Natural rights and natural -law are ideas that frequently seem to have something in common with the elusive shapes of a Rorschach test. They are suggestive of well-defined, recognizable images, yet they are so indeterminate that they permit us to see in them what we are inclined to see. Like Rorschach's phantasm-inducing ink blots, natural rights and natural law are not only suggestive but also indeterminate – ideas to which each of us can plausibly attribute whatever qualities we happen to associate with them. For this reason, we may reasonably fear that natural rights and natural law are ideas often used to legitimate what are, in fact, our individual preconceptions and desires.
Many scholars have discussed natural law and natural rights, and often they have employed these ideas to claim the existence of unwritten constitutional rights or to claim that constitutional rights should be expansively defined. For example, some notable academics, including Edward S. Corwin, Bernard Bailyn, Gordon S. Wood, Thomas C. Grey, Suzanna Sherry, and Randy E. Barnett, have argued that in the 1780's and 1790's natural law and natural rights were vaguely considered sources or authority for unwritten constitutional rights. Moreover, some of these scholars, as well as others, assume that natural rights and natural law implied a relatively unconstrained degree of liberty.
In the eighteenth century, however, American ideas of natural rights and natural law were neither so indefinite nor so expansive. It will be seen that natural rights and natural law were ideas that were relatively precisely defined and that were understood to imply a broad but also substantially limited degree of liberty.
This Article will make five arguments concerning the limited extent of natural rights. First, natural rights were .circumscribed by their very character as natural rights. Natural liberty was the undifferentiated freedom individuals had in the state of nature or the absence of government, and a natural right was simply a portion of that more general liberty. By definition, therefore, natural rights did not conventionally include acquired rights – rights existing only under civil government. For example, freedom of speech or of the press was a right that could be exercised in the absence of government and therefore was considered a natural right, whereas the right of a sheriff to retain his position, notwithstanding his political views, could only be had under government and therefore was distinguished as an acquired right.
Philip A. Hamburger,
Natural Rights, Natural Law, and American Constitutions,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/263