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It is never out of season to recall James Wilson's line that the purpose of this Constitution was not to invent new rights, but to secure and enlarge those rights we already had by nature.1 In radical contrast, Blackstone said that when we enter civil so- ciety, we give up that unrestricted set of rights we had in the state of nature, including the "liberty to do mischief."2 We ex- changed them for a diminished set of rights under civil socie- ty-call them "civil rights"-which are rendered more secure by the advent of a government that can enforce them. To which Wilson responded: When did we ever have a "liberty to do mischief"?3 When did we ever have, as Lincoln would say, a "right to do a wrong"?4 The laws that restrained us from raping and murdering deprived us of nothing we ever had a "right" to do. And so when the question was asked as to what rights we give up in entering into this government, the answer tendered by the Federalists was, "none." As Hamilton said in Federalist No. 84, "Here ... the people surrender nothing."5 It was not the purpose of this project to give up our natural rights. And so, what sense did it make to attach a codicil, a so-called "bill of rights," reserving against the federal government those rights we did not give up? How could we do that without implying that, in fact, we had given up the corpus of our natural rights in coming under this Constitution?
If we are invoking traditions here, this is the tradition I would claim. I should represent nothing exotic in this assem- bly; I am here to sound again the things we used to hold.6
My friend Dan Robinson remarked that he wanted on his tombstone the inscription "He died without a theory." A for- mer President of Amherst College remarked that "Hadley has a theory of natural law." I remarked that when one says some- thing like that, one imagines a detached observer, watching theories whiz past him, and somehow coming to a judgment on the fragments of those theories he regards as plausible or implausible, true or false. And I said, take me back to the ground on which...