Constructing Constitutional Rights

Introduction

In his important article, Determining Rights, Professor Jud Campbell correctly observes that “[t]wo central problems in rights jurisprudence are figuring out who should make” “specifications” about what a right “demands in particular situations” and “how to make them.”¹ In answering these problems, Campbell makes essentially two central claims: (1) that “the Bill of Rights was mostly designed to declare the existence of natural or customary rights,” rather than give new legal content to rights; and (2) that this document was not designed “to delegate a determination power to judges.”² Regarding this second claim, the argument is that unless a right “had textually determined content” in the Constitution, or already had content that was sufficiently “determined . . . by common law,” “the Bill of Rights left room for ongoing political determinations — that is, determinations largely made on policy grounds by popularly elected representatives.”³ In other words, the Framers’ act of “enumerating rights in the Constitution” did not alone make “those rights judicially enforceable”⁴ if those rights did not have sufficient textual specificity in the constitutional text or sufficient determinacy at common law.⁵ Nor did the Bill of Rights provide a separate source of law for enforcing rights that were sufficiently determinate; such rights were simply already enforceable based on some other legal source, such as the common law.⁶ And declaratory rights enumerated in a constitutional document were likely not judicially enforceable at all if the common law did not provide sufficiently determinate content for the right.⁷

Campbell’s first claim is supported by extensive historical evidence and does much to advance our understandings about ways in which textual safeguards in both federal and state bills of rights operated as placeholders for a depth of meaning that could not be accessed merely through seeking semantic meaning.

But in Part I of this Response, I argue that Campbell’s second, much more complex claim is based in part on a somewhat anachronistic understanding of the process of “determination” as a natural law principle, and that it also fails to give sufficient attention to the process of constitutional construction (as opposed to interpretation) — a process that was unfolding during the Founding period. Constitutional Framers were engaged in a far-ranging debate about how to give legal effect to the grand experiment the new Republic was performing, of holding out the people as sovereign and placing meaningful constitutional limits on government institutions and officials. Judicial enforcement of declaratory constitutional rights was one of multiple options advocated by various constitutional Framers, even at times when the application of those rights to particular contexts was somewhat open-ended and thus indeterminate.⁸ In addition, some Founding-era sources suggest that enumerating rights did provide an alternative legal basis for their enforcement, even if said rights already existed and were enforceable under the common law.⁹ As a matter of modern constitutional construction, judicial enforcement of enumerated constitutional rights thus remains one permissible means of giving legal effect to open-ended declaratory rights, though certainly not the only one.

Still, even if we accept judicial enforcement of constitutional rights on some level, how is the judiciary to enforce enumerated rights that, Campbell argues, were not designed to “fully fix[] the content of those rights in perpetuity” or to “operate as categorical ‘trumps’ against governmental power,” and whose “content and structure” cannot alone be “textually derived”?¹⁰ How should judges enforce constitutional rights that were designed to leave “room for ongoing political determinations — that is, determinations largely made on policy grounds by popularly elected representatives”?¹¹ Campbell’s important work of intellectual history does not “tell us where to go”¹² on that pressing question.

But this Response takes that question up in Part II and evaluates three different options for implementing constitutional rights: rights as unfinished liberties that require judicial interest balancing, rights whose scopes are fixed by historical analogues of Founding-era regulations and that act as constitutional trumps, and rights as protected reasons. The third alternative is one that I have written about elsewhere from a theoretical perspective.¹³ But in this Response, I offer some initial thoughts about why the constitutional rights as protected reasons approach might be the method of constitutional construction that most faithfully enforces rights consistent with the Framers’ goals in memorializing natural and customary rights.

I.  Indeterminacy About Indeterminacy: The Relationship Between Constitutional Construction and Constitutional Rights

Campbell persuasively asserts that the method of interpreting the content of a constitutional right should depend on whether the right is declaratory or specificatory.¹⁴ Rights are declaratory if the constitutional text was marking the existence of preexisting natural or customary rights without intending to alter their meaning.¹⁵ The text of specificatory rights, in contrast, created or changed the content of rights,¹⁶ “as exemplified by the amount-in-controversy threshold in the Seventh Amendment.”¹⁷ Campbell argues that the rights in the Federal Bill of Rights were mostly understood to be declaratory.¹⁸ He notes, however, that these categories are “not always neatly divided — a single provision could be declaratory in part and specificatory in part.”¹⁹

This distinction in the type of rights is important because Campbell argues that while specificatory rights were judicially enforceable, declaratory rights were only enforceable in particular contexts: where those declaratory rights referred to fundamental positive rights, rather than natural rights, and where those fundamental positive rights were sufficiently determinate.²⁰ Where such preconditions were not met, the judiciary could not “determine” the right; determining rights was always an act of popular constitutionalism, whether through the long usage of the common law or the specification process in constitutional text.²¹ And, on Campbell’s explanation, the act of constitutionally enumerating declaratory rights did not provide an independent legal basis for judicial enforcement of that right. The right was either already judicially enforceable under the common law and remained enforceable on that basis, or it had not been judicially enforceable under the common law and remained unenforceable; constitutional enumeration that fell short of textual specification did nothing to legally change the status quo.²²

However, for reasons I explore in sections B and C of this Part, we cannot definitively say (as Campbell argues) that “the weight of Founding-era evidence”²³ ruled out enumeration as a separate legal basis for judicial enforcement of rights, including natural rights or somewhat indeterminate declaratory rights.²⁴ Rather, the historical evidence is mixed.

At best, we can say that there was indeterminacy about both the role the judiciary would play when it came to enforcing these sorts of rights and the role enumeration played in that judicial activity. There is, however, indeterminacy about the indeterminacy. In other words, there is indeterminacy not only about the proper role of the judiciary with respect to the declaratory rights enumerated in the Constitution but also about how to resolve that indeterminacy.²⁵ Section A of this Part thus begins by describing the different types of constitutional construction relevant to resolving such indeterminacy.

A.  Different Types of Constitutional Construction

Scholars debate whether any indeterminacy about constitutional rights can be resolved purely as a matter of constitutional interpretation or whether constitutional construction is necessary.²⁶ A number of constitutional theorists argue that where the communicative content of rights does not wholly resolve the issue of meaning, a constitutional interpreter finds herself in the “construction zone,” in which multiple constitutional methods of enforcing rights are at least plausibly consistent with historical evidence, and one method must be chosen.²⁷ While scholars such as Professors Jack Balkin, Randy Barnett, Evan Bernick, Timothy Endicott, Lawrence Solum, John McGinnis, Michael Rappaport, and Keith Whittington differ on how large they think the construction zone is and what courts should do when in this zone, they agree that in some cases the relevant constitutional decider will be called upon to engage in an activity other than the act of interpretation to decide an issue before it.²⁸

In contrast, other scholars argue that construction is rarely, if ever, necessary to resolve constitutional meaning.²⁹ Some argue that construction may not be necessary where there are closure rules that fill in these gaps in meaning. These rules include concepts like burdens of proof that resolve which option to choose in that remaining interpretive range.³⁰

Much of this debate relates to construction about the content of the right. By content, I mean the full range of requirements or duties entailed by the right as a matter of positive law today. Where the interpretive process doesn’t resolve identifying that content, I will refer to construction related to such content as (1) construction of the right’s content or meaning. But in this Response, rather than focusing on that category of construction, I want to draw more attention to the indeterminacy that arises related to two additional questions: (2) Which government actor (or actors) is empowered to change or enforce the content of the right, and (3) what doctrine or practice that authority should develop to implement the right.³¹ Where the interpretive process does not answer those questions (perhaps elsewhere in the constitutional text, beyond the Bill of Rights), construction may be required to address those issues. Nothing in this Response particularly turns on the label one uses,³² but I will describe the second type of construction as construction of authority and the third as a type of implementation construction.³³ These latter two categories are directly relevant to the central problems Campbell engages with in rights jurisprudence: “[W]ho should make . . . determinations” about what a right “demands in particular situations,” and “how to make them.”³⁴ As I understand his article, Campbell is not arguing that the meaning of the constitutional text elsewhere answers these questions.³⁵

These last two categories of construction relate to what Solum has referred to as “legal construction,” which addresses how to make constitutional meaning efficacious in a legal way.³⁶ But note that construction of authority is also relevant to the question of who gets to determine the content of the constitutional provision that will then be implemented through doctrines or practices.

