If Government Gives You a Right, Can Government Take It Away?

I think Holmes was right.

But perhaps not entirely for the reason Holmes would have given.

Justice Oliver Wendell Holmes Jr. once offered a warning about the language of rights that remains remarkably relevant. In American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, Holmes cautioned that the word right could become a “deceptive” trap because lawyers could begin with a limited right and quietly transform it into an unlimited one. His conclusion was concise: “Most rights are qualified” (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).

The deeper problem may lie in where we believe rights come from. If government is the source of a right, then government necessarily has some authority to define that right. What government creates through positive law, government can ordinarily regulate, modify, qualify, or abolish through positive law, subject to whatever higher legal restraints the political system has imposed upon itself.

Natural rights make a fundamentally different claim.

A natural right is not something government gives us. Government may recognize it. Government may protect it. Government may regulate conduct occurring around it. Government may even violate it. But if the right is truly natural, government did not create it and therefore cannot make the underlying right cease to exist simply by changing the law.

That distinction places Holmes in an illuminating conversation with two modern defenders of natural rights: John Finnis in jurisprudence and Randy Barnett in American constitutional theory. Holmes helps us see the vulnerability of legal rights once their content depends upon the state. Finnis and Barnett help explain why rights grounded somewhere beyond the state occupy a different and, I would argue, superior position.

Holmes Was Right About Qualified Rights

The dispute in American Bank & Trust involved the Federal Reserve Bank of Atlanta and smaller Georgia banks. The Federal Reserve Bank claimed a right to present checks for payment. Holmes accepted that such a right existed but rejected the conclusion that possessing that right necessarily authorized every possible manner of exercising it (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358–59).

Holmes used a memorable analogy. A person plainly has a right to give away his own money. Yet giving money to induce someone to commit a crime does not become lawful merely because the giver owns the money (American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 1921, 358).

The point is difficult to dispute.

Saying that I possess a right does not necessarily answer every question about what I may do under the banner of that right.

But Holmes’s jurisprudence pushes the question one step further: Who determines the qualification?

Holmes was deeply skeptical of natural-law reasoning as a source of judicially discoverable legal principles. His jurisprudence helped mark a departure from the older American tradition in which natural law could supply part of the moral architecture of the common law. Andrew Forsyth describes Holmes and the legal realists as breaking from the natural-law tradition and increasingly locating law in actual institutional decisions, social practices, and the exercise of governmental power rather than in a coherent body of antecedent moral principles (Forsyth 2019, 125–45).

That shift matters enormously.

If the state is ultimately responsible for defining what counts as a legal right, the statement that “most rights are qualified” acquires an additional meaning. Rights are qualified because the legal authority that recognizes them also defines their boundaries.

And whatever legal authority can define, it can potentially redefine.

The Problem with a Right Government Gives You

Suppose a legislature creates a statutory entitlement to a particular government benefit.

That entitlement is certainly a legal right while the statute remains in force. Courts may enforce it. Officials may be legally required to honor it. A citizen may properly say, “I have a right to this benefit.”

But the legislature that created the program may generally amend the statute. A later legislature may alter eligibility requirements. It may reduce the benefit. It may replace the program. It may abolish it altogether, provided that doing so complies with other controlling law.

The reason is straightforward.

The right depends for its existence upon positive law.

Constitutional rights are considerably more difficult to alter because ordinary legislation is subordinate to constitutional law. Yet even here the distinction between the legal recognition of a right and the source of the right itself becomes important. A constitutional provision is positive law and may ordinarily be altered only through the constitutional process established for amendment. The natural-rights tradition makes a more radical claim: some rights would continue to exist as moral rights even if a constitution failed to recognize them.

This gives us two very different propositions:

Government has declared that you possess this right.

And:

You possess this right, therefore government is obligated to respect it.

Those sentences may produce the same result when government behaves justly. Jurisprudentially, however, they run in opposite directions.

The first makes government the source.

The second makes government the subject of an obligation.

That difference is the heart of natural-rights theory.

Finnis: Law Does Not Create the Moral Order It Governs

John Finnis provides one of the most important modern accounts of natural law and natural rights. His argument is not that human beings possess an unlimited collection of individual preferences that government must recognize as rights. Finnis instead grounds rights within practical reason, objective human goods, justice, human flourishing, and the common good (Finnis 2011).

For Finnis, positive law performs indispensable work. Human communities need legal institutions to coordinate conduct, establish determinate rules, resolve disputes, and pursue common goods that cannot be secured by isolated individuals acting independently (Finnis 2011). His natural-law theory therefore does not treat government as unnecessary or legal rules as presumptively illegitimate simply because they restrict individual choice.

