THE modern constitution is the product of a revolutionary shift in the foundation of governmental authority. Once based on superstition or conquest, the constitution now calls upon reason and “the common rights of man.” The American Revolution, argued Paine, marked the beginning of the end of regimes of monarchical government and their replacement by governments “founded on a moral theory, on a system of universal peace, on the indefeasible hereditary Rights of Man.” This was the moment and place when “the principles of universal reformation” were instituted. Government that had been legitimated by divine will or sacred custom was now opposed by a modern principle which authorized government by the consent of free and equal citizens.1
In this new order, governmental authority rests on its capacity to protect the interests of the rights-bearing individual, the primary means of such protection being the constitution. Drafted in the name of the people, it becomes the mechanism of “universal transformation.” In the Declaration of Independence, Americans claimed as “self-evident truths” that “all men are created equal” and “are endowed by their Creator with certain unalienable Rights.” But are “unalienable” rights indeed “self-evident”? Do they derive from God? How precisely does the constitution work to ensure their protection?
Such rights went unrecognized in the medieval world, the word “right” then meaning simply “that which is right” and “right ordering” being determined according to strict principles of hierarchy. The American colonists broke entirely from this medieval worldview. Rights became vested in the individual, allocated equally and, being ascribed by nature, could not be transgressed by government. This modern world of equality rejected the medieval laws of hierarchy in favor of the “true,” natural order of things.
The question remained: How are such natural rights identified? Divine revelation was hardly robust, not least because it required faith in some prophet to reveal the truth. And how to judge and rank the wide range of moral practices that exist in the world? The only sure route to knowledge of God’s will, argued Enlightenment radicals, was to discover the laws of nature that, asserted Jefferson, constituted “the laws of ‘nature’s God.’ ”2 Right conduct would be revealed by explicating these laws of nature and from which those “unalienable rights” could be derived. This was a practical challenge for those charged with drafting the American Constitution. But it was also a critical weapon in the general liberal struggle of the period.
The individual’s claim to unalienable natural rights was invoked as a powerful instrument to erode the authority of traditional hierarchies, establish checks on arbitrary power, and promote equality of respect. It was also a drive to change power relations permanently. Natural rights, presented as “things” to be “discovered,” like laws of nature, were in reality created by political movements. Advancing new capacities and freedoms, they also worked in the service of emerging powers.
This much was recognized by leading jurists of the period. “It affords a curious spectacle to observe,” noted John Millar, “that the same people who talk in a high strain of political liberty, and who consider the privilege of imposing their own taxes as one of the unalienable rights of mankind, should make no scruple of reducing a great proportion of their fellow creatures into circumstances by which they are not only deprived of property but almost of every species of right.” How Americans claimed their natural rights at the same time as denying them to slaves, he elaborated, could not be “more calculated to ridicule a liberal hypothesis, or to show how little the conduct of men is at the bottom directed by any philosophical principles.”3
Millar’s point was that even if used to promote liberal reforms, these claims were far from “natural,” “unalienable,” or “universal.” Invoked by American colonists to establish the new order of the ages, this same discourse was also used to legitimize the regime of a slave-holding republic. Far from being “self-evident,” the rights proclaimed by the Declaration of Independence justified a very particular distribution of freedom and authority. Rights claims can be used to inspire a variety of political movements—those that promote social equality or bolster existing property relations, strengthen social solidarity around common principles or promote an atomistic individualism that erodes common feeling. Is it therefore conceivable that they could ever be used to establish objective standards against which governments might be measured?
Jeremy Bentham emerged as the most vehement critic of natural rights. His critique of the French Declaration of the Rights of Man and the Citizen of 1791 maintained that rights cannot exist before government is established. A right can be understood only as the product of law: “natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts.”4 But many modern legal philosophers now assert that rights do indeed exist prior to formal legal enactment and that such rights hold the key to the interpretation of the fundamental law of the constitution.5 The early proclamations, such as those of the Declarations of the American and French Revolutions, were essentially statements of political ideals intended to inspire the cause rather than impose a legal obligation.6 Rights-based readings of the constitution are twentieth-century creations. But now that inclusion of a charter of rights in a constitution is commonplace, their formal legal standing becomes a more pressing question.
