Cato Leader Discusses the Scope of Unenumerated Rights


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“Would we have been better off without a bill of rights?” This is not a question that is often asked at Harvard Law School, yet it was just this sort of deeply philosophical question that a student asked during Dr. Roger Pilon’s January 31st remarks on unenumerated rights. Pilon is the Vice President for Legal Affairs and the Director of the Center for Constitutional Studies at the Cato Institute.

In his Federalist Society-sponsored presentation, Pilon noted that “too often in Con Law today we focus on the trees and lose the forest,” and that he hoped that by covering an intriguing topic such as unenumerated rights at speed and from a philosophical distance it would be possible to overcome this phenomenon.

The presentation began with a historical analysis of first principles, natural rights, and higher law from Greece up through modern English common law. The focus of his presentation was on the concept that people are born with rights, some of which they give up to form a government, and that it is not the government which dispenses rights onto the people. Dr. Pilon repeatedly came back to this theme in addressing his other broad point: that the scope of governmental power in and of itself affects the rights of individuals.

Pilon noted that the Founders had a view of inherent rights that was very expansive. He claimed that in looking at the limited enumeration of powers given to the federal government it was possible to see how the founders intended to carve out a broad collection of rights through limitations imposed upon government. Central to this argument was Pilon’s contention that by strictly enumerating the powers of the federal government and preventing government action in many arenas of life one is also creating a right. He stated it simply by saying, “Where there is no power, there is by definition a right.”

Pilon’s analysis of this framework of unenumerated rights led him to describe the broadening of government power as leading to the destruction of unenumerated rights. Central to this destruction, he noted, was the expansive reading of the commerce clause and other provisions of the Constitution, which he claimed has eviscerated the restriction of the federal government to enumerated powers. Pilon argued that while some rights are still protected in the Bill of Rights, these protections are miniscule compared to the unenumerated rights lost through court inaction in the face of government expansion of power.

The presentation also criticized both the left and right of the American political spectrum for allowing government to expand beyond the originally enumerated powers. He specifically criticized the left for their episodic creation and enforcement of rights and the right for their very strict view of the Bill of Rights. Still, his focus was on the fact that each side of the political spectrum has given up on the most important fight, the fight over limitation of the federal government to the enumerated powers provided for in the Constitution.Beyond merely addressing the concept of unenumerated rights, Pilon also noted that there is often a blurring of the boundary between rights and values in political converstation. He spoke of the collision in many conversations between notions of objective rights and subjective values, and argued that these two notions must be kept separate. In arguing for this separation he called to mind cases such as Griswold v. Connecticut and Lawrence v. Texas. He lauded the ability of many to separate values from rights when analyzing the First Amendment, while arguing that we should also impose this separation in analysis of the other sections of the Bill of Rights.

Throughout his address, Pilon drew out a view of rights that focused on the concept that government involvement decreases citizen’s rights. He spoke passionately for a classical liberal view of rights and their preservation through limitations on governmental reach and power. In doing so he raised the question of what courts should be doing to ensure people’s rights, and at the same time made some in the audience rethink the effects of writing down only some rights in the Constitution and Bill of Rights. At the least, Pilon’s presentation challenged both sides of the political spectrum on their notions of rights and the role of government and challenged many in the audience to at least rethink their basic assumptions about unenumerated rights.

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