Originalism and the Nature of Rights

Jud Campbell
A grayscale drawing of a big blocky building with columns on the front, with people standing and walking in the street in front of it, and a church in the background.

“Old City Hall, Wall St., N.Y.” from Washington Irving’s Life of George Washington (1855-59). Courtesy of Wikimedia Commons.

Today’s debates about the original meaning of the Bill of Rights are framed by implicit assumptions about the nature of constitutional rights—assumptions about where rights come from, what purpose they serve in the constitutional order, and who has authority to define their meaning. As the thinking goes, constitutional rights come from being enacted in the Constitution’s text, they serve as counter-majoritarian limits on governmental power, and their content is defined by judges. This is just what constitutional rights are. When we go back to recover the “original meaning” of particular constitutional amendments, then, we begin with deeply engrained premises about the nature of what we are looking for.

This way of thinking about rights was on full display in the Supreme Court’s recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). The case addressed the constitutionality of discretionary permitting for firearms, but the more important issue raised in Bruen was methodological: How should judges identify the constitutional boundary of state authority to regulate weapons? Rejecting the ends/means analysis that lower-court judges had used for over a decade, the Supreme Court announced a “text and history” approach that locates the limits of state power by examining only the text of the Second Amendment and ratification-era firearms regulations, without any ends/means analysis. Though pathbreaking in its methodology, the Court’s opinion is ultimately based on the conventional assumptions that constitutional rights are textually created, counter-majoritarian limits on governmental power that judges must define and enforce.

But what if the Founders did not share these assumptions? What if the Founders embraced a different set of views about where fundamental rights come from, what purpose they serve, and who gets to define them? If so, then the “original meaning” inquiry might be misconceived before even getting off the ground. Rather than “beginning with the text,” as modern interpreters are so fond of saying, we might start with a more fundamental inquiry. Instead of starting with a search for the original meaning of certain words and phrases, we might begin by recovering, at a more conceptual level, how the Founders thought about rights.

As it turns out, the Founders had a different way of thinking about rights. To be sure, they often resorted to the same documents and used the same terminology, thus making their rights discourse seem familiar. But that veneer of similarity makes it all the more important—and more difficult—for us to recover eighteenth-century views about the nature of fundamental rights before considering the original meaning of particular rights, such as the right to keep and bear arms. Recovering any genuinely original understanding of the Constitution requires viewing the historical evidence from the Founders’ perspective.

To begin that effort, we need to start with the basics. The foundation of Founding-Era rights discourse was social-contract theory. Today, that theory is studied in philosophy departments, not in law schools, and it plays virtually no direct role in constitutional discourse. At the Founding, however, the social contract (or “social compact”) was considered foundational to a polity’s fundamental law, thus profoundly shaping how Americans thought and spoke about rights.

As widely understood at the time, the social contract was an imagined agreement through which individuals had exited a state of nature and created a political society. Although historically fictitious, the idea of the social contract nonetheless had real-world implications for governmental power and individual rights. Most importantly, Americans generally viewed the social contract as the agreement that secured fundamental rights, including both natural rights and positive rights.

Natural rights were capacities that humans could exercise in a state of nature, without the intervention of a government. The rights to think, speak, sleep, and travel, for instance, were all readily identifiable as natural rights. So was the right to self-defense and the right to own and use firearms for personal use. After all, these were human capacities that could be exercised without a government. Natural rights were limited by natural law, but it was up to individuals to secure them in the proverbial state of nature.

Upon entering into a political society, individuals retained many of their natural rights but also transferred to that polity the authority to regulate and secure those rights in promotion of the public good. To modern ears, the idea of the government regulating fundamental rights sounds like a contradiction in terms. For us, fundamental rights are counter-majoritarian “trumps” that take priority over ordinary legislation. At the Founding, however, retained natural rights generally lacked this anti-regulatory character. So long as the people themselves maintained control over these rights through self-governance, their rights were “retained.” This helps explain why institutions composed of the people themselves were centerpieces of Founding-era constitutionalism. Notably, these institutions included not only representative legislatures but also juries and militias. Preserving rights largely meant preserving self-rule.

Aside from retaining natural rights, the social contract was also thought to secure fundamental positive rights, which typically were legal rules about what the government had to do or could not do. These aspects of fundamental law were almost always grounded in custom. Traditional common-law rules such as the rights to habeas corpus and trial by jury, for instance, were often viewed as fundamental regardless of whether they were mentioned in a constitution. Longstanding customs of this sort were fundamental, the thinking went, because they had received the direct endorsement of the people themselves. Although many Founders accepted that judges could identify these customary limits on governmental power, nobody thought that judges had authority to create these rules. After all, the people were responsible for determining their own rights.