To make headway with this task we should review the frameworks of early modern social contract theorists. Paine had argued that natural rights are the foundation of civil rights, that natural rights are the foundation of constitutional rights.7 Yet even those social contact theorists who accept the existence of natural rights greatly differ about the status of those rights within civil order. Their divergence demonstrates precisely why constitutional rights possess such an ambiguous character.
I begin with Thomas Hobbes who, as the foundational theorist of the modern state, overthrew the entire edifice of medieval constitutionalism and proceeded to construct an account of the state based on the natural rights of the individual. But he drew radical implications from the modern assumptions that humans are bearers of natural rights and, by nature, free and equal. If we are left free to exercise our inherent natural rights, he argued, we end up simply destroying ourselves. With a powerful narrative account of life without government, life in a state of nature, Hobbes shows why we must relinquish these rights in order to preserve them and, through the device of a social contract, bind ourselves to the authority of a coercive power.
Hobbes argues that the fundamental natural right of the individual is that of self-preservation. This is hardwired into our nature such that “we cannot be blamed for looking out for ourselves, for we cannot will to do otherwise.” This gives us the right to do anything to anybody and to use and enjoy whatever we can get. And it is precisely because we are equal that this fundamental right to preserve our existence inevitably leads to perpetual conflict, to “a war of every man against every man.”8 He acknowledges the existence of certain laws of nature, such as those of mutual respect and fair treatment, but in a state of nature they bind us only in foro interno; they cannot become true laws until a superior power exists to enforce them.9 His logical conclusion is that “the effect of this right [of self-preservation] is almost the same as if there were no right at all.”10
Rejecting the Aristotelian claim that man is a social animal, Hobbes maintains that humans, despite their powers of reason, are essentially self-centered, competitive creatures driven by their passions and fears. It follows, paradoxically, that in order to preserve their rights of liberty and equality, humans must relinquish them and entrust their care to an all-powerful sovereign.11 The covenant through which this is effected transforms the multitude into a single people.12 It therefore makes both a state and, by creating the sovereign as the representative person of the state, its office of government. Entrusted with an unlimited power of law-making, the sovereign is the sole source of right and wrong, of justice and injustice.
Hobbes’s image of the state and its law is evidently authoritarian. Law is simply the command of the sovereign; it is sovereign authority, not wisdom or truth, that makes law. The multitude may have formed itself into a people by virtue of a contract, but because the sovereign created by this contract is the sole representative of the state, the state is an autonomous entity. So although the social contract is engendered by the moral imperative of avoiding perpetual conflict, sovereign will overrides any individual moral claim. There is therefore no such thing as an unjust law, nor can there be rights vested in the people against the sovereign.
Since Hobbes’s sovereign exists to make rules for the maintenance of civil peace, citizens have the right to pursue their own ends in spheres of life not regulated by the sovereign’s commands. But right and law are distinct: right is a liberty, whereas law is an obligation. Much human activity is beyond the scope of the law, and in these spheres citizens retain their liberties, “that part of natural right which is allowed and left to the citizens by the civil laws.” Laws, Hobbes explains, are enacted “not to extinguish human actions but to direct them; just as nature ordained banks not to stop the flow of the river but to direct it.” The sovereign’s laws ensure the maintenance of “the good of the citizens and of the commonwealth.”13 The Hobbesian state may be authoritarian, but it is not absolute.
Hobbes does not say much about the constitution of government. Since all power vests in the sovereign, a system of government is established simply by the sovereign act of delegating competencies to subordinate magistrates and judges.14 The state is built on authoritarian foundations, and the constitution of its government will only be the product of a set of circumstantial arrangements designed to promote the common good. These governmental arrangements do not depend on divine revelation, natural law, or claims of natural rights. They are worked out according to the precepts of “civil science,” a new field of knowledge that Hobbes claims to have invented.15
An early attempt at establishing constitutional orders was undertaken in 1672 by Samuel Pufendorf. Claiming that the Hobbesian contract was too truncated, On the Law of Nature and Nations shows how the absolute sovereignty of the state can be compatible with limited powers vested in governing bodies. The founding of the state, he argues, is marked not by a single pact but by two covenants and a decree. The first covenant creates the political unity of the state and expresses its constitutional order; the second constitutes the office of government; and the decree proclaims the constitution of government as a special type of positive law.16 Pufendorf argues that although sovereignty is absolute and indivisible, the powers of government can be—and, in order to maintain authority, must be—limited and divided. The institutionalization of sovereign power, he suggests, is not incompatible with the state’s sovereignty or the allocation of the powers of government in a formal constitution.
