Did The Founders Get It Wrong? Or Has The World Changed?

This is a hard post to write, because I’ve spent the better part of my adult life–as a lawyer,  as a university professor and (at various times) a columnist– defending and explaining America’s Constitution and Bill of Rights. But I just listened to a fascinating podcast from the University of Chicago’s law school, titled “What are rights?” and the reflections it prompted made me connect some “dots” that I’ve encountered over the years, and ponder questions I’ve ignored or–more accurately–repressed.

In the U.S. Constitution, rights are conceived of as negative. When US was founded, governments were far and away the most powerful threat to individual liberty, and accordingly, the Bill of Rights protected individual rights against government intrusions. (When I was Executive Director of Indiana’s ACLU, I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.)

Other Western democracies don’t necessarily share–or even understand–that  limited and negative conception of constitutional rights. Many years ago, I delivered a paper at a conference in Milan, Italy, that included an analysis of a then-recent Supreme Court case, and an Irish scholar challenged me; he thought my description couldn’t possibly be correct because the American notion of negative constitutional rights was unfamiliar to him.

And that brings me to the podcast that triggered this post. That discussion distinguished between human rights and  constitutional rights.

Placing rights in a country’s constitution requires a significant government infrastructure to enforce them–statutes, courts, the training of those who must police and protect citizens. As a result, as the participants in the podcast noted, we want to be prudent –to constitutionalize only the most important of those human rights.

What is “most important,” of course, depends on the cultural context.

Listening to the podcast sent me back to the Universal Declaration of Human Rights, issued by the United Nations in 1948. That document enumerated what were considered basic human rights at the time–and  it included both negative and positive rights. As the Preamble describes those rights, they include recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family.”

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people…

The entire planet is currently watching a government engage in those “barbarous acts,” as Russia continues its assault on Ukraine–an assault that underlines the continued ability of governments to disregard the fundamental right to human and national self-determination.

In today’s world, however, governments are far from the only powerful actors capable of invading the rights of citizens. Multi-national corporations, obscenely rich oligarchs, and angry “tribes” of citizens enraged by loss of privileged status and empowered by “free press” propaganda all pose a significant and growing threat to both human and constitutional rights.

I have become increasingly convinced that a constitution that protects only negative rights–the “right to be left alone”–important as those protections are, is insufficient.

Re-read that paragraph from the Universal Declaration, especially the phrase “freedom from fear and want.” Other Western democracies have constitutionalized positive rights– to education, to health care, and to housing. The Universal Declaration itself includes positive rights, including the right to education, and the right “to a standard of living adequate for the health and well-being of himself and of his family,

including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

America’s Constitution and Bill of Rights were major and dramatic innovations for their time. The documents crafted by the nation’s Founders triggered a  philosophical and cultural departure from the then-widespread  belief in the divine right of kings and the concomitant disregard for the rights of common folks.  For the first time, subjects became citizens, and citizens had rights.

We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.


  1. Two distinctions are important. First, the “Founders” are not the 55 white males who met, at one time or another, during 1787 and produced The Constitution. The National Archives has designated them as The Framers. Madison and others had a view of The Constitution as providing a framework, like the structure of a building going up. The rest of the structure would be filled in over time. Women, slaves, indigenous peoples and others were excluded from that group. Only if we expand the concept of “founding” to include everyone who was here do we have an accurate title. This is not merely semantics. The Framers are given too much credit. The Founders were much less affluent & died in great numbers. The second distinction has to do with government and rights. Whenever someone says that a government official has a “right” to do something, or that a State has any right at all, the Declaration of Independence is ignored. People have rights. Governments have powers and authority, as given by the People as a convenience. If we think any government has rights, that’s recognition that the government can do things that we cannot question.

  2. “We may have arrived at yet another point in human history when we need to rethink how we envision governing–including reconsideration of where the most significant threats to individual liberty reside today, and which additional human rights are important enough to be constitutionalized.”

    I see state governments ignoring the U.S. Constitution and their own State Constitutions as those who pose the most significant threats to our individual liberties and rights. There is no one to govern the government at any level; who can force government officials to uphold their own oaths of office to protect and serve citizens?

    The Founders didn’t get it wrong, they misjudged human nature, including their own; resulting in elected officials being given control with no controls on the elected officials. Indiana is a prime example. Eunice Brewer Trotter’s book “Black in Indiana” documents the actual “free state” conditions here with elected officials signing into law the abolition of slavery while ignoring federal and their own state laws by owning, buying and selling slaves and indentured servants.

