The jurisprudential school of thought known as “originalism” is, ironically, a relatively modern one. Now commonly associated with the late U.S. Supreme Court Justice Antonin Scalia, originalism is described by subscribers as constitutional interpretation based strictly and solely on the Constitution’s original text, and the presumed intent of those who penned it.

This designation can be misleading, and should not independently imply extra credence. As Terry Brennan delicately explained in a note, “Constitutional interpretation justified by certain preferences of its enactors is variously labeled… ‘original intent,’ ‘original understanding,’ or ‘original meaning,’ depending in part on the optimism, credulity, or political preference of the observer.” In other words, the characterization of “originalism” as a true reflection of original intent is often no more than a self-administered credit. While some argue slight differences in these appellations, Scalia’s advocacy for the suffix “meaning” over “intent” illustrates their largely semantic difference—and purpose.

Modern originalists also refer to themselves as textualists, suggesting that like many constitutional scholars, originalists prefer to rely only on the Constitution’s text. However, that moniker belies the fact that like all constitutional scholars, originalists and textualists regularly refer to other texts and sources when the Constitution fails to resolve interpretive conflict on its own. Every jurisprudential detective—originalist, textualist, or otherwise—must sometimes consult extrinsic records, dictionaries, legislative history, and the Constitution’s more verbose contemporaries to glean intended scope.

Modern originalists have created an interpretive paradigm that eschews, completely, the Framers’ inclusion of natural rights. Thus, the assertion that natural rights were intentionally incorporated into the Constitution’s framework may seem as remarkable today as it did in 1992. What’s more remarkable, Brennan posited, is the fact that modern “originalists” are the most vociferous critics of judicially enforceable natural rights. Brennan’s article presented a painstakingly detailed list (one which could not be concisely summarized) of Framers and writings endorsing natural rights. “Despite sharp disagreement over…the proposed Constitution,” Brennan wrote, “scores of commentators…agreed that no plan of government would be acceptable unless natural rights…were secure.” Supporting this assertion, Brennan cited statements from George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Jay, Gouverneur Morris, James Monroe, George Mason, Patrick Henry, John Hancock, and others. With this consensus established, the only question was how the constitutional framework reconciled natural rights with positive law.

These natural rights, held in such deep regard by the Framers, would have little significance if the Constitution could draft around them. In other words, natural law has no stronghold if positive law can overcome it. The idea that the Framers instead held positive law supreme is not only logically flawed, but against the Framers’ own words. The Constitution’s drafters believed that individuals could not “voluntarily divest themselves…of [these] unalienable rights.” The textual evidence of this, (should a ‘textualist’ seek to consult it) is ample: Quoting one correspondence between Constitutional Convention delegates, Brennan recounted that “natural justice [remained] beyond the reach of...textual authority.” Another ratifying delegate qualified that “our social compact and ancient rights remain entire,” with yet another writing “is there a single natural right…that Congress can infringe? Not one.” In short, neither text nor law granted these rights, and neither text nor law could interfere with them.

Modern originalists dismiss this evidence by insisting that any rights held so universally sacred would have been enumerated in the Constitution.[1]  In response, many jurists and scholars have argued that this protection is indeed found in the Constitution’s text—whether in the Ninth Amendment, the Fourteenth Amendment, the Necessary and Proper clause, or a combination of right-penumbras created by multiple amendments.[2] Modern originalists have rejected the notion that open-ended provisions covered natural rights.[3] Brennan did not examine these arguments, explaining instead that enumeration was wholly unnecessary.[4]  First, natural rights did not rely on textual validation or recognition.[5] Second, attempting to enumerate the tenets of natural justice ranged from impractical to dangerous.[6]

            Recalling how the Framers regarded natural law’s relationship to positive law, and the inability of the latter to impinge on the former, Brennan explains drafters’ similar approach to codifying natural rights. Natural rights existed apart from grants or contracts; they did not require textual recognition, Congress could not legally violate them, and they were secure even without “a particular Bill of Rights.” Granting them within the Constitution, therefore, was superfluous.

            Enumerating natural rights would also have proved too difficult. Of course, formally enumerating any body of rights was a risky and controversial undertaking. Both Federalists and Anti-Federalists expressed fears about compiling a list. Doing so risked either neglecting to list (and failing to protect) the unquantifiable number of little rights citizens should enjoy, or listing too many insignificant rights in an attempt to avoid that risk. The Framers endlessly debated this prescient concern. The Bill of Rights represents their eventual compromise, but its drafters never attempted—nor claimed to have succeeded in—drafting a complete list of the protected rights possessed by citizens.  Some delegations (including Virginia and both Rhode Island conventions), introduced provisions protecting natural rights, but these were dismissed as superfluous.[7] Federalists “assured skeptical Anti-Federalists” during ratifying debates that natural rights weren’t defined “because natural rights could not be effectively enumerated.”[8]
Other pivotal rights were similarly presumed protected, recommended, and excluded from enumeration. State conventions considered including right of self-government, the right to resist, freedom of information and inquiry, the right to navigation, and (prophetically) the right to privacy. Critics of enumeration also cited more trivial rights that were not included in the Constitution, but certainly protected under its scheme. The right to eat, for example, the right to bury the dead, and the right to shave one’s beard were not enumerated. These rights were certainly guaranteed, but listing them would be infeasible. In response to these critics, friends of the Constitution emphasized that such basic rights were retained without enumeration.[1]

[1] The Original “Original Intent” at 1004, endnote 228, and text accompanying notes 263-78.

