Jud Campbell on Natural Rights, Republican Government, and 21st-Century Constitutionalism
The Forum sits down with Stanford Law Professor Jud Campbell to discuss the Constitution's history and endurance.
Logan Fang: Welcome to The Forum's interview series. Today, we're interviewing Professor Jud Campbell, a legal historian who explores American Constitutionalism with particular attention to the history of rights. Professor Campbell joined the Stanford Law faculty in 2023.
My first question is about the Constitution. Many Americans see it as the basis of their rights, but the Founders saw our rights as consisting not only of these positive rights granted by the government, but of natural rights too. How does recovering this previous historical understanding of rights impact the way that we conceptualize them today?
Jud Campbell: It’s a tricky question because you have to think about not just what the history was, but how to use the history today. We have to think about what it is that makes claims about law today true, and that ultimately gets us into questions of jurisprudence, into questions of legal philosophy. I have some thoughts, but they're tentative because I write as a historian not as a jurisprudence scholar.
It seems to me that most of the ways that people argue about rights today assume that rights come from the Constitution, and have their force because they were adopted by the people at a particular moment in time. This older way of thinking recognizes the role of the people, but it does so in a way that's less about a particular moment and more about both the gradual accretion of precedent and custom over time.
So, a large part of what I'm trying to do in my scholarship is recover an older way of thinking about rights, not just as limits on governmental power, which they were to some extent, but also as a foundation for republican government. If we were to try to recover that way of thinking about rights, we would have to radically change the expectations we have about how to interpret and enforce constitutional rights provisions, because so much of our current way of thinking is animated by a counter-majoritarian conception of rights as limits on legislative power rather than as justifications for having a form of representative government in the first place. It would fundamentally change many aspects of the way that we do things today if we tried to recover that older way of thinking.
Logan Fang: I want to take a step back and just talk about the origins of natural rights. English common law tradition has seemed to influence American natural rights principles, but I'm also curious about what else had informed the founding conception of natural rights.
Jud Campbell: The idea of natural rights goes back a really long way, and there certainly are folks who are thinking about it in the Roman law tradition. The way that the Founders understand natural rights is influenced largely by two different threads of thinking in the 17th century, coming out of England: the common law tradition that you're talking about; and then also the social contractarian tradition of people like Thomas Hobbes and John Locke, drawing on some writers in Europe who ground their analysis of natural law in large part in this kind of thought experiment called social contract theory. Those two different threads are ones that the Founders are merging together. They don't really have a sense that these are two entirely distinct traditions, but rather that we can think about the purposes of government, the limitations of government, both by looking to principles of reason and thought experiments that resemble social contract theory, and also by looking to traditions, to things that we have done for a long time. It's the blend of the practical philosophical reasoning process, and the more on-the-ground custom excavation that gives rise to the way that the Founders are thinking about natural rights. So the the idea of natural rights is framed by a social contractarian, what we often call a liberal way of thinking, but it's also deeply informed by this idea that over the course of English history, people have come to better understand and better know how to protect their natural rights through the process of reasoning about the common law.
Logan Fang: I want to move then to a topic that you'll be covering tonight [at the Athenaeum] — unalienable rights. In a previous lecture series, you discussed how the Founders thought that people retained their rights after entering a political society, but gave up the authority to determine the limits of these rights to the government. I'm curious how you see these natural rights as opposed to unalienable rights. What is the distinction that we can make between those two?
Jud Campbell: What I'm interested in is different ways of thinking about unalienability. The Founders are using the word unalienability in two different ways, and if we want to understand rights discourse, we need to recover both of those and recognize that they're different. There’s an older notion of unalienability that refers to rights that cannot be transferred to the control of anyone else, including even one's representative. The right of conscience is a quintessential example of that. We can't transfer control over our thoughts to anybody else because it's not within our power to do that, and therefore granting the government any sort of control over our thoughts would be a wrongful transfer of power.
Then there's another way of thinking about unalienability, which is much more conducive to allowing for rights to be restricted under law, and that is the idea that we have certain rights that can't be transferred beyond ourselves or our representatives. On that conception, you could have an unalienable right to liberty, or an inalienable right to property, that is subject to restrictions with your own consent, either individually or through your representative. And what that means is that in this second sense of unalienability, preserving the unalienable right entails preserving a representative form of government.
