Essential to American freedom and happiness.
Below is a list of what I regard as the first principles of the Constitution of the United States. Returning to these principles is, I believe, indispensable to ending judicial usurpation and renewing the promise of American life.
Purpose of Government
The only legitimate purpose of government is to ensure the safety and happiness of the people by protecting each and every individual’s inalienable rights to life, liberty, and the pursuit of happiness. (Declaration of Independence.)
Rule of Law
The only good government is a government of laws and not of men. In a free government, no one is above the law. /1
Living under the rule of law means freely binding ourselves to the law as it is and not as we might like it to be. But the law, to be binding, must also be legitimate. A law that is not legitimate is not law. In our country, a legitimate law is one that is both just and constitutional. /2
Being equal by nature, in our rights, we are all sovereign by nature, as individuals.
We cede some of our natural sovereignty to government in order to secure our safety and happiness.
Legitimate government is a compact among and between sovereign individuals, acting as individuals.
Sovereignty is inalienable. Individuals can retrieve it at any time by withdrawing their consent from the compact of government, for example, by renouncing their citizenship or, when their inalienable rights are being violated, by invoking their natural right of revolution. (Declaration of Independence.)
The United States is a republic, and not a monarchy, oligarchy, or pure democracy.
The republican is the best form of government, although to be stable, it must include elements of the monarchical and democratic principles — a so-called mixed regime.
To be just, a republic must abide by constitutional limits that recognize and protect the natural rights of individuals. Without such limits, it is despotic.
The marks of a republic are rule by the people and the rule of law.
Certain kinds of laws are anti-republican by their nature. These include: bills of attainder, ex post facto laws, extreme debtor-relief measures, and laws that ‘take property from A and give it to B’ (redistribution of wealth).
In the United States, the people are supposed to rule the rulers, not the other way around. All government officers are the servants or agents of the people, not their masters. The United States of America was the first nation in history to embrace this principle, which may be called ‘popular sovereignty.’ It is the American commitment to popular sovereignty, and that commitment alone, that entitles Americans to call themselves an exceptional people.
The highest man-made law for Americans is the Constitution of the United States. (Article IV.)
The Constitution is the act of our political sovereign, the people of the United States. (Preamble.)
Sovereignty resides in individuals only. It does not reside in the people as a group, nor in the states, nor in the federal government, nor in any of branch or department of government. Our American governments are not sovereign in the traditional sense. Only individuals are truly sovereign. (Randy E. Barnett.)
No government officer may lawfully alter, defy, or disregard the Constitution.
The people may alter their forms of government when they become destructive of their safety and happiness. (Declaration of Independence.)
The Constitution can only be formally altered by the people, using the process specified in the instrument. (Article V.)
Enumeration of Powers
The Constitution grants only a limited set of powers to the federal government, which are enumerated in the instrument. These powers are to be wielded only for the common defense and general welfare of the United States, never for the benefit of favored regions, interests, persons, or groups. (Article I, Section 8.)
All powers not granted to the federal government, nor prohibited by the Constitution to the states, are reserved to the people in their separate states. (Amendment X.)
The enumerated powers of the federal government are to be construed narrowly, in favor of the retained rights of the people in their separate states. (Amendment IX.)
The federal government has no general police power.
The police powers of each state are limited by the federal and state constitutions and should always conform to the requirements of justice and the common law.
Powers delegated to the federal government are in all cases to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn in question. (St. George Tucker.)
Powers granted to the federal government are never exclusive of similar powers existing in the states, unless the Constitution has expressly given an exclusive power to Congress or prohibited a concurrent power in the states or when the granted power is in its very nature incompatible with the existence of a like power in the states. (Justice Joseph Story, Houston v. Moore (1820).)
Separation of Powers
The Constitution separates the three great powers of government, legislative, executive, and judicial, into three departments or branches, which, although interdependent, are coequal. (Articles I, II, and III.)
The legislative powers delegated to the federal government are granted to Congress alone. (Article I.)
Government officers take an oath to the Constitution, not to what the Supreme Court has said about the Constitution. Every officer, including every judge, has a solemn duty to nullify (refuse to apply) any law that violates the Constitution. When the Supreme Court reasons wrongly about the Constitution, its reasoning is not binding on other government officers. While inferior courts are rightly expected to follow the binding precedents of the Supreme Court, their duty to the Constitution requires them to counter and narrow the effect of erroneous Supreme Court precedents.
In judicial reasoning, the correctness of the reasoning is more important, ultimately, than the correctness of the outcome of the particular case.
The constitutional text must be construed according to its original public meaning, as it was understood by those who ratified it. The views of its drafters are also important, but it is the understanding of the ratifiers that counts. The original meaning of a provision is what a reasonable, competent speaker of English living at the time of the provision’s adoption would have declared its ordinary public meaning to be. Discerning this meaning requires looking not only at what the words meant at the time they were ratified but also to the methods of interpretation that courts would have used at that time.
