the one hand, he says representation was the very essence of what it meant to have a free society composed of free men. That is, people who continued to control their own natural rights, unquote. And this control of their own natural rights, he argues, meant that the representatives, within very broad limits, could abridge natural rights for the sake of the public good. In other words, he says, quote, "Preserving natural rights was mostly about preserving self-rule." Unquote. This formulation Makes me wonder whether there is any-- what is left for the individual in the face of the majority's decisions about the common good. Now, he does mention the general const- general law of citizenship as a, as a fundamental limit on government, which I believe is correct, and that we'll get to in a minute. but I think it's important to clarify that, the majority, uh, is not simply allowed to do whatever it likes for the, for the common good, which is the impression he sometimes gives. I don't think he actually holds that view. But it's important to clarify that the, uh, limits on the majority always ha- always, I think, we us- were understood in light of what it takes to maintain a free society. and that would mean, protecting each individual in the society in his own individual rights, as far as that's compatible with the protection of everyone else's goods, uh, everyone else's private rights in society. And, uh, so, uh, the, But let me add another point here. Uh, for the founders, go-government, yes, derives its just powers from the consent of the governed. But, it's useful to remember, I think today especially, that there is a, a possible conflict between consent of the governed and security of individual rights. Famously, the case of slavery, where the people, Americans at the time of the foundings, approved of slavery through majorities. and if that consent, if that conflict becomes an enduring and irremediable conflict, then there's a priority of rights over consent in the founding, which I think had- didn't, wasn't acknowledged here. I think that needs to be pointed out. an example, Jefferson and Hamilton famously denied that republican government was possible in Latin America because, uh, the quality of their people and their customs, they said, were not compatible with re- with it. In, the extreme case, Madison talks about, in Federalist 51, nothing less than the chains of despotism can restrain them from destroying and devouring one another. Madison referring to a case where people lack so much virtue that they can't even restrain themselves the Declaration, of Independence, going back to the major, the overall point here, mentions two to- two themes, uh, or two criteria of just government and good government. One, for securing these rights, which I've talked about in the first part of my re- comment. Second, consent of the governed, which I'm talking, which I'm talking about right now. And, and so, a- and, and so, um, given that potential conflict between consent of the governed and security of rights, uh, which I think we see, uh, in much, in, in, in many, many examples of throughout American history, it's important to remember the o- overall point. What's the, what's the purpose of all of this? Uh, and, and, uh, so one of the points made by, Campbell in his first lecture was the idea that consent is largely constructive in the founding, as many people just didn't have the right to vote, notably women, but many others too. Uh, free Blacks in many cases, poor people, children, of course. Uh, and, and but, but why did they do that? They did that because they thought some restrictions on consent, uh, are valid if they actually provide greater security of individual rights. Madison, defending these various limitations on the suffrage, used that argument, among others I turn now to the question of the, the common good. in the, in the Massachusetts preamble, the common-- So what is the common good? It's, it's, you know, in the Massachusetts preamble, uh, I quoted earlier, "The common good is defined as the, to secure the existence of the body politic and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights and the blessings of life," unquote. that's the common good. It isn't that there's some other higher common good beyond security of individual rights to misunderstand. Everything government does, even things like education, pr-promotion of virtue, building statues to honor, dead statesmen, all are meant to serve that end, I think, from the point of view of this natural rights framework that is being discussed or that is being presupposed throughout this period in the early American Republic. Uh, and, the, uh, and so the, the question is, uh, when, when the people sacrifice, so Campbell quoted the, uh, Essex Resolve of Massachusetts state papers. This came out in 1770s. You don't need to, but the, but, you know, it's a good statement of a lot of the principles that we're talking about here, the founding understanding of law and natural rights. Uh, and Essex points out that there is, that, that government might require the sacrifice of one part of our inalienable natural rights. One part, government might, might ask us to sacrifice some part of our alienable natural rights, like the right to property, or the, or the right to, uh, choose any profession we like, you know, without any restraint whatsoever. there might be some limits on that. You might have to pay taxes. There might be some professions where the, where you're gonna have to get a license, medical maybe. Um, but, but says Essex, there is always an equivalent every man receives in a well-governed society for the rights he has surrendered. And what is that equivalent? The security of his person and property. So you see the point I can... Yes, you may have to give up some of your rights, it's put, but it's for the purpose of securing all the others as, as even better than they otherwise would be. And so it's always comes back down, the common good always comes back down to the collective individual good of the people throughout the society and the conditions that enable that good to continue, uh, in the future. the, on the, on the rights of citizenship question the, uh, the common good, c- Campbell argues that, that, that the, that the older understanding of the common good was, and, and what, what natural rights mean, was tied closely in a pr- in a practical way to this concept of general rights of citizenship mentioned in the Constitution's Article 4 and then the 14th Amendment, the privileges and immunities of citizens. And for Campbell, which, which I agree with, I think that's, that's correct. the... But, but as he describes those rights, they are a sort of amalgam of the rights of Englishmen, the common law, natural law, natural rights, religion, and tradition. Uh, and, and, and if that's right, then it's... How then does, you know, then it- if that's right, doesn't Oliver Holmes have a point when he says that the, the common law, he ridiculed the common law as a brooding omnipresence, that, that was really ultimately man-made and, and therefore just a collection of conventional opinions and ideas rather than something rooted in reality in a deeper sense. And what I think the an- I think the answer to Holmes, is, is, is, would, I would make that, give that answer by clarifying a little bit what those common rights of citizenship fundamentally are all about. it's, yes, it's true a lot of those rights seem to be based on tradition and custom, but which traditions and which customs? And which... Because some of those older traditions in the English common law were rejected in the found- And in fact, the common, the, you know, s- privileges of citizenship, uh, insofar as they contain, let's say, the older common law tradition, are always limited by what is compatible with the principles of natural law and natural rights as the founders understood them, articulated in the Declaration of Independence, Massachusetts Constitution, and many other places. So in other words, yes, the Unit- the, the, the idea, broad idea of what citizen rights ought to be is partly traditional, partly natural, and so on, but there was always a- an authority over that. There was always a principle that de- that determined which parts of the tradition became part- became incorporated and which parts were dropped. Uh, example, primogeniture was dropped, uh, entail was dropped. The idea that you could limit the, your, limit the use of your, of a piece of property through a will that no one else could later change. That was viewed as a violation of natural right. It was part of the old British common law. It was rejected and thrown away. in fact, overall, I would say the, uh, the, the, the best explanation, simple explanation of this point that I'm making is in a 1794 Maryland case, Campbell v. Morris, uh, and in this opinion, Justice Chase, Samuel Chase explains in agreement with Professor Ca- with Campbell that the Privileges and Immunities Clause is not a n- nondiscrimination clause, but rather a clause referring to the general privileges of citizenship, which he then, it clarifies by say- stating, quote, "Any civil right which a man as a member of ci- civil society must enjoy." End quote. me-meaning he's giving you a natural rights definition of privileges of citizenship. A man as a member of society must enjoy in order to be able to exercise his natural rights effectively. And, and, and Justice, uh, Campbell rightly quoted, uh, the Dred Scott decision yesterday as a good example. I mean, here's where Toni actually got it right. And it, uh, it pointed out that, if Blacks got citizenship, then they would have all these privileges of citizenship. And, and the list of them is shown- They're all basically natural rights. the right to travel, the right to choose one's place of residence, liberty of speech, hold p-public meetings, keep and carry arms, and so on. These are things that you would- you can do in a state of nature, and they're privileges of citizenship because not all foreigners have that necessarily. So non-citizens might need a passport to travel. They might need a permit to bear arms. They might need a green card to get a job. So that, that distinction, uh, is, is the, is, is what, is how they, is how they made sense of that, of that, of that point. So if I can sum up then, the, the privilege, the, the idea of natural rights and natural law in the founding, I think has to be understood in light of, of, the big picture, how government secures our rights, and then, uh, se-secondly, consent, but consent subordinated to security of natural rights. third, the common good, but the common good understood as, uh, not as essentially the greatest possible protection of the individual natural rights of all the citizens. And, and then fourth, citizenship, as rights of citizenship as grounded in natural law fundamentally, and only making use of tradition and customs from the past, in a subordinate role. Thank you.