The second sense of unalienability is not about limiting governmental power; rather, it's about guaranteeing a form of self-government that allows for people to consent to restrictions of their own rights individually or through their representatives. It’s that second caveat that's so discordant with the way that we think about rights today. Now, to have a right is to have personal control over the way that we decide how to exercise that right, and to allow the legislature to make a choice about how to exercise that right is antithetical to the way we think about what having rights is all about.
But, there's this older tradition of unalienable rights that I'm trying to recover. In this older 18th-century culture, there was a large emphasis on rights as pillars of republican government, not just rights as limitations on governmental power. This is especially important for the revolutionary cause, because the revolutionary cause is not about limiting government: the revolutionary cause is all about self-government, justifying claims that a foreign parliament is not capable of rightfully controlling our liberty or rightfully controlling our property. The revolution had nothing to do with trying to prevent representative legislatures from imposing taxes or representative legislatures from imposing restrictions on commerce. It had everything to do with ensuring that those choices were being made by people who represented us. That's the nature of the claim that the colonists are making, and it's why they use this republican idea of natural rights as opposed to the more power limiting conception that prevailed earlier in American history.
Logan Fang: If that's the case, then what kind of unalienable rights would you see as belonging to this latter category of rights that legislators can regulate?
Jud Campbell: People referred to rights of life, liberty, and property—that sort of category of rights that people beforehand would have called alienable rights. That's the thing that's so weird about this, the way the Founders are recasting the concept is to basically say: ‘Look, we don't need to alienate our rights. We don't need to alienate any of our rights. In fact, we can preserve all of our rights not by creating a minimalist government. Rather, we preserve them by creating a representative government.’
The move that they're making is to recast what had been often thought of as alienable rights as unalienable rights—rights that we don't need to transfer to the control of anyone other than ourselves, and crucially, that ‘ourselves’ includes the idea of a representative legislature restricting the rights on our behalf.
Logan Fang: At the time of ratification, Founders like James Wilson feared that enumerating rights would lead to unlisted rights being surrendered over to the government. You argue that the Founders denied that rights came from the text, and that the Bill of Rights served more declaratory purposes. Considering this, in addition to the risks that the Founders foresaw in listing out these rights, what did founders see as sort of the role of text here?
Jud Campbell: The Founders experienced the ways that text can help bolster claims to things that came from something other than text. So they think that there is an ancient constitution in the 1770s that undergirds, among other things, their right to representation under British law. But, they also think that it's helpful to them to be able to point to the Magna Carta and to be able to point to the Bill of Rights that was passed in London in 1688 as not creating their right to representation, but as reaffirming their right to representation. So, the text can be really useful, even if it isn't constitutive of the right. It may serve as both a legal and a cultural marker of that right's existence. One of the arguments that Madison makes when proposing the Bill of Rights says these rights, even if not strictly necessary to enumerate, might nonetheless be better protected if we write them down. They will reinforce in the people's minds that these rights exist and that they are worth protecting, and they help reinforce the obligation that judges already have to enforce aspects of our fundamental rights that have legally determinate content. So, this is a way of thinking about the relevance of text that is a reinforcing role rather than a constitutive role.
Logan Fang: In that case, how do you see the role of the Ninth Amendment?
Jud Campbell: The Ninth Amendment is a really nice piece of evidence that the Federalists who pass the Bill of Rights view rights in exactly this way: that rights don't come from the text, and that it's really important when we write them down not to give rise to the implication that the ones that we don't write down will be presumptively lost.
The Ninth Amendment is both reflecting this general attitude that the Federalists have, which is that rights don't come from the text, but it's also answering this problem that the Anti-Federalists had pointed to, that if you write down certain rights like the right to a criminal jury in the Article Three of the Constitution, by implication, you've maybe have taken away the right to a civil jury. The Ninth Amendment I see is doing both of those things: it's reaffirming a way of thinking about rights that reflects the idea that rights don't come from text, and then it's specifically rebutting this argument that one might make about the partial enumeration of rights. The Ninth Amendment, at least, is a really good clue that [the Framers] had a different way of thinking about fundamental rights than the way that we generally have.