But positive law does not create the entire moral universe within which it operates.

Finnis argues that natural-law reasoning can ground genuine human rights, including rights whose normative force does not depend simply upon governmental recognition (Finnis 2015, 199–225).

This produces an important distinction for our discussion of Holmes.

Natural rights may still have boundaries.

They are not necessarily absolute permissions to do anything associated with the subject of the right. My right to property does not entail a right to use my property to murder another person. My liberty does not entail a moral entitlement to enslave someone else. The moral order that grounds rights also structures their proper exercise.

So Finnis need not disagree with Holmes that rights are often qualified.

The disagreement concerns something deeper.

Who, or what, supplies the qualification?

For Holmes, legal institutions ultimately determine the operative legal boundary. For Finnis, positive law operates within a moral order that government did not create. Government can specify many of the practical boundaries of legal rights, but government itself remains subject to standards of justice external to its own will (Finnis 2011; Finnis 2015, 199–225).

That changes the meaning of a qualification.

A natural right may be limited because the right itself exists within an objective structure of justice.

That is very different from saying a right is limited merely because government has decided how much of the right its citizens will be permitted to exercise.

Barnett: Rights “Retained,” Not Rights Granted

Randy Barnett brings this argument directly into American constitutional law.

The Ninth Amendment contains one of the most intriguing phrases in the Constitution: it speaks of rights “retained by the people.”

Barnett takes that language seriously.

His account of the Ninth Amendment argues that the Constitution assumes the existence of rights that were not created by their enumeration in the constitutional text. On Barnett’s reading, the people possessed natural rights before the Bill of Rights was adopted, and enumerating some rights was not supposed to diminish the status of those that remained unenumerated (Barnett 2006, 1–82).

The word retained matters.

You cannot retain something that you never possessed.

The constitutional language therefore fits naturally with a theory in which government does not grant all rights to the people. Instead, people enter political society already possessing rights, while constitutional government receives powers.

That reverses the usual modern assumption.

Under the government-as-source model:

Government possesses authority and grants citizens certain protected rights.

Under the natural-rights model:

People possess rights and grant government certain limited powers.

Barnett builds much of his constitutional theory around that distinction. In Restoring the Lost Constitution, he argues for a “presumption of liberty” in which government bears a substantial burden when it restricts the rightful exercise of individual liberty. His theory connects constitutional legitimacy to the protection of rights retained by individuals rather than treating individual freedom as merely the remainder left after government has exercised its powers (Barnett 2013).

This provides the American constitutional counterpart to Finnis’s jurisprudential argument.

Finnis asks why rights bind government at all.

Barnett asks what the Constitution should look like if we take seriously the proposition that people possess rights before government acts.

Natural Rights Are Different Because Government Cannot Repeal Their Source

This leads to what I think is the strongest argument for privileging natural rights.

Consider two rights.

The first exists because the legislature enacted Statute A.

The second exists because every human person possesses a moral claim that precedes the state.

The legislature repeals Statute A.

The first right may cease to exist.

Now suppose the legislature announces that the second right no longer exists.

Something very different has happened.

If natural-rights theory is correct, the legislature has not abolished the right. It has violated it.

That distinction is everything.

A government can repeal a statutory entitlement because the statute constituted the entitlement.

A government cannot repeal a natural right in the same sense because governmental action did not constitute the right in the first place.

Government can refuse to recognize it.

Government can violate it.

Government can punish those who attempt to exercise it.

Government can persuade courts to ignore it.

Government might even construct an entire legal regime contrary to it.

But none of those actions answers the moral question of whether the person still possesses the right.

Finnis’s natural-law jurisprudence provides precisely this possibility of evaluating positive law from a moral standpoint not reducible to the positive law itself (Finnis 2011; Finnis 2015, 199–225).

That is the great advantage of natural rights.

They give us somewhere to stand when government itself is wrong.

The Common Law Once Understood This Relationship Better

There is an important historical dimension to this argument.

American law did not always draw a sharp boundary between positive law and natural law. Andrew Forsyth’s history of American common law shows that jurists such as Joseph Story could understand natural law as supplying principles, duties, rights, and limits while common-law doctrine gave those principles increasingly specific legal form (Forsyth 2019, 70–104).

Over time, natural law became less explicit in American legal reasoning. It was increasingly absorbed into common-law doctrine and later challenged by intellectual movements that emphasized law as a product of human institutions rather than an expression of an objective moral order (Forsyth 2019, 70–145).

