Federalism and the Decline of Natural Rights

Center for Citizenship & Constitutional Government

Available on-demand

Stand at a crossroads of constitutional history, where ancient natural rights meet modern legal power. Immerse yourself in this inquiry by Jud Campbell, professor of law and the Helen L. Crocker Faculty Scholar at Stanford Law School, as he retraces the path of American liberty. Grasp how foundational ideals transformed across centuries, equipping you to perceive today’s legal debates with surgical, newfound clarity. Delve deeply into the shifting landscape of American rights.

“Federalism and the Decline of Natural Rights” was presented as the second of three events in the 2026 True Lecture Series. Inaugurated in the fall of 2024, the True Lecture Series is made possible through the generous support of Tad and Jenn True. This annual lecture series was created to foster the production of scholarly manuscripts of great significance by major scholars that relate to the principles and practices of American Constitutionalism.

In what sense are “all men . . . created equal”? What is human liberty? What is prosperity, and how is wealth created? In 1776 these questions were addressed and acted upon in ways that have created the modern world. Commemorating the 250th anniversary, explore 1776 and the ideas that made the modern world, focusing on the Declaration of Independence and Adam Smith’s Wealth of Nations.

1776 and the Ideas That Made the Modern World, taught by Vincent Phillip Muñoz, Tocqueville Professor of Political Science and Concurrent Professor of Law at the University of Notre Dame and the Founding Director of ND’s Center for Citizenship & Constitutional Government, and James Otteson, John T. Ryan Jr. Professor of Business Ethics in the Mendoza College of Business is sponsored by the Center for Citizenship and Constitutional Government at the University of Notre Dame. To find out more, please visit their website.

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Understanding the transition from natural law to legal positivism is paramount for modern scholars. In his second of three 2026 True Lectures, Jud Campbell dismantles the binary view of American constitutional history, revealing a lost world where unwritten moral truths and written texts coexisted in a sophisticated dual-track system.

Professor Campbell identifies two paradigms that governed early jurisprudence. While elites embraced natural rights as inherent principles of justice, they adopted a positivist stance regarding federal limits on state power. This distinction is anchored in the drafting of the Supremacy Clause. Originally appearing in the New Jersey Plan as a response to the Virginia Plan’s proposed congressional veto, the clause functioned as a “choice of law” rule. It established that federal positive law takes priority over state law—a rule of preemption rather than a denial of unenumerated rights.

This nuance is exemplified in Baron v. Baltimore (1833). Chief Justice Marshall did not deny that states must respect fundamental rights; rather, he held that federal courts lacked jurisdiction because the claim did not arise under federal positive law. Campbell links this to Chancellor James Kent’s “declaratory” understanding of the Fifth Amendment: the text was not the source of the right but “decisive evidence” of an underlying principle of general law that bound all governments.

The coexistence of these paradigms was tested by the judicial enforceability of unwritten law. In Calder v. Bull (1798), Justice Chase’s “sermon” on vital social compact principles clashed with Justice Iredell’s insistence that judges require specificatory legal texts due to the underdeterminacy of natural justice. This tension was mediated through “General Citizenship,” a concept famously explored by Justice Washington in Corfield v. Coryell (1823). Washington argued that the Article IV Privileges and Immunities Clause extended general fundamental rights—like contract and property—across state lines, treating them as a shared heritage rather than purely local creations.

The 14th Amendment sought to bridge this gap by providing a federal remedy for these “inborn rights.” However, the Slaughterhouse Cases (1873) delivered a crushing blow. Justice Miller’s majority opinion forced a false binary: rights must be either state-derived or nationally-derived. By narrowing “National Citizenship” to a handful of federal perks, the Court elided the tradition of general law.

The “intellectual coup de grâce” was delivered by Oliver Wendell Holmes Jr. and the Legal Realists. Dismissing natural law as “fictitious nonsense,” Holmes redefined law as a human construct shaped by judges to promote social policy. This shift effectively “concealed” the natural rights tradition. As litigation shifted to federal courts, the unwritten “general law” was forgotten, leaving behind a constitutional culture focused solely on state-driven constructs and textual enumeration.

This historical narrative sets the stage for the specific evidentiary voices that defined this constitutional evolution.

The Declaratory Function of Rights: Early jurists like James Kent viewed written amendments, such as the 5th Amendment’s Takings Clause, not as the source of a right, but as “decisive evidence” of a general fundamental right that already existed independently of the text and bound the states.
The State Action Problem: The decline of natural rights fundamentally altered the federal government’s role. While the 14th Amendment originally sought to provide a federal remedy for inborn rights, the later shift to a strict “state action” requirement made it difficult to address private violence, such as that of the Ku Klux Klan, by framing rights as purely negative limits on government rather than universal protections.
General vs. National Citizenship: The founding era relied on “General Citizenship”—a shared set of fundamental rights belonging to all members of a free society—which the 20th century replaced with a narrower “National Citizenship” defined strictly by federal positive law and specific textual grants.
Federalism as a Jurisdictional Filter: The requirement that federal limits on state power be “enumerated” was a jurisdictional rule of federalism, not a philosophical rejection of unwritten rights. This distinction allowed natural law to thrive in state courts while federal courts focused on the “choice of law” rules of the Supremacy Clause.
The Legacy of Legal Realism: The triumph of the Holmesian view changed the definition of law from a “discovery” of natural order to a “construction” of state power. This effectively erased the “brooding omnipresence” of general law, leaving modern jurists to rely solely on textual anchors.

“The rights paradigm that I described yesterday survived up until around the turn of the 20th century and it underpinned the original design of the 14th amendment.” — Jud Campbell
“American elites had these two different ways of thinking—a general embrace of natural rights on the one hand and also a narrower embrace of positivism on the other.” — Jud Campbell
“The central flaw in Miller’s reasoning was his insistence that rights could only be grounded in federal law or state law.” — Jud Campbell
“The fallacy and illusion consist in supposing that there is this outside thing to be found… the realists have won.” — Jud Campbell
“Federalism facilitated this transformation while also helping to conceal it.” — Jud Campbell

Federalism and the Decline of Natural Rights

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