Debates about these latter types of constitutional construction were of great importance during the Founding period,³⁷ and they continue today. Many current debates over constitutional protection of constitutional rights are often pitched as debates over constitutional meaning. But some of these could be more clearly viewed as debates about the type of legal doctrine a court should develop to give effect to the meaning of the relevant constitutional provision.

For example, the Supreme Court frequently asserts that it is engaged in debates about legal meaning when in fact it is grappling with questions about the construction of legal doctrine. This is true of the Court’s analysis in New York State Rifle & Pistol Ass’n v. Bruen,³⁸ where it seemed to suggest that the historical analogue doctrine it chose was simply dictated by the historical evidence.³⁹ The Court held that to limit the right to bear arms, the government must be able to point to some relevant historical analogue of such regulation at the Founding.⁴⁰ And the Court argued that its approach simply reflected the “balance[]struck by the traditions of the American people,” and “that demands [the Court’s] unqualified deference.”⁴¹ But neither history nor the semantic content of the Second Amendment dictated the specific doctrinal approach the Court chose. The Court could have just as easily said the Second Amendment was only triggered where the gun owner, rather than the government, could point to a sufficiently similar historical analogue of the type of weapon the gun owner wished to use (such as muskets and carbines). The Court could have also identified the relevant reasons for which the government had historically been permitted to regulate firearms and then determined factually whether the government advanced those same sorts of reasons in the present case. Indeed, the Court came much closer to doing just that in United States v. Rahimi.⁴²

On the other hand, sometimes the Supreme Court has been more mindful of developing constitutional constructions to implement constitutional meaning. The major questions doctrine as a canon of construction is one legal doctrine that is a method (but not the only method⁴³) of giving meaning to nondelegation principles in the Constitution.⁴⁴

When it comes to the Federal Bill of Rights, I argue that the interpretive process will rarely definitively answer questions related to either authority or implementation. Campbell’s article does not argue otherwise.⁴⁵ Instead, the Constitution underdetermines the answers to those questions, even when historical analysis is taken into account.

When implementation construction is at issue, what should guide the Court in crafting relevant doctrines? More work is needed on this topic. But at the very least, the Court ought to adopt a legal doctrine that performs the work any authority should be performing to justify its existence: resolving coordination problems.⁴⁶ So, constructing a clear legal doctrine that provides sufficient guidance to lower courts and sufficient predictability to litigants is an important consideration as courts choose how best to give effect to constitutional meaning.⁴⁷ This Response will also assume, without defending, that a construction of judicial doctrines should effectuate the goals of the Framers, or address the principles the Framers thought worthy of consideration, better than or at least as effectively as other options.⁴⁸ I will explore this particular question in more detail below in Part II when I analyze alternative legal construction approaches for constitutional rights.

B.  A New Experiment: Enforceable Constitutional Rights and Popular Sovereignty

At various junctures, Campbell essentially claims that historical evidence resolves the question of construction of authority regarding judicial enforcement of natural or indeterminate declaratory rights. He argues that such rights were generally not judicially enforceable pre-ratification, and further, that “the weight of Founding-era evidence” is “ultimately inconsistent” with the idea that “enumerating rights in the Constitution made those rights judicially enforceable.”⁴⁹ Either the rights were already judicially enforceable as sufficiently determinate customary rights, or they were not because they were natural rights or insufficiently determinate customary rights.⁵⁰ But enumeration did nothing to provide a new legal basis for enforcing rights.⁵¹ And ultimately, the “standard means of constitutional enforcement was popular constitutionalism, not judicial review.”⁵²

This argument assumes that there was a standard means of constitutional enforcement in the new Republic.⁵³ Yet the opposite is true.⁵⁴ The lack of standardization had to do with the fact that the American experience of making popular sovereignty a legal reality was an experiment — a radical experiment that threw the standard picture of Parliamentary sovereignty out the window.⁵⁵ In the view of some critics “steeped in British legal thought” at the Founding, this experiment was leading to the “breakdown” of any familiar “governmental order.”⁵⁶

Though the idea of expressly limiting government action is now commonplace in modern American constitutional law, inaugural Supreme Court Justice James Wilson explained that this was a significant political advancement in governmental frameworks. At the Pennsylvania state convention to ratify the Constitution, Justice Wilson argued that “[t]he idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle. The British constitution is just what the British Parliament pleases.”⁵⁷ In contrast, “[t]o control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American state. . . . [I]n our governments . . . [a]s our constitutions are superior to our legislatures, so the people are superior to our constitutions.”⁵⁸ Or as Hamilton explained, ours is a government by “reflection and choice” as opposed to “accident and force.”⁵⁹

The contrast between the British and American approaches to sovereignty is particularly stark in William Blackstone’s widely read Commentaries. Blackstone argued that “there is and must be in all [forms of government] a supreme, irresistible, absolute, uncontrolled authority, in which . . . the rights of sovereignty, reside.”⁶⁰ This power resided with the power to make law.⁶¹ Thus, arguably until the American Revolution, under the Blackstonian view, “[s]overeignty and legislature are indeed convertible terms; one cannot subsist without the other.”⁶² Further, “it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases.”⁶³

In contrast, Judge Tucker modified Blackstone’s Commentaries to adapt them to the laws of the United States and Virginia. He recognized that a number of legal principles, including the British approach to sovereignty, did not apply in the new Republic, stating:

[W]e endeavoured to shew that this maxim [about sovereignty] does not apply to the governments of the American States; by whose respective Constitutions, as also by the Constitution of the Federal Government, the legislative power is restrained within certain limits, both in the Federal and State Governments, which neither the Congress, nor the State Legislatures can transgress, without an absolute breach of the Constitutions from whence the Legislative Authority is derived. For, both the Federal, and State Constitutions derive their authority and existence from the immediate act, and consent of the people, “in whom” as our bill of rights expresses it, “all power is vested, and consequently, “is derived from them.”⁶⁴

Thus, the People delegated certain sovereign powers to governments to act as their agents, but they retained important powers as well, a principle identified in Virginia’s Declaration of Rights. Virginia’s provision stated, for example, “[t]hat all power is vested in, and consequently derived from the people; that Magistrates are their trustees and servants, and at all times amenable to them.”⁶⁵ South Carolina, Maryland, Massachusetts, and New Jersey all had constitutions with similar provisions.⁶⁶ This conception of popular sovereignty differed markedly from Blackstone’s view of parliamentary supremacy.

Furthermore, the types of natural and customary rights identified in bills of rights served as examples of the types of sovereign powers of interference the People never delegated to any form of Government. As expressed by Madison:

[T]here are powers exercised by most other governments, which, in the United States are withheld by the people, both from the general government and from the state governments. Of this sort are many of the powers prohibited by the Declarations of right prefixed to the Constitutions, or by the clauses in the Constitutions, in the nature of such Declarations.⁶⁷

In his speech in Congress proposing the Bill of Rights, Madison also explained that some of the amendments in the Bill of Rights embodied “those rights which are retained when particular powers are given up to be exercised by the legislature.”⁶⁸ Madison also criticized governments — specifically state governments — that did not adequately protect natural rights. He thought that states that failed to provide constitutions or bills of rights that identified these reserved powers were “very defective”⁶⁹ and even perhaps “improper,” by “infring[ing] upon the rights of human nature”⁷⁰ and “limit[ing] them too much to agree with the common ideas of liberty.”⁷¹ Wilson likewise described “[a] bill of rights annexed to a constitution” as “an enumeration of the powers reserved.”⁷² In his view, the courts had a “duty” to pronounce “void” for lack of authority a government action beyond “the bounds assigned to it.”⁷³

Decades later, Justice Story similarly contrasted the legal protections for natural rights in England with those in the newly formed Republic. He explained that in England it was legal for Parliament to infringe on individual rights since “an act of [P]arliament . . . [wa]s absolute and omnipotent” and that “[t]he judiciary [wa]s bound to carry it into effect at every hazard, even though it should subvert private rights and public liberty.”⁷⁴ In contrast, in the United States such violations of rights would not be legal, because the people were sovereign. Justice Story explained as follows:

[S]ince the American [R]evolution, no State government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint.⁷⁵

How then were the citizens of the new Republic to make popular sovereignty a reality and ensure that the government acted as a faithful fiduciary to the People? Intense debates about this question continued for decades after the Founding,⁷⁶ and they continue today.⁷⁷

Certainly, self-governance through elections is one method for making popular sovereignty a reality. But what if Congress passed a law that interfered with rights retained by the people, as identified in their bills of rights?