Speaker 11 34:49

Thank you. I first want to thank Professor Munoz, the beautifully named True family. It's quite a wonderful name. and I want to thank Notre Dame, always a bastion of serious inquiry, a model for other universities, not to mention any in a disparaging way. And of course, Professors Campbell and West. It's an honor to be here. Thank you I'm deeply grateful to Professor Campbell. He has single-handedly reinvigorated interest in natural rights. the two of us were perhaps the only folks teaching this, well, one or two others. and then along comes Johnny Campbell, and suddenly large numbers of students are fascinated by natural rights. That's quite an achievement, really. And he's offered a distinctive original perspective that already is stirring fruitful debate He is surely correct that natural rights were central to the founders. Although many lawyers don't care about natural rights, as he observes, they should care. They should care profoundly, and s- and some of us do. Natural rights, especially the founders' vision of natural rights, remain very important, and for that reason, we need to understand their vision of it. I, I must say I agree and I disagree with Professor Campbell. and I think I can have three chunks of agreement and disagreement, and let's start with what's most agreeable. on the 20th century, I largely agree with him. He's very nicely framed our 20th-century situation that we've inherited. On the 19th century, I'd be aware on some parts, a- and part of, and part of my concerns are very nicely expressed, uh, beautifully so by Professors Belia and Clark in an article I recommend on general law. When it comes to the 18th century, then I confess I'm even more nervous. And, and I want to explain why. I could say that I grew up in the 17th and 18th century. I know it well. I don't recognize this. I'm actually quite serious about that. I grew up in a house in the woods with all those books. how should I describe it? Uh, let me describe it first at a very general level. I want us to imagine a natural rights donut. Really. If you prefer a bagel, that's okay, but I prefer donuts. Uh, and what do I mean by that? Natural rights are our core rights. They're the very central things that need to be funded. Uh, Blackstone points out that the first order of rights and the a- acquired rights are, are merely secondary. The reasons for forming government. So they're at the core. And what I worry about in Professor Campbell's vision of our constitution is there's a great big hole in the middle where the natural rights are, that there are greater protections at the periphery than at the center. We can go into more detail on that, but that just sums up everything.

Speaker 10 37:49

And we worry

Speaker 11 37:49

about a natural rights donut. Now, I could stop there because that, that's the gist of it, but I, I won't, because I, I, I have a more specific goal today. my goal is much narrower but I think crucial. I, I want to ask, what was the relationship between natural rights and the courts at the founding? In particular, were natural rights judicially enforceable? Essentially, we're talking about judicial review, judicial decisions enforcing constitutional limits. This is one of the key developments in what we loosely call the rule of law. If you think of it, the developments over the millennia, we begin first with governance by law. We get some societies that live by enacted rules, not just exertions of power, not just the edict of the day from the king. And then second, we get laws made by us, the people, or our representatives, not just by the king. Third, to develop laws that limit government, right? And then fourth, we get judicial enforcement of those limits. America refined each of these ideas, and that's why it is, I think, a profound, if very imperfect, experiment in lawful government. And it's most remarkable, of course, for the judicial enforcement of constitutional limits. But what exactly was judicial review? In my notes, I have quotation marks around it, and I want to explain why. The very term judicial review is misleading. It's a twentieth-century label for a judicial power to hold statutes unconstitutional, and it's that, and therefore it's been used to suggest a great deal of discretion in the judges. That makes it also seem not only a matter of power, but also something of a novelty. It must have been an extraordinary feat for the judges in the eighteenth century to create such a power, could only have been done by the highest courts, and perhaps only finally Marbury versus Madison, 1803. But eighteenth-century Americans don't talk about judicial review. Instead, they talk about judicial duty. This was an ancient duty, the duty of judges to decide in accord with the law of the land. Uh, the civilian continental version of this was just the duty to decide accord with law. The English beginning thirteenth, fourteenth century begin to rephrase it as to decide in accord with the law of the land, their law, the law of England, in our case, the law of the United States or the law of your particular state. If the law of the land guaranteed a right, then the judges had a duty to enforce it. In other words, it's a general duty, a general duty to enforce the law So why does this judicial, judicial review, or perhaps more accurately, judicial duty matter? Because other mechanisms for enforcing law against government often fail, right? Judicial review is not very robust, but political enforcement is even less reliable. Mere politics can't protect rights, but it can give us, at best, a politically defined liberty, not a liberty under law. And so judicial review or judicial duty, as I prefer to call it, is actually tremendously important for legally defined rights. And so we've therefore long needed the courts, and they have been protecting our freedom for a long time, since at least the Middle Ages and against, statutes, in the Americas. Sorry, in America, the American states, and then against state statutes after 1776.

Speaker 10 41:24

Now, Professor Campbell has a very

Speaker 12 41:26

interesting argument about judicial review.

Speaker 11 41:30

In his view, as I understand it, and it's a sophisticated, subtle thing, so I hope I get it right here, but in his view, declared rights on the whole were not considered judicially enforceable. There are variations on this in his writings, in his lecture, but on the whole, declared rights were somehow less enforceable. Translation, many constitutional rights that are essential are not enforceable in court. Now let's examine Professor Campbell's argument carefully. What exactly is he saying? He distinguishes declaratory rights and specificatory rights, and he says that constitutions could specify rights in whole or in part, but constitutions often declared pre-existing rights. Now, what rights were declared? This is especially clear, he say-- it seems, uh, to give natural rights. Natural rights are quite distinctively declared rights. But why is that significant? Because, he says, natural rights were relatively indeterminate and therefore judicially unenforceable. That seems to be at least a, a theme beneath the surface of his writings and hinted at in his lectures. Now, this is an innovative

Speaker 10 42:40

vision of natural rights, at least of enumerated natural rights. In fact, it reconfigures the history of judicial review.

Speaker 11 42:48

Professor Campbell's central example of declared natural rights are the First Amendment's freedoms of speech and the press. These are essentially natural rights, perhaps with some customary additions, he says. And in that sense, they were declared not specified. In fact, at one point he says, uh, the first-- the, the speech and press clause is a purely declaratory provision. That's a quotation, and therefore it's mostly judicially unenforceable. From this perspective, the enumerated natural rights are mostly unenforceable, not just speech. We can have gun rights, and so forth. Now, that's just a summary of a complex argument, and the breadth of the argument is unclear. In past scholarship, Professor Campbell has spoken of what was widely agreed to by elites. In his lectures, he focuses on Madison and the drafters of the Bill of Rights. Either way, the claim is natural rights were not as enforceable as we might have thought, and that gets my attention. But I think it should get your attention. If true, it's extraordinary. It completely revises early American history. It undermines the generality and legitimacy of judicial review, so-called. It challenges our sense of ourselves as enjoying enforceable rights, and it thus transforms our understanding of both past and present. It means many crucial rights enjoy only legislative protection. It means minorities are subject to majority opinion, and it means individuals are at the whim of political headwinds. So we must ask, is the theory true? Now, many questions profess about Professor Campbell's, theory, and for details, I can recommend my article, uh, if you're very patient in your reading habits, Campbell's Constitution, which is up on SSRN. But today, I want to focus on this judicial enforcement issue, where declared rights, in particular natural rights, judicially unenforceable or less enforceable. Now, this is not just a matter of armchair theory. I'm interested in natural law theory, but this is not just a theoretical question, it's a matter of evidence. So let's consider two types of evidence. First, some commentaries and second, cases. And of course, you know, we can't delve deep into the evidence today, but it's nice to pick out a few pieces. What will it show? Just a little hint ahead of time. I think we'll see that the judges have a duty to follow the law of the land. This duty was general. It applied to all law, all the law of the land. So if you're in Maryland, it's the law of Maryland, United States, of the United States, and there was no exclusion for declared natural rights. So first, let's look at commentaries. Did any person in the founding generation actually say that declarations of natural rights, more than other rights, were judicially unenforceable? I'm not sure I can find any such statement. There are statements that could perhaps be understood that way if you define some of the words in ways that, you know, you slant that way. But I don't know of anyone who actually says this. Nothing. In fact, some say the opposite. James Iredell was a distinguished, perhaps the most distinguished North

Speaker 10 46:09

Carolina

Speaker 11 46:10

lawyer in the post-revolutionary period. In 1786, he urges in a famous, now famous essay, the North-- he urges the North Carolina judges to do their duty by enforcing North Carolina's jury right. And he explained the importance of that judicial duty not by focusing just on jury rights, but by talking more generally about the duty and focusing actually on unalienated, as he puts it, natural rights. He said express provisions for personal liberty reserved as unalienated rights were not left at the mercy of any assembly. So here we have the only pre-constitutional essay on what we call judicial review, and it emphasizes judicial enforcement of natural rights, even though the case in front of him is a matter of jury rights. Then let's look at James Madison. James Madison introduces the Bill of Rights. Uh, it is, as Paul Finsen puts it, a reluctant paternity, but he, he

Speaker 10 47:07

comes around to doing it.

