Some First Things of Constitutionalism

The comments were originally delivered at "The Natural Law Challenge to Conservative Jurisprudence," a conference hosted at the William S. Boyd School of Law in April. Professor McAffee's talk on legal positivism was in response to Dr. Hadley Arkes' talk on natural rights as the foundation for constitutionalism. 

I first want to try to make clear that, with the differences of perspective I have with Professor Arkes, the perspectives we share are at least as important. So it’s worth taking a minute to summarize what they seem to be. I think we agree that the founders were deeply identified with the notions of natural law & natural rights. Indeed, the founding materials reflect widespread agreement that securing the authentic, natural rights of people was one of the purposes of the social contract that, when written, became the Constitution. Thus we share the view that when the written constitution includes what we call a bill of rights, to the extent that the rights to be protected are those regarded as natural rights, 1 constitutional interpreters do the Constitution a disservice if they look exclusively for historical evidence about the intended or expected applications of the constitutional rights provisions. Evidence from history—and even common law practice and precedent—are more likely to be relevant to the task of interpreting the scope of the “positive rights.”

The classic illustration of a natural right is freedom of speech. The First Amendment secures what most of the founders believed to be a natural right—a valid moral claim. Yet some modern conservative judges and commentators try to construe freedom of speech as though they are reading history, seeking to determine the “intentions” of the framers. Even some (a bit more sympathetic to free speech claims) go with Oliver Wendell Holmes’ emphasis on protecting the “marketplace of ideas,” a move that generates some real protection of political speech.  Those who thus see political speech as the center of freedom of speech, such as Justice Scalia, look to the case law precedent referring to Holmes’ marketplace metaphor.

Little attention is paid, however, to the fact that Holmes’ reliance on the marketplace of ideas reflected in part his moral skepticism, not any commitment to natural right. For Holmes, the only normative truths our political community can know are the matters as to which we reach some kind of consensus—what we collectively “buy” in the marketplace of ideas. The good news, if we would protect speech, is that Holmes at least embraces the view that we will best be governed by what our democratic community comes to believe as the result of free discussion.   Freedom of speech is thus construed to advance the idea of democratic government and at least reflects confidence that public debate will help the people decide on what is true in public policy claims.

Even so, a useful antidote to Holmes’ decidedly morally skeptical perspective is to understand free speech as rooted in natural rights theory. Exemplary is the book, Free Speech & Human Dignity, published in 2008 by Professor Steve Heyman. This last year, Heyman published an article that was critical of the 8-1 decision of Supreme Court in Snyder v. Phelps—rooted in Holmesian premises—that gave strong free speech protection  to  the harsh and offensive funeral picketing engaged in by the Westboro Baptist Church. This article was entitled “To Drink the Cup of Fury: Funeral Picketing, Public Discourse, and the First Amendment.”

Heyman and I have chatted about the tendency of individuals from religious traditions that embrace moral realism (another term for natural law), to adopt, still, views of constitutional doctrine that seem rooted in a sort of moral skepticism—and which are based, perhaps, on views that mainly embody court skepticism. Perhaps the most powerful irony behind these tendencies is that trying to use history to replace natural rights analysis means that in practice the interpreter is not even being a good textualist or originalist, since the evidence is so strong that the text—securing the freedom of speech—was written, and intended to be interpreted, as embodying a valid moral claim or natural right.

If we fully grasped and accepted the premises of the critique of Phelps offered by Heyman, we would better understand both what I hold in common with Professor Arkes and where our views of constitutional theory head in quite different directions. While those who founded the American nation, and adopted the Constitution, were deeply committed both to the ideas of natural law and natural rights—and several of the rights they enumerated are therefore best construed as natural rights provisions—they were at least as committed to then idea that what America most needed as it made its way to independence was to establish in a final and fixed form the principles of government they thought they understood.  The Continental Congress thus formally urged each of the American colonies to establish independent governments and to govern them by constitutions they drafted. In the two years following independence, eleven of the former colonies adopted new constitutions, and one drafted two. 2 The impetus for these moves was their conviction that the unwritten constitution of England had betrayed them, yielding the need for unequivocally unchangeable law.