Another option that Madison and Jefferson encouraged was the adoption of resolutions by states to condemn federal action that the states viewed as unconstitutional.⁷⁸ Yet as discussed below, such resolutions, by Madison’s own admission, amounted to little more than “opinion” and thus had limited effect.⁷⁹

What role, if any, did the public anticipate the judiciary would have with respect to giving meaning to the ideal of popular sovereignty and natural or fundamental rights that the people had not delegated to government? That question is taken up in the following section.

C.  Conflicting Evidence About Judicial Enforcement of Rights

Campbell highlights some evidence suggesting a more limited role for the judiciary with respect to enforcing declaratory rights if those rights involved natural rights or indeterminate fundamental positive rights.⁸⁰ He also argues that enumeration of declaratory rights provided no independent legal basis for the judicial enforcement of those rights; if they were judicially enforceable, that enforceability was only based on a different source of law, such as the common law.⁸¹ Campbell asserts that “with respect to natural rights, enumeration was not a . . . sufficient condition for their judicial enforcement.”⁸² But there is important evidence that cuts in the other direction on these issues, and that suggests less of a “standard” picture at the Founding than meets the eye in Campbell’s article.

First, Campbell acknowledges that sometimes Framers were not consistent in how they used the terms “natural” versus positive or fundamental rights.⁸³ Sometimes, for example, “Americans . . . referred to trial by jury and habeas corpus as ‘natural’ rights” even though these are now quintessentially thought of as positive rights.⁸⁴

Second, some evidence suggests the Framers did view enumeration as providing an independent legal basis for enforcing the existing known content of declaratory rights. For example, the antifederalist Federal Farmer argued during ratification debates that “constitutional or fundamental [rights]” that could not “be altered or abolished by the ordinary laws” included rights that the people either “claim under the solemn compacts of the people, as constitutions, or at least under laws so strengthened by long usuage as not to be repealable by the ordinary legislature.”⁸⁵ In other words, one way to interpret this provision is that the enumeration of rights in a constitution could by that act make them “fundamental rights” even if long usage had not already done so.⁸⁶

When Madison introduced the Bill of Rights, his statements strongly suggested an understanding that a bill of rights could provide an independent basis for judicial enforcement of rights. One highly relevant piece of evidence about judicial enforcement of declaratory rights comes from Madison’s statement that “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.”⁸⁷ Campbell downplays this statement by arguing that “Madison was likely ‘making a point about judicial psychology’ — namely, that judges who were otherwise reluctant to enforce rights could, as a practical matter, be emboldened to do so when those rights were enumerated.”⁸⁸ In other words, Campbell reads this statement simply to mean that Madison is making a prediction about judicial action, rather than a statement about a new legal basis for judicial enforcement of these rights. But there is another, much more straightforward way to interpret this evidence.

Here’s Madison’s sentence in full:

If [a bill of rights is to be] incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.⁸⁹

In the context of this discussion, Madison made other statements that could be interpreted as meaning that enumerating rights provides a separate legal basis for their enforcement. He pointed out that though some disagreed that bills of rights were necessary, they did not argue that such a “declaration of rights” was “ineffectual,” which could be read to mean legally ineffectual.⁹⁰ The legal effect of these declarations could also be interpreted from the fact that Madison thought they needed to “proceed with caution” with the changes they made through this process, lest the “door [be] opened . . . for a re-consideration of the principles and the substance of the powers given.”⁹¹ Thus, real change to legal content in the substance of powers given could have happened through this process if not done cautiously. Madison also referenced some state bills of rights that were “defective,”⁹² which would seem to be a much less relevant concept if being discussed simply in a psychological sense rather than a legal sense.

Madison’s speech was in many ways reiterating some statements about the judiciary by Hamilton, who said in The Federalist No. 78 that “[t]he interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning . . . .”⁹³ In this way, “the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments,” which will “guard the Constitution and the rights of individuals.”⁹⁴

Elsewhere, state Founding-era courts explained that a legislative “act” that was “repugnant to the bill of rights” was “ineffectual and inadmissible and that the said action be dismissed,” which may suggest real legal effect coming from a bill of rights.⁹⁵ A federal court took it to be obvious that state legislatures could not annul declaratory rights that were natural and indeterminate but that were enumerated in state constitutions, asking: “Could the legislature have annulled these articles, respecting religion, [and] the rights of conscience . . . ? Surely no.”⁹⁶ This quote again suggests real legal content to the “articles” that cannot otherwise be legally annulled, even though the rights listed are not customary rights with determinate legal content.

Campbell does not provide historical evidence demonstrating a clear understanding that declaratory legal documents did not provide a separate source of law for the relevant legal content. To the contrary, he notes in his article that historical sources viewed the Sedition Act, like the First Amendment, as “merely declaratory of the common law.”⁹⁷ Yet the Sedition Act clearly provided an independent legal basis for courts to enforce prohibitions on sedition. So too, it is reasonable to assume, did declaratory constitutional amendments provide an independent legal basis for the enforcement of the preexisting content associated with those declaratory rights.

Third, there is also evidence that suggests courts played an important role in applying or giving more content to underdeterminate declaratory rights. Consider, for example, the debates surrounding the Sedition Act, which Republicans viewed as violating (among other things) speech and press rights in the First Amendment.⁹⁸ As described by Campbell, this debate undercuts the notion that a court could have a role in making the First Amendment right more determinate. He states: “Republicans argued that only state institutions could determine press rights” and that the “common law lacked the determinacy needed to guide federal . . . judges” with respect to those rights.⁹⁹ For these claims, Campbell relies on the Kentucky Resolutions drafted by Jefferson, since Jefferson there argued that states retained the right to judge unconstitutional acts for themselves.¹⁰⁰ Contrary to Campbell’s claims, Jefferson never treated this state power as one that gives the states the monopoly on judging unconstitutional acts.¹⁰¹ Aside from citations to secondary sources, Campbell does not directly address two State Resolutions that explicitly do discuss a role for the judiciary in enforcing indeterminate declaratory rights: the responses of Rhode Island and New York, discussed below. Nor does Campbell engage with aspects of Madison’s Report on the Virginia Resolutions of 1800 (also discussed below) that highlight this role for the judiciary as well.¹⁰²

In the Rhode Island Resolution, the legislature pointed out that the federal Constitution provided a “judicial power” for “all cases arising under the laws of the United States,” and this provision “vests in the federal courts, exclusively, and in the Supreme Court of the United States ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.”¹⁰³ As a result, the legislature argued that the State Resolution of Virginia improperly blended together “legislative and judicial powers.”¹⁰⁴ New York similarly argued that “whereas the judicial power extends expressly to all cases of law and equity arising under the Constitution and the laws of the United States,” the resolutions of Virginia and Kentucky constituted an “interference” that must be “excluded” under the constitutional scheme.¹⁰⁵

Madison did not reply by undermining the belief that courts could review and enforce underdeterminate declaratory rights like those in the First Amendment.¹⁰⁶ To the contrary, he highlighted the context in which judicial enforcement of constitutional provisions would be important, notwithstanding the underdeterminate nature of a right like a press right.¹⁰⁷ He observed the truth of the statement “that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the [federal] government.”¹⁰⁸ He also noted that the State Resolutions were merely “expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.”¹⁰⁹ “The expositions of the judiciary, on the other hand, are carried into immediate effect by force.”¹¹⁰ In other words, the judiciary was a more effective and appropriate branch of government to give “immediate effect” to an underdeterminate constructional right than a state legislature through a resolution.

