Natural Rights in Oregon:

Hat tip to Clayton Cramer for mentioning this case involving the Oregon Constitution. In reading Oregon's Constitution, you see that it is explicitly grounded in natural rights (the US Constitution, I would argue, is also a natural rights document, but it's not as explicit in explicating its natural rights grounding).

The first section of Oregon's Bill of Rights states:

Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.—

This is Locke 101. And taking a tip from Jefferson's natural rights document, the Virginia Statute on Religious Liberty:

Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.—

Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience.—

Section 4. No religious qualification for office. No religious test shall be required as a qualification for any office of trust or profit.—

Section 5. No money to be appropriated for religion. No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly.—

Section 6. No religious test for witnesses or jurors. No person shall be rendered incompetent as a witness, or juror in consequence of his opinions on matters of religeon [sic]; nor be questioned in any Court of Justice touching his religeous [sic] belief to affect the weight of his testimony.—

Section 7. Manner of administering oath or affirmation. The mode of administering an oath, or affirmation shall be such as may be most consistent with, and binding upon the conscience of the person to whom such oath or affirmation may be administered.—

The decision of the case also engages in delightful (and ultimately proper in its outcome) natural rights analysis that demonstrates, in the context of free speech, the differences between the more conservative "Blackstonian" notion of English common law rights and the American Lockean natural rights approach (we were founded on the latter, not the former).

Interestingly, the foregoing view of the right of free speech was contrary, in many respects, to the philosophy that had animated the American Revolution. Many of the leading lights of the American revolutionary period were greatly influenced by the "natural rights" philosophy that was advanced in the works of John Locke and that later was popularized, and fused with the republican political tradition, by John Trenchard and Thomas Gordon under the nom de plume "Cato." See generally Levy, The Emergence of a Free Press at 109-14 (describing Cato's Letters and noting that the letters were revered, quoted, and recommended by the likes of John Adams, Thomas Jefferson, Benjamin Franklin, Josiah Quincy, and John Dickinson). On the issue of freedom of speech, Cato wrote:

"Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know."

"Of Freedom of Speech", No 15, Feb 4, 1720, in John Trenchard and Thomas Gordon, I Cato's Letters: Essays on Liberty, Civil and Religious 96 (reprint ed. 1971)

To the more libertarian adherents of the natural rights philosophy, freedom of speech was an "inalienable" natural right -- that is, it was not part of the package of natural rights that individuals ceded to the community in order to obtain the protections and benefits of civil society. Rather, it was a right that the individual always retained, as he or she would in a state of nature. Even for natural rights adherents, however, the right was not absolute. According to the natural rights theory, inalienable rights, such as freedom of conscience and speech, were bounded, as they were in the state of nature, by the equally fundamental rights of other individuals. If the state had any authority at all to act in these protected areas, it was to enforce the fundamental rights of other individuals, not to protect society as a whole from undesirable "tendencies" or to promote the majority's idea of the greater good. That is decidedly different from the Blackstonian notion of "abuse", (12) which extended to everything that Parliament had identified as contrary to the public good (a notion that included purely social values like order, morality, and religion).

The Court, applying foundational natural rights principles, ultimately found that the free speech clause of Oregon's constitution, stating, "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right," protects live sex shows.

In fact, the words are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down, unless the historical record demonstrated clearly that the framers meant something other than what they said. As our recitation of the historical circumstances shows, we have found no such demonstration. Thus, it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike -- profanity, blasphemy, pornography -- and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component. Thus, we have little trouble in concluding that the people who framed and adopted Article I, section 8, as part of the original Oregon Constitution intended to prohibit broadly any laws directed at restraining verbal or nonverbal expression of ideas of any kind.

And Cramer is of course, wrong in his analysis. Cramer asks: "So where is the evidence that the 'natural rights' crowd believed that freedom of expression included live sex shows?"

Notice how Cramer frames the issue at the narrowest, most specific level of abstraction: We have to get into the minds of the Framers and see whether they specially realized that they were legalizing, at the constitutional level, "live sex shows" or other sexually related forms of expression. As I've blogged about before, this is "original expectation" originalism and is not consistently defended by originalists in general or by Cramer in particular. At best, Cramer could argue that original expectation originalism is one legitimate modality of constitutional interpretation competing with other legitimate modalities, like the one supported by the Court's majority. But no, Cramer assumes, with no sound basis whatsoever, that his theory is legitimate, while the majority's is not.

In fact, the majority already effectively answered why Oregon's constitution as ratified and the natural rights principles of our founding are not consistent with a bar on sexually related expression. First, the text of the constitution makes no distinction between sexually related materials and other materials but instead protects "the right to speak, write, or print freely on any subject whatever." Second, as the majority demonstrated the natural rights view on free speech rejects the Blackstonian prior restraints view and believes, in the words of Cato, that Freedom of Speech "is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know." In other words, you may only be punished for your speech if in interferes with the tangible rights of other individuals (which would cover things like fraudulent or defamatory words).

Cramer could only reply, as does the dissent, that there is no evidence that "the commentators believed, or would have believed that the protections of free speech, such as Article I, section 8, would extend to conduct such as public masturbation and sexual intercourse." But that's *not* the relevant question; or there is no sound reason that this *is* or *ought* to be the only relevant line of inquiry as opposed to this one: Are laws which outlaw sexual expression consistent with the norm, which those natural rights commentators posited, that we have absolute right to unlimited speech which may be curtailed only when the individual rights of others are put in jeopardy? Common sense and logic tell us that we have a majority inconsistency here, a compromise with a high and lofty ideal. That such laws which barred sexually related speech existed and continued to exist after Oregon's free speech provision was passed only demonstrates that these framers (like our original framers) tolerated practices which were inconsistent with constitutional principles.

Slavery is the most obvious of such inconsistencies. The owning of slaves is clearly inconsistent with the natural rights ideal that all men are created equal. Yet, whether we have a founding that gets us out of slavery or keeps us in slavery depends entirely on which jurisprudential approach we endorse. Indeed Justice Thomas has said that he endorses natural law precisely because it gets us an anti-slavery originalist result. "Original expectation" originalism (Were these founders specifically aware that they were illegalizing practice X when they endorse norm Y? Then look at practice in order to answer the question) on the other hand, preserves the constitutional legitimacy of slavery before the Civil War Amendments.

The point that I would try to stress to thinkers like Clarence Thomas and the Claremont Institute (social conservatives who endorse the natural rights approach) is that such abstract ideology does indeed get us "out" of slavery in 1776 and 1787 respectively, but, as this case demonstrates, it also gets us "in" to other areas and results inconsistent with their socially conservative personal philosophy.