Logan Fang: I want to turn to a more contemporary question. We see judicial review and judges as the primary interpreters of our rights, but judicial review played much less of a role at the Founding. You claim that our rights were really protected by what you call institutional design in civic culture. How do you look at the decline of civic education, and has that contributed to this reliance on judicial review?
Jud Campbell: I think it's right to say that the decline of a civic culture that values a way of thinking about rights that isn't just about judicial enforcement has reinforced the shift towards a jurocentric understanding of rights as being legally enforceable, as being limits on governmental power and so on. It would be really important if we were to try to go back to an older understanding of rights to try to recover some of that older culture. We might be even worse off as a society and as a constitutional system to try to go backwards without recovering that older culture, because the way of thinking about representation and the role of the people themselves in protecting and interpreting aspects of fundamental law presupposed an engaged citizenry.
I do worry, though, that when we just assume that judges have this responsibility and that nothing is left, that we kind of do two things that have very significant disadvantages. One is that we tend to view politics then as being totally unconstrained by law. The problem is, it's really difficult to maintain a constitutional system where politicians feel entirely unconstrained by norms. I think a lot of our present difficulties involve the erosion of norms that maintain the sort of civic culture that allowed for politics to function in ways that always were imperfect, but nonetheless generally were oriented towards the good of the political society as a whole.
Logan Fang: If that's the case, that we're thinking about politics as distinctly separate from the law, what was the middle ground? How did the Founders think about law and politics as something connected?
Jud Campbell: For one thing, they thought that the most important and consequential constitutional debates would be ones that took place in the realm of politics. Think about the bank debate in the early 1790s, or the Sedition Act debates in the late 1790s. Those were debates that did not occur, for the most part, in court. Rather, those were debates that took place in Congress, and then outside of Congress in legislative assemblies at the state level, and in petitions that various communities sent to Congress or to their state legislatures, and then within Washington's cabinet when he decided whether to veto the bank bill.
There are other ways that the Founders engaged in constitutional argument that went well beyond just arguing about what the Constitution meant in court cases, and I think that's a big part of what that older culture entailed. More broadly, there was this notion that every aspect of governmental power had to be aimed towards the common good. What that meant was that the people who were in power couldn't use power to try to advance their own ends or the ends of their own friends— they had to use power in a way that always kept the interests of the society as a whole in view, and they tried to do things that were impartial, as Madison puts it in Federalist 10. That's not just about legislation; that's about exercises of executive power as well. And it's a really hard thing to recover because it requires a kind of internally felt norm. It requires a culture that inculcates that sort of value. I think it's really healthy for us that we care as a culture so much about the Constitution, but when we see what the Constitution entails solely in terms of what judges tell us, we lose the ability to be thinking about constitutionalism in that broader way, and I think that's a real loss.
Logan Fang: Moving to the present, we've talked about the legal culture of the past and how it exists today. But what direction do you think we should be moving in today as Americans? What should we be thinking about?
Jud Campbell: I think part of the problem with our current legal culture is that there's so much confidence in our own position and so much denigration of the way other people think. It's a healthy thing for us to be committed to certain views that we think are right, but when we come to think that those views are so right and that everyone else is so wrong that it's no longer worth having these sorts of conversations, we lose the capacity to engage in this sort of constitutional project that the Founders envisioned, and that I think would be really healthy for a pluralistic society to maintain, which is a way of thinking about constitutionalism that isn't just about trying to get to the right answers, but trying to recognize ways of compromising across disagreement in a very diverse and divided society.
I worry that our emphasis on giving so much power to judges and so much power to lawyers who debate these things ad nauseum has a kind of disempowering effect on our politics, and that it leads to a perspective about the Constitution that is often too legalistic; that it's often too guided by the need for clear rules, and not guided enough by the way people actually think in our society and the need for the constitutional principles to reflect those ways of thinking.
I'm not proposing that we get rid of judicial review. I think it has a really healthy place in enforcing certain aspects of the Constitution. But I do worry that when we think about the Constitution and about constitutionalism only in this juridical mindset, we really lose out on a lot of aspects of the Founders' constitutionalism that were really healthy for a divided society.
Logan Fang: Thank you so much, Professor Campbell.