Holmes stands near the far end of that transition.

This is why placing Holmes beside Finnis is so revealing.

Holmes says: Most rights are qualified.

Finnis can answer: Of course. But government is not necessarily the source of either the right or its ultimate moral limits.

Barnett can then add an American constitutional response: The Constitution itself speaks of rights the people “retain,” suggesting that at least some rights are conceptually prior to governmental enumeration (Barnett 2006, 1–82).

The debate therefore is not really between people who believe rights have limits and people who believe rights are unlimited.

That would be too simple.

The important debate concerns the source of the right and the source of its limits.

Natural Rights Can Be Qualified Without Becoming Government Rights

This qualification is essential to the argument.

If I simply say, “Natural rights are absolute, while government rights are qualified,” I create a claim that is difficult to defend.

Natural rights themselves may be structured by duties owed to other persons, competing rights, justice, and the common good. Finnis certainly does not understand natural rights as limitless individual permissions detached from moral obligation (Finnis 2011).

The stronger proposition is this:

Natural rights are superior to government-created rights not because they are necessarily unlimited, but because their normative existence does not depend upon the government that is being asked to respect them.

That distinction allows us to agree with Holmes without surrendering the natural-rights tradition.

Yes, most rights may be qualified.

But qualification raises a second question that Holmes’s sentence does not answer:

Qualified by what?

If the answer is merely “whatever government decides,” then the right ultimately rests on governmental permission.

If the answer is that a right is bounded by the equal dignity and rights of others, by principles of justice, by the nature of the good being protected, or by requirements of the common good, then the qualification may arise from the same moral order that generated the right in the first place.

Those are profoundly different conceptions of a right.

The Difference Between a Right and a Permission

This brings us to the practical danger of locating the source of rights exclusively in government.

If government gives me liberty today and may withdraw it tomorrow whenever the proper political procedures have been followed, it becomes difficult to explain why I possessed a right rather than a particularly secure governmental permission.

Natural-rights theory provides an answer.

A right is capable of standing against the state precisely because its moral authority does not depend entirely upon the state.

Barnett expresses this insight constitutionally through rights “retained by the people” and his presumption of liberty (Barnett 2006, 1–82; Barnett 2013).

Finnis expresses it jurisprudentially by locating human rights within an account of practical reason and human good that allows positive law itself to be evaluated according to standards of justice (Finnis 2011; Finnis 2015, 199–225).

Holmes reminds us that rights require boundaries.

Finnis and Barnett remind us that government need not be the author of everything it is obligated to respect.

And that may be the most important distinction of all.

Holmes Was Right, but Natural Rights Matter Because He Was Right

Holmes’s statement that “most rights are qualified” can initially sound like an argument against strong conceptions of individual rights.

I think it can point in the opposite direction.

Precisely because positive legal rights can be qualified, altered, and sometimes withdrawn by the legal institutions that define them, we have reason to ask whether there are rights whose authority does not originate in those institutions.

Natural-rights theory answers yes.

That does not mean natural rights have no limits. It means their existence does not depend upon legislative generosity, administrative discretion, or even constitutional enumeration.

The distinction can be stated simply:

A government-created right exists because the law gives it to us. A natural right makes a claim upon the law because we possess it already.

That is why the source of rights matters.

If government is the source of a right, then government possesses an extraordinary degree of authority over its definition.

If the right precedes government, the relationship reverses.

The question is no longer simply, What rights has government decided to give us?

The question becomes, What rights must a just government recognize because they were never government’s to give away in the first place?

Holmes helps us see why rights are often qualified.

Finnis and Barnett help us see why some rights must stand on firmer ground.

References

American Bank & Trust Co. v. Federal Reserve Bank of Atlanta. 1921. 256 U.S. 350.

Barnett, Randy E. 2006. “The Ninth Amendment: It Means What It Says.” Texas Law Review 85 (1): 1–82.

Barnett, Randy E. 2013. Restoring the Lost Constitution: The Presumption of Liberty. Updated ed. Princeton, NJ: Princeton University Press.

Finnis, John. 2011. Natural Law and Natural Rights. 2nd ed. Oxford: Oxford University Press.

Finnis, John. 2015. “Grounding Human Rights in Natural Law.” American Journal of Jurisprudence 60 (2): 199–225.

Forsyth, Andrew. 2019. Common Law and Natural Law in America: From the Puritans to the Legal Realists. Cambridge: Cambridge University Press.