Constitutional Law Articles 138 Harv. L. Rev. 921

Determining Rights

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Introduction

The Bill of Rights is underdeterminate. For example, the First Amendment tells us that Congress may not abridge “the freedom of speech,” but the text alone says virtually nothing about what exactly that freedom entails.1 What is needed, then, are determinations of that right — that is, specifications of what the right demands in particular situations.2 Two central problems in rights jurisprudence are figuring out who should make those determinations and how to make them.

This Article explores how Founding-era elites thought about determining rights, and thus how they envisioned the boundary between law and politics. Put simply, my central claim is that the Bill of Rights was mostly designed to declare the existence of natural or customary rights, not to determine them through written positive law or to delegate a determination power to judges. In the eyes of many Founders, some rights were determined, at least to a degree, by common law.3 And a few enumerated rights had textually determined content.4 It thus made sense for the First Congress, in its public announcement of the Bill of Rights, to describe the proposed amendments as a set of “declaratory and restrictive clauses.”5 But for the most part, the Bill of Rights left room for ongoing political determinations — that is, determinations largely made on policy grounds by popularly elected representatives.

In staking out this claim, this Article challenges four common views of Founding-era constitutionalism:

  • First, that enumerating rights in the Constitution fully fixed the content of those rights in perpetuity, thereby preventing further determinations through ordinary politics or judicial construction.6
  • Second, that enumerating rights in the Constitution made those rights judicially enforceable.7 On this view, judges bore responsibility for determining enumerated rights — or for identifying determinations encoded in the Constitution — whereas politicians were responsible for determining unenumerated rights.
  • Third, that enumerating rights in the Constitution ensured that those rights would operate as categorical “trumps” against governmental power.8 On this view, enumerated rights are determinate in the sense that their legal effect cannot turn on an assessment of countervailing governmental interests.
  • Fourth, that the content and structure of rights enumerated in the Bill of Rights is textually derived. On this view, for instance, First Amendment claims must be evaluated “facially,” not “as applied,” because the text imposes a limit on congressional power.9

Scholars have defended these views à la carte,10 and in certain respects they need to be considered separately. But given that these positions often overlap — and can reinforce each other11 — it is worth evaluating them in tandem. As we will see, each view reflects grains of historical truth but is ultimately inconsistent with Founding-era evidence.12

This Article builds on earlier studies of how the Founders thought about natural and customary rights.13 Much of that scholarship focuses on the status of unenumerated rights,14 but this Article joins work tracing how the Founders thought of the Bill of Rights as declaratory of rights grounded in natural and customary law, even after their enumeration.15 In large part, my contribution is to show how this declaratory approach was rooted in social-contract theory, natural-law reasoning, and customary constitutionalism — and how those features of American legal culture shaped elite thought about the underdeterminacy of fundamental rights and the means of determining them.16

But while emphasizing the mostly declaratory nature of the Bill of Rights, my other goal is to show that rights enumerations were not unimodal, and that a specificatory approach was available.17 Enumerations could thus be declaratory, simply marking the existence of rights without attempting to determine their content, or they could be specificatory, using constitutional text to determine those rights in certain respects.18 In other words, a declaratory provision did not determine rights, whereas a specificatory provision determined rights in some respect. Importantly, this distinction turned on whether the text altered existing positive law,19 not on whether the text announced an abstract principle or a legally determinate rule.20 For instance, declaratory provisions could refer to customary rights (such as the jury right, the right to confront witnesses, and so on) that already had legally determinate content.21 Moreover, the declaratory and specificatory approaches were not always neatly divided — a single provision could be declaratory in part and specificatory in part — but separating them highlights the distinct purposes that rights enumerations could serve. Indeed, one of the recurring themes of this Article is that by not separating them, scholars often make serious analytical errors.22

The historical survey begins in Part I by discussing background principles of social-contract theory, natural law, and customary constitutionalism that underpinned Founding-era thinking about rights. This discussion emphasizes the crucial but underappreciated distinction between rights and determinations.23 Although the Founders infrequently used the term “determinations,” their ways of thinking about law and fundamental rights made the concept familiar. In addition, this Part introduces the declaratory and specificatory approaches to rights enumerations.

Part II turns to the Federal Bill of Rights through an exploration of several well-known episodes. First, a prelude: rights debates in Virginia in the 1780s. Second, the main act: the creation of the Bill of Rights. And third, two short epilogues: the debate over the Sedition Act of 1798 and the dispute in Calder v. Bull.24 Each episode featured a contest over whether, and how, rights determinations were subject to political resolution. Not coincidentally, these stories largely focus on Thomas Jefferson and James Madison, who are the protagonists in the scholarship that this Article critiques. Although usually portrayed as collaborators, my argument is that Jefferson and Madison had different outlooks on enumerating rights. Jefferson wanted specificatory revisions, but Madison and his colleagues in the First Congress mostly adopted declaratory amendments.

