Philip Hamburger (Columbia University Law School) has posted Campbell’s Constitution (43 pages) on SSRN. Here is the abstract:
Rights are under assault from an unexpected direction: originalism. A series of articles by Professor Jud Campbell (most recently in the Harvard Law Review) takes aim at my prior scholarship to challenge the view that constitutional rights were understood at the Founding to be judicially enforceable limits on government. According to the Campbell thesis, the most basic of constitutional rights—those declaring the freedom of speech and other natural rights—were considered, on the whole, neither legally limiting nor judicially enforceable. Indeed, according to his thesis, enumerated natural rights were subject to legislative control. The effect is almost to de-constitutionalize such rights.
Professor Campbell’s evidence, however, is questionable. In fact, there is a strong historical foundation for understanding constitutional guarantees of natural rights, including speech rights, to be legally binding and judicially enforceable limits on power.
Posted at 6:04 AM