This provides the point of departure for Locke. In his Second Treatise of Government, he follows Hobbes and Pufendorf in presenting a fable of life in a state of nature, but his purpose is to offer a radically different justification for civil government. Whereas for Hobbes the main threat in the state of nature is physical harm, for Locke it is the inability to acquire the basic means of subsistence. People sustain themselves by appropriating the fruits of the earth and, having a natural right to do so, they acquire ownership of things. Through these actions, the concept of property emerges and with it we recognize the benefits of commodity exchange. A rudimentary form of society therefore evolves long before a system of government is established.
So why, Locke asks, do we part with our natural freedoms and subject ourselves to “the Dominion and Control of any other Power”? His answer is that we enter into the social contract to ensure the more effective enforcement of natural law and the better protection of our natural rights. The problem in a state of nature is that since natural law exists only “in the minds of Men,” they may “mis-cite, or mis-apply it.” We adopt the social contract and establish a system of civil government to provide clarity on the meaning of law, to provide for an impartial judge to resolve disputes, and to establish executive officers to ensure effective law enforcement. But the overriding purpose of establishing a system of government is to legitimate the established social system: “The chief end … of men’s uniting into Commonwealths, and putting themselves under Government, is the preservation of their property.”17
The Lockean social contract does not extinguish natural rights. It is a covenant of delegation by which only those natural rights that must be pooled in furtherance of the public good are relinquished. This covenant is made between rights-bearing individuals to preserve and strengthen those rights, to which end the Lockean social contract takes the form of a written constitution of government. Governmental powers are both defined and limited; government is not a matter of will but an institutional matter, a matter of law. This is a theory of limited, law-bound, rights-protecting constitutional government.
Locke allocates governmental tasks between the legislature and executive but, being more concerned with the legitimacy of governmental power, he does not provide a modern theory of separated powers. Government is a fiduciary responsibility, and governors are trustees with powers limited to those ends. Without specifying the basic rights of the individual, he does explain what happens if governors act in breach of that trust. His stark answer is that “the community perpetually retains a supreme power of saving themselves” from the foolish or wicked actions of their governors. If governors are not loyal to their fiduciary responsibilities, the bond of obligation is forfeited, and power reverts to the people. But will this not “lay a ferment for frequent rebellion” and, as Hobbes suggests, destabilize the regime? To this Locke responds that “rebellions happen not upon every little mismanagement in public affairs,” and the very threat of legitimate rebellion dissuades those in power from abusing it.18
Locke’s theory evidently inspired the American colonists in their struggle against the British Crown. The Declaration of Independence was mainly drafted by Jefferson but the ideas, and many of the actual words, are Locke’s, as are key features of the constitutional settlement of 1787–1791.19 Most significant is Locke’s assertion that the social contract requires only the delegation of some of the individual’s natural rights. By formally enumerating them, the Constitution transforms many of these retained natural rights—freedom of speech, freedom of the exercise of religion, and protection of life, liberty, and property—into constitutional rights. But whether formally specified or not, these natural rights become the guiding principles for the legitimacy of modern government.
Locke’s ideas about natural rights shape the contours of constitutionalism in more fundamental ways. There is no place in Locke’s scheme for the concepts of state and sovereignty, which are replaced by society and government. Neither is there a place for the concept of absolute authority; Locke’s scheme establishes a system of government not just according to law but also subject to law. And the natural rights implicitly retained are formalized as constitutional rights imposed by society on government. The constitutional rights at the very core of Locke’s scheme are, in fact, negative freedoms, which protect the freedom of the individual, including the freedom to own property and freedom from any form of government interference.20 These are the basic elements of what Sartori calls a garantiste constitution, an expression of negative or classical constitutionalism.