We have many kinds of rights, natural, civil, and political. Some rights are the creation of government, but most come from nature. The rights created by government we call ‘positive-law’ or ‘stipulated’ or in some cases ‘civil’ rights. The rights that come from nature we call ‘natural,’ and they inhere in us as individuals.
Some but not all of our natural rights are inalienable, that is, they cannot be relinquished permanently, and only with our consent.
Some of our rights are individual. Some are collective.
Some of our rights are enumerated in the Constitution. Most are unenumerated.
Rights versus Powers
Rights and powers are reciprocal or mutually exclusive. Where a right begins, a power ends, and vice versa.
Rights not relinquished are retained. The boundary between relinquished and retained rights may be established by defining the powers of the government or alternatively by defining the rights of the people. There are thus two ways in which the people may protect their natural liberty: by careful enumeration and limitation of the powers of government, or by reservation of the rights of the people through a bill of rights. These techniques come down to the same thing. Our Constitution employs both. (Michael W. McConnell.)
The Ninth Amendment, which speaks about rights, must always be read in conjunction with the Tenth, which speaks about powers. Together, the two amendments clarify where the boundaries lie between the federal and state governments.
Governments are bound to respect all of our natural rights, enumerated as well as unenumerated, stipulated as well as retained, consistent with the common good. But not all of our natural rights are ‘fundamental’ rights protected by the federal constitution.
The original Constitution, as ratified in 1788 and amended by the Bill of Rights (the first ten amendments) in 1791, made a handful of enumerated natural and civil rights, which may be called rights of national citizenship, enforceable against the federal government.
Prior to the ratification of the Fourteenth Amendment in 1868, the first eight amendments bound only the federal government, not the states. Barron v. Baltimore (1833).
The Fourteenth Amendment makes all constitutionally enumerated personal rights enforceable against the states, including all of the rights enumerated in the first eight amendments. Section 5 of the Fourteenth Amendment authorizes Congress to enforce these rights of national citizenship rights by appropriate legislation. /3
In addition to the first eight amendments, the Privileges or Immunities Clause incorporates the Article IV right of U.S. citizens to travel and reside in other states without being discriminated against by those states, the Article III right of U.S. citizens to make use of the federal courts, and the Article I right of U.S. citizens to enjoy the privilege of habeas corpus and to be protected from bills of attainder and ex post facto laws.
The Ninth Amendment, which requires us to construe federal powers narrowly in favor of the people in their separate states, acknowledges the existence of retained unenumerated rights, but no provision of the Constitution gives federal judges an unlimited power to enforce all of our unenumerated natural rights. That duty is left primarily to the people in their separate states. /4
The ratification of the Fourteenth Amendment did not amend or obviate the Ninth. Courts have a duty to nullify legislative enactments, state or federal, that violate the rights of national citizenship, but they should err on the side of protecting federalism. The genuinely close calls should be decided in favor of state policy choices and local self-government. Otherwise, judges will go too far in diminishing the reserved powers of the states and will unlawfully impose their own policy preferences on the people in their separate states.
The Supreme Court has erred in treating the Privileges or Immunities Clause as a dead letter and instead relying on the Due Process and Equal Protection clauses, selectively, to incorporate some enumerated rights against the states, and this error has opened Pandora’s box: an open-ended list of unenumerated rights, imposed at judicial whim. /5
Equitable Interpretation of Retained Rights
Unenumerated retained natural rights are not ‘constitutional rights’ under the Ninth Amendment, but do continue to enjoy some degree of legal protection in their pre-constitutional status as retained natural rights. Unenumerated natural rights are protected through a combination of self-control on the part of political actors (reinforced by the separation of powers) and equitable interpretation by the courts, which entails the narrow construction of statutes so as to avoid violations of natural rights. In other words, natural rights control in the absence of sufficiently explicit positive law to the contrary. This equitable interpretation is predicated on the charitable assumption that the legislature likely did not intend, by the use of broad language not explicitly addressed to the point at issue, to violate the law of nature. Equitable interpretation seeks to effect the animating purpose or spirit of a law, rather than its letter. (Michael W. McConnell.)
Equitable interpretation will decline to enforce laws that are illegitimate by their nature, namely, laws that violate rights which the people could never be presumed to have authorized their agents to violate, for example, ‘a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B.’ (Justice Samuel Chase, Calder v. Bull (1798).) When interpreting the federal constitution, a judge will regard equitable interpretation as an exception to state authority. The default rule is for the judge to leave most individual rights to be protected by the people in their separate states.
