A Return to Natural Rights Jurisprudence?

Justice Stephen Field’s Cooperative Constitution of Liberty: Liberty in Full. Adam M. Carrington. Lanham, MD: Lexington Books. 2017.

During his Senate confirmation hearings held to determine his fitness to serve on the U.S. Supreme Court, Brett Kavanaugh was asked by Senator Ben Sasse to explain the place of the Declaration of Independence in American law. In his response, Judge Kavanaugh ticked a series of contemporary civics boxes but made no mention of either natural law or the constitutional originalist view – routinely held by the American legal community until about a century ago – that the U.S. Constitution is a practical legal document aimed at securing the natural rights mentioned in the Declaration. And yet Kavanaugh has been described by his supporters as an originalist, and therefore as one dedicated to interpreting the U.S. Constitution in light of its original public meaning. An originalism severed from the Declaration and America’s founding political philosophy of natural rights places at risk the ongoing project of restoring both our Constitution and the judicial branch. In addition to these theoretical challenges, there are also political impediments to a natural rights originalism. This more original originalism risks severe political opposition from elites and ordinary Americans determined to avoid a return to an alleged nineteenth century-style economic anarchy. The concern of opponents of natural rights is that an American judiciary animated by such a political philosophy will mandate in our day what it allegedly mandated in Gilded Age America: a version of laissez-faire capitalism that permits corporate “robber barons” to exploit workers, in an America awash in unregulated industrial and commercial harms to innocent people.

Adam Carrington is an originalist who argues for a more theoretically nuanced and politically acceptable understanding of America’s Gilded Age legal system. Carrington is an assistant professor of politics at Hillsdale College. Justice Stephen Field’s Cooperative Constitution of Liberty: Liberty in Full grows out of his doctoral dissertation. Carrington’s aim is to explain and defend the jurisprudence of U.S. Supreme Court Associate Justice Stephen J. Field, who was nominated to serve on the court by Abraham Lincoln and whose tenure lasted from 1863 to 1897.

Field’s jurisprudence was rooted in his understanding that the Constitution aimed at protecting the individual natural rights of all Americans to life, liberty, and property, as indicated in the Declaration of Independence and the nation’s common law inheritance. Threats to our rights come from three sources: foreigners, the government, and our fellow citizens. Carrington’s book largely focuses on Field’s response to the latter two threats. During Field’s tenure in office, the federal government was small and very limited in its powers, especially by comparison with what it has grown to be in our day. The broad understanding at that time was that violations of rights by private actors (citizens, corporations, etc.) would be dealt with at the state level. State governments employed the police power, or the inherent power of a sovereign government to legislate for purposes of health, safety, and morals. Field (and the judiciary in general) permitted state legislation aimed at these legitimate ends. By contrast, Field permitted the federal government only a restricted police power, mostly by way of the Commerce Clause.

The flip side of state police power regulations was a comprehensive system of restraints on state legislation. Field understood that state governments tasked with defending each individual’s right to life, liberty, and property from violation by private actors should not themselves be permitted to violate those same rights. After all, rights exist by nature; they are neither created nor granted by the government, despite what progressives then and now tend to argue. Nature takes precedence over legislative will, and the government must not violate the rights that it is established to defend. Field found his constitutional warrant for the federal judiciary’s protection of rights from violation by state governments in the Fourteenth Amendment’s Due Process Clause. On its face, this clause protects procedural due process or, broadly speaking, the rights of criminal defendants. Field went beyond this narrow procedural definition of the Due Process Clause by means of the doctrine of Substantive Due Process, which protects the right to life, liberty, and property of ordinary Americans, even those not caught up in the criminal justice system. Under this broader understanding of due process, Field aimed at protecting the exercise of Americans’ natural right to life, liberty, and property from overly restrictive state laws that had no legitimate basis in a state’s police power. For example, Field would not permit state governments arbitrarily to violate the natural right of Americans to contract for employment at mutually agreed upon terms, or sell otherwise legal goods and services at mutually agreed upon prices, or use their property in any way not offensive to the equal natural rights of other people. On Field’s understanding, the Due Process Clause could be used to protect a broadly capitalist economic system from abridgment by Progressives eager to regulate supposedly exploitative property and contract arrangements.