It is quite demonstrable that “the framers of the Federal Constitution believed that the unwritten nature of the English constitution had contributed to a process of avoidance of the substantive values once thought to be embodied there.” 3 In short, the folks who brought us the American Constitution were constitutional positivists.  Now this suggested conclusion comes to modern critics of positivism as anathema.  A number of commentators, including Professor Arkes, seem to equate legal positivism with ethical relativism—in essence, the utter rejection of natural law and natural rights.4

But the founders’ constitutional positivism was the embodiment of their view that the only real security to natural rights was the adoption of a written constitution that might effectively protect them.  I have become convinced that there is not really a dichotomy between the jurisprudential theory of “naturalists” and the legal theory of positivists.  James Madison would not have disagreed with the sentiments of the leading modern positivist thinker, H.L.A. Hart:

So long as human beings can gain sufficient co-operation from some to enable them to dominate others, they will use the forms of law as one of their instruments.  Wicked men will enact wicked rules which others will enforce. What surely is most needed in order to make men clear sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end by submitted to a moral scrutiny.5

Hart clearly would justify legal positivism in part by its contribution to the moral scrutiny of the law. Another modern legal theorist, Philip Soper, has gone so far as to argue that “natural law theories are hardly theories [of law] at all.”  Since historical natural law was an effort to grapple with the idea of obligation to obey law, it did not really focus on questions of descriptive jurisprudence.6

Soper thus suggested that the natural law slogan, that “an unjust law is not law,” rests in a virtual contradiction inasmuch as the identification of an “unjust law” as not really law calls for an initial identification of the law by reliance on the formal tests of legal validity proposed by positivists; but if that is how we “identify” pronouncements as “law,” how would we decide that an “unjust law” is not really law?7

Soper offers another perspective of relevance to our discussion.  He says that if Supreme Court Justices become convinced that the Constitution itself calls for natural law/natural rights adjudication, and we assume, consistent with assertion in case law, the judicial rulings bind the other branches of government, “the system remains positivist in the most significant sense, with the judge simply serving as the sovereign in place of the legislature.” 8

Perhaps the main reason a generally “naturalist” reading of the Constitution is so controversial, even today and despite some endorsements of what I’ve called the “unwritten Constitution thesis,” is that many thoughtful commentators simply do not believe that the Supreme Court is up to the task of resolving whether political law or practice conforms to natural law. Almost twenty years ago, I wrote these words:

In Marbury v. Madison, Justice Marshall built the case for judicial review around the expertise of judges in declaring the law; it seems a much more difficult task to build the case that judges are “especially good at discerning and following moral truth.”  For one thing, while judges often address value questions as a necessary part of the task of deciding cases, virtually none of them have either the training or disposition to assume the responsibility of developing and applying a comprehensive theory of political morality.  Commentators have noted that in modern cases potentially raising the most challenging political-moral questions that the Supreme court has faced in the modern era—especially those on abortion, homosexuality, and the right to die—the Justices’ treatment of the core moral questions have been unenlightening at best.  What we know about the workload of the Court, and its deliberative process, confirms that it is an unlikely place to center hope for meaningful and systematic moral dialogue.9

In the framers’ understanding of Lockean social contract political theory, the legislative body of your standard republican government was assumed to be paying attention to the just claims of the citizenry it governed. Moreover, these legislatures were perceived as being the central body in a government that possessed “plenary” power.10 In thus justifying the omission of a Bill of Rights from the proposed federal Constitution, James Wilson explained:

When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete.  But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union.  Hence it is evident, that in the former case [of the states] everything which is not reserved is given, but in the latter [case of the federal Constitution] the reverse of the proposition prevails, and everything which is not given, is reserved. 11

I have carefully studied the debate over the ratification of the Constitution and thus have read this thoughtful answer, and others, offered by James Wilson, to what became a standard objection to the omission of a bill of rights from the proposed Constitution.  Wilson is another brilliant advocate of a “naturalist” view of law—a real believer in natural law & natural rights—whose words in favor of natural law and rights are often enough referred to by Professor Arkes.  But a careful review of the debate between Wilson and his many antifederalist opponents reveals rather clearly that the entire debate—including the arguments of George Mason, James Wilson, James Madison, Patrick Henry, and Alexander Hamilton, those casting arguments for and against ratification—was initiated and answered by positivist arguments about how the proposed written Constitution most plausibly was construed and applied. 12 The founders continued to believe that what was most critical was having a written constitution. Thomas Jefferson, who authored the Declaration of Independence, once suggested that “our peculiar security is possession of a written constitution. Let us not make it a blank paper by construction.” 13

