Front Page Titles (by Subject) The Constitution & Natural Rights - Literature of Liberty, Autumn 1980, vol. 3, No. 3
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The Constitution & Natural Rights - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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The Constitution & Natural Rights
“Rights and The United States Constitution: The Declension from Natural Law to Legal Positivism.” Georgia Law Review 13(Summer 1979):1447–1500.
The Founders of the U.S. Constitution based their political philosophy on natural law in four ways. Natural law provided moral standards for virtuous men to govern their conduct; next, it defined ethical standards to guide positive law; third, natural law set limits to power, beyond which the government invited revolution; fourth, and most importantly, natural law was the source of natural rights which were antecedent and superior to government. Natural rights checked power and the sole justification of governmental power was to protect natural rights. From its very beginning, judicial review was marked by adherence to the principle that there were natural rights beyond and limiting statutory law.
The slavery issue and the Thirteenth Amendment confirmed this interpretation of the Constitution as a protector of natural rights. By the 1840s, slavery advocates, such as George Fitzhugh, no longer maintained that the Constitution upheld natural rights and that therefore it was not surprising that the Constitution upheld slavery. When the Thirteenth Amendment outlawed slavery, the Constitution was again interpreted as an expression of natural law/natural rights.
With the twentieth century, however, legislature and courts have discovered new economic and social “rights” to supplement the older natural rights to life, liberty, and property. Viera views such a new mix of rights as incoherent since fulfilling economic rights requires disrupting the spontaneous order of the market and personal rights. Legal positivism has accompanied the emergence of these new “rights.” Legal positivism, however, is inconsistent with American Constitutionalism, since positivism places the basis of the law in the will of the sovereign, while constitutionalism rejects absolute sovereignty by its doctrine of pre-governmental natural rights inhering in individuals.
Two doctrines reveal the courts' current committment to positivism. First, there is the “rational basis” test for seeing if governmental power interferes with constitutional liberty. This test asserts that governmental power infringing on a liberty is constitutional unless no conceivable set of facts would justify the power.
The positivist, Justice Holmes, in his dissent in Lochner vs New York (1905), argues that a law could not be said to interfere with liberty unless a rational and fair man would admit that the statute would infringe on fundamental principles as they have been understood by our tradition and law. Holmes maintained that the Constitution did not embody a timeless, unchangeable economic theory.
The second doctrine which has undermined legal and natural rights is the “balancing” doctrine. Here “incidental” infringements on a person's fundamental liberty are held to be permissible if they fulfill a legitimate and compelling governmental aim, if the government can show its use of power is directly related to that aim, and if the least restrictive means is taken to achieve that aim. This belief that the government can infringe on fundamental liberties for a compelling aim renders natural rights empty. Also, since the government is supposedly acting for its citizens, this doctrine implies that the compelling interests of some citizens for whom its acts are such that they require violating other citizens' liberty. Again, this view contradicts the theory of the Constitution.