Senator Rand Paul has never shied away from challenging conservative constitutional orthodoxy. Last week, he did so on the Senate floor. During his 10-and-a-half hour filibuster in opposition to the Patriot Act, Senator Paul boldly asserted that the Constitution protects individual rights not expressly listed in its text, including the "right to privacy." As Senator Paul put it, "Few and limited [are] the powers given to the government. But it's the opposite with your rights. Your rights are many and infinite."
Paul's notion of "infinite" rights places him squarely on one side of a debate about whether the Constitution protects textually unenumerated rights. Although the idea may appear novel, it was written into the fabric of our Constitution by the Framers.
As Senator Paul recounted, Federalist defenders of the proposed, unamended Constitution argued that including a bill of rights would imply that no others existed beyond those specifically listed. Ultimately, they promised a bill of rights to ensure support for ratification. In order to make plain that unenumerated rights were not surrendered to Congress, James Madison drafted what would become the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." That these retained rights are natural rights rather than government-created rights is evinced by the fact that many states subsequently attached similar provisions to their constitutions.
What, exactly, are natural rights? For the Founding generation, natural rights served as a means of defining a moral space in which people could peacefully pursue their own happiness while living in society. To say that you have a "natural right" to act in a particular way is to say that you are presumptively free to do so -- any interference by the government must be justified with reference to a rational, public-oriented end. Natural rights include the right to pursue an honest living in the occupation of one's choice; the right to acquire, use, and enjoy property; the right to direct the upbringing of one's own children; even the right to choose whether to bike or walk or take the subway to work. No surprise, then, that in defending the proposed Constitution, James Wilson denied that an exhaustive list of rights could be compiled: "Enumerate all the rights of man! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing."
Because the Framers contemplated that the states would act as faithful guardians of natural rights, the Constitution and Bill of Rights did not impose many explicit limits on the powers of state governments. Tragically, the states not only failed in their duty to protect rights -- they systematically violated them. The failure of the original Constitution to expressly secure individual rights against state encroachment gave rise to brutal majoritarian tyranny, particularly in states that sought to resist the abolition of slavery before and even after the Civil War. The Reconstruction Amendments were designed to cure this nearly fatal flaw in the Framers' original plan. Senator Jacob Howard, one of the leading authors of the Fourteenth Amendment, explained that the Fourteenth Amendment's Privileges or Immunities Clause protects "the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety," as well as "the personal rights guaranteed and secured by the first eight amendments of the Constitution." The Due Process Clause is also properly read to protect natural rights. The concept of due process of law can be traced back to the "law of the land" clause in the Magna Carta and refers to inherent limits on governmental authority.
How should courts go about protecting the natural rights referred to (but in no way created by) the Privileges or Immunities Clause, the Due Process Clause, and other constitutional provisions? Jurists during the Founding era afforded the judgments of the political branches a measure of deference, on the assumption that legislators and executives would engage in careful constitutional reflection before taking action. But today, we can no longer assume that policy judgments reliably reflect such careful legislative or executive engagement. If one is unconvinced by the growing body of public-choice scholarship that makes clear that many laws and regulations are written by lawyers and lobbyists with little incentive to think about whether the Constitution authorizes their preferences, a quick glance at some of the constitutional authority statements that members of Congress must submit with every bill they introduce should dispel that majoritarian myth. (Pro tip: Article I, Section 3 of the Constitution has no "Clause 8.") Under these circumstances, a judicial presumption of constitutionality is a recipe for unconstitutional government. Reflexive judicial deference should be replaced with evidence-based, impartial judicial engagement in every case involving plausible abuses of government power.
Senator Paul's understanding of natural rights is revolutionary -- but, then, so was that of the Founding Fathers. At a time when it seems increasingly difficult to be left alone by the government in one's peaceful pursuits, his call for a return to first principles is most welcome. Our rights may be impossible to fully enumerate, but they must be protected.