A judge may — indeed should — strike down a state or local law that is arbitrary or irrational, such as special-interest legislation masquerading as public health regulation, if it violates the federal or state constitution. But under the principles of federalism, close cases must be decided in favor of the positive law of the state or local authority.
Substantive Due Process
Reliance on the Due Process Clause to selectively incorporate the rights of national citizenship against the states is the leading cause of the rise of the ‘living Constitution.’ The Due Process Clause has no natural limits. Attempting to convert it into a source of substantive personal rights, and even ‘fundamental’ constitutional rights, has led the Court to do both too little and too much: to leave some of our enumerated constitutional rights unincorporated against the states while incorporating a potentially endless list of unenumerated rights against the states, in violation of the Ninth and Tenth Amendments. /6
In the Cruikshank case (1876), the Supreme Court effectively rendered the Privileges or Immunities Clause a dead letter by asserting that the Clause does not incorporate any enumerated rights against the states and that there are almost no privileges or immunities inherent in national citizenship. This reading is overly narrow and extremely harmful.
The modern judicial construct of ‘levels of scrutiny,’ i.e., ‘strict scrutiny’ versus ‘rational basis,’ elevates some rights and disparages others, in violation of the Ninth Amendment.
Original Meaning of ‘Privileges or Immunities’
In the words of Professor Kurt T. Lash is his 2014 monograph, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship:
The term ‘privileges or immunities of citizens of the United States’ refers to all constitutionally enumerated personal rights. . . .
A jurisprudence of the Privileges or Immunities Clause based on its original meaning would include [i.e., incorporate] the entire Bill of Rights [i.e., the first eight amendments], as well as the other textually enumerated rights such as the great writ of habeas corpus and the equal protection coverage of the Comity Clause [Article IV, section 2, which prohibits states from discriminating against the citizens of other states]. An original meaning jurisprudence would not include unenumerated rights, whether progressive [Griswold v. Connecticut, Roe v. Wade], libertarian [Lochner v. New York], or conservative [Meyer v. Nebraska, Pierce v. Society of Sisters]. Unless covered under a separate clause in the Constitution, matters involving the rights of privacy, economic rights, and parental rights would remain subject to political debate in the several states. Some aspects of the right to privacy, sexual autonomy, and gay rights may be covered under the Equal Protection Clause [see, for example, Justice O’Connor’s concurring opinion in Planned Parenthood v. Casey] or preserved under the doctrine of stare decisis [see, for example, the majority opinion in Casey]. However, there is no originalist understanding of the Privileges or Immunities Clause that would include such rights. [Emphasis added.] /7
1/ Customary exceptions to the rule of law — such as sovereign immunity, eminent domain, and civil forfeiture — are inherently dangerous and must be kept within tight limits. Likewise, modern innovations like qualified immunity, which renders public officials less than fully accountable for wrongful actions, and administrative adjudication, which inherently violates due process.
2/ Each of us must accept as valid law those judicial outcomes we don’t like, when rightly reached, and reject outcomes we do like, when wrongly reached. Among my least favorite Supreme Court decisions are those misinterpreting the Commerce Clause, the Due Process Clause, and what I will call the Constitution’s property rights provisions. The bad Commerce Clause decisions include Wickard v. Fillburn (1942) and U.S. v. South-Eastern Underwriters Association (1944). The bad money-clause cases, which undermine our natural property rights, include the Legal Tender Cases (1871), Julliard v. Greenman (1884), the Gold Clause Cases (1935), Veazie Bank v. Fenno (1969), and Kelo v. City of New London (2005). The so-called substantive due process cases, which infringe our Ninth and Tenth Amendment-protected rights to local self-government, include Griswold v. Connecticut (1965), Roe v. Wade (1973), Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015)). By contrast with these latter, I like the outcomes in such famous substantive due process cases as Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Troxel v. Granville (2000). But I oppose using any of the aforementioned cases, likable or not, as precedents, because of their incorrect reasoning. The property rights cases impute to Congress a ‘plenary power’ to regulate the economy that it does not have. The substantive due process cases, both good and bad, create new ‘fundamental’ rights out of whole cloth, in violation of the Ninth and Tenth Amendments. Now, I will readily concede that some cases are close calls, about which reasonable minds can differ, and that some wrongly decided cases might perhaps be decided in the same way, more defensibly, on the basis of some other constitutional provision. (I have trouble seeing how any of the cases I’ve mentioned here could be squared with the Constitution on any plausible theory.) By the way, there is a second-order problem here: erroneous statutory interpretations that flow from, or resonate with, erroneous constitutional interpretations — for example, Bostock v. Clayton County (2020). While they can theoretically be remedied through legislation, their resonance with erroneous constitutional readings makes that practically very difficult. So what’s the right rule to follow? As a rule of prudence, I think the Constitution requires that the close calls be decided in favor of state policy choices and local self-government. Otherwise, unelected federal judges with life tenure can impose too tight a straight-jacket on all the states, such as by imposing unchallengeable ‘fundamental’ rights that not everyone agrees are fundamental. Now, if someone can ever show me a defensible rule by which all of the due process cases whose outcomes I dislike (Roe, Casey, etc.) must fall and all of the ones whose outcomes I like (Meyer, Pierce, etc.) must stand, then I will cheerfully adopt that rule in lieu of my current one. Until then, I can only view the whole notion of ‘substantive due process’ with profound skepticism.
