ORDERED LIBERTY

Copyright © by Barnabas D. Johnson

One: Balancing Hedgehogs and Foxes,
Liberty and Order
 

Isaiah Berlin popularized Archilochus’ ancient metaphor of the hedgehog and the fox: The hedgehog operates on the basis of one big idea or explanatory principle — inevitable historical or economic forces, or a key fact, value, towering personality, etc. — while the fox operates on the basis of many competing or even contradictory assertions, values, explanations, etc. 

Of course, arguably, one should not become a hedgehog with regard to this metaphor, seeing all humans as either hedgehogs or foxes; recall the man who asserted that there are two kinds of people, those who think there are two kinds of people and those who don't. Likewise, however, one should not go overboard on foxiness, treating all facts, values, explanatory principles, and human actors as equally relevant … or irrelevant.

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Not all facts and ideas, etc., are equal; put cynically, not all hierarchies of truths, etc., reflect "illegitimate privileging" by oppressors (as too many skeptics describe success within the "marketplace of ideas"); some "mind-stuff" has highest value because it has proven itself in legitimate competition, usually over decades, centuries, even millenniums. We live and learn, if fortunate, especially with reference to what values have (or ought to have) our highest allegiance. For example, if worthwhile progress is our goal, then experience teaches that equal justice must trump arbitrary dictat. Why? The answer lies deep within the causes of human evolution and the cures for human hubris; this answer includes our capacity, together, to identify "not this" so as to draw closer to "yes, that" — thereby refining the descriptions, prescriptions, and proscriptions underlying the Rule of Reason.

This essay explores Ordered Liberty within deepest context, valuing yet transcending logic and science to compose a work of art: Constitutional Democracy.

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Concepts like Rule of Reason and Ordered Liberty, no less than Rule of Law and Due Process of Law, are terms of art that "signal" our commitment to highest values. I follow Friedrich A. Hayek and others in using initial capital letters to emphasize this.

Not every "rule of law" reflects the Rule of Law.

In this regard, I quote an early work by Hayek, Road to Serfdom (1944, 50th anniv. ed., Chicago, 1994):

Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge. Though this ideal can never be perfectly achieved, since legislators as well as those to whom the administration of the law is intrusted are fallible men, the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough. While every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts. [Hayek, Chapter 6, p. 80.]

The above includes the following footnote:

According to the classical exposition by A. V. Dicey in The Law of the Constitution (8th ed.), p. 198, the Rule of Law "means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government.

I should note that, for Dicey, "regular law" is also a term of art. His "law of the constitution" is about a specific model, that of England, in which "the constitution" and "the rule of law" are essentially identical. They start with the 1215 Magna Charta, the "law of the land" by which "due process of law" is secured. In addition to that "absolute supremacy" of regular law, Dicey notes that there must be "equality before the law" and a recognition that "the law of the constitution ... [is] not the source but the consequence of the rights of individuals." (p. 199)

Interestingly, while Dicey's text does not use initial-caps, his "side notes" accompanying the text do. His side note to page 198 is "Summary of meanings of Rule of Law" and his side note to page 199 is "Influence of 'Rule of Law' on leading provisions of the constitution." The first edition of Dicey's classic was published in 1885. The eighth and final edition was published in 1915.

This theme is further developed in Privileges and Immunities: Rights Imply Remedies.

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Many "facts" or "values" embody or require a balancing of facts and values, such as the constitutional phrase "reasonable searches"; yes, police searches are often essential, but no, unreasonable searches ought to be forbidden. Defining "unreasonable searches" requires sorting among thousands of fact-specific cases in which competing values were balanced in authoritative judicial determinations. Nothing that has a history can be understood except in light of its history and, ultimately, of all history ... the history of humanity's quest for Understanding Writ Large. Those systems of jurisprudence which seek to reduce or prohibit the role of case-by-case "definitions" — and common-law evolution generally — must fail, for the map is not the territory and the words composing descriptions, prescriptions, and proscriptions cannot be self-defining without also being trivial, irrelevant. The life of the law is not logic but experience ... and consequence.

See Why Publish Judicial Decisions?

Neither the banks nor the water flowing between "are" the river; without both banks and water, there is no river; likewise, facts and values "unchanneled" by history and consequence cannot make law, cannot constitute Ordered Liberty. Our highest "rules of conduct" are composed of a sort of DNA that instructs us how to both empower and limit their use.   

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Again, not all "conceptualizations" of facts and values are equal, and all must be contextualized by others. As argued elsewhere, I conclude that freedom of inquiry must be our highest value, and our next highest must be the value of balance or equipoise among highest values.