Speaker 11 47:09

And in the course of his speech, he makes three statements tied together, but ma-- three distinct statements about judicial review, and I want to talk about just, quote, one of them for the sake of time. He says, "The courts will resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights." So it's a declaration of rights as he sees it, and he says the courts will resist every encroachment upon rights expressly stipulated for. He did not exclude natural rights. so why did judicial duty not exclude rights? Remember, it's 'cause the duty of judges extends to all law, not just portions of it. You can't just say natural rights aren't included. Now let's look at a second sort of evidence, the cases. The cases do not support the idea that natural rights were judicially unenforceable.

Speaker 10 47:57

Indeed,

Speaker 11 47:58

they may seem to suggest the opposite. The United States Constitution has something called the Contracts Clause. It protects the natural right of contract. Natural law establishes a duty to adhere to one's contracts and thereby a right to contract. And this is actually crucial in natural law theory. Why? Because you cannot have a contractarian theory of committing g-- forming government unless there's a right to contract in the state of nature. It's in some ways the most fundamental of natural rights. So the Constitution's Contracts Clause says no state shall pass any law impairing the obligation of contracts. This is a response to the chaos, um, in Rhode Island, uh, where a contract, where obligation of contracts was impaired

Speaker 10 48:43

quite severely.

Speaker 11 48:45

was this unenforceable, this clause, because it's a,

Speaker 10 48:47

a declared natural right?

Speaker 11 48:49

in the very first cases after the Constitution that hold a statute void, what was at stake? The Contracts Clause. There are two Rhode Island cases in Bristol and Washington County since seventeen ninety-one that hold Rhode Island Substitute Act violated the Contracts Clause. And then in seventeen ninety-two, the US District Court or the District-- Circuit Court for the District of Rhode Island in a case called Champion and Dickinson versus Casey holds that Rhode Island resolve violates the Contracts Clause. A resolve was a way of getting around having a statute. So what this means is three of the earliest post-constitutional cases enforced an enumerated natural right. And by the way, it was remarked long ago by Charles Warren that these cases provoked no opposition and were not

Speaker 10 49:35

controversial

Speaker 11 49:37

So at the very least, it seems that the evidence does not really support Professor Campbell's views that declared natural rights were somehow exceptions from judicial enforcement. On the contrary, it seems to suggest the opposite, that there are expectations of enforcement and the reality of enforcement. Judges had a duty to decide in accord of the law of the land, and there was no natural rights exception. Now, having gone through the evidence, let me just add, I think the judicial-- We cannot underestimate the importance of judicial enforcement of natural rights. It still matters. in between twenty twenty and twenty twenty-four, the government from the White Hou-- the White House, eighty FBI agents were assigned to this, imposed social media censorship. Sometimes they cajoled, sometimes they overtly threatened social media companies. These are the biggest, wealthiest companies, and they felt threatened. millions of posts were suppressed, and this severely damaged many Americans, including some of our clients at the New Civil Liberties Alliance. in my spare time, I'm the CEO of the New Civil Liberties Alliance, a civil rights organization, and we led the cases against the censorship. It wasn't our main mission, but it's just we felt we had to do it. and those cases are still ongoing, by the way. Free speech is Professor Campbell's prime example of a judicially unenforceable natural right, or at least under enforceable natural right. But judicial enforceability of freedom of speech remains crucial, and it has a foundation in the founding era of judicial enforcement of natural rights. This was not excluded from judicial duty. So in conclusion, I think it's very important to discuss, these founding ideas. They reveal the Constitution's assumptions about judicial enforcement. They are a model for understanding the generality of law and the generality of judicial enforcement. We need judicial enforcement of our rights, all of them, without exception. Our predecessors, I think, understood this, and sh-- so should we.

Speaker 10 51:38

Thank you All

Speaker 12 51:52

right. Thank you, gentlemen. Um, I'm gonna ask you some questions, and I'll have lunch while we do that. Yeah. we should let, uh... Jud, would, you wanna take a few minutes to respond? both Philip and Tom, or either Philip or Tom?

Speaker 8 52:05

yeah, sure. I'll, I'll say a few things.

Speaker 12 52:08

Um- And, and can you give yours the microphone? There's a microphone on the table. Can you hear fine?

Speaker 8 52:11

Yeah.

Speaker 12 52:11

Maybe slide over the microphone a little bit. I can move the, yeah. Mobile. Yeah.

Speaker 8 52:15

Oh, great. Awesome.

Speaker 12 52:17

Uh, well, thank... Try not to. Should we move the microphone back over? Yeah, just move it back, move the mic

Speaker 10 52:24

over.

