There must be any number of other things Elena Kagan has done wrong that merit criticism. Ross identifies one here, and her deference to claims of executive power is even more worrisome. However, if we believe Jacob Sullum, one of the worst things Kagan did during her confirmation hearings is her claim that natural rights are irrelevant to interpreting the Constitution. Actually, they are irrelevant, and Sullum’s argument that they are “essential to understanding what the Framers were trying to do” is a good example of why they should be:
In addition to the Declaration of Independence, which reflects the Framers’ philosophical premises but does not have the force of law, the Constitution itself repeatedly refers to pre-existing rights.
The First Amendment does not say, “The people shall have a right to freedom of speech.” It says, “Congress shall make no law…abridging the freedom of speech.” Likewise with “the right of the people to keep and bear arms” and “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”
These are not rights the government creates; they are pre-existing rights the government is bound to respect. There is no other way to make sense of the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Of course, these are chartered and customary rights that pre-existed the creation of both the Confederation and the Republic. These were rights that the colonists possessed as part of their constitutional inheritance resulting from the struggles between Crown and Parliament in the 17th century, or which evolved as part of the colonial experience. Sullum has confused them with natural rights right from the start, and his entire argument suffers becauseof it.
Obviously, most of the Framers at Philadelphia were satisfied to conclude their work in 1787 without including any specific mention of these rights. It was only later, in response to the objections of Antifederalists, that a Bill of Rights was included. Many of the Framers regarded such an enumeration of protected rights as redundant or unnecessary. Antifederalists correctly feared that if there were not specific protections written in as part of the fundamental law that there would be nothing to prevent the new, more consolidated government created by the Constitution from running roughshod over their liberties. The Ninth Amendment was written in such a way as to address Antifederalist concerns that a Bill of Rights might be interpreted as an exhaustive list of all the rights citizens had rather than as a series of prohibitions against the power of the federal government.
Just because the Constitution acknowledges rights that pre-existed the creation of a new federal government, it does not remotely follow that theories of natural rights are in any way relevant to interpreting the Constitution. Many of the Framers believed in natural rights that pre-existed the state, but it is not necessary to believe this pleasant, completely ahistorical fiction to believe that there were customary, inherited legal rights that existed before 1791 and were acknowledged and confirmed in the Bill of Rights. It is even less necessary to believe in natural rights to believe that these protections are vitally important and essential to restraining the excesses of the state.
Least persuasive is Sullum’s concluding claim:
Constitutional interpretation aside, Kagan’s reluctance to endorse the concept of pre-existing rights was troubling because without it we cannot draw moral distinctions between legal regimes. How can we condemn a dictator for legally authorized oppression, or say that our own Constitution is better now that it bans slavery than it was when it tacitly approved the practice?
Of course, it isn’t true that we can’t “draw moral distinctions between legal regimes” without a “concept of pre-existing rights.” It is perfectly possible to recognize that slavery is an evil insulting to human dignity without recourse to the concept of such rights, and it is even easier to criticize a regime that abuses its power and thereby undermines its claim to lawful authority. We have rich philosophical and religious traditions on which we can draw that do not rely on one of the more dubious assumptions of 17th and 18th century English philosophy.