The Legacy of Natural Rights

Center for Citizenship & Constitutional Government

Available on-demand

Sift through the foundational ideas of the American project as you weigh the enduring power of natural rights. Jud Campbell, professor of law and the Helen L. Crocker Faculty Scholar at Stanford Law School, leads a panel that navigates complex legal histories to grasp how ancient wisdom shapes our modern liberties. Transform your understanding of self-governance and illuminate the civic path forward for a free and flourishing society.

“The Legacy of Natural Rights” was presented as the concluding event 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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The True Lecture Series, inaugurated in 2024 at the University of Notre Dame, serves a critical strategic function: fostering deep scholarly engagement with the principles of American constitutionalism. In the modern legal landscape, the return to founding-era social compact theories is not merely an academic exercise; it is essential for understanding the limits of governmental power and the nature of individual liberty. This session facilitates such inquiry by bringing together three distinct jurisprudential perspectives to interrogate the relationship between written text and inherent rights.

Professor Jud Campbell initiated the discussion by presenting a thesis centered on the coexistence of the “social contractarian” and the “enumerationist” paradigms. Campbell argues that for the founding generation, rights were not always created by text. Instead, constitutional provisions—such as the Ninth Amendment and the Privileges or Immunities Clause—often acted as pointers to a background of customary and natural law. In this view, rights were frequently “underdeterminant,” meaning their specific applications were left to the people to define through legislation or “Constitutional Liquidation.” Campbell invoked Chief Justice Marshall’s opinion in Baron v. Baltimore to illustrate how federal limits on state power required enumeration, yet he argued that much of our constitutional law originally rested on this evolving customary foundation.

Responding to this, Professor Tom West addressed the “elephant in the room”: the government’s active duty to secure rights through coercive power. Drawing on the Massachusetts Constitution Preamble, West posited that the “common good” is synonymous with the security of the body politic—furnishing individuals with the power of enjoying their natural rights in safety. He argued that natural rights are not merely negative restraints but justifications for the state’s existence. For West, the government protects the right to life and property through robust foreign policy and criminal law enforcement. He suggested that the consent of the governed is often subordinate to the security of these rights, noting that founders like Hamilton and Madison viewed government as a necessary imposition of constraint on unruly human passions.

Professor Philip Hamburger offered a sharp critique through his “natural rights donut” metaphor. He expressed concern that Campbell’s theory creates a “hole” where central natural rights receive less judicial protection than peripheral, specified ones. Hamburger defended the concept of “judicial duty”—the ancient obligation of judges to decide in accord with the law of the land—over the modern, discretionary label of “judicial review.” Citing the disagreement in Calder v. Bull, Hamburger analyzed the tension between Justice Iredell’s caution and Justice Chase’s willingness to enforce natural justice. He pointed to the Contracts Clause and early cases like Champion and Dickason v. Casey to demonstrate that natural rights were historically understood as enforceable mandates, not vague principles subject to legislative whim.

This debate carries significant weight for the contemporary “originalist” project. If the original meaning instructs interpreters to look toward an evolving body of customary law, Justice Scalia’s “dead Constitution” model is challenged. The distinction between “declaratory” rights (recognizing pre-existing principles) and “specificatory” rights (creating new legal rules) determines whether modern judges have the authority to enforce natural law or must defer to “republican remedies.” To better understand the nuances of these positions, it is instructive to examine the participants’ own articulations of these principles.

The Interdependence of Rights and State Power: Rights are not merely shields against the state; they are the objective that justifies the state’s use of coercive power in foreign and domestic policy to ensure the security of the body politic.
The “Judicial Duty” Paradigm: Historical protections for liberty often rested on a judge’s mandatory duty to uphold the “law of the land,” a concept more structurally grounded and less discretionary than the modern, often politicized, exercise of “judicial review.”
The Functional Value of Enumeration: While natural rights exist independently of text, the act of enumeration serves to add legal specificity, providing judges and citizens with clearer benchmarks for identifying government overreach.
Republican Remedies over Judicial Supremacy: Drawing from Federalist 10, the founders sought to treat the “diseases of republican government” through structural solutions—separation of powers and civic participation—rather than relying solely on the courts. These remedies stand in sharp contrast to the modern administrative state, which often lacks such constitutional accountability.
The Role of Civic Infrastructure: Recalling St. Thomas Aquinas’s call to share the “fruits of contemplation,” the maintenance of a free society depends on the health of the “civic culture,” including the religious and educational institutions that prepare a people for self-governance.

“The deeper point is that earlier ideas of constitutional wisdom were originally much broader and richer than simply interpreting and enforcing a text. For the founders, maintaining rights mostly entailed maintaining popular self-rule and maintaining the public and private institutions and broader civic culture that enable republican governance.” — Jud Campbell
“Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint… government is instituted to impose violence, prisons, and war on men with unruly passions, and that’s what protects our rights paradoxically.” — Tom West
“18th-century Americans don’t talk about judicial review; instead, they talk about judicial duty. This was an ancient duty—the duty of judges to decide in accord with the law of the land… If the law of the land guaranteed a right, then the judges had a duty to enforce it.” — Philip Hamburger
“Enumerated rights provisions often pointed the reader elsewhere to some other body of law rather than specifying what judges should do. The text says, ‘Go look over there.’ So, should an originalist go look beyond the text just as its original meaning instructs?” — Jud Campbell
“Every man receives in a well-governed society an equivalent for the rights he has surrendered. And what is that equivalent? The security of his person and property. It always comes back down to the collective individual good of the people.” — Tom West

The Legacy of Natural Rights

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