Speaker 12 52:24

Yeah

Speaker 8 52:29

Well, thank you so much for both of these sets of comments. These are really generative and, and I appreciate them and hearing them, uh, and look forward to the discussion. I'll say, just a few things about, a-about each of the presentations in, in order. so first, with respect to, Tom's comments, uh, maybe just three comments just to, uh, keep things short. I said first, I think his point about powers and the need to think more broadly about what it is that a natural rights framework does is very well taken. Uh, that is that when we're thinking about the relationship between, rights, fundamental rights, and especially natural rights and governance at the founding, the role of natural rights, not just as a limitation on government, but as a justification for government, is really essential. I do think that the Constitution bears that out, although to a less degree than state constitutions would. And so in large part, the focus of my talk, which has been about the Federal Constitution, trying to situate it in a broader discourse of constitutionalism, of course, has given that less emphasis, but it's a point that is really well taken and, and quite important. And this is, uh, I just briefly alluded to it yesterday, but it's a point that becomes absolutely critical to the discourse around rights, in Reconstruction, because for the people who are, self-described, radical Republicans, there are, inherent national rights of citizenship, and because of that inherent national right of citizenship, Congress must have the power to enforce it. And so that sort of reasoning existed at the state level going all the way back to the founding. That is, the retention of rights came with governmental powers to protect those rights. Now, I think that Tom is right. I'll move to the second point here. I think that Tom is right to say that there is something really primary about the protection of rights when we're thinking about the government's obligation to promote the common good. The thing that I would just, caution us to think about is that that does not mean that the founders embrace what we might think of as a kind of modern libertarian attitude about the scope of governmental power. They were quite clear that protecting rights could come not only from the direct protection of rights, but also from things that would inculcate attitudes of mind, attitudes of behavior, and so on, that would lead in the long run to the protection of rights. So, for instance, they took measures to pass sanctuary laws to try to suppress vice They took measures to promote education. They took measures, to, do things that would promote community development through... I mean, Hamilton even takes the position that the government has a role in facilitating economic growth. Those are the sorts of moves that are at least on the table. I don't wanna say that means government can do anything that it can somehow tangentially trace back to the protection of rights, but it does mean that there's a, a much broader scope for governmental authority at the founding than a kind of all you have the authority to do is protect rights. Now, I don't take Tom to be denying that, but, but I think it is important to recognize when people talk about the role of the government in protecting rights, they're talking about the role of the government to do things that have a tendency toward the type of society that creates a, a better, framework for thinking about rights. and then I, I think his, uh, point about the way that certain discussions of the privileges or, and immunities clause, for instance, emphasize natural rights. I think that point is also very well taken. What I would say though is, oftentimes when you have somebody who refers to general citizenship rights as natural rights, they aren't necessarily denying that the way in which those natural rights is determined is at least partially through customary law. So you can think about the rights of general citizenship simply as natural rights. I don't deny that some people thought about them in that way, but that doesn't deny the possibility that the determinations of the, those general citizenship rights will be, at least in part, set out by a, a series of, customary determinations rather than legislation, and that means that you could end up, with a situation where, effectively it includes under-determinate natural rights and more legally determinate customary rights. That's at least how I see the relationship of those things playing out in general. I gotta acknowledge there are different people who have different attitudes about this, and a lot of folks don't theorize about it. So it's, it's not something where we have a ton of evidence, but that's how I think of, the relationship between natural and customary rights, at least in part. and then, uh, on, on Philip's comments, I think these are well taken. I mean, I do have a, The goal of the project in large part is to reorient how we think about, the relationship between enumeration, legal determinacy, and judicial review, and part of that effort is to say, legal, determinations are, for some people, essential to judicial review, and then for other people, if not essential, at least a really important part of it. So just think about the, debate between Justice Iredell and Justice Chase in Calder versus Bull. There is a disagreement about judicial review when judges can step in, with Iredell denying the availability of judicial review, at least in the kind of modern sense of judicial review, of saying, "This statute means this, and we disregard it." Justice Iredell actually acknowledged room for, construing statutes in light of underlying principles of natural rights. and so it's not that he denied that there was some judicial duty to take account of natural rights. He actually agreed with that. but he thought that, that the determinations were at least essential for the, for the judges to disregard what, what a statute said. And then Justice Chase takes the position that, uh, at least in cases of flagrant, manifest violation of natural rights, judges could step in. And I don't take a position about which of those judges was right. I think that as an intellectual historian, my job is to present the evidence. I think that's the range of available options. And one of the things that's really notable about that is both men, both men thought that natural rights were partly judicially enforceable. So Iredell thinks they're partly judicially enforceable through equitable avoidance, this kind of construing statutes in light of the natural law, and Justice Chase thinks that they're partly judicially enforceable, not only in that way, but by disregarding statutes. But notice what both men also They also think that it's a limited power. So for Iredell, he thinks that it's a limited power insofar as only the e- e- uh, kind of constitutional avoidance style, mode of analysis is available unless we have specification. And then for Chase, it's only available in cases of manifest violations or blinker violations. And so I see that as a really important division within founding era thought, but notice it's a custom-balanced division. Neither one is taking an extreme position. and so, uh, to conclude, I guess I'm, I'm curious, what are the contracts clause cases saying? Because I don't deny that there are some instances of judicial review of natural rights. As I just mentioned, I think in some ways both contenders in, in, uh, Calder versus Bull are recognizing that. but what makes it a violation of the contracts clause? And here, I think the early cases, correct me if I'm wrong, I haven't done any research on this, but I don't think they really say much because we have these very short newspaper reports of the cases, and I can see a couple different ways of going about it. So one way would be to say the contracts clause is actually recognizing a legally determinant rule against retroactive, elimination of existing contract rights, sort of like a vested property rights rule, like the takings principle. another way of thinking about it would be the contracts clause is at least, at least entailing that the things that Rhode Island was doing in this eighteen, uh, in the 1780s is unconstitutional. We know that's what the clause was up to, and now they're doing it again, and now we're gonna say it's not okay because now as federal judges, we have jurisdiction over this case through the contracts clause. Another way of thinking about it is these clauses, uh, sorry, these instances by Rhode Island are manifestations of the sort of corrupt and arbitrary deprivation of natural liberty that we were talking about yesterday. That it's just class legislation, either in protection of debtors or even worse, in protection of, like, this one guy who happens to have gotten the favor of the Rhode Island legislature. That would be really interesting 'cause that would be a manifestation of sort of Justice Chase's view, uh, even in, uh, what, what is it, seven or eight years old and I'm open to any of those. I don't, I don't deny that any of those moves are available as ways of enforcing the contracts clause. I am resistant though to the idea that just because the Constitution recognizes a natural right or just because a natural right is thought to exist, therefore judges have the full range to make their own individual determinations of what those rights entail. I think that takes away the people's right to determine their own, their own rights, which is the very thing at core that possessing rights entails. So, so for me, that's kind of where I'm at. It's not a denial of the enforceability in some respects, but it's trying to offer a more nuanced position about exactly what those, what that form of judicial review would look like.

Speaker 12 1:02:47

Um, Philip and, and Tom, I want to give you a chance to respond. But let me ask a question and then, I think that will facil- facilitate, your response or, regulate your response in, in the natural rights sort of way. I'm wondering if there's a disagreement, especially between Philip and Judd, Professors Hamburger and Campbell, on what a constitutional text is doing vis-à-vis rights. And, uh, I'm gonna put it in layman's terms. I understand Professor Campbell saying that... Let me start with Professor Hamburger. I understand Professor Hamburger saying, for example, the First Amendment, free speech. the First Amendment puts into law a specific protection concerning speech. Whereas I understand Professor Campbell saying the First Amendment recognizes, we call a principle, a principle that, your speech, your speech should not be, unnecessarily curtailed. And, and Professor Campbell, fair enough, in Professor Campbell's view, it's declaring, it's instructing the legislature, "Hey, you should res- respect the people's speech, both in, in the legislation you pass to protect speech, and don't pass legislation that, that, that, uh, curtails speech." It's a directive, right? It, it declares you ought to act this way or you ought not act this way. But the First Amendment doesn't contain a specific legal protection, whereas Professor Hamburger says there is a specific legal protection. Is there a, is there a fundamental or a disagreement about what the Constitution's text is that animates your disagreement about judicial review?

Speaker 10 1:04:35

I'm happy to say a few words on that.

Speaker 11 1:04:37

look, I-- if the-- I don't think it matters whether a guarantee is declaratory or specificatory. No one at the founding actually-- no one at the founding actually says that. And I, I think that's an addition on the path of really contemporary ideas. I think I better stay away from that. Yeah. Yeah. Yeah. But I think that's, no one that I know actually says the founding, that it matters whether a guarantee is declaratory or specificatory. The Anti-Federalists demand enumeration of their rights, and the judges enforce the rights without worrying whether it's declaratory or specificatory. And the First Amendment is particularly-- and of course, the Constitution is a legal document. It's a law enacted by the people, and it's the language of adopting laws in the very preface, right? It's ordained and established. And the First Amendment is particularly clear. All the rights are really adjustments to power. The First Amendment begins: "Congress shall make no law." That's pretty direct. Now, as I've written before at undue length, natural laws were understood to be a freedom of non-injurious, let's say, speech, right? it's not a freedom to injure others, and that is fundamental. And so there's a foundation for regulate-- uh, uh, for regulation built into the right itself. But that-- but once you go beyond that, that, that's a violation of the right. And let me just quickly say, as to the evidence, Calder versus Bull is much cited by folks who want to take an expansive and somewhat nebulous vision of natural rights. There's a long history of this amongst scholars. But Justice Chase is not always, I think, a reliable guide to what other judges were thinking. That's quite clear from his co- what his colleagues say in the case. And I think there's a danger of misreading what Iredell and others were saying. this is a Connecticut case. I'm from Connecticut. I happen to know a lot about the Connecticut Constitution. This is a customary constitution. It's not a written constitution. It came up on-- with claims of, of, of retroactive law under a constitution that was not written. And so the key debate in Calder versus Bull is, are we gonna enforce unenu- an unenumerated right, which is Iredell's chief fear? It's-- he's not really complaining about enforcing an enumerated right. And so I don't think we can read from a Connecticut case, or by the way, Connecticut commentators like, like Roger Sherman, we can't read from them into national assumptions. and I also fear as to the Rhode Island cases, there's a danger of what you might call speculative avoidance. These cases were decided on the contracts clause. That's one of the most fundamental of natural rights. It's true we don't have extended opinions, but these rights were enforced and not just against retroactive laws. And so that's, that's kind of interesting.

Speaker 9 1:07:29

Yeah, I, I, I have, uh, just a brief comment about, really directed against both of you. You, you- You're- you guys are legal, legalists, and your idea of protecting natural rights really focuses on how to restrain government from misbehaving, uh, which I don't object to because government misbehaves a lot these days and always has. But let me give you an example of what I mean by how government protects freedom of speech or should protect. Uh, Charles Murray gave a talk at a college in New England not too long ago. He was attacked by a mob. Shut-- The speech was shut down. The local police sat around and watched and, and noth- and basically he was excluded from speaking. Nothing happened. This is a case where the state was by inaction demo- denying protection of the laws. Those people should have been arrested and pros... People who disrupted the event should have been arrested and prosecuted. That's what I mean by how criminal law protects freedom of speech. The other example, Ann Coulter, again, giving-- trying to give a speech at UC Berkeley, was attacked by a mob. Literally, a mob attacked her. The police, uh, were all given instructions to stand down and watch. Uh, big media stories about it. Nothing happened. No prosecutions, no nothing. this is the problem, this is the problem of state inaction. Judd referred to this as a problem in the post-Civil War period, in the South where, you know, Blacks, uh, whites committing crimes against Blacks weren't necessarily gonna be prosecuted and, and crimes against Bla- Blacks weren't being prosecuted. And, and so, uh, you know, or another example, you know, those would be the two examples. But in other words, government has an active role to play here, and, and I believe more fundamental than this role of restraining government when it's act-- when it has given the-- being given-- when it's given the necessary powers to protect our rights effectually. So it's those two things together. I'll, I'll, I'll acknowledge the law sc- the law school orientation here is, is, is right. Uh, but then the government's got a job to do too. You know, what, what about the, the way that, the, the, the local prosecutor in New York has, has destroyed the DARE organization just simply by law fare, by, you know, what,

Speaker 8 1:09:34

you know...