Ordered Liberty is perhaps the most general and precious of such "genetically-balanced" concepts. Some would say this concept is a contradiction of terms. In logic, it might be; in experience and consequence, however, Ordered Liberty denotes the deepest yearnings of all for security and freedom, safety and adventure, and (in the deepest sense) the civil right each has to pursue happiness in ways that maximize rather than diminish others' legitimate claims to "self-actualization" as free, responsible, accountable participants in civilization.

Expressions like "Ordered Liberty" and "pursuit of happiness" are tools of thought, communication, and cultural construction. Again, the map is not the territory; the blueprint is not the mansion, nor even a tiny room within. The name is not the thing or relationship named; and the document named "Constitution" (if competent) instructs an activity, a verb, "to constitute" ... an activity aimed at pursuing happiness by securing Ordered Liberty. This was a central tenet of Aristotle's philosophy 2300 years ago; and it ought to remain central to our current aims.

All cultural software and hardware — books, libraries, internet sites, universities, the ideas and institutions of Ordered Liberty — are laden with the dew of many mornings, a history of many "fresh starts" based on earlier explorations. Many of these tools explicitly call attention to their embeddedness within history and circumstance. All benefit from deepest explication.

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The phrase "survival of the fittest" must accommodate the fact (from which values flow) that humans are most fit not at running, swimming, climbing, biting, seeing, smelling, or similar skills, but in the skill of thinking how to use their many limited skills to best advantage at any given moment. And perhaps our greatest skill is our ability to balance competing or contrasting capacities in that cooperative endeavor which gives our species its greatest competitive advantage: building the Ecology of Mind based on an Ecology of Values which integrates competition and cooperation, order and liberty, majority rule and individual rights, etc.

Expanding on this theme, we see that it is both a fact and a value that human evolution has included the coevolution of competitive and collaborative skills, institutions, and modes of organizing people and resources. For example, market "competition" results essentially from "cooperation" among "consumers" that forces "producers" to provide quality goods and services at competitive prices – within a market in which all are both producers and consumers and all, to varying degrees, generate the facts and values composing the InfoSphere so central to a well-functioning economy, society, indeed Constitutional Democracy … participatory governance in which majority and coalition rule is balanced by minority and individual rights, according to "one big idea" whose focus is generating, testing, and implementing numerous "big ideas" like Ordered Liberty, Equal Justice, and the Rule of Law based on the Rule of Reason.

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Two: Triangulating Ordered Liberty,
Equal Justice, and Constitutional Democracy

Ordered Liberty is, of course, central to everything on the Jurlandia website. This "liberty" includes (or ought to include, see below) those "privileges" and/or "immunities" which the Constitution of the United States commands that no person may be deprived of without Due Process of Law.

See Note on Privileges or Immunities.

These privileges or immunities are often referred to as "rights"; and the fact that some are "enumerated" (specified in the Constitution) "shall not be construed to deny or disparage others" that are not enumerated, according to the Ninth Amendment, as further discussed below.

Words like liberties, rights, privileges, immunities, and freedoms (granting that we should distinguish between freedom "from" and freedom "to" — although my constitutional freedom to speak implies my freedom from unconstitutional restrictions of that right) are essentially interchangeable in most discussions of the Constitution. Yet we should be clear: the U.S. Constitution does not purport to "give" or "create" rights and freedoms; rather, according to classical political theory, this Constitution seeks to secure their advancement by prohibiting lawless curtailment

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Political theory is important. The theory underlying Ordered Liberty was, and should remain, that deprivations of liberty must be (a) governmental monopolies, and (b) subordinated to the requirements of Due Process of Law, the most general of all "privileges or immunities" — which twinned terms were first referenced (in what is now the United States) in the 1606 Charter of Virginia; these terms were central to all subsequent constitutive documents, including the 1777 Articles of Confederation (ratified in 1781).

And they were central to the 1787 Constitution (Article IV) and the 1868 Fourteenth Amendment (Article 1).

Regrettably, the Fourteenth Amendment's Privileges or Immunities Clause was incomprehensibly gutted by the U.S. Supreme Court's Slaughter-House Cases, 83 U.S. 36 (1873). This aberrant decision thereafter required the Court to place too heavy a burden upon that amendment's Due Process Clause and Equal Protection Clause. The jurisprudence on those "daughter clauses" has suffered from the death of their parent.

