Philip Hamburger

Natural Rights, Natural Law, and American Constitutions

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 Rorschachs 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,

Privileges or Immunities

What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.