If America’s constitutional founders—the ones who debated ratification—were faithful adherents to a pure naturalist jurisprudence, regardless of the content of constitutional text, there would have been no debate over a bill of rights at all. The antifederalists were genuinely fearful that the proposed document would enable, at least as positive law, government to run roughshod over the people’s natural rights. The federalist proponents were just as confident that the text of the Constitution squarely secured the rights of the people. If all were naturalists, defined simply, the federalist defenders would have done little more than reminded their opponents of this simple fact.  And this is why so many of us have worked hard to resist the idea that we have a “naturalist” Constitution which, at a practical level, amounts to an unwritten Constitution where judges simply decide what is “right” and what is “wrong,” without being concerned about the meaning of any text.

One irony is that I’ve spent twenty five years fighting with Randy Barnett about the text, history, and intent underlying the Ninth Amendment. Barnett is typical of modern proponents of what is often called the unwritten Constitution, in that he offers countless textualist and historical arguments—really, “positivist” arguments—to prove that the 9th Amendment was written to make natural rights enforceable at law. 14 But we all should understand that the search for natural rights does not mean that we will be governed by natural rights.

Professor Michael McConnell wrote:

If rights are wrongly conceived, they can be as inimical to justice, and even to liberty, as any recognition of state power.  Enforcement of the unenumerated right to own slaves precludes emancipation.  Enforcement of the unenumerated right of freedom of contract precludes minimum wage laws.  Enforcement of the unenumerated right to abort overrides the right to life. Enforcement of the right to voluntary associations to control their own membership makes it more difficult for the community to eradicate race and sex discrimination.  Enforcement of children’s rights against parental control conflicts with parents’ right to control the family.  The point is not that any or all of these rights are wrongful, but that the recognition of unenumerated rights is likely to conflict with plausible assertions of right on the other side. 15

An immediate problem, of course, was that there was a very real, and rather clear, conflict between the founders’ ideals and the reality of their practices.  This does not mean that they did not hold the ideals, but it does mean that the positive law they adopted inevitably fell short of implementing them. It also means that we make a mistake if we confuse their general commitment to natural law principles with the notion that they held the view that any law or practice not in compliance with natural law principle was, on that very account, a violation of the constitution they adopted. The founders believed in natural law, but they also believed each of the States had adopted a morally legitimate constitutional order, and the people had the right to “consent” to their state constitutions—even if their constitutions included morally objectionable authorizations.

Admittedly this enabled them to succeed in implementing constitutional systems that were in fundamental ways simply immoral—as in expediently accepting the legitimacy, and legality, of the institution of human slavery. Professor Arkes freely acknowledges this, but, like others, tends to “spin” it as “an exercise in prudence,” 16 emphasizing the Declaration’s equality pronouncement would be an enduring “reproach” to acceptance of slavery. Moral principle may have reproached the nation’s “prudence,” but Abraham Lincoln still correctly read the Constitution as authorizing slavery. And Americans who tolerated slavery may still have affirmed some of the right moral values, but surely their decisions were more condemnable than mere ethical relativism.

It is hard to believe that in 1819-1820, Thomas Jefferson, author of the powerful claim that all men are created equal, nonetheless utterly rejected the idea of withholding Missouri’s bid for statehood unless it abandoned its slave system or at least opened its border to free blacks.  For Jefferson, these demands would amount to a violation of the original federal bargain and threatened to undermine Missouri’s sovereignty over its own domestic affairs. 17 Jefferson clearly put states right over human rights—at least as a matter of law. He hadn’t intellectually rejected his natural rights theory; he just placed it to the side. No wonder that he once said that “I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.” 18

Yet Jefferson’s stand here was utterly unconstitutional by a the lights of Professor Arkes’ analysis, who concluded in one of his books that the Court should have relied on natural law and natural rights, and not the Commerce Clause or even the Fourteenth Amendment, to uphold the Civil Rights Act of 1964. When I read this assessment of how to sustain modern civil rights legislation, my reaction was: whatever happened to federalism?  Prior to Reconstruction, I’m quite sure that no lawyer ever suggested universal civil rights to the Supreme Court—let alone that any human rights, even if grounded in nature, could overcome states’ rights. Even those Akhil Amar labeled “Barron contrarians,” who took a dissenting view that federal rights that happened to be “declaratory” of natural rights could serve to limit state power, would never have willingly re-thought the pro-slavery constitutional compromise, or even asserted that Congress was empowered to determine the scope of such rights an enforce them everywhere.