Read together, however, in light of (a) the historical context following the Civil War and (b) the meaning of "privileges or immunities" given by those who originated the Fourteenth Amendment, it is clear that these three clauses sought to guarantee to all Americans, then as now — no matter what state they live in or come from — that they are citizens of the United States and are therefore entitled to the blessings of liberty as secured by the U.S. Constitution. Those blessings included the privileges or immunities — often called "natural rights" — that were referenced in the original Constitution and those prior constitutive documents.

I elsewhere argue that these rights are less "natural rights" (as they are usually called) than "second-nature" rights which have evolved ... indeed, have coevolved with all the "stuff" (natural and cultural) which composes our emerging global environment. Indeed, a good argument could be made for calling so-called natural rights "third-nature" rights: the products of conscious human participation in cultural, and hence constitutional, evolution. Ordered Liberty evolves self-reflectively ... and, with many backward glances, it ongoingly self corrects. That is, it cultivates and harvests feedback, self-knowledge, both individual and societal.

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It is instructive to study the text of Article 1 of the Fourteenth Amendment. Arguably, "privileges" and "immunities" are even more central than "due process" and "equal protection"; indeed, the second is embraced within the first as the third is embraced within the second; these three belong together!

Article 1 of the Fourteenth Amendment states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

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The word "property" should be given broadest meaning. Here is James Madison:

"In its larger and juster meaning, [property] embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. . . . [A] man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may equally be said to have property in his rights." Source: James Madison, "Property," National Gazette, March 29, 1792; reprinted in The Papers of James Madison, vol. 14, 6 April 1791-16 March 1793; ed. Robert A. Rutland et al. Charlottesville: University Press of Virginia (1983).

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The above-referenced three fundamentals of Fourteenth Amendment intendment place the Judicial Branch, both State and Federal, at the heart of determining what the fundamental rights, privileges, immunities, and other blessings of liberty are.

The Slaughter-House blunder should be rectified. The Fourteenth Amendment is clear; the Ninth Amendment is clear; respecting them equally, "original intent" and "living constitution" jurisprudence can balance each other, thereby strengthening constitutional democracy in the United States.

See The Enterprise of Integrative Jurisprudence.

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Governments must be empowered to enforce their monopolies over coercive deprivations of liberty — subject, however, to the privileges and immunities retained by the people — else civil society collapses into private vengeance, vigilantism, the law of the jungle.

This fundamental constitutional theory is based on the ancient Greek triangulation of security, justice, and democracy, as further discussed in my essay, Isonomia.

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Three: Liberty in Proper Context 

I seek here to build upon John Stuart Mill's seminal essay, On Liberty (1869). Many writers before and since have contributed to our understanding. Above all, history's unfolding must be our teacher. What follows is a "rough draft" of my thinking on this crucial topic, which I am integrating especially with essays on equality and empathy.

The conclusion I am working towards is that there must be three co-equal, contrasting, often countervailing "presumptions" undergirding constitutional jurisprudence: security, liberty, democracy. Each of these implicates a deeper truth at the heart of human evolution, especially during the past few thousand years of recorded history: the interdependence of (1) competition and (2) cooperation or, perhaps more precisely, collaboration.

For example, competition in economics, ideas, and political power reflects a larger (often tacit) collaborative enterprise — enhancing civilization's definition and pursuit of material, intellectual, and societal values. These "mutual undertakings" (as Lon L. Fuller called them) partake of, yet transcend and transform, competition and cooperation.

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Our most significant collaborative "construction" involves determining what kinds of competition and cooperation are good. For example, cooperation as such is neither good nor bad; collaboration in evil is often a crime, called "conspiracy"; conversely, collaboration in determining what is good is, arguably, our highest achievement; and to advance this salutary goal, scholars and religions and ideologies compete ... yet should compete only according to all-governing values that rule out coercion in the marketplace of ideas, etc. This interdependence of competition and cooperation lies at the heart of the social compact, integrating the key values of security, liberty, democracy.

In my tentative view, Mill was too quick to cut from his consideration the issue of "free will"; it seems central to the Conversation of Democracy and to constitutional democracy generally; for, surely, constitutional democracy is the "institutional vehicle" by which — together, yet individually free and responsible — we secure, enhance, and explore rights, liberties, privileges, immunities, and all that which presupposes meaningful choice.

Our evolving "meeting of minds" regarding the elements of meaningful choice establishes and promotes "free will" to the extent that we choose to honor "the presumption of liberty" as a guiding value.

Put differently, liberty is a "cultural construct" with its history, narratives, tacit understandings, and contingent futures, yet it is nothing unless it is chosen and exercised by real humans, day by day, generation by generation.

I am especially interested here in our "tacit understandings" of why liberty is so crucial — and why this cultural construct is as much software as hardware.

