The NYU Journal of Law & Liberty held its fourth annual Friedrich von Hayek Lecture in Law on April 6, featuring Judge Michael McConnell of the U.S. Court of Appeals for the Tenth Circuit and a professor at the University of Utah’s S.J. Quinney College of Law.
McConnell recalled with fondness Professor Hayek’s influence on him as a young student. “I had the pleasure when I was a lowly undergraduate just starting to study political philosophy and economics to meet Professor Hayek,” McConnell said. “I can still remember the effect on me of reading The Road to Serfdom, The Constitution of Liberty, and even the first thing I read by him, this lovely little essay entitled ‘Why I Am Not a Conservative.’”
In “Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?” McConnell, an expert in constitutional history and law and religion, discussed how the language of the Ninth Amendment, which provides that the naming of certain rights in the Constitution does not take away from the people rights that are not named, can only be understood against the backdrop of philosopher John Locke’s natural rights theory. McConnell said that Locke taught us that we all have natural rights, rights that human beings have in a state of nature before the creation of civil or political society.
But McConnell said that natural rights are not the same as human rights, those rights that must always and everywhere be respected by civil governments. On the contrary, because rights exist in a state of nature and are insecure, lacking a common means of impartial adjudication and enforcement, men enter into a social compact, such as the Constitution, in which they relinquish many of their natural rights in return for more secure protections of those that they retain. For example, McConnell said that according to Locke, we give up our natural right to use private violence to punish aggressors, thus giving the state a monopoly on the legitimate use of force for punishment.
McConnell said the Supreme Court has never defined what the Ninth Amendment means, but there are two leading schools of thought on the matter.
The federalism view holds that the Ninth and Tenth Amendments together are limitations on the power of the national government, with the Tenth Amendment limiting federal powers to those enumerated in the Constitution and the Ninth Amendment guaranteeing against a broad construction or interpretation of those powers.
The other view, which he called the “fully enforceable rights” interpretation, holds that all natural rights are now constitutional rights, whether enumerated or not, and the judiciary is empowered to determine what those natural rights are, how far they extend, and to what degree they may be regulated or curtailed.
Rejecting both views, McConnell offered another possibility: “That the rights retained by the people are indeed individual natural rights, but that they enjoy precisely the same status and are protected in the same way that they were before the Bill of Rights was added to the Constitution. They are not relinquished, denied, or disparaged, but neither do they become constitutional rights. They do not become trumps.”
Watch the full recording from this event (1hr 5min):