Campbell argues that in these Sedition Act debates, while the Federalists treated judges as “[g]uardians of the Constitution,” they “did not defend judicial authority to determine rights.”¹¹¹ But this claim points to a larger problem underlying Campbell’s argument through the article: He fails to point to any evidence that any Framers discussed the concept of “determination” in the way that Campbell describes. To the contrary, some of the historical sources Campbell cites indicate that determination under the natural law was a process likely shared between government actors. In a 1721 treatise about the nature of law, for example, Thomas Wood explained:

[T]here are an infinite number of other sorts of Difficulties, which arise daily in the Application of Laws to the Differences between particular Persons, wherein it is neither necessary nor possible to settle precise Rules; and the Decision of the kind of Difficulties depends on those who are to judge of them, which requires on the one hand an exact Judgment, and on the other a perfect Knowledge of the Principles and particular Rules . . . .¹¹²

Thus, a determination regarding the law would occur when any institution applied existing legal content to new facts. Such a view, that determination of legal concepts as applied to new facts was an ongoing and “infinite” process, would be much more consistent with the concept of determinatio (to use the original Latin), and how that concept was understood by natural law scholars dating back to Aquinas.¹¹³ As such, it is anachronistic to suggest that the process of determining constitutional rights was delegated to one particular institution of government or could be fully accomplished in an identifiable, finite determination.

Historian Wendell Bird provides additional historical examples of early Supreme Court Justices who, in the decade before the Alien and Sedition Acts controversy, anticipated that the judiciary would have an important role in protecting declaratory rights such as freedom of speech against sedition laws.¹¹⁴

Justice Cushing was one of the original five Associate Justices on the Supreme Court.¹¹⁵ Prior to that role, he served as the “chief judge of Massachusetts’ highest court in 1789,” where he presided over two seditious libel cases “involv[ing] prosecutions of press.”¹¹⁶ At the time, “[t]he Massachusetts Declaration of Rights of 1780 protected freedom of the press broadly, saying ‘[t]he liberty of the press is essential to the security of freedom in a state[;] it ought not, therefore, to be restricted in this commonwealth.’”¹¹⁷

Justice Cushing wrote a letter to John Adams sharing his views about the cases, in which he construed the declaratory protection to be quite broad — far broader than in English common law.¹¹⁸ For example, he determined that the freedom of the press provision in Massachusetts’s Declaration of Rights abrogated English common law libel in at least three important ways.¹¹⁹ He did so notwithstanding that the wording in the state “declaration of rights[]” was “very general and unlimited”¹²⁰ and did not change the right in the specificatory way that Campbell envisions. Justice Cushing later “address[ed] these issues publicly, in a grand jury charge,” where a newspaper reported on his speech about the “evil tendency of libels” and the important protections to which a defendant was entitled.¹²¹

Adams responded to Justice Cushing’s letter and did not disagree with Justice Cushing’s analysis.¹²² Note that this response “was not [from] the embattled Adams who signed the Sedition Act nearly ten years later” in the heat of politics.¹²³ And thus Adams’s postrevolutionary views on press freedoms at this point are likely more relevant to original public meaning. Adams agreed that it was “very clear” that Massachusetts offered a defense of truth that would allow for acquittal, unlike under the English common law.¹²⁴ Put differently, Adams thought that the declaratory right in Massachusetts provided more robust protections than did the English common law, despite the general language of the Declaration of Rights not specifying that change in any detail (as Campbell claims is requisite to judicial enforceability¹²⁵). And Adams thought this protection would provide a legal defense in a judicial proceeding.¹²⁶

Judge Tucker also described his view that the judiciary would play an important role in protecting the declaratory natural rights listed in the First Amendment. Regarding the Free Exercise Clause, he published the famous View of the Constitution in 1803 that included an example of judicial review.¹²⁷ He went on to explain that the judiciary operated as “a necessary check upon the encroachments, or usurpations of power, by either of the other” branches of government, which helped ensure that “no individual c[ould] be oppressed.”¹²⁸ Then, specifically pointing to declaratory rights, he argued that if “a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man’s own conscience,” or “abridging” other First Amendment rights such as “speech, or of the press; or the right of the people to assemble peaceably,” then it “be the province of the judiciary to pronounce whether any such act were constitutional, or not.”¹²⁹ If the law was not constitutional, that judicial province was “to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act.”¹³⁰

And indeed, one Founding-era court followed Judge Tucker’s advice precisely by enforcing the declaratory right to free exercise of religion in New York by acquitting a Catholic priest from a penalty resulting from a generally applicable subpoena law that burdened his religious exercise.¹³¹

Some might argue that if the judiciary was understood as having a role in enforcing declaratory rights, we should expect to see even more of these cases. But there are many reasons for a small number of available cases, including the fact that courts’ decisions were not reliably reported.¹³²

But despite the lack of reliable reporting, other evidence does suggest that judicial enforcement of constitutional rights was not uncommon. A popular Republican lawyer named Richard Rush asserted: “[T]he courts are always in fact interfering with the government! . . . [L]et the legislature venture to . . . touch with only the pressure of a hair the supposed rights of the citizen, and you will soon see what a storm will be raised about the ears of their supposed sovereign authority.”¹³³

* * *

In light of the historical evidence from the Founding and the lack of constitutional text directly addressing the topic, there is indeterminacy as to the judiciary’s role in enforcing constitutional rights and how those rights should be enforced. At most, we can say that the evidence is mixed. The role of the judiciary was itself being debated — and not just in the context of declaratory rights. The process of making popular sovereignty a legal reality was a novel experiment. Put differently, the Founding generation was engaged in a robust debate about how best to give legal construction to many constitutional principles, and judicial enforcement was one of multiple permissible tools in the toolkit being considered. For these reasons, one could say that we are in the construction zone with regard to judicial enforcement as an authority to enforce rights, along with the doctrines they implement.

So what type of mechanism should the judiciary use to implement indeterminate rights, declaratory or otherwise? In other words, what type of constitutional construction should be preferred in that context? I address this question in Part II.

II.  Alternatives for Constructing Constitutional Rights

If we are in the construction zone when it comes to giving legal efficacy to constitutional rights at least in part through judicial enforcement, what relationship should the judiciary have with those rights as compared to other political branches? How should constitutional rights be given legal effect in a way that is at least consistent with and faithful to their ends, objects, or functions?¹³⁴ The claims in this Part of the Article stand independent of the claims in Part I. And I will here assume, without defending, that the principles and goals widely shared by the Framers related to constitutional rights should inform the constrained manner in which courts engage in constitutional construction of such rights today.

Campbell provides important historical evidence that helps us understand a number of widely shared Founding-era understandings and goals about how constitutional rights would operate. First, it was not understood by the Founders that, by listing a right in a constitution, all aspects of the application of that right would be fully fixed.¹³⁵ Rather, constitutional rights left room for political actors to also engage in constitutional construction regarding rights — constructions that should not lightly be disregarded by a court.¹³⁶ Second, the content of rights was not necessarily derived strictly from their text — often “written rights declarations were ‘mere placeholders’”¹³⁷ for a rich understanding about rights that existed prior to the text.¹³⁸ Third, the content of many of these preexisting natural rights, declared in bills of rights,¹³⁹ included important limitations on rights necessary for the public interest.¹⁴⁰ That inclusion was true whether or not those limitations were specified in the text.¹⁴¹

To Campbell’s framework could perhaps be added a fourth point that the Framers also had in mind when it came to the judiciary’s role in constitutional adjudication: a desire to limit judicial discretion and increase predictability in judicial outcomes.¹⁴²

This Part draws on these historical principles and assesses three different approaches that have been offered as frameworks for enforcing constitutional rights. Each of these approaches could be viewed as a form of constitutional construction of rights involving judicial implementation. These theories include: (1) an interest-balancing approach for unfinished liberties; (2) a regulatory historical analogue approach along the lines the Court pursued in Bruen, which would result in absolute constitutional trumps; and (3) constitutional rights as protected reasons, which I have discussed at length in a separate article from a theoretical perspective.¹⁴³

Both Professors Sherif Girgis and Joel Alicea rely on historical work by Campbell to argue that the first and second approaches, respectively, are most consistent with an original understanding of the framework of rights the Framers created.¹⁴⁴ Drawing on these same principles from Campbell’s work, I argue that the protected reason model of rights is more faithful than these alternatives to Founding-era history.