Carrington shows us how Field’s approach to a judicial defense of natural rights consisted of a careful harmonizing of Substantive Due Process rights with state police power: “Field articulated a liberty in full, one sought by the Constitution cooperatively, meaning in a manner that necessitated collaboration between its provisions.” (1) States were permitted to pass laws that protected individuals from a broad range of economic and industrial harms, for example, from hazardous working conditions, dangerous food and drugs, and pollution. Thus, Carrington demonstrates the falseness of the progressive charge that a natural rights understanding of economic freedom necessarily implies harm to workers and consumers. Field did not aim at unregulated laizzez-faire capitalism. He “grounded the purpose and thus the limits of police power in the protection of individual rights, not laissez-faire economics or popular will.” (6) As Carrington indicates, this broad state police power had limits. Field would not permit states to abridge exercises of freedom and uses of property if there were no corresponding threat to someone’s natural rights, that is, if state legislation was merely an exercise of “popular will.” Field defended a very robust version of capitalism that was not laissez-faire and that secured the economic rights of rich and poor alike. As Carrington writes:

“In Field’s understanding, the Due Process Clause and police power would cooperate to protect liberty understood as individual rights. The former would guard against state regulation impairing such liberty. The latter would wield regulation to thwart other rights violations. Together, liberty would be protected from all threats stemming from state power and all other threats arising within state jurisdiction.” (75)

Carrington does an excellent job of articulating and analyzing Field’s natural rights jurisprudence and persuading us of its practical feasibility. However, Carrington’s argument raises two questions. The first concerns Field’s use of the Due Process Clause. “Originally,” Carrington writes, Field “argued for content-based rights protection with another portion of the Fourteenth Amendment: the Privileges or Immunities Clause.” (16) But other members of the court rendered that clause a dead letter in the Slaughter-House Cases (1873). In consequence, Field turned to the Due Process Clause and the doctrine of Substantive Due Process for content-based rights protection. We are here entitled to wonder whether the Privileges or Immunities Clause is a redundancy, if every worthwhile feature of it can be found in the same amendment’s Due Process Clause. Alternatively, if the Privileges or Immunities Clause is not a redundancy, if it offers us protections not found in the Due Process Clause, we must wonder whether the doctrine of Substantive Due Process makes sense.

The second question raised by Carrington’s argument concerns his critique of Field’s approach to what we today call civil rights (a term which had a somewhat different meaning for Field). Field did not respond judicially to many abuses by post-Reconstruction southern governments against blacks, in large part because he wished to preserve federalism and therefore was leery of having the federal government legislate protections in detail for blacks. Carrington correctly argues that the Fourteenth Amendment permits congressional legislation to correct police power lapses by any state that treats its residents unequally. He claims that congressional legislation could have been crafted, applied, and judicially supervised in such a way as to avoid “co-opting the states and creating de facto national criminal codes as Field feared.” (94) But there are two problems with Carrington’s argument here. First, there would have been tremendous opposition in Congress from southern representatives and senators to any such legislation. Second, even if any such legislation had been passed by Congress, the entirely predictable (and quite possibly severe!) opposition by southern states would have required detailed control of state executive power by the federal government so as to enforce “the equal protection of the laws.” But how could such control have been effected except by a reimposition of reconstruction governments on the South by the rest of the country? Field can properly be faulted for his constrained view of federal power in enforcing the Equal Protection Clause of the Fourteenth Amendment. All the same, it is hard to see how, in light of the bitter resentments lodged for so long in the hearts of so many defeated white southerners, the Nation could have avoided both the Scylla of Jim Crow and the Charybdis of Re-reconstruction. A different outcome in Plessy v. Ferguson (1896) would have been a great blessing, but it would not sufficiently have resolved the matter.

But these reservations should not obscure the excellent contribution of this book to our understanding of the proper limits and possibilities of liberty, to a recovery of originalism properly understood, and to our appreciation of Stephen Field’s defense of liberty. Carrington is right to conclude that Field “continues to speak to the present.” (166) This book should be of interest to law professors, political scientists, economists, judges, and thoughtful citizens in and out of government. In particular, it can be an excellent resource for law students seeking a constitutionally sound and prudent approach to understanding and defending our natural right to life, liberty, and property.

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