Freedom evolves with law-based governance; neither is more fundamental than the other; our commitment to both has taught us, over centuries, how best to secure governments with limited, enumerated powers in order to secure, for ourselves and our posterities, those rights (and attendant necessary and proper restrictions) that (a) are enumerated, b) are unenumerated, (c) are ultimately impossible to map and specify, and d) let's keep a "place-marker" for those rights which we cannot today imagine but which might some day be essential to the continued survival and further evolution of our successors in interest.

See Note on Fundamental Rights.

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Consider how much historical trial-and-error, and resulting accumulated insight, is contained in the following passage from Friedrich A. Hayek's book, The Constitution of Liberty (1960), at p. 32:

The benefits I derive from freedom are thus largely the result of the uses of freedom by others, and mostly of those uses of freedom that I could never avail myself of. It is therefore not necessarily freedom that I can exercise myself that is most important for me. It is certainly more important that anything can be tried by somebody than that all can do the same things. It is not because we like to be able to do particular things, not because we regard any particular freedom as essential to our happiness, that we have a claim to freedom. The instinct that makes us revolt against any physical restraint, though a helpful ally, is not always a safe guide for justifying or delimiting freedom. What is important is not what freedom I personally would like to exercise but what freedom some person may need in order to do things beneficial to society. That freedom we can assure to the unknown person only by giving it to all. ...  The argument for the freedom of some therefore applies to the freedom of all. But it is still better for all that some should be free than none and also that many enjoy full freedom than that all have a restricted freedom. The significant point is that the importance of freedom to do a particular thing has nothing to do with the number of people who want to do it: it might even be in inverse proportion.

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The concepts of "natural rights" and "natural liberties" (including theories as to their distinct meanings) were and remain precious historical artifacts; but modern understandings of coevolution allow us to perceive more clearly that they are not "natural" or even merely the products of "second-nature" cultural composition. They are conscious "third-nature" commitments. They are no less precious for being "not natural" but, instead, "third-nature" choices. Indeed, modern understandings of what our rights, privileges, and immunities are, or ought to be — and of how, together, they compose that greatest of all restrictions upon tyranny, Due Process of Law — enhances their value by establishing that they will perish if not actively chosen, protected, enforced. Made by history, a second-nature phenomenon, these rights are now "slurped into enhanced being" by "futuristics": a "third-nature" — anticipatory — phenomenon. Its focus is consequences.

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Human will, coevolving with human liberty, is not "two things" but a much-of-a-muchness that composes us as we compose it. Liberty and choice and action and feedback — and our history of feedback-cultivating and feedback-harvesting — are ours to advance and to be advanced by. The British say "the government are"; the Americans say "the government is"; but governments — like the concepts "will" and "liberty" — are words denoting, pointing to, a "compound noun" which, on examination, names a complex activity which, as suggested earlier, is more a verb than a noun: constituting will and liberty, etc.

Thus, "it" — the dancing of liberty and will — is a gerund. Civilization is a gerund, civilizing. Future-making.

The English language is a powerful tool of thought and communication, but it distinguishes between simple and compound nouns, and between nouns and verbs, in ways that can impede our understanding of the rich "unity" of existence and our presence within it. We must look behind our words to the "thing or relationship itself"; and when we do, we will doubtless be struck by the realization that "what it is" and "what we think about it" are very closely tied. This attitude should not be confused with extreme solipsism: the belief that nothing exists "separate and distinct" from our apprehending it. Obviously, many things do. Distinctions are useful, yet we should be mindful that only similars can be usefully distinguished.

Good tools are good because they are specialized; this means they should be used for some tasks, not all tasks. "If all you have is a hammer, all the world will look like a nail." Since we know our world is many things, we need "jack-of-all-trades" tools that allow us to become masters at selecting the right tools, including those tools which are best for making new tools.

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It is a false dichotomy to assert that our liberties "come from God, not governments"; it is also an invitation to complacency. Our liberties are cultural creations, as are our governments; they coevolve. Whatever we mean by liberty and free will, they (it) are (is) the child of Mythos and Logos, namely Nomos — something we make out of something already "given": given, indeed, by previous generations of humans struggling to make the best of their own givens. See Mythos, Logos, Nomos.

