Document Type

Article

Publication Date

1997

Abstract

Law professors nowadays mention natural law and natural rights on a regular basis, and not just in jurisprudence. Given that the founding generation universally subscribed to the idea of natural rights, this concept regularly makes a prominent appearance in discussions of constitutional law. One simply cannot avoid the concept if one is to explain Justice Samuel Chase's well-known claim in Calder v. Bull that "[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power .... An ACf of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." Nor can law professors explain to their students the reference in the Ninth Amendment to the "other" rights "retained by the people" without mentioning "the preexistent rights of nature."

Publication Citation

20 Harv. J.L. & Pub. Pol’y 655-681 (1997)