Title: Determining Rights
Domain: Law

Question: Is the interpretive approach of modern originalism consistent with the historical jurisprudence and normative purposes embedded in the drafting of the U.S. Bill of Rights

Background: 1.There are three levels of intellectual history background. First, the theory of social contract, where rights originate from the natural state (Locke, Pufendorf), and some rights are transferred through the social contract to form a political society. Second, natural law and customary law have their rights based on God/reason (Blackstone), but they need to be regulated by written law (for example, the age of majority is determined by customary law). Third, the principle of popular sovereignty: The people retain the right to decide, which is realized through legislation, juries and customary law (Federalist peasants' theory). | 2. There are some key issues in practice. First, the Incitement Act (1798) was divided: Federalists resorted to customary law to define the boundaries of speech, while Republicans emphasized state autonomy. Second, the Calder v. Bull (1798) case: Justices Chase and Eldel debated whether legislation was bound by natural law, reflecting the cognitive gap in the role of the judiciary.

Definitions: 1. Declaratory clause: It merely indicates the existence of existing rights, such as natural rights/customary rights, without altering their content. | 2. Specificatory clause: The content of the rights is determined through the text, such as the threshold of the disputed amount under the Seventh Amendment. | 3. Determining Rights (Determining Rights) : It can be divided into two levels: the metaphysical level, which endows rights with specific legal content, and the epistemological level, which identifies established content. The former requires the intervention of political procedures.

Methodology: 1. Empirical research: Such as historical empirical research, systematically sort out the literature on social contract theory (Locke, Pufendoff) and natural law theory (Blackstone) from the 17th to the 18th century, and trace how they influenced the understanding of the essence of rights by American constitutionalists. | 2. Comparative study. If compared longitudinally, the British Bill of Rights 1689 → colonial charter → State Declaration of Rights → Federal Bill of Rights, analyze the continuation and break of the "declarative" tradition. By making a horizontal comparison, different provisions in the Bill of Rights are classified by function and their legal effect differences are compared, such as the general expression of "carrying a weapon" in the Second Amendment versus the precise regulation of the $20 litigation threshold in the Seventh Amendment.

Answer: Theoretical Refinement Approach: The Original Design of Rights Determination and Its Contemporary Implications | The ideological foundation of the concept of rights during the founding period of the USA. First, the social contract theory requires that the determination of rights belong to the people. Natural rights under natural conditions (such as the right to speech and the right to enjoy the fruits of labor) need to be transferred to the political society through the social contract due to actual deficiencies. After the people establish a government through majority consent, they retain the right to decide on the content of their rights (such as Rutherford's argument that the setting of age standards falls under legislative discretion). Second, the incomplete certainty of natural law needs to be supplemented by written law. Natural law only provides general principles (such as minors having no capacity to enter into contracts), and specific rules need to be "determined" by legislation (as Blackstone pointed out, legislators need to define the boundaries of freedom). Third, customary law serves as the medium of determination. Juries are regarded as representatives of the people (Wilson), common laws are not created by judges but are the accumulation of customs (Wood), and the legislature resolves disputes through general acts or special rulings (Desan). | 2. The construction logic and historical evidence of the Bill of Rights. First, the congressional debate demonstrates a declarative and dominant intention. In 1789, Madison emphasized in Congress that the goal of the amendment was to "set forth the principle of clear and straightforward acceptance" in order to pacify public opinion and avoid involving controversial areas (such as refusing to impose specific restrictions on "freedom of the press"). Its proposal focuses on confirming existing rights (such as "jury trials are inviolable") and non-innovative rules. In contrast to the fact that the Jefferson Draft's attempts to specify (such as "the published content is only responsible for false facts") were rejected by Congress, this corroborates the mainstream choice. Second, the adjustment of the provisions reflects the priority of customary law. The Fourth Amendment was changed from the original draft's "No issuance of search warrants without specific requirements" to "prohibition of unreasonable search", as Benson claimed that the amendment should be a "declarative provision", directly invoking the reasonableness standard in customary law. Third, limited concretization is an exception. The Seventh Amendment's setting of a $20 litigation threshold (clearly quantified) is a rare exception, reflecting the drafter's awareness to distinguish between the two paths. The final document of Congress calls itself the "Declaration and Limitation Clause" (1790), confirming that the core function is to mark rather than create. | 3. National Consensus on Judicial and Political Authority. First, the judicial role is limited to enforcing established rules. Hamilton stated in Federalist Papers No. 84 that the Bill of Rights would guide courts to protect rights, but only those with clear content (such as contractual terms). Courts have no authority to reshape boundaries for declarative rights (such as freedom of speech) on the grounds of balancing public interests. Second, the political branch dominates the discretionary space. In the debate over the Incitement Act, the Republicans (Jeffersonians) emphasized the state's right to define "permissive speech", while the Federalists appealed to the common legal tradition. Both sides agreed that state/federal legislators have the right to specify. Thirdly, the differences in the Calder v. Bull case highlight judicial limits. Chase maintained that legislation would be invalid if it violated the "fundamental principles of the social contract" (such as expropriation without compensation). Eldel countered that natural justice "has no fixed standard", and judicial intervention must be based on text or customary law; otherwise, it would be an overreach. | 4. Misinterpretation of Contemporary Legal Principles and Historical Implications. First, the dual divergence of "textual and historical methods". Modern originalism (such as the Bruen case) first derived the initial scope of rights through text (concretization), and then defined exceptions based on the practice of 1791 (fabricated declarative nature). The hybrid framework contradicts the founding logic. The Jefferson Plan (precisely defined in the text) was long rejected by Congress, and the tradition of customary law has vanished in modern legal theory. Second, the nature of rights is confused. Hanberg's claim that "enumeration makes rights an absolute limit of government power" is contrary to historical facts: The Bill of Rights mentions the jury system and others because customary law has established certainty (such as prohibiting retroactivity), rather than because enumeration itself endows it with an "ace" attribute. Third, feasible path adjustment: First, at the level of textual interpretation, recognize the declarative nature of most provisions (for example, the First Amendment's "not establishing a state religion" needs to be understood in combination with the Virginia Religious Debate); Secondly, at the judicial role level, abandon the illusion of "complete certainty", and distinguish between rights with clear content (such as the right to cross-examine under the Sixth Amendment) and rights requiring political discretion (such as equal protection). Thirdly, in the context of the fading belief in natural law, the reconstruction of the legal basis should clearly state whether the determination of rights belongs to democratic procedures or judicial constitutional interpretation, rather than relying on historical original intentions. | In short, the institutional wisdom of the Bill of Rights lies in anchoring the value of rights with declarative texts and assigning specific responsibilities to the political process of citizen participation. This "self-determination of the people" model ensures that the foundation of rights is not eroded while avoiding judicial elitism. If modern originalism is used to solidify the interpretation of rights through "text and history", it is actually a self delusion that deviates from history. Returning to Madison's philosophy of proclamation is necessary to restore the constitutional intent of the Bill of Rights as the starting point of democratic dialogue rather than the endpoint of judicial monopoly.

Checklist: 1. The Bill of Rights is primarily declarative, reaffirming natural/customary rights without fixing their content in text.  
2. Reject judicial centrism: rights belong to the people, not exclusively to government officials.  
3. Specialized text function: specific provisions (e.g., Seventh Amendment) address special cases and require legislative involvement.  
4. Rights are diverse in origin, stemming from customary or natural law rather than created by constitutional text.  
5. Modern interpretive methods misread history: “text and history” originalism conflates declarative with substantive, distorting the founders’ vision.