Speaker 9 1:09:35

What are judges doing about any of that? They just sit around and watch, and then we have these, you know, these intricate case law discussions of-- that, that go on and on in the, in the courts these days. so but, uh, maybe, maybe that's a, maybe that's a point where, uh, we would agree. I

Speaker 11 1:09:51

just have one little footnote to this. first degree, and particularly about what happened at Middlebury, Carol Sanger had her neck broken. It's not a joke. now forgive me for being a lawyer. In response to that, that's why we have the Ku Klux Klan Act, which has not been enforced here. But that's-- It-- There, there-- This is seriously, and I, I agree with you about this

Speaker 12 1:10:12

What about on the nature of rights? Do you see a disagreement?

Speaker 8 1:10:15

Yeah, I mean, I think there is a disagreement as to the importance of text, where Philip thinks that there is more significance placed on enumerating a right in the Constitution, and I think it's contingent that some rights by being enumerated have, greater legal significance, and others may not. For me, the question is, what can the judge take hold of? make the determination of the case something other than a political judgment. And sometimes the answer to that might be text. And I think in part that's why some of the anti-federalists want to enumerate rights because they think they can add through textual specification the types of determinacy that would make rights enforceable. That's the position that I take Jefferson to be laying out in his letter to Madison, uh, before the Bill of Rights is, is enumerated. but I think it's really important to recognize that the text needs to have that sort of determinacy, or the judge needs to find it somewhere else, and that could be in customary law. It could be in cases of manifest violations of basic principles of natural rights. Uh, but it needs to be coming from somewhere other than the judge's own sense of a violation of principles of natural justice. And that's something that, I think is an area of common agreement. It's true, as Philip says, I can't find somebody who wrote my law review article at the founding. I don't have that. What I'm trying to do is recover implicit assumptions, try to use things they said, to try to make sense of the things they said in light of what their own premises were. Often we say things without explaining exactly what we mean. So we say the Constitution is enforceable by judges. When lawyers say that, they, they're not denying the existence of political question doctrine. They're just saying something in general. And so we gotta be careful with the way that we interpret language in the past. Often it has embedded assumptions, and what I'm trying to do is recover based on things they said, but also things they did, and also, uh, the kind of things that they read, uh, what those assumptions were. And I've tried to arrange the evidence in a way that I find convincing, and of course, it's not necessarily true. It's up to you guys to make a decision as to what you think and, uh, go back and read the footnotes. I think it's-- The devil is in the details here. and so I hope I've done a good job laying out the ideas. but, but I do think it's, um, it's the sort of endeavor that requires inferences. It requires aligning all of the evidence in ways that make the best sense. And, um, and I hope I, I hope I've gotten there. But the reason for the disagreement, I think, is not because we're missing particular pieces of evidence. It's because there is a process of, uh, of judgment that's required in trying to make sense of what all these, what all this evidence means.

Speaker 12 1:13:09

let me pose another general question, and, um, I mean, this is, it's diffi- I'm gonna try and manufacture some disagreement, which is difficult with Judge 'cause he's so moderate and kind. It's very easy with Tom and Philip. That's pretty cool. Yeah. Is there a larger disagreement, about the founders' constitutionalism? And I understand Judge's position to be, and I, I'm extrapolating. we think of the Constitution as a legal document, first and foremost, and we think of, uh, the heart of that legal document, the institution of the judiciary, right? Where, but what the Constitution really was, was a government of, uh, a charter of self-government. And so, yes, we can all agree that the Constitution was designed to protect rights, but how we protect rights is primarily through representation- Okay institutionally through the legislature, that is, through our representatives. The way we protect rights is by acting well ourselves in our ability to govern ourselves. Okay. Whereas, Philip and, Tom West would say, Well, let me just-- Philip would say, "No, the Constitution is a, a legal document that both empowers and restrains." And Professor West is emphasizing today the empowers government to act, and, Professor Hamburger is emphasizing the restraint in a certain way. Now, if, if Professor Campbell was less moderate, uh, he might also say, "And you guys are supposed to be conservatives. You complained about judges for two generations, and now here you are, Professor Hamburger, a leading conservative, academic in America, saying judges should be doing more protecting rights? You sound like Earl Warren And Professor West, another noted conservative scholar, your complaint is government's not doing enough? What's happened here?

Speaker 2 1:15:17

Government today is strong where it ought to be

Speaker 10 1:15:18

weak, and it's weak where it ought to be strong Understand that? Yeah.

Speaker 9 1:15:24

Yeah. Government is weak where it should be strong and strong where it should be weak. So weak where it should be strong, meaning, meaning government needs to be tougher on crime. We have a big problem with crime in this country. Needs to be tougher on protecting people's right to enter the market. Social media companies all o-on one day shu- uh, uh, no. The social media company Parler on one day in twenty twenty-one was effectively shut down by a, by a tacit conspiracy among multiple corporations, all of which, all of whom withdrew their services from Parler to prevent freedom of speech from happening. No, you know, that was... Do- doesn't government have a job in protecting the, uh, free access to the market in order to, to, to protect the right to acquire and possess property? That's an example. We have these mon- we... essentially these monopoly corporations running roughshod over all kind... over, over Americans. And yes, I do sound like a leftist on this point, because they're out of control. And the, the government should... You know, the, the older progressives had the right idea on that topic. It's antitrust. So there are many things that, uh, you know... Whereas, whereas then you look at the, the sclerotic character, when government needs to d- really do something effectively, it, it's, it's just, uh, it's trying, you know... What are, what's the re- you al- you know all the analogies, trying to turn around, turn around a Titanic, whatever it is, in, in the Potomac River.

Speaker 11 1:16:47

I would like to address directly, uh, the question of the relationship between law and morality, right? no society survives just with law. On the other hand, morals alone don't really cut it. We're not a utopia, right? We need both. And I, I... We have to understand the Constitution is simply laying out spheres of authority. it first does this with a broad brushstroke by enumerating powers, and then it pencils in a few further limitations with rights. and so the government has a very broad sphere of authority, both state governments and federal government, and they should have broad spheres of authority. Not that they always use it well, but we have to give them a chance. And we also have our spheres of aut-authority, these few, very few little rights. Those are our spheres of freedom. And those were very carefully delineated so as not to confine power too much. Madison and others are quite explicit about this. They want a constitution that will be, as they say, permanent, lasts for the ages, so they don't want to constrain something where there might have to be power later. And that's essential for morality because it gives us a freedom to act morally. It gives us a freedom not merely to be told what to do, but to actually make our own judgments, and they're often mistaken. But, through, in a, in a muddled way, we as a society at least have a chance, and I think much better... The chaotic as our society is, we have a much better chance of a moral society than all those other societies where the government really tells you have to be moral So I actually think that the balance of power and rights defining different spheres of authority is actually a foundation for a genuinely-- We won't be a genuinely moral nation in some high sense, but we can struggle along in our limited human way, right? As, as Winston Churchill said, "I'm a worm, but I think I'm a glow worm." We can do our best to be glow worries, and that's not bad

Speaker 12 1:18:38

mischaracterized your position here, John, how you might respond?