    Even our criminal laws have no one to force lawmakers to uphold the criminal laws enacted to protect individual citizens. They continue passing more laws protecting criminal actions; leaving us to our own devices in too many instances.

  3. Endorsed, condoned and agreed. Salute. Ready to take action.

    I wish to highlight one phrase that you sort of slipped in: “divine right of kings.” This authoritarian concept – with its long history of concommitant wars – has been the source of suffering and death for billions of humans over the millennia. It is embedded in our culture, and is a main paradigm of the “traditional” right … pretty much all conservatives. “The divine right of kings” is a foundational concept that sets up governments with the assumption of authoritarianism, in particular the government of the United States.

    How embedded is it? When the Paulist Pharasaical bishops of the 4th century began meeting to unify the Christian church, they wrote their image of Jesus conform to a king, lord and god, along with the belief that this authoritarian figure was to come and save us from ourselves. Any wonder that our traditional politics – dominated by Christian Evangelicals (invented in the 1930s by businessmen) – is happy to undermine democracy and move toward authoritarianism? Jesus never saw himself as a god or a king to judge between others, and opposed those who were, as is evident in the recent non-Christian scriptural finds.

    The whole concept of authoritarianism is embedded in our culture, right next to what Jesus really teaches – “You have one master,” “You are all gods,” and “Love your neighbor as yourself.”

    We need to renew our Constitution to include what Jesus actually taught, even the Universal Declaration of Human Rights … as a first step toward active opposition to authoritarians around the world. I’m in.

  4. Provocative post professor, thanks. I agree and appreciate Mark Small’s points, especially the distinction between the terms “Founders” and “Framers”.

  5. Back in the day of stone tablets when I was studying Political Science, we understood that we only have those “rights” that government deigns to give us. We also understood that that was the reason we had to remain engaged, vote, attend public meetings and work for good government. We lose too much when too few are watching.

  6. The United Nations Declaration of Human Rights is not a declaration that I was aware of, but am certainly glad you chose to write about it today.

    In a conversation with a local store manager yesterday about the difficulty of filling open positions he made a statement that I have heard far too often in the past few years. He stated that ‘no one wants to work’. I chose to ignore that comment because I believe the real problem is that people have had it with working for ridiculously low wages that don’t come anywhere close to covering the bare minimum expenses of existing, let alone living.

    The people that have been working for minimum wage or anything less than a reasonable wage that would allow them to pay basic bills have watched their employers become wealthier and wealthier off of the employee’s hard work. Those employees then have to apply for government assistance to help pay their living expenses. They then have to endure harsh judgement from other people that are angry about being taxed to support the low wage workers. It is a horribly degrading position to be in.

    My opinion is that people have finally had their fill of low wage work. They are modern day slaves and our country refuses to give up slavery. The pandemic shutdowns gave people a chance to rest and reflect on their lives. They realized that slave wage jobs just aren’t worth it and I am happy for them.

  7. James Todd – exactly my reactions.

    All – do be aware that GOP-led states, one by one, are signing on to holding a “constitutional convention” , supposedly only to consider requiring a balanced US budget. It would take 34 states to do it – I think there are 29 now. But…read this https://www.cbpp.org/research/states-likely-could-not-control-constitutional-convention-on-balanced-budget-amendment-or

    Use your imagination…abortion, vaccines, immigration, guns….

  8. No, the Founders did not get it wrong. The ideas of government and rights had only evolved to a point during the late 1700s when the Constitution could be written. And yes, the world has changed since then. Lately there is a push for more evolution which will bring its own conflicts and hopefully advancement of human understanding and thought. It’s a fearful time for those who do not want change and an exciting time for those who are full of anticipation for those changes that will move mankind forward.
    Fasten your seatbelts. It’s going to be a bumpy ride.

  9. A clarification. The Bill of Rights in the U.S. Constitution originally only protected people from intrusions by the federal government, not the states. It wasn’t until the 14th Amendment was adopted that these protections in the Bill of Rights began being applied to the states and, even then, only one at a time on a selective basis, i.e. selective incorporation.

    I remember asking my class what changes they think should be made to the Constitution, i.e. what did the Founders, sorry Mark, Framers get wrong. The response was that the Constitution was perfect as is. Nothing needed to be changed. The saw talk of change as some sort of heresy.

    I can tick off some changes very quickly. House members running every two years. That has left them in perpetual campaign mode. Four year terms, with half the House up every 2 years would have been better.