Perhaps the single best illustration of such paradoxes was the experience of George Mason. Mason fully committed himself to natural rights, and he was the principle draftsman of the Virginia bill of rights. In his initial draft, Mason asserted: “That all men are by nature equally free and independent, and have certain inherent rights . . . .”  (Va. Const. of 1776, Bill of Rights, §1, reprinted in 7 State Constitutions 3812, 3813 (1909).)   Jefferson would state the same basic thought in the Declaration of Independence—with the words that all men are created equal and have inalienable rights.

Professor Arkes states in his book, Beyond the Constitution, that Jefferson’s assertion “was the father of all principles among us.”19 When this “natural equality” language was presented to the Virginia constitutional convention—a reconvened Virginia legislature—it was objected to as a potential threat to slavery. So the provision was altered to state that the equality and inherent rights of “all men” initially bestowed by “nature,” could not be given up “when they [the people in the state of nature] enter into society.” It is clear that this amended language was included precisely to clarify that the fundamental rights, however inherent or inalienable, did not apply to the Black race because the slaves had never entered into the state of civil society.

The state constitution framers and adopters apparently believed they could discard the implications of natural law principle, or just “overcome” it with a competing assertion in positive law. This same George Mason, moreover, author of the “natural equality” and “inherent rights” provisions, was a delegate to the Philadelphia Convention who urged the convention to add a “bill of rights” to the Constitution. The depth of his rights commitment is reflected in the fact that its refusal to do so prompted Mason—a supporter of the idea that the nation needed a new constitution—to join the Antifederalists opponents to ratification of the Constitution, largely because it did not include a bill of rights. Even so, later on, at the Virginia ratifying convention, it was still Mason himself, perhaps as the voice of experience, who drafted a proposed federal Bill of Rights that simply omitted the human equality language altogether and specifically limited protection of specified rights to “freemen” only. 20

One key to understanding all of this is to distinguish between “constitutional principles,” the moral concept underlying just formulations in constitutional text, and the Constitution understood as “law” in the hard sense.  The early state constitution bills of rights “were framed in terms of ‘ought’ or ‘ought not’ rather than ‘shall’ or ‘shall not,’ or sometimes ‘as statements of political ideals.’” 21 In the transition that occurred during the confederation period, we see “the developing vision of bills of rights as binding rules of law rather than obligating statements of principle—rooted in nature, to be sure, but effective constitutionally only as they are reduced to writing and place in the written constitution.”22

At bottom, what all of this underscores is that, even today, our debates over constitutional decision-making only partly relate to the authentic content of our constitutional norms and limits on government. Whatever text we have in the past, or do now, debate—whatever we take to be the source of constitutional norms—we as often as not debate over the method used to discover and apply such norms because of the anxieties generated by the fact that constitutional enforcement comes via judicial decisions.  Professor Arkes expresses great displeasure that an advocate of looking at an “unwritten constitution”—Tom Grey—embraces use of “the Anglo-American tradition” to find implied fundamental rights.  But invoking that very tradition has been an important dimension of implied fundamental rights doctrine—including due process “incorporation” of the federal Bill of Rights—for over 100 years.  Even Justice Scalia would use a pretty stringent concept of tradition in applying substantive due process to concretize and narrow the explication of implied rights.  And Professor Michael McConnell, who shares the concern that we should attempt to avoid turning the exercise into one of simply getting “outside the text” with no intention of looking to natural law, thinks we are more likely to avoid “moral hubris” by looking for help in considering the moral conclusions our society has long embraced.