Speaker 8 1:18:42

Yeah, I mean, I guess I'll say a few things. I mean, I do think that founder-think education is essential and that protecting religion is essential. So for instance, blasphemy prosecutions are upheld, on the basis of the degradation to the essential qualities that are necessary for the functioning of a legal system. And the basic logic here is in part that when you don't have, basic religiosity within the society, they don't... It doesn't have to be very thick. It's like basic religiosity within the society. not only will people misbehave, but the, the solemnity of an oath, which is necessary to the maintenance of justice within the, the legal system. And so that's just a very different orientation about the, the way the system works and what, what its essential predicates are. The other thing I'll say, in, in agreement, with what Phil just said is, if you look back... I mean, I do think that I agree with, I agree with Philip that the Constitution is a legal document, but I would say it's a legal document in some sense, and it's a legal document, that has to be understood in light of what they thought about, the Constitution, not what we would say. And I do think it's quite significant that when you go back to the founding and you just look at when they talk about what are the mechanisms of enforcing rights, I mean, I, I'll just make up a number. It's something like 100 times the evidence. It's about structure. It's about separation of powers and self-government. There's very little, not none, not none, but there's very little discussion of judicial review. What I take from that is not that judicial review is illegitimate, but that there's something really significant about governmental structure and the maintenance of a system of rights. How do we square those? Well, I think we square those by saying judicial review has a role to play, but it has a limited domain, and it's really up to structural, principles to do most of the work of effectuating a system of the protection of rights. That's the way that I read the founding, and so I'm trying to bring that back in my scholarship. Not to say judicial review isn't present, but that it is secondary, and it's really important to recognize its secondary status if we want to understand the way it works. Now, I will say, and I, I want to come back to the point I, I ended with today, that doesn't mean we should go backwards, because you want to think carefully. If you want to start doing things differently, you want to think carefully about how you actually get back to an earlier legal culture that was capable of maintaining rights in that way. And if we can't get back to that legal culture Maybe judges should start doing something differently. I don't want to answer that question for you, but I do think it's a serious question to address. Uh, it's not one where if we go backwards in one respect but not another respect, you can sort of perversely pull yourselves even further away from the foundation. And I think it's something to think critically about before just saying, "Well, I'm an originalist, therefore I gotta follow whatever Judge's article says." I, I, I would be careful about that.

Speaker 11 1:21:50

So I, I would like to thoroughly agree with you about the importance of legislatures in protecting our liberty and ensuring justice. I would never discount that. in fact, that's one of the reasons I'm not terribly fond of administrative power. And from what you've been saying, I, I would ask you to join the campaign against administrative power, right? Because, it's in legislatures that we actually have some faint hope of a degree of restraint or at least a compromise, even if not real restraint, right? So I, I, I think you're absolutely right about that.

Speaker 12 1:22:26

I have utterly failed. I got two lawyers to agree with one another. I know some of you have class, and I don't... I know we, we have a lot of undergraduates, and I don't want, uh, the undergraduates especially to feel, uh, compelled to stay, 'cause I wanna give us a little... U- usually we're, we'd be done by now. But I wanna give us some time to get some questions from the audience. But if you need to go, feel free to do so. Now, if you're retired, you should stay. Okay. Let me ask the, the... Do we need the microphone to go around, or will the room- Rooms will pick it up. Rooms pick it up. Okay. let, let... We got three students right here. So, stand up, tell us who you are and ask a question. Yeah.

Speaker 13 1:23:01

Thank you all. Those last questions were really great.

Speaker 12 1:23:02

Tell us, tell us your name and where you're

Speaker 13 1:23:04

at.

Speaker 12 1:23:04

Yeah.

Speaker 13 1:23:04

my name's Luke Woodyard. I'm a sophomore at Notre Dame, so I apologize for any sophomore bluntness. so one of... Something, uh, professor, that you said that was really fascinating to me is that, um, the way that government structures and then people work within that. But Aristotle spoke about how part of a nation should be judged is from its fruits. The culture and philosophy of a people are downstream of the civil law set up by its leaders. So I have no disagreements with any of the observances that modern interpretation and philosophy is obviously not in line with what the founders thought. But I raise you to ask if the social contract theory holds or if it misses the forest for the trees. So my question is, what, was Tocqueville correct? Is a democracy, a constitution that allows us to reach this point where we are now, where constitutional claims are used to justify annexing state rights, states' rights, give illegal immigrants voting privileges, uh, create a right to abortion, and cement gay marriage into law worth recovering? Or should we strive to a higher bar, more efficacious of creating sacred and moral polity and soc- and a society at large? Put briefly, 'cause that was a lot, is the Constitution of the founders worth going back to, or was it doomed to fail? Has the American experiment, much like communists argue, the Marxist dream was never done correctly? If we go back to the founders, how do we know we won't end up exactly where we are now?

Speaker 10 1:24:27

Tom Bill, do you wanna take that one?

Speaker 2 1:24:33

It sounds like you've met

Speaker 9 1:24:35

Patrick

Speaker 10 1:24:35

Deneen.

Speaker 9 1:24:37

Maybe not.

Speaker 10 1:24:38

Never mind.

Speaker 9 1:24:40

Oh, okay. How nice. look, I, I, you know, I think one of the things I really appreciate,

Speaker 12 1:24:45

A little louder now

Speaker 9 1:24:46

one of the things I really appreciate about, Judd's, you know, recent, his talk, his talks, and especially just now, the founders thought without, without a moral and religious foundation, the country won't work. And the founders did whatever they could, and it was a lot, to support that foundation. You're right about that. You're right, and, and I, I don't know whether that fact is adequately appreciated in many circles today. the founders tend to be looked at by many people as kind of proto-libertarians and, you know, slippery slope to gay rights and, and all the rest. but that wasn't what it was. Now, you can say, Why did it turn out to be what we have today? And the answer I think there is the transformation of, of, of the American c-conception of justice that took place starting a hundred and fifty years ago. We're not talking about recent history. We're talking about a revolt against the principles of the founding and their practices both at the end of the nineteenth century. Again, this too is part of what Judd was talking about in the earlier lectures. there was an outright attack on and dismissal of the idea that people have natural rights or even that nature should be a guide for political life. No, the argument was everything valuable in human life is, is a cre-creation of man's will, and that, that was the, that was the thesis of, of one of the theses of progressive political theory, which led into, in the, in the legal profession, led into the idea that we should get away from the brooding omnipresence of natural law, which is just a bunch of nonsense, as Holmes said, and be openly realistic about it. We're gonna just make laws about whatever we think is best, e-- even if that goes against what people used to call the guides, the guide of, uh, God, the g-guidelines given by God and nature. then e-- to... And then, and the final radicalization, which took place after nineteen sixty-five or so, was that the, the view then became even the earlier progressives were bad because they too stuck too close to nature. They had too much of a respect for the way-- for natural differences and natural inequality. So now the agenda becomes how do we, how do we, on the one hand, absolutely liberate sexual activity from all restraint, legal and m- and moral, and on the other hand, how can we use the power of government to crush anybody who is too high and too unequal? Those two things together, you can-- I'm caricaturing, of course, but, uh, like make up a lot of the current legal landscape. So you're not, you're not even, we're not talking about any kind of slippery slope at all. It's just a transformation.

Speaker 11 1:27:25

but can I just- Go ahead. I think this is a very important question you raise, right? And people are worrying about this across the country, so you're right to, to raise it. I, I think it's worth pausing now to recognize the Constitution was hijacked, right? if you're on a boat and it gets hijacked, are you gonna blame the boat? Now, the reality is these are all human constructs. They're bound to fail. Failure is actually what it is to be human, right? But that doesn't mean we want it to fail sooner than later, and there's a lot to be said for giving the Constitution a chance. And however we understand it, I, I can't help thinking that whatever was drafted then, and we can disagree what it was, but whatever was drafted then is going to be a lot more in accord with what you want than whatever would be drafted now. So if there's success in getting us to ditch the Constitution and what it meant, God help us. Be careful what you wish for.

Speaker 10 1:28:22

Do you want to get out of this?

Speaker 8 1:28:24

I mean, I will say that I think that the founders' vision, is different in a very important but not particularly practically, relevant sense from the vision that, Aristotle and others are laying out, which is exactly along the lines of what Philip is saying, that there are certain domains, uh, for private activity and the formation of private judgment. so I don't wanna, uh, minimize that there is an important difference that's taking place, uh, uh, men of the Enlightenment and social contractarians and so on. That said, people who embrace liberalism at the founding have a different understanding of liberalism. And so it's just really important not to say, "Well, they were liberals and we're liberals, and therefore liberalism is bad now, and therefore the system was bad from the beginning." I think you have to understand, and this is what I do as an intellectual historian, that liberalism itself has a history, and the way that ideas of rights worked two hundred plus years ago is not the same way that ideas of rights work now. And so to the extent that you wanna, engage in a critical project about the, the sort of original sin of the founders or something, that's fine with me, but we just need to make sure to take on the founders as they understood what they were doing rather than just associating them with the project of modern liberalism. okay.