Importantly, Americans generally thought that the existence of natural rights and positive rights did not depend on their enumeration in a written constitution. And social-contract theory bolstered this non-textual way of thinking, since rights were secured in the social contract, prior to the creation of a system of government in a constitution. Thus, as Roger Sherman declared in the First Congress, “the people are secure in [their rights], whether we declare them or not.” To be sure, jurists in the early republic disagreed about the judicial enforceability of unenumerated rights. But the core point remains: Americans did not think of rights as distinctively textual objects. For the most part, bills of rights merely declared the existence of certain rights.

Understanding founding-era rights discourse in these terms does not provide a magical key to unlock the meaning of the Second Amendment, but it does cast significant doubt on many modern claims about the Amendment’s original meaning. Most importantly, recovering this perspective about rights undercuts the “text and history” approach to constitutional rights that the Supreme Court embraced last year in New York State Rifle & Pistol Association, Inc. v. Bruen.

According to Justice Thomas’s majority opinion in Bruen, only two steps are needed to identify the scope of constitutional rights: the Constitution’s text defines the presumptive reach of the right, and then accepted historical traditions are excluded. With respect to the Second Amendment, for instance, the text instructs that firearms restrictions are presumptively unconstitutional—after all, such rules inhibit the “keep[ing]” or “bear[ing]” of “arms”—and therefore, in Justice Thomas’s words, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Crucially, Bruen explicitly rejects any resort to a third step—using ends/means analysis to evaluate whether the government has a sufficiently compelling reason to restrict firearms.

On its face, this approach seems historical. What could be wrong with looking to text and history? But the Bruen opinion illustrates how approaching the past through a modern lens can lead to an anachronistic view of original meaning. In particular, each of Bruen’s three featurestext, history, and nothing else—departs from how the Founders generally thought about fundamental rights.

Let’s start with Bruen’s central assumption about constitutional text. Today, it is axiomatic that constitutional rights are grounded in their enumeration. The Constitution, after all, just is the text, and the object of constitutional interpretation is to recover the meaning of that text. At the Founding, however, bills of rights were usually thought to be declaratory—referring to rights that existed apart from their enumeration and whose authority and definition were supplied by natural and customary law. For that reason, parsing the exact language of rights provisions was usually beside the point.

Bruen also goes awry in categorically rejecting ends/means scrutiny. At the Founding, rights were generally regulable in promotion of the public good, with the people collectively responsible for making decisions about what that standard entailed. The American Revolutionaries thus insisted that preserving their inalienable rights to liberty and property required representative government, not the elimination of law and taxes. To be sure, legislative acts did not promote the common good just because the legislature said so; legislative acts could be arbitrary or even corrupt. Notably, that assessment required examining both the ends and the means of legislation. But at least Bruen is right to assume that judges had little role in determining the common good. That was a quintessentially political task—one left to the people and their representatives.

Nonetheless, judicial review of some rights claims was available. As we have seen, many Americans thought that legislation was invalid if it violated fundamental customary law. One could argue, for instance, that prior restraints on publishing were unconstitutional because of a longstanding, well-accepted tradition that began around the time of the Glorious Revolution. Notice, however, that this way of thinking about customary law kept the people in charge of their own rights. Rights were generally subject to legislative regulation in promotion of the common good unless and until a settled custom clarified otherwise, thus reflecting the people’s own determination that certain forms of legislation were impermissible. Bruen’s primary historical flaw is to flip this approach on its head, permitting the people’s own representatives to regulate rights only when an established tradition allows it.

Bruen thus illustrates how the ahistoricism of modern Second Amendment doctrine runs far deeper than potential misunderstandings of founding-era views about firearms restrictions or militias. Rather, modern doctrine reflects deeply engrained but anachronistic ways of thinking about the nature of constitutional rights—presupposing that constitutional rights are textually derived, judicially enforceable “trumps” that impose counter-majoritarian limits on legislative power. Understanding how the Founders thought about the Second Amendment requires looking at the historical materials through a different lens, and recovering the central importance of republican self-governance to how they thought about the maintenance of fundamental rights.

27 November 2023

About the Author

Jud Campbell is professor of law and Helen L. Crocker Faculty Scholar at Stanford Law School.

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7 replies
  1. Michael Hansberry
    Michael Hansberry says:

    Obviously, the true meaning of the second amendment is that the right of the people to keep and bear arms CAN be infringed! And not only infringed, the scope of each of our fundamental rights can be redefined and whittled down by judges, for the common good of course. No need to examine text or historical meaning.

