Natural Rights at the Founding

Center for Citizenship & Constitutional Government

Available on-demand

Grasp the profound origins of American liberty. Jud Campbell, professor of law and the Helen L. Crocker Faculty Scholar at Stanford Law School charts the complex distinction between inherent human capacities and governmental regulations. Refine your perspective on the social compact, shifting your view of rights from mere judicial trumps to essential components of a self-governing society.

“Natural Rights at the Founding” was presented as the first 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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In the first of three lectures in the 2026 True Lectures series, Professor Jud Campbell serves as an intellectual historian rather than a modern legal advocate. He challenges the contemporary legal consensus by revisiting the 18th-century distinction between natural and positive rights—a dichotomy essential to grasping the original constitutional design. Understanding this distinction is strategically vital because it reveals that the Founders viewed rights not as textual “trumps” created by a document, but as pre-existing principles grounded in natural law and social compacts.

Campbell identifies a fundamental shift in how Americans perceive rights. Today, we view constitutional rights as legally determinate immunities that individuals play against government power, with judges serving as the final arbiters. At the founding, however, rights were understood through the lens of social contract theory. Natural rights—capacities individuals possessed in a “state of nature,” such as the freedom to think and speak—were “underdeterminate” norms. They consisted of broad principles that legislatures had the authority to specify or regulate for the common good. This explains why the Founders did not view legislative regulation as an inherent infringement; rather, they believed that as long as the people maintained control of their rights through representatives, they “devested themselves of nothing.”

A pivotal aspect of Campbell’s synthesis is the distinction between the “social compact” and the “constitution.” The compact was the hypothesized agreement to form a society, which predated the constitution—the agreement to create a specific government. Consequently, rights did not originate in the constitutional text; they were “retained” from a pre-existing state.

This perspective illuminates the Bill of Rights as “declaratory” rather than “specificatory.” While Thomas Jefferson favored a specificatory approach—seeking to fix rights in “constitutional amber” via textual formulas for judicial application—James Madison and the Federalists intentionally avoided such detail. Madison’s brevity was a deliberate anti-power-enhancement strategy. He feared that a “labyrinth of detail” would imply the federal government possessed broader powers than those enumerated in Article I. For instance, the First Amendment’s silence on the particulars of regulation was a “smart move” to avoid implying a federal power to regulate speech, while singling out “Congress” ensured the federal government could not claim authority to protect rights against states or private actors.

Ultimately, Campbell argues that the original design relied more on institutional structure—the horizontal and vertical separation of powers—and a virtuous civic culture than on the modern primacy of judicial review. Judicial review was a secondary safeguard, intended to embolden judges as guardians only when the legislature acted in a manifestly unreasonable or corrupt manner. Recovering this vision transforms our understanding of contemporary constitutional interpretation, bridging the gap between 18th-century philosophy and the speaker’s rigorous historical analysis.

Rights are Extratextual: At the founding, the Constitution was not the source of rights but an acknowledgment of them. Looking solely at the text to define a right ignores the “general law” and natural law principles the Founders assumed were already in motion.
The Primacy of Self-Rule: Preserving natural rights was historically synonymous with preserving representative government. Because representation was the security of the right, the Founders believed that being taxed or regulated with representation was an exercise of liberty, not a violation of it.
Declaratory Intent and the Silence of the Text: Most of the Bill of Rights was meant to declare existing principles, not specify new legal rules. The brevity of the First Amendment was a strategic choice to avoid “power-enhancing” implications, suggesting that silence in the text was a shield against expanded federal jurisdiction.
The Social Compact vs. The Constitution: The Founders distinguished between the agreement to form a society (social compact) and the agreement to form a government (constitution). Because rights were “retained” in the social compact, they remained valid regardless of whether they were explicitly listed in the governmental constitution.
Institutional Structure as the Primary Safeguard: While judicial review existed, it was not the primary mechanism for protecting rights. The Founders placed more weight on the separation of powers, regular elections, and civic education, suggesting that modern over-reliance on the judiciary is a departure from the original design.

“Natural rights were things that individuals could do in a proverbial state of nature without a government. These included the rights to think, to speak, to listen to a lecture, and so on.” — Jud Campbell
“For the founders, fundamental rights generally came from somewhere else. Natural rights of course were inherent in human nature. They were gifts of God and they had existed in a hypothesized state of nature.” — Jud Campbell
“Representation wasn’t just a check against tyranny. Representation was the very essence of what it meant to have a free society composed of free men—people who continued to control their own natural rights.” — Jud Campbell
“My narrower claim is that James Madison and the other folks in the first Congress who drafted the Bill of Rights mostly rejected a mode of enumeration that would have shifted the boundary between law and politics.” — Jud Campbell
“Robert Bork famously analogized it [the Ninth Amendment] to an ink blot… The amendment reaffirms that founding era rights generally did not come from constitutional text.” — Jud Campbell

Natural Rights at the Founding

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