    The federal impeachment power. Even before today’s highly partisan atmosphere, the impeachment process has always been viewed as political. Until Mitt Romney in Trump Impeachment No. 1, no person of the President’s party has ever voted for removal. A better impeachment process would have been indictment by the House and Senate, then conviction (and removal) by a supermajority of the U.S. Supreme Court. (Say 7 of 9). Still not a great system, but better than we have.

    The federal pardon power. I’ve written this before. A lot of people say the Founders, sorry Mark, Framers, wanted the President to have the pardon power the President has today, they overlook the fact that at the time the Constitution was adopted, there were very few federal crimes to pardon people for. Criminal laws were almost all at the state level where the federal pardon power wouldn’t apply. It is the expansion of the federal criminal code over the years that has indirectly expanded the President’s pardon power. I think pardons should be subject to confirmation by Congress, or at least the Senate.

    Second Amendment. Just horribly drafted.

    Electoral College: I don’t have a problem with electing the President by States. But the EC set up a system whereby voters (or state legislatures) select people who then go and vote for President. People don’t vote directly for President. That’s a problem. So too is the convoluted system which is used to certify state election results and electors and have Congress confirm the results. The system is ripe for abuse. Up until 2020, that hadn’t really happened because we had honest people implementing the process. Trump in 2020 tried to change that in his effort to steal the election through the counting and ratification process. He didn’t have enough people in place to do that. That may change in 2024.

    Those are just a few of the changes to the Constitution I think need to be made. If I thought longer, I’m sure I could come up with more.

  10. It’s funny how people on the far right and far left oppose the constitutional convention because it could be a “runaway convention” enacting all sorts of bad stuff. But anything the CC comes up with would have to be supported by 3/4 of the states or it wouldn’t be part of the Constitution. I have absolutely no worries about a constitutional convention.

  11. Charles Koch controls all those “states” wanting a CC, so I am sure Paul is just fine with that. LOL

    “For the first time, subjects became citizens, and citizens had rights.”
    “…the divine right of kings…”

    Many remained subjects even with our enlightened “founders.” Also, we reduced kinghood to oligarchs. Instead of one king, we established that those with the most gold would make the rules all the way to today.

    What’s fascinating is there are religions that’ve rewritten the moral code and the understanding of our Creator to coincide with current knowledge. A government is supposed to be impartial but there are no laws requiring it to be so. Only morality or ethics. The same thing with the Fourth Estate which is supposed to hold the government accountable.

    If there are no legal checks and balances on the government because we rely on the moral compass of men and women, what could possibly go wrong?

    Sociopaths rule the day!

  12. seems the lawyers,(no slam on ya Sheila,this is for the) have taken over half the congress. as we have watched, how the new consitution is rearanged to reward the rich,and use foul language to suppress the minorities,liberals,poor people,manchins citizens,and those who, they the new framers,have decided. though this is about the original framers,founders, seems in conversation,alls that is spoken is how it works today. belittle anyone who thinks outside of so called conservitism. we have hired, (might as well) the best legal minds that ever took to tort and bennifited themselves, in congress,at the cost of the people. instead of calling foul, its like watching the house of commons and tony blair. except decorum and no real debates anymore, is the silence in our chambers. as the pacs and supporters of this consitutional take over,its visable,and if you have any common sense,can see the changes,but,ya gotta be educated and actully been in a primary school and taught the subject of your rights,and the consitution. instead today we see the fallout of social media ,ignorance by peers,teaching and dividing by proxy. ive been asked a hundred times about what a cop can and cant do when pulled over..Thanks Sheila, for the time at the ACLU, they have a vid about this acted and a thought provoking walk thru your rights. im in a working class enviroment,and believe me, few if any know thier rights. after i explain the simple part about probable cause, and if he has the right to search your vehicle, they look scared to implement thier rights.. but the cops intimidate and suppress thought and rights. the public servant is the first to dishonor your rights. again,like the right wing sociopaths who walk with dirty shoes in the halls of congress today, the mind has already been programed to submit,and with todays lack of backbone,will sharivel in to a small clump of nothing..

  13. yaknowImightreadjackspostsifhewasconsiderateenoughtousepunctuationiknowhecan capitalizesentencestartingwordsbutiwillnotjumpthruhoopstodiscernhisthots

  14. Perhaps the Framers can be excused for writing up and adopting the “Bill of Rights” only two years after ratification of the Constitution. Given the context of King George’s dictatorial rule they probably saw the possibility of a return to such iron-fisted rule that needed mending and thus prohibited specific no-no areas immune to federal intrusion via such adoption, though not all their “mending” was sufficiently specific (see Paul’s correct observation that the Second Amendment was poorly written and, I may add, since poorly interpreted).

