Natural rights are those rights which individuals hold by virtue of the fact that they are human beings. Legal philosophers have long debated the issue of natural rights (also called human rights, universal rights, or inalienable rights) with no unanimity as to their content or even their existence.
As Americans, we have long been convinced of the existence of natural rights. It was upon the exercise of these rights that we owe the founding of our nation.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
Generally, rights are distinguished as natural rights or legal rights. While natural rights are considered to be universal, legal rights exist only where there is legal codification to establish them. The 19th century legal philosopher Jeremy Bentham was a legal positivist who believed that individuals possessed no rights apart from those granted by legal codification, statute, or precedent.
During the confirmation hearings this week, the following exchange occurred between Kagan and Sen. Tom Coburn (R-OK);
Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?
Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.
Coburn: I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a constitutional right. He said that’s a natural right. And what I’m asking you is, do you agree with that?
Kagan: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States.
Coburn: So you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution that are ours, ours alone, and that a government doesn’t give those to us?
Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.
Coburn: Well, I understand that. I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?
Kagan: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.
Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.
Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I’m fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.
While most observers would agree that she is right to say that natural rights should not be allowed to color a jurists constitutional interpretation, one must wonder how she can properly interpret a document written by those who had a firm belief in natural rights and, most assuredly, allowed it to influence the writing of it.
If a ‘ninth amendment’ case were to come before the court, for example, upon what basis could she determine what rights might be “retained by the people”, since she says that she has no “view of what are natural rights, independent of the Constitution”.