Recovering this history is especially timely, with so many features of rights jurisprudence up for grabs. These include the “tiers of scrutiny,”25 facial and as-applied claims in First Amendment law,26 unenumerated rights,27 and judicial review itself.28 Without embracing any particular interpretive approach, Part III discusses how Founding-era history might bear on these issues. (This Article does not discuss the Fourteenth Amendment, but other work argues that section 1 of that amendment did not determine rights.29) It should go without saying that nearly every aspect of modern rights jurisprudence, which matured in the 1960s,30 departs in crucial ways from how things worked at the Founding. But today’s originalist Justices have gravitated toward a “text and history” approach that also upends Founding-era ideas about determining rights by treating the text as the source of constitutional rights and by treating those rights as unchanging and judicially enforceable.

Running throughout these modern debates are anachronistic assumptions about the nature of rights and the role of judges — either in determining the content of rights, or in ascertaining determinations that were putatively encoded in 1791. For those seeking a historically guided approach, however, the proper corrective is far from obvious. American legal culture has long abandoned key axioms of Founding-era thought, including the existence and fundamentality of natural and customary rights.31 And it is unclear how originalists should account for these older ideas. Indeed, doing so might require adjusting originalist precepts that made the “text and history” method appealing in the first place.

* * *

Before proceeding, it is worth clarifying a few points about terminology. First, this Article constantly refers to “determining” rights, but that term carries distinct meanings. As Professor Mark Greenberg observes:

[T]he word “determine” . . . is ambiguous between a metaphysical sense —to determine the content of the law is to make the content of the law what it is — and an epistemic sense — to determine the content of the law is to ascertain or figure out what the content of the law is.32

For clarity, this Article refers to determining rights in the metaphysical sense, unless stated otherwise. That is, determining rights means giving rights legally determinate content (metaphysically), not merely identifying that content (epistemically).33

Notably, this definition requires thinking about rights in ways that legal formalists are often inclined to resist.34 For instance, if one stipulates that rights are already fully determinate, then no further determinations can be made; the interpreter’s only task is to discover those determinations.35 By using the term “determine” in its metaphysical sense, this Article does not reject, a priori, a determinate view of rights. Conceptually, it is possible that the Founders viewed fundamental rights as fully determinate.36 Historically, however, social-contract theory and natural-law reasoning made the underdeterminacy of fundamental rights a routine feature of Founding-era constitutionalism.

Nor was this underdeterminacy just about text. Today, interpreters routinely assess legal determinacy based on linguistic clarity. (Knowing its modern readership, this Article opened with an example of textual underdeterminacy.) In turn, scholars have proposed various ways of responding to textual ambiguity. Some theorists distinguish the interpretation of a legal text from the construction of doctrines that address textual underdeterminacy.37 Relatedly, some argue that longstanding practices by the political branches can liquidate the meaning of underdeterminate texts.38 By emphasizing the underdeterminacy of the Bill of Rights, this Article reinforces the need for subsequent determinations using techniques of this sort. But as we will see, the Founders often did not treat rights as textual objects. Consequently, although the idea of determining rights is similar in some respects to the concepts of construction and liquidation, it begins with a different set of premises about the nature of rights.James Madison and others in the First Congress soundly rejected it. Originally, our Bill of Rights was mostly declaratory, leaving to the people’s own representatives the authority to determine fundamental rights.

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* Professor of Law and Helen L. Crocker Faculty Scholar, Stanford Law School. The author thanks Stephanie Barclay, Nathan Chapman, Saul Cornell, Perry Dane, John Fee, Rick Garnett, Fred Gedicks, Jonathan Gienapp, Chris Havasy, Emma Kaufman, Larry Kramer, Larry Lessig, Daryl Levinson, John Manning, Michael McConnell, Martha Minow, Julian Mortenson, Jack Rakove, Cristina Rodríguez, Steve Sachs, Steve Sanders, Eric Segall, Reva Siegel, Daniel Slate, Chris Walker, Kevin Walsh, Bill Watson, Lucy Williams, participants in the BYU Civil Liberties Workshop, the Harvard Law School Faculty Workshop, the Harvard Law School Public Law Workshop, the Law and Religion Roundtable, the NYU Law School Public Law Workshop, the Stanford Constitutional Law Center Works-in-Progress Conference, the Stanford Political Theory Workshop, the University of Michigan Public Law Workshop, the Vanderbilt Faculty Workshop, the Yale Public Law Workshop, and especially research assistants Anna Katogiritis, Charlie Power, and Stephen Vukovits.