A.  Judicial Interest Balancing

The dominant global model for constitutional rights protection has long featured judicial interest balancing as the heart of the process.¹⁴⁵ Numerous scholars have argued that balancing is at best desirable, or at worst, unavoidable. Professor Richard Fallon, for example, has offered a nuanced defense of U.S. constitutional rights that requires interest balancing by the judiciary, though not on originalist grounds.¹⁴⁶ Girgis makes a particular argument about the “inevitab[ility]” of balancing what he terms “general” or “unfinished” liberties.¹⁴⁷ These include natural rights such as religious exercise, the right to bear arms, and speech.¹⁴⁸

In brief, Girgis argues that his approach is consistent with Founding-era approaches to rights. He states: “Early America regarded free speech, free exercise, and the right to keep and bear arms as open-ended and pervasively subject to balancing.”¹⁴⁹ To support this historical claim, Girgis relies on Campbell’s scholarship.¹⁵⁰

There are different sorts of activities that Girgis defines as balancing, but one is when a court ensures that the relevant legal norm “serve[s] worthy ends at tolerable costs.”¹⁵¹ Such analysis might be done based on a utilitarian normative theory.¹⁵² This is essentially the type of balancing that Fallon argues is inherent in constitutional doctrines like strict scrutiny.¹⁵³ But Girgis does not claim that this type of balancing would necessarily be inevitable,¹⁵⁴ and rightly so.

Judicial balancing of this type is inconsistent with Founding-era understandings in at least two ways.

First, this balancing frame sets up constitutional rights and the common good in tension with one another. A court, in any given case, must determine which interest is more important or weightier: the individual’s interest or the broader interests of society.¹⁵⁵ But that is not at all how natural rights were viewed during the Founding era.

Instead, protection of natural rights was viewed as inherent in good government, rather than in conflict with it. As such, rights were ordered to, and constitutive of, the common good. Justice Wilson stated, for example: “Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.”¹⁵⁶

When Madison introduced the Federal Bill of Rights to Congress, he explained that the “great object” of adding such a document to the Constitution “is to limit and qualify the powers of Government.”¹⁵⁷ He emphasized that “powers prohibited by the Declarations of right prefixed to the Constitutions” were limitations that were necessary for the American system of government.¹⁵⁸ Decades later, Justice Story made similar points: “[The] government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint.”¹⁵⁹

Note that Justice Story was arguing that government could not “be deemed to be free” for anyone if it had the power, within its sole discretion, to arbitrarily take away important natural rights.¹⁶⁰ The omnipresent threat of such government action would hang over the heads of citizens like a sword of Damocles, in a way that was itself injurious to the common good. Rights were thus the flip side of important limitations on any government that could be deemed to be free. As such, they were constitutive of the common good, not in tension with it or with principles that must be balanced against it.¹⁶¹

This type of balancing would face a second tension with Founding-era understandings, which is that comparing competing values often involves high degrees of discretion. By “discretion,” to keep things straightforward, I mean “power to make a decision, without being bound to decide on a particular outcome.”¹⁶² The greater the range of choices that are not bound, the greater the discretion.

This discretion can arise when two values are incommensurable, meaning that there is no relevant “covering value” that serves as a mutual criterion for precise measurement of the values.¹⁶³ There are also questions of how much weight should be assigned to competing values and which criteria ought to be chosen to attempt to commensurate values.

Each of these questions can provide a source of rational underdeterminacy, meaning that there is more than one option that would be reasonable to choose or the decider has discretion — perhaps even nearly unbounded discretion.¹⁶⁴ The problem in the context of judicial review is that if a choice is rationally underdetermined, there is no principled basis for a court to say a political authority has chosen incorrectly.¹⁶⁵

Why is all of this relevant from a historical point of view? Because, as Campbell’s article points out, in cases like Calder v. Bull,¹⁶⁶ any original understanding of the judiciary’s role with respect to rights involved the judiciary overturning only political determinations that were clearly unconstitutional, and balancing tests seldom provide clear results.¹⁶⁷ Justice Chase argued in Calder that a court could permissibly invalidate legislative action when it was “a ‘manifest injustice by positive law’ that constituted ‘an apparent and flagrant abuse of legislative power.’”¹⁶⁸

Similarly, Justice Iredell stated that before a court declared a law void, “[i]n all doubtful cases, to be sure, the Act ought to be supported: it should be unconstitutional beyond dispute before it is pronounced such.”¹⁶⁹ It could not be the case that courts invalidated a law simply because “it is, in their judgment, contrary to principles of natural justice” that are “regulated by no fixed standard.”¹⁷⁰ Senator Gouverneur Morris described the “power in judges” to “pronounce[]” a law “unconstitutional” as necessary in a constitutional system but also very “dangerous” and not something for which citizens should “wish.”¹⁷¹ Hamilton argued that the Constitution ought to be preferred above statutes but only when there was “an irreconcilable variance between the two.”¹⁷²

Under a traditional balancing approach, where two values are being weighed against one another, a court may often be faced with discretionary situations where it cannot say that the political authority’s approach constituted an abuse of legislative power. Where a political authority made a decision that was underdetermined by reason, a court cannot say such a decision was clearly wrong. Rather, all a court can accurately say if it overturned this judgment is that the court would have chosen differently.

Girgis points to a second form of balancing: a judge applying “their own overarching political-moral theory” about whether applying the right would be unacceptable.¹⁷³ But Girgis rightly concedes that this type of balancing is not inevitable and acknowledges that “judges shouldn’t” do that.¹⁷⁴ And I agree that this form of balancing would neither be inevitable nor desirable. If judges rely on whatever their own moral theory is, that raises all the concerns discussed previously about judges not having a clear basis on which to say that political authorities made a clear legal error.¹⁷⁵ All judges could say is that based on their preferred moral theory, they would have done it differently. That’s a far cry from the clear error the Framers envisioned courts needing to identify in order to invalidate government action.¹⁷⁶

This leads to a third type of activity that Girgis labels balancing, one that he seems to think is truly inevitable: a judicial reliance on “broad normative considerations,” even if those considerations come from “a rights theory ascribed [by the judge] to the framing generation.”¹⁷⁷ In other words, a judge is balancing, in Girgis’s opinion, so long as broad normative considerations are involved, even if the constitutional Framers intended for those considerations to inform the decision, and even if those considerations replace the judge’s own normative preferences and considerations.¹⁷⁸ Let me put aside for the moment my serious doubts about whether it is helpful to define such activity as balancing.

If in fact such activity requires courts to make a determination about rights not based on “legal materials,”¹⁷⁹ as Girgis claims, then one might think that, as with the previous forms of balancing, a court can never say that a political authority clearly got it wrong as a matter of law. Thus, if this activity is inevitable in the protection of general liberties, perhaps the logical conclusion of his argument is really that there is no appropriate role for courts when such activity is required. As such, the enforcement of many declaratory rights by courts would be a problematic constitutional construction, and a Thayerian approach would be preferable.

However, I think Girgis is too quick to conclude that open-ended rights would require courts to arrive at “conclusions [that] cannot be read off legal materials,” even if abstract justifications like public health must be considered.¹⁸⁰ As Endicott has argued, sometimes terms in law that sound moral are simply instructing a judge to enforce that law “in accordance with the principles of the legal system.”¹⁸¹ So a law that tells a judge to enforce a contract that is reasonable might be directing a judge to specific legal “techniques” for determining reasonableness, and those techniques might make it “perfectly clear what a court will do in some cases.”¹⁸²

Alternatively, sometimes references to abstract principles in the law might very well point a judge to “act directly on moral considerations,” yet some of those moral principles might also be “undeniably” clear in some cases and still “give[] a court no discretion” in how to enforce the law.¹⁸³ In such a context, a moral norm might still “bind the judges, in reasoning according to law” even if the principle the law references, like public health, was defined as a moral one.¹⁸⁴ In other words:

[T]here is a gap in the law when the law appeals to moral considerations, but it is a gap that confers discretion on the judges only in borderline cases (just as, when English law directs courts to apply German law, a court has discretion only when German law gives discretion).¹⁸⁵

Based on this analysis, I argue that the important question regarding enforcement of indeterminate rights is not whether there is an abstract justification involved that sounds in moral terms, like public health. Rather, the question to ask is whether courts can enforce such justifications in ways that (1) significantly limit their discretion and (2) allow them to say, based on reasoning according to law, that political authorities got it clearly wrong in some cases. For reasons I discuss below in section II.C and elsewhere, I offer an approach to rights that I believe allows courts to do just that. In other words, it is not the case that the only way to allow judicial enforcement of open-ended rights is for courts to engage in discretionary, fresh political-moral assessments divorced from any preexisting legal materials.

B.  Historical Analogues as Constitutional Trumps

Another method of determining rights that has been advanced as consistent with Campbell’s Founding-era understandings is the “historical analogues as constitutional trumps” approach.¹⁸⁶ However, for the reasons discussed in this section, this approach is also in serious tension with what the Founders would have envisioned.