    The alternate view is that we start by examining the text and historical understanding to determine the scope of the rights protected by the Constitution. Then we determine if a particular legislative act infringes on the right in question. This not a recent development, the Court in US v Miller(1939) stated: “Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed.”

    The author claims that “Bruen’s primary historical flaw is to flip this approach on its head, permitting the people’s own representatives to regulate rights only when an established tradition allows it.” This is wrong for two reasons. Fundamental rights are not regulated, they are inviolable. Secondly, established tradition is reviewed to determine the scope of the right guaranteed, not to determine if the guarantee is to be honored.

    The author states: “One could argue, for instance, that prior restraints on publishing were unconstitutional because of a longstanding, well-accepted tradition that began around the time of the Glorious Revolution.” That is correct, because the scope of the “freedom of the press” was understood to forbid prior restraint. The government can regulate uses of the printing press which are outside the scope of the Freedom of the Press, such as counterfeiting or fraud, but the fundamental right is inviolable. Would the author seriously argue that SCOTUS could regulate the Freedom of Press so as to allow prior restraint despite the traditional understanding of the scope of that right?

    Reply
  2. Michael Hansberry
    Michael Hansberry says:

    Long before Trump Derangement Syndrome (TDS) was a thing, Second Amendment Derangement (SAD) flourished among legal commenters of a certain point of view. This derangement was apparent in the Hickman v Block decision ( 9th Circuit, 1996) when that court held that the right to bear arms was a State Right, despite the plain text of the second amendment. A subsequent decision of the 9th circuit (Silveira v Lockyer, 2002) was equally off kilter, it held without historical support that the right to bear arms was merely a Collective Right of the people. By the time the Heller case reached SCOTUS, the deniers of a broad individual right to keep and bear arms could only fall back on the Limited Individual Right (only in service of the state militia according to the dissent) which had been rejected out of hand in Silveira. Flash forward to present day and the latest meme is that all of our rights can be regulated. Like those who would burn down long-established legal structures to strike at Trump, the author and others are willing to set fire to the Bill of Rights in order to negate the guarantee of the second amendment. So sad.

    Reply
  3. Robert Test
    Robert Test says:

    I am not a scholar of law.
    Please provide me an instance of a moral rule or a legal rule that is so clear that no one could possibly suggest a, qualification or a regulation with respect to its implementation. For example the rule or law, ‘thou shalt not kill’. It applies only to human beings — only to some human beings – and only under certain circumstances.

    There is a standard exercise in introductory ethics courses. Various well-known systems of ethics propose only one or law as both necessary and sufficient for deciding every moral issue. Other ethical systems propose two or more rules necessary and sufficient for such decisions. Any system that has more than one rule will have instances where those two rules will conflict — then you have to decide which one is superior. This requires judgement — or another rule to tell you which rule should be dominant — this leads to an infinite regress.
    The second amendment doesn’t tell us exactly what sort of weapons one may legally possess — nor does it give us a rule for determining what a legal weapon is.
    I hope you don’t think that these comments set fire to the Bill of Rights.

    Reply
    • Michael Hansberry
      Michael Hansberry says:

      Suppose Congress decides that misinformation and hate speech are detrimental to our democracy, and so passes legislation to require government review before publication. Would you seriously argue that SCOTUS could exercise its judgement and regulate the Freedom of Press so as to allow prior restraint despite the traditional understanding of the scope of that right?

      Reply
  4. Michael Hansberry
    Michael Hansberry says:

    Suppose Congress decides that misinformation and hate speech are detrimental to our democracy, and so passes legislation to require government review before publication. Would you seriously argue that SCOTUS could exercise its judgement and regulate the Freedom of Press so as to allow prior restraint despite the traditional understanding of the scope of that right?

    Reply
  5. Jeff Schneider
    Jeff Schneider says:

    How can you argue that originalism of any stripe can reach a single result when founders like Madison and Hamilton Jefferson and Washington were on opposite sides of controversies like the Bank of the US IN 1791 and then Madison changed his mind in 1816 “waving” Constitutional considerations. Where is the originalism in all that?

    Reply
  6. Jeff Schneider
    Jeff Schneider says:

    What are the rights reserved to the people or the states in the 9th and 10th Amendments? Why did the Anti-Federalists insist on a bill of rights before ratification? If the process of creating a social contract was understood it is unlikely that everyone agreed on how to choose which rights. Why did the congress reject some of Madison’s original bill of rights? You never know what people think until you ask them. Why did Madison become a Republican in 1793 or so? The Federalist Society which supports “state” (sic) rights should be called the Anti-Federalist Society.

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