Footnotes

  1. ^ U.S. Const. amend. I. My focus on textual underdeterminacy in this paragraph is only meant to introduce the basic idea of determining rights, not to suggest that fundamental rights are necessarily textually derived or that underdeterminacy necessarily turns on textual analysis. See infra notes 37–38 and accompanying text.

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  2. ^ For discussion of terminology, see infra notes 32–35 and accompanying text.

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  3. ^ See infra notes 86–89, 127–45, 236–42 and accompanying text.

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  4. ^ See infra notes 149–64, 251–53 and accompanying text.

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  5. ^ 37 The Documentary History of the Ratification of the Constitution and the Bill of Rights 458 (John P. Kaminski et al. eds., 2020) (emphasis added).

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  6. ^ See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 40 (Amy Gutmann ed., new ed. 2018); Antonin Scalia, Response, in A Matter of Interpretation, supra, at 129, 133–37. But considerations of judicial role might permit doctrinal evolution in practice, even if rights were fully determined at the Founding in principle. See, e.g., id. at 138–40; McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 371–85 (1995) (Scalia, J., dissenting) (relying on tradition if original meaning is unclear). For discussion of the distinction between the original-meaning inquiry and issues of judicial role, see generally Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022).

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  7. ^ See, e.g., Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & Liberty 1 (2010). For others articulating a similar view, see infra note 254. By contrast, this Article does not reject the judicial enforceability of enumerated rights at the Founding. Rather, it emphasizes the importance of legal determinacy to judicial review. Many Founders accepted the judicial enforceability of legally determinate fundamental rights, whether enumerated or not. See, e.g., infra note 286. Importantly, these legally determinate fundamental rights were sometimes enumerated in declaratory clauses. Meanwhile, the Founders envisioned more limited judicial review of legally underdeterminate fundamental rights. See infra section II.C.2, pp. 970–73 (discussing competing views).

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  8. ^ See generally, e.g., Philip Hamburger, The Inversion of Rights and Power, 63 Buff. L. Rev. 731 (2015). For discussion, see infra notes 413–28 and accompanying text.

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  9. ^ See, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 42 (1998); Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1263, 1266–68 (2010).

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  10. ^ Professor Michael McConnell, for instance, is a leading proponent of the second view, see generally McConnell, supra note 7, but he rejects the fourth view, see generally Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990) (generally defending as-applied religious accommodation claims).

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  11. ^ See, e.g., Hamburger, supra note 8, at 732 n.2, 776–77 (highlighting the link between a categorical approach and the use of facial analysis).

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  12. ^ My argument is that the First Congress created a particular bill of rights that did not align with these four views, not that the idea of enumerated rights was inherently incompatible with these positions.

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  13. ^ See generally, e.g., Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped 11–45 (2021); Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585 (2009); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L. Rev. 843 (1978); R.H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 142–72 (2015); Suzanna Sherry, Natural Law in the States, 61 U. Cin. L. Rev. 171, 182–222 (1992).

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  14. ^ See generally, e.g., Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987).

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  15. ^ See, e.g., Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193, 1206–07 (1992); Danielle D’Onfro & Daniel Epps, The Fourth Amendment and General Law, 132 Yale L.J. 910, 940–41, 943–44 (2023); Donald A. Dripps, Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment, 81 Miss. L.J. 1085, 1121–26 (2012); see also infra note 129 (collecting sources). See generally, e.g., Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551 (2006); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739 (2008).

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  16. ^ Historians have disparaged the influence of natural law and natural rights. See generally, e.g., John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (1986). But recognizing their place in Founding-era constitutionalism is critical, largely because they conditioned Americans to think, from an internal perspective, about the underdeterminacy of fundamental rights.

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  17. ^ See infra notes 149–53 and accompanying text. My use of the term “specificatory” is meant to convey that constitutional text could determine existing, underdeterminate rights, without inventing entirely new rights.

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  18. ^ Scholars have identified these two modes in reference to how statutes interacted with the common law, see, e.g., James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism 24, 38 (1992), but not the connection of these modes to the Bill of Rights.

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  19. ^ As used throughout this Article, “positive law” can include not only legally enacted rules but also customary law. Cf. James Bernard Murphy, The Philosophy of Positive Law: Foundations of Jurisprudence 5–6 (2005) (discussing different definitions of positive law, some of which encompass both enacted and customary law).