The most prominent example of the regulatory historical analogue approach as a method of enforcing a constitutional right can be found in the Supreme Court’s decision in Bruen. While the Court has since modified the Bruen approach in important ways,¹⁸⁷ here, I will explore the case on its own terms as an exemplar of the historical analogue approach to constitutional construction. In Bruen, the Court invalidated a law requiring individuals to demonstrate a “proper cause” to obtain a concealed-carry permit.¹⁸⁸ The Court concluded that the Second Amendment guarantees a “right to bear arms in public for self-defense” and that the “proper-cause requirement” was incompatible with this right.¹⁸⁹ It reached this conclusion by applying a new test for judicial enforcement of Second Amendment rights. Under this test, courts must first ask whether a law seeks to regulate conduct that falls within the “plain text”¹⁹⁰ of the Second Amendment’s guarantee of the right to “keep and bear Arms.”¹⁹¹ If the answer to this question is yes, then courts must next ask whether the government’s regulation “is consistent with the Nation’s historical tradition of firearm regulation.”¹⁹² That involves an inquiry into whether the modern law is “relevantly similar” to the historical regulations courts have identified as relevant analogues.¹⁹³ Although the Court recognized the persistence of “societal problem[s]” like gun violence, it insisted that the existence of historical analogues, rather than modern policy consequences, such as the regulation’s effect on public safety, determine constitutionality.¹⁹⁴

Though the test purports to involve two steps, these two steps really collapse into one historical question: Is there Second Amendment–protected activity at issue that was subject, at the Founding, to the type of regulation that the government now wishes to engage in here? If yes, the government wins its case. If there is protected activity but it was not subject to the type of regulation the government now wishes to impose, the government loses. In this way, then, the right becomes absolute, in the sense that it is not defeasible by any evidentiary showing the government can make based on modern facts. All the court need decide is whether the relevant activity is within the appropriate historical scope — within the historical zone of protection and not historically regulated by an analogue of the modern regulation. That historical analysis concludes the determination of the right.

I will touch on some problems with this approach momentarily. But first, let me note that the use of historical analogues is not itself a problem. To be sure, elsewhere I have defended the use of historical analogues to understand the scope of absolute rights in contexts like the ministerial exception.¹⁹⁵ But such absolute protections are best suited for narrow and clearly defined constitutional rights, which is also true of the ministerial exception.

A historical analogue approach is a poor fit when used to identify the relevant government regulation (as opposed to the right) for a number of reasons. First, this approach assumes, as Justice Barrett pointed out in Rahimi, that the government was regulating to the fullest extent of its authority at the Founding.¹⁹⁶ Such an assumption is troubling without clear historical evidence supporting that understanding about the limits of government regulatory power.

Second, historical analogues can only limit judicial discretion if they operate at a low level of generality.¹⁹⁷ But if modern regulations must be analogous to historical ones at a low level of generality, that disarms the government from being able to regulate in a vast range of contexts that modern governments deem necessary to advance the common good, which creates tension with the Founding-era conception of rights as constitutive of the common good as discussed above. And if the Court begins to dial up the level of generality for identifying the historical analogue, then we face the issue of unbounded discretion in the judicial selection of which level of generality to choose. I will explain at greater length in section II.C below why the protected reasons approach to rights that I propose does not share this level of generality problem.

As Campbell rightly points out, a regulatory historical analogue approach is, ironically, anachronistic as a means of protecting natural rights. Campbell puts it succinctly:

The problem with [the Bruen absolute approach to rights] is that the draftsmen of the Bill of Rights did not embrace this approach.

. . . . Anti-Federalists sought to enumerate these rights to better secure them, not to convert them into determinate “trumps.” Enumeration was “a conservative project meant to preserve existing rights, not to change their meaning or scope.”

. . . . [The Bruen approach] is a jumbled interpretive method that conceives of rights as fully determined from the get-go, barring subsequent determinations. It thus undercuts democratic authority in countless ways that the Founders never intended.¹⁹⁸

In other words, the regulatory historical analogue approach freezes the relevant political authority out of the process of determining how rights ought to be defined consistent with the common good in ways that run contrary to Founding-era understandings of rights.

The practical problems with disarming political authorities in this way have been witnessed by our nation before. One antebellum court interpreted its state constitution to provide absolute protection for the right to bear arms.¹⁹⁹ And, not long after, the state amended its constitution to overturn that case explicitly and allow for government regulation of that activity, perhaps precisely because true, absolute protection for such a broadly applicable declaratory right would be unworkable.²⁰⁰

In defense of the regulatory historical analogue approach, Alicea has argued that Bruen is consistent with a model of constitutional legitimacy that holds political actors as the ultimate authority responsible for “further[ing] the common good.”²⁰¹ But the problem is that the Bruen approach only looks to whether government historically had done anything to regulate the right in the service of the common good at that time and assumes this is the only question relevant to the common good moving forward. This effectively means that the Founding-era government officials had choices about how to regulate for the common good that are now unavailable to modern government officials.

Whether the present-day common good requires different safety measures is a factual question — and one that would turn on present rather than historical facts. The Framers recognized that assessing whether government limitations of rights were advancing the common good required precisely this sort of contemporary evidentiary analysis. As a result, they often pushed for things like stronger evidentiary burdens of proof on the government to make sure that its actions were in fact advancing the public interest.

For example, Justice Cushing argued that the government should have to do more than assert a “bad tendency” of speech to be able to regulate it as sedition; instead, the government should have to demonstrate that such speech “‘actually attempt[ed] to stir up sedition’ rather than merely ‘tend[ed]’ to do so.”²⁰² And in some of the earliest cases protecting religious exercise, both at English common law pre-Revolution and in the early nineteenth century, courts did in fact assess whether the government’s claimed actions were actually advancing the element of the public interest that the government claimed — they did not simply look to whether the government had asserted the appropriate category of the type of burden it was imposing.²⁰³

Campbell highlights some of the historical evidence for the authority of political actors to determine, on an ongoing basis, what regulations were necessary for the common good.²⁰⁴ As Blackstone explained: “[C]ivil[] liberty . . . is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public[].”²⁰⁵ To determine whether some action is necessary and expedient, a court would need to assess necessity based on present-day facts.²⁰⁶ Joseph Priestley similarly wrote in his Essay on the First Principles of Government: “[T]here [was] a real difficulty in determining what general rules, respecting the extent of the power of government, or of governors, are most conducive to the public good.”²⁰⁷ “We are so little capable of arguing a priori in matters of government,” Priestley explained “that it should seem, experiments only can determine how far this power of the legislature ought to extend . . . .”²⁰⁸ Yet a test like Bruen’s would prevent any future experiments on how far government regulation ought to or could extend.

This connection between limitations on natural rights and the natural law tradition was widely understood at the Founding. As Campbell makes clear: “Even in a state of nature, natural rights were circumscribed by this ‘natural law,’ which roughly corresponded to the requirements of reason, justice, and morality.”²⁰⁹ But the limitations on natural rights based on justice and reason will change, depending on the circumstances of the community.²¹⁰

Let me point to one final problem if a historical analogue approach were adopted wholesale in, say, the contexts of freedom of speech or religious exercise. Not all of the Founding-era regulations of these rights were consistent with the widely shared understandings of how these rights should be protected. Indeed, as I discussed above, John Adams himself went back on what he thought should be proper speech protections a decade after the enactment of the First Amendment when he supported the infamous Alien and Sedition Acts in an embattled political position.²¹¹ When Madison introduced the Federal Bill of Rights, he noted that although many states already had their own bills of rights, he thought it was “true” that “there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated.”²¹² Madison still thought it worth including a Bill of Rights in the Constitution to decrease the chances of such violations.²¹³ But he understood that the new experiment of popular sovereignty that the Founding generation was engaging in often resulted in action that fell short of the constitutional ideal.²¹⁴ Thus, looking to Founding-era regulations as conclusive evidence of what limitations on rights are constitutionally permissible could easily lead an interpreter astray and result in far less protection than was anticipated for important rights like speech and religious exercise.