Locke’s influence prevailed until well into the twentieth century, which is why progressive political movements often saw the modern constitution as a device to bolster bourgeois interests. Reformers in the era of what Sartori called “intense politics” placed more faith in winning a legislative majority than in drafting a new constitution.21 But in the late twentieth century, an alternative conception emerged as newly drafted constitutions regularly included a series of social and economic rights designed to enable the citizen to realize positive freedom. This is aspirational constitutionalism, the origins of which can be traced to Rousseau’s social contract.
Rejecting the accounts of Hobbes and Locke, for Rousseau, the social contract is an imaginative device for human renewal. Hobbes’s man in a state of nature is just bourgeois man, corrupted by property, competition, and social striving. Locke fares no better: if a right is a relation between citizens, no right to property can exist in a state of nature. Locke’s concept of property acquired through labor is merely an act of appropriation achieved through force or fraud. His social contract is an elaborate trick devised by property holders to protect their interests: claiming that a law-governed regime provides security and liberty, “all ran towards their chains in the belief that they were securing their freedom.” For Rousseau, Locke’s scheme imposes new fetters on the poor to confer new powers on the rich, transforming “a skillful usurpation into an irrevocable right.”22
In The Social Contract, Rousseau outlines the conditions to reconcile liberty and law and to establish the basis for legitimate constitutional order.23 First, contra Hobbes, he argues that the sovereign cannot be a single person or a representative office; it must be the people themselves who, by an act of association, form a collective body. The sovereign is not the office of the representative of the state but the public person formed by the union of all; that is, the state is the sovereign. This is the principle of solidarity. Second, Rousseau argues that the social contract replaces natural inequality with political equality. This is the principle of equality. Third, political equality is the precondition for the formation of a single will. Everyone has the same rights over others as they have themselves. Therefore, all must be acknowledged as equals, leading to the greatest good of all. This is the principle of equal liberty, otherwise known as the “general will” or the will of the sovereign.
The general will is the fundamental law of the political domain and the source of all constitutional rights. In contrast to Locke’s negative freedom, Rousseau gives an account of positive freedom.24 The purpose of Rousseau’s social contract is not to protect bourgeois property rights but to elevate humans from “stupid and bounded animals” into “intelligent beings.” This can only be achieved in accordance with the fundamental law. Whoever refuses to obey it must be constrained to do so; that is, they “shall be forced to be free.”25
These are the essential elements of aspirational constitutionalism. Whereas Hobbes describes the authority of positive law-making in the modern state and Locke protects natural rights within the constitution, Rousseau offers an account of the principle of equal liberty from which all rights contained in the constitution must be derived, thereby transforming subjective rights into objective law. Contrary to Locke, for whom society is a prepolitical category, Rousseau’s social contract establishes a constitution not just of government but also of political society, that is, the state. Consequently, Rousseau’s catalog of rights does not just protect the existing social order from government; it establishes the legitimacy of the regime. Rousseau’s aspirational scheme has such an emancipatory dynamic that, ever since it was first embraced by French revolutionaries,26 it has politicized all subsequent attempts to institute a stable constitutional settlement.
This sketch of the evolution of constitutional rights discourse throws into relief the tension between rights and law. Hobbes jettisoned medieval constitutionalism to replace it with the idea of law as the will of the sovereign; the constitution simply describes the established arrangement of government. Locke then outlined a system of limited government based on respect for individual rights; the constitution is created as an articulation of classical constitutionalism. Rousseau radicalized each of these claims, arguing first, that the will of the sovereign is the will of the people and secondly, that the state must replace established rights with the right of everyone to equal liberty. The regime he devised was created in the image of aspirational constitutionalism. Hobbes believed that natural rights must be extinguished in order to establish civil order. Locke promoted natural rights as a measure of the legitimacy of civil order. And Rousseau converted the principle of subjective right into objective law.
The modern constitution transforms these competing claims into positive law, changing the character of law in important ways. As Part I showed, in its origins constitutionalism reflects Locke’s ideas and seeks to protect negative rights. But as the modern practice evolves in accordance with Rousseau’s ideas, rights are elevated into architectonic principles of the entire regime. This is the dominant rhetoric of recent developments in “the age of constitutionalism,” the subject of Part III of this book. As we have already seen, constituent power involves a discourse of right as much as of power. Similarly, the nature of constitutional rights reflects a discourse of power as much as right. Power and right, the conditions of public and private autonomy, remain intertwined, an issue that the concept of constitutional democracy must address.