In a critique of Professor Dworkin’s book urging us to adopt a “moral reading” of the Constitution, Professor Michael W. McConnell reminded us that there is “importance” in “Humility in Judicial Review.” 23 One thing to me is clear:   I have perused at least a half dozen books arguing for an aggressive use of implied fundamental rights where the author placed the greatest weight on a contended-for relationship between the Ninth Amendment and the Virginia Declaration of Rights and/or the Declaration of Independence—in other words, identifying the “others” (other rights) retained by the people with “inherent” or “inalienable” natural rights. It is quite clear to me that there are only a couple of additional authors who have asserted they have a handle on what really are the “natural rights” to which people are entitled. But even those authors hold dramatically different views of the contents of the secured natural rights than the ones I have gleaned from reading several of Professor Arkes’ books.  Even if Professor Arkes has reason to think he is the one with the right handle on identifying our inalienable natural rights, does he have a good ground to think that judges in general should be charged with the task of implementing the right principles of natural law and natural right?

For a sympathetic portrayal of the goal of implementing nature’s grants of rights, but still reflecting mild skepticism of the human capacity, and maybe especially the judicial capacity, to discern and apply them, one should look to Steve Smith’s The Constitution and the Pride of Reason.  For a similar set of conclusions, see Michael McConnell’s A Moral Realist Defense of Constitutional Democracy and Thomas B. McAffee’s Substance Above All: The Utopian Vision of Natural Law Constitutionalists.  As I have noted, I am sympathetic with the goal of moral realism impacting on law. And yet I confess to finding especially disconcerting Professor Arkes’ relative enthusiasm for Lochner-era decision-making and relative disdain for modern implied rights decision-making.

Be assured that, despite having some of my own misgivings about the aggressive activism on display in some modern implied rights decision-making, I will easily take Lawrence v. Texas over the Lochner decision itself. Lawrence is an implied fundamental rights case—the right of privacy—but it still puts its real focus on realizing the equal citizenship that was the central purpose of the Fourteenth Amendment. By contrast, Lochner is a decision with some problems that Arkes  reluctantly acknowledges, but only after simultaneously writing off a brilliant Holmes dissent, conceding the potential weight of the Harlan dissent emphasizing the facts supporting the health and safety justification, and then confidently asserting that the Peckham majority opinion had selected the appropriate “ground of judgment,” and was raising important issues of rights and fairness.

He concludes, finally, that even if modern thinkers don’t find the case “congenial” to their views, “it is not clear that they can assemble any moral or jural argument against it.”  (Con Illusions at 106.)   For a contrasting perspective, I would recommend David A. Strauss, Why Was Lochner Wrong?, 70 U. Chi. L. Rev. 373 (2003).  The moral issues to one side, there is nothing in the constitutional text or history, in my view, that lends any support to the idea that there is a fundamental right to bargain to work 15 hours a day as a baker.  To read the Constitution as securing free enterprise and prevention of the rise of socialism is at least as questionable as an interpretation of the Constitution as any modern implied rights decision.



[1] When Madison presented to Congress his proposed amendments to the Constitution, he made clear that some of the “specified” rights were those that already belonged to the people—i.e., they were natural rights—while other rights are described as “positive rights” that seem to “result from the nature of the compact.”  James Madison’s June 8, 1789 Speech, included in, Creating the Bill of Rights : The Documentary Record from the First Federal Congress 81 (Helen E. Veit, Kenneth R. Bowling, et al. 1991).  The natural rights are those kept by the people “when particular powers are given up to be exercised by the legislature.”  Id.  By contrast, the example of trial by jury illustrates that some of the rights specified “cannot be considered a natural right,” but such rights are often “as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”  Id.

[2] Thomas B, Mcafffee, Inherent Rights, the Written Constitution, and Popular Sovereignty:  The Founders’ Understanding  73-74 (2000).

[3] Thomas B, McAfffee ,  The Constitution as Based on the Consent of the Governed—Or, Should We Have an Unwritten Constitution?,  80 Ore. 1245, 1283 n. 172 (2001); Thomas B. McAffee, Substance Above All:  The Utopian Vision of Modern Natural Law Constitutionalists, 4 So. Cal. Interdisc. LJ 501, 516 (1995); Thomas B. McAffee,  The Bill of Rights, Social Contract Theory, and the Rights “Retained by the People, 16 S.I.U. L.J. 267,  274-76 (1992) [hereinafter “Rights ‘Retained’”]

[4] What has become the standard charge is that positivists “confer upon the political order the totality of authority so that the essence of law is not justice, based on reason, but the will of the sovereign.”  Brendan Brown, The Natural Law Reader 1 (1960).  In this account, positivism views rights as embodying only subjective preferences of the sovereign authority, and it rests on the will of those who create the rights.  Edward J. Erler, Natural Rights in the American Founding, in The American Founding—Essays on the Formation of the Constitution  203 (1988).