Speaker 12 1:29:47

All right. Uh, Ayush, and you ready for something about metaphysics? Yeah. Tell us, tell us who you are. Yeah. I'm

Speaker 14 1:29:54

Ayush. I'm doing a PhD in theology. So Professor Pamba's distinction, between specifications and declarations implies that, uh, specifications bear some resemblance to constitutional liquidation, for instance, by the legislature, and, declarations bear some resemblance to, factual determinations not just in the epistemological sense, but also in the metaphysical sense of, facts about human nature and so forth. And Professor Hamburger's book on administrative law argues that factual determinations by the executive are neither supralegal nor extralegal, and therefore are not violations of non-delegation. And my question is twofold. So in light of this, my question for Professor Hamburger is, what are your thoughts on, Professor Adrian Vermue's common good constitutionalism, which authorizes executive officers to directly appeal to the natural law and enforce the natural law? And my question for Professor Campbell is, what are your thoughts-- Because you mentioned Justice Scalia multiple times. What are your thoughts on Justice Scalia's absurdity doctrine, which, as I understand it, is not a linguistic canon, but more of a substantive canon, which authorizes judges to exercises-- exercise human reason, qua reason, and even override, sometimes at least, the plausible meaning of legal texts?

Speaker 12 1:31:19

Okay, let me encourage you not to answer too thoroughly because this is actually his paper topic for the paper.

Speaker 11 1:31:26

So, so let, let me start with declaratory and specificatory distinction. So I, I have this little piece, Campbell's Constitution, where I gently disagree with my distinguished colleague here. And one of the points I make there gets precise, precisely along these lines. it's very hard to distinguish between rights that guarantees that declare and those that specify, because natural liberty was a gene-- was a general liberty. It's not chopped up into speech or expression or religion. It's general. And so the very act of de- of declaring one is to specify it, right? And so the, the, I think it's an incoherent distinction. Let's put it, put it another way. It breaks down very quickly. I don't pursue that. We can go into great length on that, but I'll, I'll... I won't do that. Answer

Speaker 12 1:32:15

this question.

Speaker 11 1:32:15

Yeah. As for Adrian, look, uh, this gets back to the question we had earlier. Uh, there's a danger that, a direct appeal to that which seems wonderful, the common good, may actually undermine it, right? There's a discordancy between probable results and what's being sought. Who are the first people who will be censored? Look at England. I partly grew up in England. I know you would be censored. I would be censored. The common good would be pursued against everyone, most everyone in this room. And that, and that means going to jail in England, okay? Here, it meant people's lives are ruined. will, will the administrative state be Catholic? I don't think so. Um, actually, if you study the theology of administrators, as I have done, they tend to be theologically liberal, right? Just to see where this heads, right? and can one have an administrative state without the deep state? I think that's a fantasy. So, um, the-there's a danger sometimes the th- the things you want are best pursued in an, in, in another, not directly, but more indirectly, for example, through law. So...

Speaker 8 1:33:20

Yeah. so I'll say something that's not directly responsive, in response to Philip's instructions. so I do think with respect to the declaratory versus specificatory distinction, it's important to recognize that almost all of the aspects, if not all of the aspects of the Bills of-- Bill of Rights, pointed us to aspects of either inalienable natural rights or fundamental positive rights that had legally determinant content. And so for the most part, the effort to apply those rights, whether the rights are deemed to be, declaratory of background legal principles or deemed to be, in some way, the specification of this is a fundamental right, uh, that somehow wouldn't have existed otherwise, likely isn't gonna matter in a court case because when you've, when you've said, "Okay, here is very strong con--" Sorry, not very strong. "Here is conclusive evidence that this right exists," now you don't have to go back and say, "Well, what would the background law say about this right's existence and fundamentality?" So for that reason, it just would be weird for the founders when considering a rights provision that already had legally determined content under background law for them to engage in the project ahead and which didn't itself create new law, it would just be weird for them to start with the question, is this a declaratory or substantive rights provision? I just, I'm not saying that that couldn't be relevant at the founding of a variety of problems. I think it very well can be relevant, and in large part now we're seeing the fruits of that relevance. But I think for the problems the founders are facing, it's not the sort of thing that they're likely to talk about, uh, at the outset because there's just this sense that, oh, yeah, we have these rights. What does that take to do? It establishes cl- conclusive evidence that we have these rights. Occasionally, it might tell us something about what those rights entail, that also is conclusive evidence of what those rights entail. Okay. I mean, that, and, and so you don't need to get too hung up on meta-metaphysics. I'm trying to do a lot of hyper, metaphysical distinctions in my papers because I want to be very precise. I want to be analytically careful about exactly what are the moving parts here. but I think on the ground, a lot of times what judges are doing, it's not going to require the sort of careful attention to those things. Once we come up with modern questions that are pushing the boundaries, now all of a sudden we have some real problems to confront. So I do think it matters. It's just that the founding, I don't see it as being particularly important.

Speaker 10 1:36:11

Okay. I think, Dennis, you have a question here? Sure. Uh, Dennis Marvel, law school and history department, third-year student. This is a question for Professor Hamburger. So the source of your disagreement with Professor Campbell is that, at the founding, Professor Campbell says a lot of these, uh, natural rights were enforceable in federal court. Your view is the opposite, that actually maybe they were more enforceable. it's-- and you said if Professor Campbell is right, then it sort of blows up our conception maybe of, the extent to which we should look to federal courts as recourse, uh, for the vindication of our natural rights. but I wonder if, um, even if Professor Campbell is wrong, if the fact that, or even if Professor Campbell is right, the fact that the Reconstruction Amendments so, uh, inexorably changed the nature of federal judicial power, that maybe even if he's-- maybe even if he challenges the intellectual history from the perspective of contemporary legal practice, actually the difference, wouldn't be that great, even if he's right, because of the way the Reconstruction Amendments changed the nature of, federal judicial power and therefore the enforceability of how to do working natural rights.

Speaker 11 1:37:09

Okay. So, it's a good question. so some time ago, Professor Akhil Amar at Yale had his theory of a sort of, of a, uh, that the, the ri- the rights incorporated by the, the Fourteenth Amendment against the states, those federal rights incorporated against the states, were changed in their content at that point, that these were differently defined than at the founding. I, I confess I'm a dissenter from that point of view, much as I admire, Akhil's intellect and, and his writing, for the simple reason that I'm not persuaded there was an incorporation of the Bill of Rights in the Fourteenth Amendment. and, without going into great detail there, suffice it to say, that's far from clear from the debates. political movements, whether the National Liberal League or, uh, for the Blaine amendments afterwards, assume there was no incorporation, right? if you were going to do this with a privileges and immunities clause, why would you echo so closely the language of the comedy clause? And if you're gonna do this due process clause, you'd probably see a doctor, right? So, it's just not-- it, it-- So where-- how did we get incorporation? We did get incorporation, um, through court cases in the '20s through the '50s, which were largely indivi- influenced by nativism, including KKK, which imag- they imagined an American Bill of Rights. And the judges, although not generally nativists, with one notable exception, they, they, they grew up in America expecting this. So I, I would just go sideways on that. Sorry. You may have a better answer than I do

Speaker 8 1:38:40

But I, I will say my view here is pretty close to Akhil's view, which is that it's not... Incorporation is not quite the right framing because it's not that it's picking up the rights that were originally codified and then it's re-codifying them. Rather, the framework that they're operating much in is not a codification framework, it's a declaratory framework. And I think Akhil is pretty good about this in, in the book to say there are these people like Bingham who think these rights already exist, and what are they doing? They're declaring their existence and then doing something, to make those rights more enforceable. I see my primary contribution in that debate as not differing with Akhil on that issue. It's just to say the rights that are declared are grounded in general law. So the effort of, well, Steve and I, is to add the general law to the mix, which we think helps illuminate a lot of the sources that otherwise are very difficult to m-make sense of. Um, but I think we're with Akhil on the declaratory nature of the, of the rights provision.

Speaker 10 1:39:49

I, I don't...

