The James Wilson Foundation on Natural Rights and the American Founding

“Pandemic Follies – and the Constitution”: Hadley Arkes in The Catholic Thing

by James Wilson Institute on October 6, 2020
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In his column for the Catholic Thing, Professor Arkes writes about the restriction of freedom to travel during the Covid-19 lockdown. Professor Arkes raises the question: Do we really need to declare a “right to travel,” or “to leave our houses”? Professor Arkes cleverly points out that we have those rights even though they are nowhere mentioned in the Constitution. It is clear that we should use common sense and reason in this case. Prof. Arkes concludes that to the surprise of many lawyers and legal scholars, we are back to the moral reasoning the Natural Law – but he also points out, that we’ve never left it.

Some excerpts from the article:

In one of my books, I sought to pose the problem by offering two different laws or regulations. The first one bars obscene phone calls in the middle of the night. The second orders people to stay in their homes until given permission by their government to leave. One involves “speech” and so some would try to bring it under the First Amendment. The other involves a freedom never mentioned in the Bill of Rights.

Would we actually allow the government to bear a much lesser burden of justification when it restricts our freedom to leave the house and move about in the outside world?

 Did we really need to declare a “right to travel,” or “to leave our houses,” and a “right to go about in public”?   We seem to know that we have those presumptive rights even though they are nowhere mentioned in the Constitution.

The full article can be found here.

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790