Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?
Some of the most contested questions for modern constitutional law stem from the decision of the First Congress to enumerate some—but necessarily not all—fundamental rights as part of our basic legal framework. I believe that Lockean social compact theory can help us to understand these provisions of the Constitution, and especially the Ninth and Tenth Amendments.
According to Locke, natural rights are the rights human beings have in the state of nature, before the creation of civil or political society. “[E]very man,” Locke wrote, “has a property in his own person,” along with the products of his labor and that which he mixes with his labor. Indeed, the state of nature is “a state of perfect freedom to order [one’s] actions and dispose of [one’s] possessions and persons as [each of us] sees fit . . . without asking leave or depending on the will of any other man”—up to the limits of the law of nature; which essentially means extending equal freedom to everyone else, that is, not infringing their rights of person, property, and liberty. But it is important to stress that “natural rights,” so understood, are not the same as what today are often called “human rights,” that is, rights that must always and everywhere be respected by civil governments. On the contrary, because rights in the state of nature are insecure —lacking a common means of impartial adjudication and enforcement—human beings enter into a social compact in which they relinquish many of their natural rights in return for more secure protection of those they retain. Specifically, according to Locke, we give up our natural right to use private violence to punish transgressors, thus giving the state a monopoly on the legitimate use of force for punishment. In addition—and this is a part that some persons of a libertarian leaning sometimes forget—each person “is to part also with as much of his natural liberty, in providing for himself, as the good, prosperity, and safety of the society shall require.”
