…taking it seriously:

…James Madison, one of the chief architects of both the U.S. Constitution and the Bill of Rights, echoed Coke’s words: “That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations.” Similarly, Rep. John Bingham (R-Ohio), the author of the first section of the Constitution’s 14th Amendment, which applied the Bill of Rights and other unenumerated rights to the states, said that the 14th Amendment included “the liberty…to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

So what went wrong? According to Sandefur, the blame falls largely on the Progressives of the late 19th and early 20th centuries, who believed that government action should be the primary agent of all social change. To that end, the Progressives enacted a mountain of new legislation that touched on every aspect of human life, from workplace regulations and antitrust statutes to alcohol prohibition, racial segregation, and eugenics.

How “progressive.” Maybe we need a new amendment.

…of “progressives.”

The Founders’ understanding of the origin of government, in turn, proceeds from a recognition of the difficulty many individuals have in honoring the obligations that flow from the equality principle. Government is formed, in other words, for the express purpose of better enforcing this duty among men, thereby better securing the freedom of all. “If men were angels,” as Madison famously wrote in Federalist 51, “no government would be necessary.” Precisely because men are not angels, because many are strongly inclined to violate the rights of others when it is in their interest to do so, individuals consent to enter into the social compact, and establish government on the understanding it will use its powers to restrain those domestically and internationally who would violate their freedom. In principle, then, the power of government is not absolute but is limited to whatever actions are necessary to secure the natural rights of its members.

By rejecting the existence of natural rights, accordingly, the Progressives consciously repealed this limit: “It is not admitted that there are no limits to the action of the state,” Merriam observed, “but on the other hand it is fully conceded that there are no ‘natural rights’ which bar the way. The question is now one of expediency rather than of principle. . . . Each specific question must be decided on its own merits, and each action of the state justified, if at all, by the relative advantages of the proposed line of conduct.” In devising the content of the law, legislators need not worry about respecting the individual’s natural right to rule himself, because “there are no ‘natural rights’ which bar the way.”

In principle, accordingly, all of the rights previously believed to inhere in the individual — e.g., the rights to life, to physical liberty, to decide whom to marry, to enjoy the fruits of his labor, to speak freely, etc. — were now subject to public disposal. Whether and to what extent government allows individuals to control any aspect of their personal concerns was now purely a matter of how it viewed the consequences of doing so. To illustrate just how far the Progressives were willing to take this, Merriam, in drawing the foreign-policy implications of this change, declared: “Barbaric races, if incapable, may be swept away; and such action ‘violates no rights of these populations which are not petty and trifling in comparison with its [the Teutonic race’s] transcendent right and duty to establish legal order everywhere.’” As Progressive economist and New Republic editor Walter Weyl summed up this shift in 1912, America was now “emphasizing the overlordship of the public over property and rights formerly held to be private.”

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