[1] E.g., Michael Perry, Interpretivism, Freedom of Expression, and Equal Protection, 42 Ohio St. L.L. 261, 267 (1981) (quoting Ely, supra note 5).

[2] See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).

[3] The Original “Original Intent” at 993-94.

[4] Id.

[5] Id. at 994-95.

[6] Id. at 999.

[7] Elliot’s Debates, supra note __ at 593-600.

[8] The Original “Original Intent” at 998, citing id.

Armed with this litany of rights and reasons, Brennan addressed criticism most often abused by modern originalists: that many rights recognized in more liberal jurisprudence are anchored only in “judicial activism,” not constitutional protections. The Framers believed that un-enumerated natural rights were retained, and retained rights cannot be “created” later. Therefore, he argued, true originalists should not presume these rights were unintended or unprotected. Rather, natural rights that gain formal protection in the modern era should be deemed “vindicated,” and presumed valid under the Framers’ original intent.[1]

            Many now-contested rights like the right to privacy were indeed protected by the Framers under the natural rights penumbra. “Other rights purportedly ‘unknown to the Founders’ have in fact been known for centuries,” Brennan explained.[2] The Massachusetts Body of Liberties, for example, predated the Constitution by over 100 years and recognized rights of political and economic asylum, along with protections for employees, women, children, and the “mentally incompetent.” Cruelty to any “bruit Creature” (or animal) was also prohibited.[3]

            However, even unforeseen rights without these (sometimes long-lost) protections may be vindicated. Brennan showed that the Founders intended the Constitution to protect even natural rights not yet known to them.[4] Both Federalists and Anti-Federalists acknowledged that mankind might not yet be privy to the whole array of natural rights.[5] Not only did the Framers concede these rights existed, but they encouraged a constitutional scheme protecting those natural rights realized by future generations.[6] Thomas Jefferson himself wrote:

      [L]aws and institutions must go hand in hand with the progress of the human mind…[and] advance also to keep pace with the times. We might as well require a man to wear still a coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.[7]

This body of evidence—the Framers’ allegiance to natural rights, the subordinate status of positive law, the impracticability of enumerating natural rights, the contemplation of privacy rights and protection of those rights discovered through societal progress—vindicates natural rights and their modern derivatives. As Brennan summarized, if this evidence did not satisfy modern originalists, “it should certainly give direction to the search for…retained rights mandated by their commitment to original understanding.”[8]

[1] Id. at 1005.

[2] Id.

[3] See A Coppie of the Liberties of the Massachusetts Collonie in New England §§ 79-88 (adopted 1641).

[4] Documentary History, supra note _ at 440 (statement of Benjamin Rush, Philadelphia Constitutional Convention).

[5] The Original “Original Intent” at 1007, citing Letter from Thomas Wait to George Thatcher (Aug. 15 1788) (quoted in John Kaminski, Restoring the Declaration of Independence 144 (1987)).

[6] Compare Letter from Edmund Pendleton to Richard Henry Lee (June 14, 1788), (reprinted in The Letters of Richard Henry Lee 442 (1914)) (warning enumeration may foreclose on evolution), and James Wilson, “The Law of Nature” (reprinted in Works of James Wilson 147 (1967)) (assuring the ratified text wouldn’t interfere with accretion of rights).

[7] Letter from President Thomas Jefferson to H. Tompkinson, AKA Samuel Kercheval (July 12, 1816) (on file at the Library of Congress and accessible at https://www.loc.gov/resource/mtj1.049_0255_0262/) (this quote may also reflect on the merit of originalism and a ‘dead Constitution,’ but that analysis is not reached here).

[8] The Original “Original Intent” at 1010.

[[Now further undercut by Dobbs]]

The Framers understood the right to privacy was retained without enumeration. The Griswold case vindicated the right to privacy for modern use, and has been the basis for later decisions recognizing the right to marry, bodily integrity, reproductive choice and control, etc.. Modern originalists have decried Griswold’s right to privacy as a recent creation; ironically, Griswold echoes many Framers’ sentiments and wording almost verbatim.[1] For example, Justice Douglas wrote that allowing “police to search the sacred precincts of the marital bedroom” would be “repulsive to the notions of privacy surrounding [marriage].”[2] Centuries earlier, “A Son of Liberty” cautioned against a country where “our bed chambers will be…searched by brutal tools of power under preten[s]e that they contain contraband…the most delicate part of our families…liable to…indecent treatment.”[3] Similarly, Maryland Federalist “Honestus” feared a world where government officials could enter any home and “search the place with impunity, yea even the pockets and petticoats of [a man’s] wife or daughters,” and concluded the constitutional framework protected against this threat to privacy.[4]

            Since “The Original ‘Original Intent’” and summer 1992, modern originalists have expressed more vehement scorn for the privacy right despite this evidence. [ . . . ]

[1] The Original “Original Intent” at 1009.

[2] Griswold, 381 U.S. at 485-86.

[3] “A Son of Liberty,” N.Y.J. (Nov. 8 1787) (reprinted in Documentary History, supra note _).

[4] “Honestus,” M.D.J. & Baltimore Advertiser 2 (Oct. 21 1788).