Speaker 11 1:39:51

Not to get too legalistic, but I just wanna give you some, just a little bit of the texture of what worries me in all of this. the Privileges or Immunities Clause is said to be the main conduit for this, and we just got diverted from that to the Due Process Clause. Fair enough. the problem is, how did that get into the Fourteenth Amendment? It wasn't, it wasn't in that there was an enforcement power, but the Privileges or Immunities Clause got in there, in April 1866. Why? Because April 3rd, Schuyler Barger from Ohio, radical Republican, introduced his Privileges and Immunities Bill. And what did it do? It simply reinforced the Comedy Clause, and he's, he, it's, it's en- entitled and framed entirely in terms of the privileges and immunities of citizens of the United States. And it was from that bill that Bingham copies the language that goes into the, into the Constitution. In other words, the language, at least r-right up through the adoption of it in Congress, is all about the Comedy Clause and reinforcing it to protect the black strapped in the state of Missouri. That's not about pulling in fundamental rights or anything like that, unless one has a remarkably broad understanding of the Comedy Clause, which we may disagree about.

Speaker 8 1:41:02

And which the radical Republicans did.

Speaker 15 1:41:04

I agree with everything you said until it went, yeah,

Speaker 11 1:41:07

so like

Speaker 15 1:41:07

a, a huge, a huge percentage of the Republicans thought the Comedy Clause

Speaker 8 1:41:12

already protected these substantive rights of citizens, even within the states. And so if you have that view, then it makes perfect sense to say that the enforcement of the Comedy Clause is what's wrong.

Speaker 11 1:41:24

And I'll just say, since I've been working on this for another project over the last month, if one goes through the evidence of that I think it's highly disputable. most of these cases in which the radical Republicans are, are, are using that phrase are to defend the right of free Blacks to go to others, uh, to go to other states. That's not rights from their own states. It's not about fundamental rights in the broad sense it's often claimed. But again, this is a matter of textbook evidence, and we're not gonna resolve it here.

Speaker 12 1:41:50

You wanna explain how they're both wrong? No. No. No, I, I pose with Judd on this, so that's fine. All right. Uh, Luke.

Speaker 15 1:42:00

Yeah. Thank you, uh, to you all. I'm, uh, Luke. I'm a first-year JD PhD in political science here at Notre Dame. this question is primarily for Professor Hamburger, and it's kind of a simple question, but it kinda just pushes on what aspect of your disagreement with Professor Campbell to kinda maybe clarify your position a little bit more. I really liked your, uh, metaphor of the, the rights donut, and I think it really, uh, visu- vividly e- explains one potentially, negative implication from a skeptical-- skepticism of democracy, maybe a slight-slightly libertarian perspective about what the founders' view of rights as Professor Campbell lays it out could be. but at the same time, I felt like in your comments you mostly focused on at- uh, attacking both speculatively and through historical evidence the implication of Professor Campbell's argument rather than the historical claims. Th-th-that implication being that sh- rights aren't trad- or w- the way that, the way in which rights are judicially enforceable is more complicated than we, we come to presume. rather than the historical claim that the founders kind of assumed there was a level of indeterminacy in, uh, in natural rights, which is kind of the historical claim. And th-th-that everything about judicial enforceability is kind of an implication. And so I wanna ask you, assuming that, what Professor Campbell argues as a historical matter is true in terms of just the general legal culture and background of-- against which they're writing about rights, how do you avoid the implication? Uh, ca- because you make a good case that it, it just can't be so based on historical arguments against, against the hole in the donut and, and other things. But at the same time, if, if there's a level of indeterminacy in these rights, it does seem the only two options would be to give judges this kind of ability to prudentially determine these, these broad principles in individual cases, something that is generally at, at odds with republican principles of the judicial role, or to kind of arbitrarily set a, uh, some point at which they're... So like I said, or like, uh, going back to maybe like expected determinations of these principles of the founding or, uh, uh, just something like that. Was that, in that, in that case, that seems arbitrary. So how do you avoid either kind of almost Dworkinian view of the judicial role or just arbitrary selection of, of the determination?

Speaker 11 1:44:04

v-very thoughtful question. I have three thoughts on this. First, just a little parenthetical, democracy. I don't think we've ever had a democracy. We shouldn't have a democracy. The founders didn't want democracy. We have a, a compound and complicated republic, and that's a crucial distinction, as we see, by the way, in the initiative in California illustrates the dangers of democracy and why perhaps the Guarantee Clause of the republican government should be enforced. so that's democracy. they had little patience for it. I don't think we should either. second, the donut. It was partly about implications, but it's about implications from their point of view too. it-it's, it-- There is s- I, I, I really think there is no evidence of anybody for Anti-Federalists or then later some Federalists saying, "We-we're g- we're gonna support a Bill of Rights," saying, "And by the way, we want to include those natural rights as s- and they'll be less enforced," or that they'd be less binding on government if you don't want to do the judicial review thing. But none of them say, "We want these rights, and these will be less restriction, less exceptions to, to power, less restraints to government and others." They just don't say that. So th-they're doing it as a whole. They want all these rights protected. And so it's very difficult, given the massive evidence we have of this grand movement of the Anti-Federalist to demand rights and the need for political, reconciliation to have a Bill of Rights, of anybody saying, "Oh, but some of these are gonna be less Bill of Rights than others." It just, it is just not what they're saying. And they don't talk about, um, rights in terms of legislative determinations or being specific to rights. It's not the way they talk. They're not doing this. So there's just no evidence for that. and then, of course, and I think here I-I agree with Judd, there's a very serious problem about indeterminacy. We don't want judges just inventing it off the cuff or for the political opinion. We all, I think, agree on that. but perhaps where we differ is just how indeterminate are our rights. I think there's a risk of having a very thin academic textualism. Textualism is a very modern word. Francis Lieber introduces this when he wants to avoid questions of intent, and we've sort of followed that. text is a disembodied thing. It has no meaning whatsoever. Text only matters in context, right? And, so I'd actually prefer to use the 18th century language which talked about the intent of the act, not of the legislature, but of their act. And there we're talking about the intent or meaning or sense, and there's a large literature on this, the common law. And there you're including a lot of information. It's not just the words on the page or, you know, the squiggles on the page. It's, it's what they refer to. And I, and I don't think freedom of speech is as, uncertain as one might claim. Now, some of the claims for freedom of speech by the court in the last hundred years have been a little off the mark. But I don't think we have to buy into all the baggage of the 20th century, to stand up for freedom of speech. So

Speaker 12 1:47:00

I know there's some more questions out there, and I will invite those who have questions to come up afterwards and ask them. a few concluding thoughts. One, my co-director, Don Solleto, thanked the team, and I wanna add my own thanks to the, the CCCG team. There's one person he didn't thank, which is, of course, himself. Uh, Don does a great job, and so let me express the team's thanks, uh, to Don I have an invitation for you. I don't think we've publicly announced it, although you can find some information on the website, so I guess it is there. We're hosting, the center's hosting a conference in Washington, D.C. on, uh, the Declaration of Independence, uh, and Catholicism, uh, in light of our two hundred and fifty anniversary. So it's called Endowed by Our Creator. It's April ninth in Washington, D.C. Three panels, uh, on different aspects of constitutional interpretation and the natural law, Catholicism and the, and the Declaration. had I, had I heard this discussion beforehand, we would have had a panel on whether theological liberalism and administrators is, a customary right or natural right. that, that topic might be addressed as well. our, our keynote-- we have two keynotes in Washington, D.C. Robbie George, a conversation, uh, with Robbie George on the theme of the Declaration, uh, and Catholicism. And then, uh, Justice Brett Kavanaugh will be giving our keynote address in the evening. So that's on, April ninth in Washington, D.C. Uh, we have a few more events this semester on campus, so, go to our website, to see what else we have this semester. Now, uh, one, one final thanks here. Um, we asked Professor Campbell to fly across the country, from beautiful Palo Alto. He landed, it was eighteen degrees and six inches of snow on the ground. Uh, and then we said, "Give three lectures. the third lecture you'll be criticized by two of the most distinguished faculty members in America. on-- in your spare time, uh, have a breakfast with our undergraduates, have a, another breakfast with our law students, have dinner with our faculty, have dinner with our PhD students." so he's been working very hard and very busy. what you're doing is tremendously interesting. And so since you've demonstrated you can do so much, so let's turn it into a book. Uh, and if we can do this, if you do this, it will be one of the most important books, that, that this center will have supported. So I wanna thank Professor Campbell for, uh, giving us so much of his time and his energy, in three terrific lectures. Thanks.

Speaker 10 1:49:39

Thanks everyone. We do have another event next week. Go to the website so you can find out the details