Chapter Three in Barnett’s Book:

(Originally published on Freespace)

I have already read part of Restoring the Lost Constitution and Chapter 3—“Natural Rights as Liberty Rights,” is my favorite section so far. Let me point out of few things that Barnett has successfully argued in this chapter alone.

One, the Founders believed in natural rights—rights that no government, federal, state or local may properly infringe. This is important so bear with me if I get a little redundant. If the Founders concluded that a particular right qualified as a natural right—for instance, free speech, liberty of conscience, and many, many others—they didn’t believe that any government, including state or local ones, could legitimately infringe them. This helps to answer those conservatives who claim something like, “the Founders only wanted the Federal government to be restricted from touching these areas (the Bill of Rights, for instance), but they perfectly approved of state governments restricting these rights.” No they didn’t. While it is true that before the balance of power between the states and the federal government underwent a major shift with the Civil War and subsequent passage of the 13th and 14th Amendments, the federal government didn’t have the recognized power to enforce the natural rights of the people against states, the Founders in no way approved of the states infringing their citizens' natural rights. They just didn’t yet have the ability to prevent the states from doing this. Rather, it was hoped that the states, on their own, would voluntarily respect their citizens' natural rights, even if they didn’t always do so.

Two, that not only are many of these natural rights unenumerated, but they are literally unenumerable. Barnett quotes many Founders to prove this point, including James Wilson, a member of the Constitutional Convention, who puts it this way: “a complete enumeration of rights appertaining to the people as men and citizens….Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.” p. 56. This sets the stage for Barnett’s later claim that the Constitution has what’s called a general presumption of liberty, that whenever the government infringes upon any liberty, it must justify its actions by demonstrating that it is acting pursuant to a recognized legitimate government function, and these are few in number.

Three, one of the most powerful arguments against a Bill of Rights at the time of the American Founding was that the Founders were fearful that someone might interpret its inclusion exactly as Robert Bork does: that once a list is enumerated, those are the only rights that the people have against the state, all others are “surrendered to the government.” Another great quote by Wilson: “In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete.” p. 56. Barnett also quotes future Supreme Court Justice James Iredell: “Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it.” p. 57.

Four, that—again contra Robert Bork—neither the 9th Amendment, nor the privileges and immunities clause of the 14th Amendment are either “dead letters” or “essentially incomprehensible, thus void”—that the Framers intended both of these provisions to be used to secure unenumerated “natural rights” or “liberty rights.” To guard against the very reasonable fear mentioned above, Madison proposed the 9th Amendment. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but I conceive, that it may be guarded against.” pp. 59-60. The 9th Amendment did this by attempting to secure the many other “rights retained by the people,” not included in the Bill of Rights, which were too numerous to list.

The 14th Amendment secures these natural rights through its "privileges or immunities" clause. The reason why the Framers of that Amendment didn’t use the term “natural rights” and instead used the term “privileges and immunities” is because the latter is a broader term. "Privileges or immunities" include not only all natural rights, but also positive rights as well.

Five, the 14th Amendment was indeed intended to incorporate the Bill of Rights against State Governments. Conservatives are wrong to claim that this Amendment was not intended to incorporate the Bill of Rights at all. And liberals are wrong to only recognize a “partial incorporation.” The proper way to interpret the Bill of Rights is as incorporating all of the first eight Amendments, 2nd Amendment included. Barnett quotes Senator Jacob Howard, a Republican and former attorney general of Michigan: “To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.” p. 65.