[5] H.L.A. Hart, The Concept of Law 205-06 (1961).

[6] Philip Soper, A Theory of Law 53 (1984).

[7] Id. at 52.

[8] Philip Soper, Some Natural Confusions About Natural Law, 90 Mich. L. Rev. 2393, 2415 (1992).

[9] Thomas B. McAffee,  Substance Above All:  The Utopian Vision of Modern Natural Law Constitutionalists, 4 S. Cal. Interdisc. L.J. 501, 529 (1995).

[10] Thomas B. McAffee, Courts Over Constitutions Revisited:  Unwritten Constitutionalism in the States, 2004 Utah L. Rev. 333, 339.

[11] 2 Ratification of the Constitution at 167 (James Wilson, Oct. 6, 1787).

[12] A well-known historian, John Kaminski, confirms that “all Antifederalists agreed that natural rights had to be protected by a bill of rights.”  Restoring the Declaration of Independence:  Natural Rights and the Ninth Amendment, in The Bill of Rights, A Lively Heritage 141, 145 (1987).

[13] Quoted in, Thomas B. McAffee, The Constitution as Based on the Consent of the Governed—Or, Should We Have an Unwritten Constitution?, 80 Ore. L. Rev.  1245, 1257 (2001).

[14] Professor Arkes does not rely on any particular text to justify his naturalist interpretation of the Constitution.  This is perhaps no coincidence, since a leading work setting forth his constitutional jurisprudence was entitled  Beyond the Constitution  (1990).  But in that very work he relies on the same historical argument that advocates of the “natural law” reading of the Ninth Amendment have proffered.  He relies on the view of participants in the Constitution’s ratification debate that declarations of rights do not “change the nature of things, or create new truths,” but simply remind us of what is already understood—basically the simple reminder that the rights secured were often natural rights.  Equally important, Arkes contends, is that defenders of the Constitution argued that a bill of rights would be dangerous—which he says referred to the possibility that setting forth natural rights might give rise to an implication that would  “quickly arise that the government may exercise all of the powers which had not been explicitly withheld,” to the destruction of natural rights.  Id. at 60.   Hence the other rights referred to in the Ninth Amendment are natural rights that were not enumerated.  But there is a more plausible understanding of this line of argument.  Madison explained that “the Constitution is a bill of powers, the great residuum being the rights of the people.”  1 Annals of Cong. 438 (1789).  Thus a bill of rights “cannot be necessary as if the residuum was thrown into the hands of the government.”  Id.

Defenders of the original omission of a bill of rights, then, freely acknowledged the necessity of a bill of rights in the state constitutions, where the states held general legislative power.  Consequently the concern was that a federal bill of rights might be read as creating named exceptions to general government powers, thereby reversing the Constitution’s central rights strategy of relying on enumerated powers to protect the people’s rights.  So the contention that some feared a construction that “government may exercise all the powers which had not been explicitly withheld,”  Arkes at 60, referred not to implied inherent rights but to the rights the people held as “the great residuum.”  For a more complete explanation of these arguments, see McAffee, “Rights ‘Retained’”,  supra  note 3, at 268-270.

[15]  Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 Chi.-Kent L. Rev.89,  103-04 (1988).

[16] Hadley Arkes, Beyond the Constitution  41 (1990).

[17] Pauline Maier,  American Scripture:  Making the  Declaration of Independence  185 (1998).

[18]  Quoted in, Gene R. Nichel, Children of Distant Fathers:  Sketching an Ethos of Constitutional Liberty, 1985 Wisc. L. Rev. 1305, 1326 n. 126.

[19] Hadley Arkes, Beyond the Constitution 40 (1990).

[20] Thus the natural equality provision was not treated as creating enforceable constitutional rights, and when it was used to invalidate slavery, the highest court in Virginia reversed.

[21] Inalienable Rights, 36 Wake Forest at 754 (2001).

[22] Id. at 757.

[23] Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L. Rev. 1269 (1997).

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