C.  Constitutional Rights as Protected Reasons

Elsewhere, I provide an in-depth theoretical explanation of an alternative understanding of constitutional rights.²¹⁵ Here, I offer a truncated description of this understanding. My focus here is to offer a preliminary argument about why this approach is more consistent with the Framers’ goals and principles with respect to constitutional rights than the previous options discussed.²¹⁶

I argue that a constitutional right is a type of protected reason. Consequently, a right has two elements: It operates as a first-order reason for action by government officials to protect the interest that falls within the scope of the right — what I refer to as the pro tanto right. And, it operates as a second-order exclusionary reason to prohibit government reliance on some reasons that would, absent exclusion, weigh against protection of that interest. Note that some rights exclude all reasons for interference with that interest, such that they become absolute rights (like the right to a jury). For absolute rights, all of the relevant analysis takes place at the first step.

A first-order reason for action is simply another normative reason in favor of an action (protecting the pro tanto right) that must be added to the mix of all things considered in rational deliberation about the best course of action. In other words, the very act of constitutionalizing a right provides an independent reason — and likely a weighty reason — why politically accountable officials should protect that pro tanto right and include it in their weighing of other reasons when determining how to proceed on a matter of public policy. As Madison explained, he had hope for the protective power of bills of rights because:

[T]hey have a tendency to impress some degree of respect for [the rights], to establish the public opinion in their favor, and rouse the attention of the whole community, [and as such] may be one mean to controul the majority from those acts to which they might be otherwise inclined.²¹⁷

Madison also emphasized this point in a letter to Jefferson.²¹⁸ He stated the following:

What use, then, it may be asked, can a bill of rights serve in popular Governments? I answer, the two following . . . . The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion. [In addition,] . . . a bill of rights will be a good ground for an appeal to the sense of the community.²¹⁹

In contrast, an exclusionary reason prevents consideration of otherwise relevant first-order reasons.²²⁰ Here, I primarily use “reason” in the same sense as philosophers of practical reason do when they refer to a “normative” reason; such a reason is a fact in the world that counts for something, rather than simply the internal motivation of a party.²²¹

How is the exclusionary reason element of rights consistent with understandings of rights at the Founding? Perhaps some of the best analysis on that score comes from Hamilton. He explains that courts must “guard the Constitution and the rights of individuals from the effects of those ill humors which . . . sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”²²² In other words, sometimes political authorities might act to limit pro tanto rights based on justifications that, history and experience have taught us, are not very good justifications and do not actually advance the common good. With unlimited time and hindsight, the political authority would likely ultimately come to that conclusion. But in the meantime, the hasty actions of government can lead to serious oppression of some members of the community in ways that undermine the overall common good. This idea was similarly captured by Swiss theorist Jean-Jacques Burlamaqui, who explained that fundamental law could include “more particular precautions” that would supplement the general axiom that all power had to be exercised in promotion of the public good.²²³

Thus, under this view, rights are not in conflict with the common good. They provide a powerful heuristic of practical reasoning aimed at replicating the type of reasoning an ideal authority would engage in with sufficient time and information (a) by taking some bad reasons off the table that would not actually advance the common good, and (b) by protecting individual interests that are critical components of the common good. As Professor John Finnis has recognized, “rights-talk” can “provid[e] a usefully detailed listing of the various aspects of human flourishing and fundamental components of the way of life in community that tends to favour such flourishing in all.”²²⁴

On the other hand, if a political authority shows that it limited a pro tanto right for a justification that is not excluded by that right, then arguably this type of limitation on the right does (or at least could) advance the public interest. That is one of the reasons why, as Campbell has recognized, natural rights were limited by natural law, “[e]ven in a state of nature.”²²⁵

For this reason, Campbell has argued that “history offers at least some support for [the modern] non-absolutist approach to expressive freedom.”²²⁶ Offering some defenses of modern scrutiny doctrine, Campbell continues as follows:

[I]f Black had read the text of the First Amendment in a historically informed way, he might have been more sympathetic to the tiers-of-scrutiny approach that his colleagues on the Supreme Court were beginning to adopt. After all, beyond their protection for a narrow set of customary legal rights, the Speech and Press Clauses simply recognized the natural right of expressive freedom, and natural rights were always implicitly qualified by legislative authority to promote the public good.

On this view, modern doctrine is valid so long as it tries to confine the processes of democracy to a good-faith pursuit of the public good — a goal that aligns with a democracy-reinforcing account of judicial review — or, perhaps, so long as it confines policy outcomes to those that comport with the public good.²²⁷

In contrast to the defeasible rights that Campbell mentions, we ought to be quite confident that the constitutional Framers did not think there would be any justification for limiting a pro tanto right and thus giving that right absolute protection. As I discussed above, such rights lend themselves to contexts where the constitutional interest is narrow, deep, and well defined. A right to a jury is, again, a paradigmatic example. The presumption, as Campbell also explains, is that rights are defeasible rather than absolute.

In the context of an as-applied constitutional challenge before a court, the protected reasons approach plays out as follows. First, a court must determine whether government officials have interfered with a defeasible pro tanto right in applying the challenged law to the individual litigant. If this threshold is cleared, a court should then carefully consider at least four questions in determining the scope of the conclusive right: (1) Which reason(s) does the pro tanto right exclude, (2) what official reason(s) did the relevant government authority offer to justify interfering with the pro tanto right, (3) is it possible for the government to take an action that would advance its official reason(s) without interfering with some aspect of the constitutionally protected interest, and (4) is the government’s official reason an actual reason (is the government factually correct about the reason it asserts based on the relevant evidentiary record), or is the government’s assertion based on unsupported evidentiary claims? Importantly, these are the types of questions that some Founding-era courts asked when protecting declaratory constitutional rights.²²⁸ Asking these questions would also essentially provide a sharpened and more historically informed version of strict scrutiny.

Answering some or all these questions can determine the conclusive right. For example, if a court finds in steps one and two that the government has interfered with a pro tanto right and used an excluded reason to justify doing so, the court should rule for the private party regardless of the answers to steps three and four. If a court finds at step three that the government can accomplish the goal justified by its official reason without interfering with some aspect of the pro tanto right, that too provides sufficient basis to rule for the private party. As Justice Kavanaugh recently recognized, much of the Supreme Court’s constitutional rights jurisprudence is aimed at “look[ing] for the win/win,” meaning “the situation where you can respect the [constitutional interest] and accommodate [those interests] while the state or city . . . can pursue its goals.”²²⁹

I also argue that a court should assess these questions far more modestly if the constitutional remedy sought is facial rather than as applied.²³⁰ Professor Samuel Bray has made arguments that cast doubt on whether facial challenges are even appropriately considered part of the judicial role as a historical matter, which provide more reason to be wary of facial challenges.²³¹

The theory of rights I propose thus does not defend any judicial balancing of competing values, nor does it allow for other forms of unbounded judicial discretion requiring political-moral determinations unmoored from preexisting legal materials. Nor, as Alicea argues, is this an approach that merely looks at whether the government’s reasons pass some “fixed threshold.”²³²

Rather, this theory leaves the task of weighing and comparing competing values, to the extent that is required, to political branches. This analysis thus acts as a floor, of sorts, for the judiciary to police, while the political branches may decide to create a more protective legal standard as they weigh the first-order reasons at stake.²³³ Understanding rights as reasons leaves room for further sorts of political-legal constructions of rights, including by Congress under section five of the Fourteenth Amendment.²³⁴ Campbell rightly argues that constitutional Framers anticipated robust political protection of rights.²³⁵

How does one determine which reasons are excluded and which are permitted? The content of excluded reasons should be provided authoritatively by the constitution makers through constitutional instruments or historical background understandings that informed those constitutional provisions.²³⁶ Rahimi provides a recent example of the Supreme Court making this sort of determination — at the heart of that case were the kinds of reasons that the government can use to justify limiting the pro tanto right to bear arms. “Despite its unqualified text, the Second Amendment is not absolute,” Justice Barrett explained.²³⁷ “It codified a pre-existing right, and pre-existing limits on that right are part and parcel of it.”²³⁸ The Court turned to history to conclude that “preventing individuals who threaten physical harm to others from misusing firearms”²³⁹ represented a “permissible reason” for limiting the use of a firearm.²⁴⁰ The Court emphasized that examining “why” government had historically “burden[ed] the right [is] central to [its] inquiry.”²⁴¹