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  20. ^ Cf. Jack M. Balkin, Living Originalism 6 (2011) (differentiating textually specified “general principle[s]” and “determinate rules”).

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  21. ^ See, e.g., infra notes 129–32, 145, 235–39 and accompanying text.

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  22. ^ See, e.g., infra notes 254–66, 410–29 and accompanying text.

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  23. ^ Of course, the concept of underdeterminacy is well appreciated in some literatures, such as accounts of natural law. See, e.g., John Finnis, Natural Law and Natural Rights 284–85 (2d ed. 2011) (discussing how positive law can determine the underdeterminate principles of natural law). But it is underappreciated as an internal feature of rights discourse at the Founding. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 292 n.210 (2017) (discussing an example).

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  24. ^ 3 U.S. (3 Dall.) 386 (1798).

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  25. ^ See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2127 (2022) (rejecting a tiers-of-scrutiny approach to Second Amendment doctrine).

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  26. ^ See, e.g., United States v. Sineneng-Smith, 140 S. Ct. 1575, 1585 (2020) (Thomas, J., concurring) (critiquing overbreadth doctrine, which renders rules facially invalid); Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595, 1597 (2018) (defending as-applied religious exemption claims under the First Amendment).

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  27. ^ See, e.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022) (denying a constitutional right to abort a pregnancy).

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  28. ^ See, e.g., Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020, 2084 (2022) (arguing that judicial enforcement of separation-of-powers principles undermines democratic accountability); Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely, 75 Vand. L. Rev. 769, 770–72 (2022) (contesting Ely’s normative justifications for judicial review). See generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004) (tracing historical notions of popular constitutionalism and judicial review).

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  29. ^ See William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1191 (2024) (arguing that section 1 of the Fourteenth Amendment recognized and secured general fundamental rights that the drafters thought already limited state power).

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  30. ^ See Jud Campbell, The Emergence of Neutrality, 131 Yale L.J. 861, 871 (2022); Richard H. Fallon Jr., The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 2 (2019); Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 361 (2006).

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  31. ^ Of course, certain elements of natural law and customary law survive today. State common law, for instance, is a form of customary law. Nonetheless, American legal culture has widely abandoned earlier ways of thinking about natural and customary law, such as the notion that common law is discovered rather than made by judges, see generally, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

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  32. ^ Mark Greenberg, Legal Interpretation and Natural Law, 89 Fordham L. Rev. 109, 129 (2020); see also Raymond Williams, Keywords: A Vocabulary of Culture and Society 98–102 (rev. ed. 1983) (discussing the etymology of “determine” and its cognates).

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  33. ^ This definition modifies Greenberg’s, since it refers not only to the grounding of rights but also to a relational claim about how positive law can render underdeterminate principles of natural law more determinate. See Adrian Vermeule, Common Good Constitutionalism 9 (2022) (defining the concept of determining law as “the process of giving content to a general principle drawn from a higher source of law, making it concrete in application to particular local circumstances or problems”); J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. 1, 22 (2022) (expressing the same idea). Some authors use the word “specification” to refer to the same concept. See, e.g., Grégoire Webber & Paul Yowell, Introduction: Securing Human Rights Through Legislation, in Grégoire Webber et al., Legislated Rights 1, 11, 14 (2018).

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  34. ^ Formalists often acknowledge legal underdeterminacy, and so the observation in the text describes a perceived tendency — a distinction of degree, not kind. See, e.g., John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 775 & n.82 (2009) (noting the possibility of an “interpretative tie” but expressing skepticism that many provisions are underdeterminate “after giving each [interpretive] factor its due weight”).

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  35. ^ Doing so would constitute “determining” rights in the epistemic sense. As just noted, that is not how this Article employs the term.

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  36. ^ Whether rights can actually be fully determinate is doubtful. See, e.g., Frederick Schauer, Second-Order Vagueness in the Law, in Vagueness and Law: Philosophical and Legal Perspectives 177, 184–85 (Geert Keil & Ralf Poscher eds., 2016) (cataloging ways in which legal content can be underdeterminate).

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  37. ^ See, e.g., Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 97–98 (2024); Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 95, 95 (2010); Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 5 (1999). Construction can also help judges implement difficult-to-enforce provisions. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term — Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 57 (1997); Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 10 (2004).

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  38. ^ See, e.g., William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 9 (2019); John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1728–33 (2004); Michael W. McConnell, Time, Institutions, and Interpretation, 95 B.U. L. Rev. 1745, 1771–76 (2015); Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–29 (2003).

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February 10, 2025

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