Through Nomos — the narratives, traditions, institutions, and laws by which our liberties are bounded, secured, and balanced — wisdom, choice, and will "make more liberty" and thereby further secure, enhance, and balance Nomos. Those who assert that this view of things "takes God out of the picture" have a cramped, even heretical, understanding of what their own sacred literature tells them, warns them, about the nature of Divinity, including the divinity of Nature. Although this assertion is amply supported by Holy Books, it is sufficiently established by what our world's most thoughtful theologians have called the Book of Life: accumulated experience, thoughtful reflection upon human wisdom and folly, upon good and evil, and upon that abiding humility which allows us to discuss Yahweh, Jehovah, the Nameless One. See Hubris (under construction).

Far too many people are far too sure that their own particular Holy Book trumps accumulated experience, including the ways in which this or that Holy Book was used to justify horrible evils against "infidels" whose own Holy Book was different. Such zealots completely miss what it was that originally made their Holy Book holy: that it reflected the best accumulated wisdoms of its own time, which is why it was "written" when writing was still in its infancy. Faith and reason, thinking and believing, are false dichotomies. We must dedichotomize our either/or world, and develop a finer appreciation of its both/and blessings: the blessings of liberty bounded by common sense, by historical wisdom, and by their most precious flowering — justice, liberty's best safeguard against personal and societal hubris.

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The subject of Ordered Liberty is a moving target. What might have been "more true" in Mill's time is, arguably, "less true" now -- or, better, the question has changed. Truth-seeking has changed. It is not so much that "individual truth seeking" is now less important (although it might be); rather, the problem contained in the opportunity is that knowledge is now massively distributed, and we are staggeringly dependent on others for our own understanding, including our self-understanding.

Specifically, our global scientific enterprise has fundamentally changed the place of individual scientists and other "truth seekers" in this enterprise. This is not merely a change of degree, it is also a change of kind. The result is a mixed blessing, but a blessing nonetheless. And this blessing allows us to improve on previous understandings of ... well, what we mean by Ordered Liberty and all that it implies.

Understanding is distributed. No individual can perceive or know enough to exercise liberty without honoring the liberties of others. This breeds many things, including humility ... and gratitude for others' humility. This is the opposite of hubris. And here the "and" part of our both/and consciousness brings us to appreciate that, in some matters, it remains an either/or world. In some respects, we must forever honor both hedgehogs and foxes.

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Note on Privileges or Immunities:

Article IV uses "and"; the Fourteenth Amendment uses "or"; this difference does not seem significant, but  "or" is generally used throughout the Jurlandia website. (Go back)

Note on Fundamental Rights:

The nature and scope of fundamental rights is a huge subject. In the United States, this subject necessarily involves examining (a) what it means to have a government of limited, enumerated powers in which the people are principals and their government(s) are, in effect, their agents, and (b) how to enforce — under the Constitution, the supreme law of the land — those unenumerated as well as enumerated rights, privileges, immunities, and related blessings of liberty which the people form their government to secure.

As suggested, those unenumerated rights, etc., are arguably too numerous to catalogue; some of them are so fundamental they "go without saying" (such as the presumption of innocence or the right to be let go unless found guilty "beyond a reasonable doubt"); these rights are the focus of the Ninth Amendment of the U.S. Constitution, which ordains: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

These rights, etc., have coevolved with free governments.

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The ultimate question must always remain: What gives governmental limitations on liberty their "binding quality" so that we, and our governments, are required — are conscience bound — to obey the law? "I]f the term 'law' is to carry the moral implication that there is a duty to obey, then the requisite binding quality must go in before the name 'law' goes on," according to Professor Randy E. Barnett, in his book Restoring the Lost Constitution: The Presumption of Liberty (2004), p. 12.

I believe that the answer has to do with the reciprocity of obligations and rights. They are two sides of the same coin, whose realm is a mutual undertaking: the Rule of Law based on the Rule of Reason. Ordered Liberty coevolves with both, and dies in their absence.

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John Sherman, Senator from Ohio, provided a good summary of this subject in 1872: "[T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights ... of citizens of the United States, such as are recognized by the common law, such as are engrafted in the great charters of England, some of them in the constitutions of different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered."

In determining the nature and scope of these fundamental rights, privileges, and immunities, said Sherman, the courts "will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers [see next Note], to the Declaration of Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of [British judges] Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens." Barnett, Restoring, at p. 67. See "Original Meaning" of the Constitution.  (Go Back)

Note on Unenumerated Rights: Sherman should have used "rights" (above) instead of "powers"; perhaps. Except that it makes no difference if one accepts the "agency theory of government" in which individuals have unenumerated powers, and hence rights, and they delegate some of their powers (the "enumerated powers") to a limited government.

That government governs best which governs least ... by institutionalizing self-governance and accountability under the Rule of Law governed by the Rule of Reason. (Go Back)

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