    It is easy to pick on what the Framers did almost 250 years ago from today’s vantage point, just as it is to correct that of Keynes, Jefferson, and other historical figures given the benefit of hindsight and without immersion in the pain and experience of the time. Given such understanding and with an English tyrant as their God-appointed ruler, I think the Framers (though not without fault) did a reasonably good job in writing up the Ten Amendments whether in reaction to tyranny, an expansion of Athenian democracy, or whatever.

  15. Great, thought provoking post and comments. Not sure I like the term “negative rights” but I don’t have an alternative. Someone else here surely does.

  16. Been following the push for a Constitutional Convention for years.
    The intent is to bypass the Supreme Court’s progressive rulings.

    Jack Smith: Capitalize. Hit enter occasionally. You’re better than this.

  17. Really, Todd? Charles Koch controls the governments of 3/4 of the states, so much so as to dictate whether proposed constitutional amendments are ratified?

    That conspiracy theory is on par with the Qanon nonsene.

  18. With so many Republican controlled states passing legislation allowing the counting and reporting of ballots, ignoring the outcomes if they can cast doubt on the integrity of the votes and choosing electors or just appointing electors to insure their continued control of power, any vote on an amended Constitution would definitely be problematic, IMHO.

    Very thought provoking blog, today. Thank you, Prof. Kennedy.

  19. Jack,

    Excellent points today. Good take on some of the other commenters positions. And, I guess folks don’t know who you are right? I don’t think they should be picking on you so much. It’s what you say, not how you say it!

  20. As a Canadian, I think this is why I find American libertarianism (think Rand Paul, et al, as examples) so completely abhorrent. It feels like an excuse for selfishness on a terrible scale. I can’t divorce myself from the other people around me; no matter how alike or different from me, we are all humans making our way through very short lives on a very small planet. Their sufferings and indignities are mine, too. Their hardships (and mine) are a shared failure of our shared society. It’s so incomprehensible to me that it doesn’t even really feel _human_. That’s probably why I despise bigotry so much. It’s one group of humans determined to have zero empathy, and often active antagonism, for another group of humans. It’s enough to make one weep.

  21. Christopher,

    I’m not sure exactly where you get your information from, but Christ never ever ever said you are all gods!

    Matthew 22:37-39 reads, “you must love God with your whole heart and your whole soul and with your whole mind. This is the greatest and first commandment. The second like it is this: you must love your neighbor as yourself.” Christ also said in Matthew 5: 43-48, “continue to love your enemies and pray for those who persecute you.”

    In 325 ad, emperor Constantine brought the Nicene and anti-Nicene fathers together, in an effort to save the Roman empire!

    The effort to join the pagan Huns and the Christians into one religious group, was basically successful for emperor Constantine. He needed something to unify his kingdom and he found it. Although it was just a band-aid. The Huns eventually sacked Rome themselves for broken promises. Rome found out the hard way, do not outsource your military, and, keep your promises!

    Any wonder why the Catholic Church uses extra Canonical books? The Catholic church, or the holy Roman church wnated books that were claimed to be written by individuals that were actually not. Because the writing style was completely different. There had been a lot of research on the subject, and the decision was made many years ago, to stick with the 66 books of the Bible Canon.

    The apostle Paul wrote in his first letter to the Corinthian congregation, “do not go beyond things that are written.” 1st Corinthians 4:6.

    The apostle Paul was not a hypocrite, he obeyed just as he preached.

    The apostle John stated in 1st John 4:1, “beloved ones, do not believe every inspired statement, but test the inspired statements to see whether they originate with God, for many false prophets have gone out into the world.”

    John knew Paul very well, he tested Paul, and found him not lacking.

  22. “… I was routinely astonished by the number of people who didn’t understand that the Bill of Rights only protected them against government–that its guarantees weren’t some sort of free-floating shield against all manner of restraints.) So, was that an earlier failure of the educational system?

    Paul, I am with your ideas, all the way, and Theresa, yes, that movement is a very scary one. If the Red state folks get to call a convention, it may all be over but the funeral.

  23. Another excellent post Sheila. I agree with your conclusion. One quarter of a millennium is a very long time. The world has changed.

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