In addition, I argue that in determining the reasons that formed the basis for government action interfering with the pro tanto right, courts should not come up with those reasons themselves. Rather, they should begin with explicit articulations of the reasons on which the government itself asserts that it relied, either in the text of the law (particularly when a facial remedy is sought)²⁴² or articulated by the government contemporaneously when interfering with a pro tanto right or in response to litigation brought against the government (such as when an as-applied remedy is sought).²⁴³

In the context of a facial challenge, when a legislature offers permissible reasons for its action in the text of a statute, the judiciary should be very hesitant to set aside the legislature’s consideration of those reasons with respect to rights. While the judiciary has a comparative advantage in assessing the factual accuracy of discrete disagreements in cases or controversies that arise in as-applied contexts, the judiciary can claim no comparative institutional advantage over a legislature when it comes to assessing how a policy will factually affect an entire community across large geographic areas and long periods of time.²⁴⁴ One could understand the Court as taking that view in Rahimi when it expressed great caution about facially striking down a law that was aimed at advancing a nonexcluded reason for limiting a right.²⁴⁵

On the other hand, sometimes the government may announce an excluded reason as the basis for justifying its law. In Moody v. NetChoice, LLC,²⁴⁶ it was important to the Supreme Court that “Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of speech that the major social-media platforms present.”²⁴⁷ Texas had announced its reason for passing the law in the briefs of its lawyers defending the law, and in the Governor’s signing statement.²⁴⁸ The State was concerned that “social-media companies were ‘silenc[ing] conservative viewpoints and ideas.’”²⁴⁹ The Court recognized that because such an interest was not legitimate — that is, because this reason was an excluded reason under the right of freedom of speech — it could not justify Texas’s law.²⁵⁰

A cautious approach to facial remedies is consistent with the Founding-era statements discussed above requiring that a court not declare an act of a legislature void unless there is an “irreconcileable variance” between the statute and the Constitution.²⁵¹ As Campbell has observed, “Founding Era judges, after all, were confined to defending ‘marked and settled boundaries’ of governmental authority, disregarding legislation only where constitutional violations were clear.”²⁵² These same considerations might also lend some support to using clear statement rules or other substantive canons over outright statutory invalidation doctrines when legislative language is unclear.

In the as-applied context, the role of the judiciary should be more robust. I have written elsewhere about actions by the judiciary during the Founding era that resemble in important respects what we now call constitutional as-applied challenges and that were far more common than anything resembling facial remedies.²⁵³ Hamilton also provided additional information about the importance of the judiciary in limiting the application of problematic laws this way. The “firmness” of courts, he stated, “is of vast importance in mitigating the severity and confining the operation of such laws.”²⁵⁴ Hamilton continued:

It not only serves to moderate the immediate mischiefs of those [laws] which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.²⁵⁵

When assessing the reasons the government offers, particularly on an as-applied basis, the highly important task of the judiciary is to assess whether those reasons have a basis in fact and whether the government’s justification is actually in conflict with the pro tanto right. As a factual matter, is it true, for example, that a government’s desire to prevent a prisoner from wearing a religious beard would advance prison security?²⁵⁶ Are there ways of protecting both interests, such as allowing for searches of the beard? These are discrete factual questions, consistent with the ideas of Framers discussed above²⁵⁷ that governments must limit rights by meeting burdens of proof rather than by stating the hypothetical “tendency” of constitutional rights to pose risks.²⁵⁸ Chief Justice Marshall thought that courts were competent to assess whether government action was “really calculated to effect any of the objects entrusted to the government.”²⁵⁹ Founding-era religious exercise cases, which I discuss at length in Replacing Smith, probed the government on precisely these sorts of evidentiary questions and ultimately found the government unable to satisfy its burden.²⁶⁰

The task of the judiciary in the context of as-applied challenges is thus to assess the factual questions related to the government’s asserted reasons. Absent any exceptional concerns about pretext, the task is generally not to determine whether the government’s officially offered reasons were also the internal motivations of government actors. After all, the government actors might sincerely believe their policy would advance safety interests and still lose their case if the facts prove otherwise. Blackstone, for example, indicated that “a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law.”²⁶¹

The exception courts have rightly recognized to this default rule arises where the government has, under some asserted official reason, regulated basically nothing but the pro tanto constitutional right. In these cases, the fact that the law appears gerrymandered only to regulate the pro tanto right has led the Court to conclude that the government’s officially offered reason was pretextual.²⁶² As Marshall put it in a different context:

[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”²⁶³

Note how all of this relates to the level of generality problems, a vulnerability the “protected reasons” theory I propose does not share with the historical analogue approach. For one, the historical analogue approach requires the judiciary to decide at what level of generality to define the similarities between Founding-era regulations and those at issue presently. The Court tried to address this issue in Rahimi by clarifying that the level of generality need not be set so low as to require a “dead ringer” or “historical twin” but not so high as to allow regulations that did not still “comport” with the historical principle in some way.²⁶⁴ Yet this clarification still leaves courts with broad discretion in setting the level of generality. Justice Barrett acknowledged as much, noting that the Court would have to leave for “another day” more fine-grained guidance about setting the level of generality.²⁶⁵

In contrast, under the approach I suggest, the level of generality must be offered in the first instance by the government, at whichever level it chooses. But the government faces serious constraints with this choice. For example, while many different types of government reasons might fall within a permissible category of “public health,” very few reasons would justify a specific government action that conflicts with a pro tanto right. If the government articulates its interest at too high a level of abstraction, the government will not be able to prove as a factual matter that its reason is connected to the action that interferes with the pro tanto right. But if the government articulates an interest at far too low a level of generality, then it runs the risk of regulating to advance that interest basically nowhere but with respect to the pro tanto right and is thus vulnerable to charges of pretext.

Some cases may raise tricky questions about excluded reasons at the margins. For example, a court might be called upon to determine whether a religious accommodation request for circumcision can be justified by a “public health” limitation on that religious right that was envisioned at the Founding.²⁶⁶ Perhaps a court might say that public health would be interfered with only if circumcision resulted in permanent or long-term interference with the normal functioning of the human body, as opposed to mere inconveniences or temporary pain. As such, a court might conclude that the government did not have a public health interest in prohibiting circumcision. In other words, such a case could raise line-drawing questions.

But both Alicea and Girgis admit that no approach to rights could remove all line drawing at the margins.²⁶⁷ Further, so long as the physical consequences related to circumcision did not constitute a public health reason in any case, regardless of the countervailing weight of the pro tanto right on the other side of the scale, then this is not balancing in a way that allows for unbounded judicial discretion.

In sum, while this theoretical account of rights is new, it provides a rational reconstruction of deeply rooted practices for determining rights. Specifically, I believe this model offers the best fit with how natural and declaratory rights were actually understood to operate at the American Founding, which Campbell has done much to illuminate.²⁶⁸

Conclusion

Campbell has persuasively shown that those who drafted and ratified the Constitution took many of the rights enumerated therein to exist independently of the document, having their source in natural law. But this fact alone, which relates to the content of those rights, is insufficient to show that the ratifiers intended for any particular actor to enforce them in any particular manner. On this point, both the constitutional text and Founding-era history are underdeterminate. As Campbell has shown, many members of the Founding generation foresaw the political branches as the important definers and enforcers of the rights enumerated in the Constitution. But, as I have shown here, many others took the judiciary to have an important role to play. Insofar as one takes the decision made by the relevant constitutional authority to be the object of constitutional interpretation, interpretation alone yields no answers as to whether and how the judiciary should enforce constitutional rights. Rather, that question must be answered by constitutional construction.

Here, I have identified three candidates for how the judiciary should engage in constitutional construction. The first, a balancing approach, has served as the predominant mode of constitutional construction since the end of the Lochner era. But this approach puts rights at odds with the common good in ways that are inconsistent with historical understanding of rights. And it gives virtually unbounded discretion to courts to choose which outcomes they prefer. The second, a historical analogue approach, has risen in prominence in the Roberts Court’s Second Amendment jurisprudence. Yet, while useful in some contexts, in others, this approach too creates perhaps as much indeterminacy as it resolves as there is no principled and predictable way for courts to select a level of generality at which to analogize to the past when it comes to broad, declaratory rights. The third approach, treating constitutional rights as protected reasons, by contrast, requires neither balancing incommensurate values nor arbitrarily selecting a level of generality. It is this approach, and not judicial abdication, that places the judiciary in the best position to protect constitutional rights in a manner consistent with Founding-era history and the rule of law values of consistency and predictability.