Bench Memos

Law & the Courts

KBJ Won’t Embrace Declaration of Independence on Natural Rights

Judge Ketanji Brown Jackson: “I do not hold a position on whether individuals possess natural rights.” (See p. 79 of her response to written questions.)

Jackson’s answer comes immediately after this Q&A:

Please explain, in your own words, the theory prevalent among members of the Founding Fathers’ generation that humans possess natural rights that are inherent or inalienable.

[KBJ] RESPONSE: The theory that humans possess inherent or inalienable rights is reflected in the Declaration of Independence, which states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Thus, by her own account, Jackson doesn’t embrace the basic American creed set forth in that passage from the Declaration.

As one friend commented to me, since Jackson can’t say what a woman is, it’s not surprising that she doesn’t believe that human beings have natural rights.

(Of course, the question of what role, if any, natural rights should play in constitutional decisionmaking is distinct from the question whether natural rights exist.)

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