Mr. Keeler is Director of the Law and Liberty Project, Institute for Humane Studies, 1177 University Drive, Menlo Park, California 94025.
American law is drifting in a new and disturbing direction. With only minor exceptions, its course is hostile to individual freedom. The domain of free choice is constantly whittled away by the law-making and rule-making functions of government at all levels. In case after case, the private concerns of the citizen are being made the public concerns of the government.
Even laws which supposedly benefit particular classes seem invariably to proceed by abrogating the freedom of their purported beneficiaries. The borrower is protected by denying him credit, the consumer by restricting his choices of consumption.
New rights are being created, but they are rights of a curious sort. They are such rights as a "right to a job," a "right to decent housing," a "right to welfare." Yet a right to a job must mean that someone is compelled to hire you. A right to decent housing (or any housing, for that matter) must mean that someone is compelled to save, invest, and build such housing. A right to welfare must mean that someone is compelled to work to create the wealth from which that welfare is to be paid.
The law is ceasing to serve as a means for protecting the rights of individuals and turning more and more to serve as a vehicle by which the politically stronger live off the politically weaker. The use of government taxing power to redistribute wealth is now an explicitly avowed program of political candidates. Politically favored groups now enjoy quotas of public and private jobs. The power of the government, particularly as it affects property rights, appears limited only by the imagination.
The law has not always been this way. In 1795, Justice Patterson of the U.S. Supreme Court had this to say about laws and rights:
. . . it is evident that the right of acquiring and possessing property and having it protected, is one of the natural, inherent, and inalienable rights of man. The legislature therefore had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without just compensation. It is inconsistent with the principles of reason, justice, and moral rectitude.
Similarly, in 1798, Justice Chase of that court had this to say of the proper function of the law:
I cannot subscribe to the omnipotence of a state legislature or that it is absolute and without control; . . . the legislators may enjoin, permit, prohibit, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong; but they cannot change innocence into guilt.
Thomas Jefferson had this to say of the laws and law-making function:
Our legislators are not sufficiently appraised of the rightful limits of their power, that their true office is to declare and enforce only our natural rights and duties and take none of them from us.
Or again, in his first inaugural address:
Still one more thing, fellow citizens, a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement and shall not take from the mouth of labour the bread it has earned.
These men, in common with most others of their day, held the belief that human rights were a fact of nature, prior to and independent of any man-made laws or constitutions. The legislative function, as these men saw it, was not to create laws or rights of their own designing, but merely to "declare and enforce only our natural rights and duties and take none of them from us." The government they created was intended to protect these rights of the individual, not destroy them. They had not fought a long war just to replace a distant tyrant with a nearer one.
Their view of government, the government they envisioned in their Constitution, was one along the lines described by Locke and others. Under this view, governments were created for the convenience of free men to articulate their natural rights, to provide disinterested judges, and to provide the power to enforce decisions thus given.
Under this view there was no need to set out in a constitution (which was merely a description of how the government was supposed to work) a list of the rights of the people, for these rights were dictated by man’s nature. Such a list would serve no purpose, since human rights could be neither enacted nor repealed. Furthermore, it was feared by some that, as no list of rights could be complete, the listing of some would be taken as the denial of others. This was the position of Alexander Hamilton and others who opposed the Bill of Rights.
In recognition of this problem, the Ninth Amendment provides:
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.
As Lysander Spooner, a Nineteenth Century legal scholar, commented:
What then were these "other rights," that had not been "enumerated"; but which were nevertheless "retained by the people"?
Plainly these are men’s natural rights; for these are the only "rights" that "the people" ever had, or consequently, that they could "retain."
And, as no attempt is made to enumerate all these other rights . . . and as no exceptions are made of any of them, the necessary, the legal, the inevitable inference is that they were all retained, and that Congress should have no power to violate any of them.
The Changing View
Time passed and ideas changed. The Constitution proved a workable and admirable device, and was rightly venerated by the people. But new notions of politics and sovereignty became popular and. people came to regard the Constitution and Bill of Rights as the source of those rights, rather than merely as a statement of preexisting human rights. Once that change was made, the rights of man ceased to be something beyond the reach of governments and became, instead, a matter for lawyers haggling over the meanings of words in a changing language. Freed from the implicit restraints of natural rights, the explicit governmental powers to tax, to regulate commerce, and to wage war became a carte blanche for increasingly powerful and arbitrary government.
While the fundamental, natural rights explicitly retained by the Ninth Amendment have been largely ignored, they have not been completely forgotten. There is a slow and fitful reawakening of interest in the Ninth Amendment and the concept it speaks for. In one of its rare modern invocations, Justice Goldberg had this to say in the 1965 case of Griswold vs.
Rather as the Ninth Amendment expressly recognizes, there are fundamental personal rights, such as this one [marital privacy], which are protected from abridgement by the government though not specifically mentioned in the Constitution.
Without a concept of human rights prior to, and independent of, any government or constitution, there is no way to prevent the law from becoming a tool for the oppression of the weaker by the stronger. Democracy does not change this fact, it merely redistributes the power to oppress. Unless you accept this principle you must accept a view of law—and of human rights—which validates the genocide of the Nazis and the depredations of every modern tyranny which blesses its outrages under the cloak of law.
The concept of human rights superior to the will of any govern-ment is neither new nor unique. It is an idea almost as old as western philosophy and was the common intellectual heritage of the founders of this country. For various reasons, this concept has been in eclipse for many years, a victim of newer concepts of "justice" and "social good." Its antithesis—the belief that rights flow from the government—has been in the ascendancy and brought with it suffering, genocide, breakdown of civil order, wars, and oppressions on an appalling scale.
The American constitutional form of government was designed as a vehicle for the protection of our fundamental, natural rights. Despite the generations of sophistry and misinterpretation, it is still there, Ninth Amendment intact. Aided by the natural rights interpretation, it can be restored as a viable and humane structure of free and just government.