3/ The lawyers call this ‘incorporation.’ Barron v. Baltimore (1833) held, correctly in my view, that the first eight amendments of the Constitution imposed limitations on the federal government but not on the states. The Fourteenth Amendment, overturning Barron, incorporated, via the Privileges or Immunities Clause, the first eight amendments, along with other rights of national citizenship against the states. The duty to protect those rights became obligatory on the state governments, with Congress authorized to enforce that duty. The Fourteenth added to the list of enumerated powers of Congress, as did a number of later amendments.
4/ For an excellent treatment of how to construe the Ninth Amendment, see this article by professor Michael McConnell. His conclusion is worth quoting in full: ‘We are left with the following construction of the Ninth Amendment: Courts should give presumptive protection to natural rights (but should not make up new positive rights), subject to congressional override through explicit and specific legislation. In other words: the rights retained by the people are indeed individual natural rights, but they enjoy precisely the same status, and are protected in the same way, that they were before the Bill of Rights was added to the Constitution. They were not relinquished, denied, or disparaged. Nor did they become “constitutional rights.” They are simply what all retained rights were before the enactment of the Bill of Rights: a guide to equitable interpretation and a rationale for narrow construction, but not superior to explicit positive law.’
5/ Here are the relevant sections of the Fourteenth Amendment: ‘Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.] … Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’
6/ Sometimes legislatures pass laws under the guise of promoting public health, safety, welfare, or morals, but which laws are really gifts to some special interest, often designed to shut out competition or discriminate against a disfavored minority. Courts have an unavoidable duty to sniff out these ruses by looking beyond the plain words of a statute or regulation to weigh its real-world effects and to detect the probable motivations of its authors, and, where these are illicit and the judge has a power to do so, to nullify the law. But where there is serious doubt, the safer rule is for judges to defer. Otherwise, they can and will run wild. The infamous case of Lochner v. New York (1905) presents a good example of a close-call case that was wrongly decided, in my view. I offer it as an example because it has become a by-word, a negative symbol in American legal history, derided by everyone except modern-day libertarians, who alone support it. The Court ruled that the law at issue, a New York maximum hours law for bakers, violated the Fourteenth Amendment’s Due Process Clause, because that clause enshrines a natural-law ‘right of contract.’ While there is certainly a right of contract in the natural law, it is not an enumerated, federal constitutional right. The Constitution generally refrains from overriding the police power of the states, their inherent power to limit people’s freedom in order to protect public health, safety, welfare, and morals. There are exceptions, of course when a state exercises its police power unreasonably. But when the exercise is reasonable, the Constitution has nothing to say about it. In this case, the Due Process Clause has nothing to say about a local maximum hours law for bakeshop employees. Nor has the Privileges or Immunities Clause, which, as we’ve seen, only incorporates a limited set of rights of national citizenship against the states, among which there is no enumerated right of contract. Now, it is possible the New York bakeshop law could have been struck down under the Equal Protection Clause, had it clearly burdened some bakeshop employees or owners to the advantage of others with no demonstrable benefit to the public health and safety — in short, had it been mere special-interest legislation. But this is a question that turns on the specific facts of the case. In my view, the official case record is not clear enough on that point for judges to refuse to apply the New York statute. In Lochner I think the tie goes to the state’s not unreasonable restriction of liberty. Had I been a Justice, I would have joined the dissenters and voted to uphold the state law, even though as a citizen I would likely have opposed that law on policy grounds. (Personally, I am open to maximum hours laws where clearly justified as necessary to protect health and safety, but I categorically oppose minimum wage laws on economic freedom grounds, and I think the federal government has zero power to impose either, except for its own employees.) I hasten to add that I am not endorsing Justice Holmes’s famous separate dissent in Lochner, a typical instance of his deplorable legal-positivist judicial philosophy and dark, might-makes-right worldview. Nor am I endorsing the modern left-wing view that economic rights are inherently inferior to other kinds of rights.
7/ The parenthetical citations in the excerpt are from Professor Lash’s original, where they appear as footnotes. I’ve edited them slightly here for readability.
Revised: June 24, 2020.
Published: June 20, 2013.
Author: Dean Clancy.