CHAPTER 1
“TO SECURE THESE RIGHTS”
The Political Theory of the Declaration of Independence
ON APRIL 19, 1775, seventy-seven armed Minutemen formed up on the village green of Lexington, Massachusetts, to confront seven hundred British regulars under the command of Lieutenant General Thomas Gage. Shots were fired and several of the Massachusetts men were killed in the exchange. When the British force moved on to Concord, they were routed at the North Bridge by a contingent of five hundred armed Minutemen. In their retreat to Boston, the British suffered many casualties as they were attacked by thousands of militiamen along the road. The battles of Lexington and Concord marked the start of the American rebellion, but it was not until a year later that the United States was born.
Our country—indeed our people—has a discrete starting point, a singular moment in time when its founding was expressly defended in abstract and theoretical terms. That moment was July 4, 1776, when the Continental Congress formally adopted the Declaration of Independence. To appreciate the republican nature of our Constitution, we must begin at the beginning, some thirteen years before the Constitution was enacted in 1789, when the principles upon which the new nation was formed were authoritatively declared.
THE DRAFTING OF THE DECLARATION OF INDEPENDENCE
On June 11, 1776, the Continental Congress appointed a committee to draft a declaration to effectuate Richard Henry Lee’s motion “[t]hat these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown: and that all political connexion between them and the state of Great Britain is, and ought to be, totally dissolved.”1 As John Hancock later put it, such a declaration would provide “the Ground & Foundation of a future Government.”2
The Committee of Five consisted of the senior Pennsylvanian Benjamin Franklin, Roger Sherman of Connecticut, New York’s Robert Livingston, the Massachusetts stalwart champion of independence John Adams, and a rather quiet thirty-three-year-old Virginian named Thomas Jefferson. After a series of meetings to decide on the outline of the Declaration, the committee assigned Jefferson to write the first draft.3
Jefferson did not have much time. With no executive, the war was run entirely by congressional committees, and the business of waging war pressed heavily on its members. Over a six-month period, Jefferson served on some thirty-four different committees, which kept him very busy. On June 17, for example, the committee overseeing the Canadian campaign submitted two reports to Congress, both in Jefferson’s own hand. Two members of the Virginia delegation had left Philadelphia, increasing the pressure on Jefferson to attend the sessions of Congress.
So with the press of other matters, Jefferson did not have three leisurely weeks to write. He had merely a few days. Needing to work fast, Jefferson had to borrow, and he had two sources in front of him from which to crib. The first was a list of grievances in his draft preamble for the Virginia constitution—a list that was strikingly similar to the first group of charges against the king that ended up in the Declaration. The second was a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason in his room at the Raleigh Tavern in Williamsburg, where the provincial convention was being held.
Unlike today, when such cribbing might detract from Jefferson’s accomplishment, achievement in the eighteenth century “lay instead in the creative adoption of preexisting models to different circumstances, and the highest praise of all went to imitations whose excellence exceeded that of the examples that inspired them.” For this reason, younger men “were taught to copy and often memorize compelling passages from their readings for future use since you could never tell when, say, a citation from Cicero might come in handy.”4
Mason’s May 27 draft proved handy indeed in composing the Declaration’s famous preamble. Its first two articles present two fundamental ideas that lie at the core of a Republican Constitution.
The first idea is that first come rights and then comes government. Here is how Mason expressed it:
THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.5
So, in Mason’s draft, not only do all persons have “certain . . . natural rights” of life, liberty, and property, but these rights cannot be taken away “by any compact.” These inherent individual natural rights, of which the people cannot divest their posterity, are therefore retained by them. Mason’s words would become even more canonical than Jefferson’s more succinct version in the Declaration of Independence, as variations were incorporated into several state constitutions, and they would be echoed in the Ninth Amendment, and much later in the Privileges or Immunities Clause of the Fourteenth Amendment.
Article 2 of Mason’s draft then identified the persons who make up a government as the servants of the sovereign people, rather than their master: “That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”6 As trustees and servants, those people who serve as governing magistrates are to respect the inherent natural rights retained by the people.
All this was compressed by Jefferson into fifty-five compelling words:
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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
John Adams later recalled that Jefferson took only a day or two to write the first draft, which was then turned over to the committee for its feedback before it was submitted to Congress. Although this draft was then heavily edited and shortened by Congress sitting as a Committee of the Whole, its Preamble was left pretty much as Jefferson had submitted it.
I turn now to that Preamble, for these two paragraphs identify the theory of what I am calling our Republican Constitution.
WHAT THE DECLARATION OF INDEPENDENCE CLAIMED
Today, while most Americans have heard of the Declaration of Independence, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution and provides important information about what the founders believed makes a constitution or government legitimate.7 It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed,” another idea for which the Declaration is famous.
When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as a traitor should he be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the people.”
But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the king himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known.
So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence the Declaration’s famous reference to “a long train of abuses and usurpations” and the list that followed. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.
But before this list of particular grievances came two paragraphs succinctly describing the political theory on which the new polity was founded. To appreciate all that is packed into these two paragraphs, it is useful to break down the Declaration into some of its key claims.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
This first sentence is often forgotten. It asserts that Americans as a whole, rather than as members of their respective colonies, are a distinct “people.” And this “one people” is not a collective entity, but an aggregate of particular individuals. So “they” not it should “declare the causes which impel them to the separation.”
To “dissolve the political bands” revokes the “social compact” that existed between the Americans and the rest of the people of the British commonwealth, reinstates the “state of nature” between Americans and the government of Great Britain, and makes “the Laws of Nature” the standard by which this dissolution and whatever government is to follow are judged. As Committee of Five delegate Roger Sherman observed in 1774, after hostilities broke out with the British, “We are Now in a State of Nature.”8
But what are these “Laws of Nature”? To answer this, we can turn to a sermon delivered by the Reverend Elizur Goodrich at the Congregational Church in Durham, Connecticut, on the eve of the Philadelphia Constitutional Convention. At the time of the founding, it was a common practice for ministers to be invited to give an “election sermon” before newly elected government officials, in this case the delegates to the Constitutional Convention, to encourage them to govern according to God’s ways.
In his sermon, Goodrich explained that “the principles of society are the laws, which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse.”9 These laws, Goodrich observed, “may be considered as principles, in respect of their fixedness and operation,” and by knowing them, “we discover the rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature.”10 These rules of conduct “are as fixed and unchangeable as the laws which operate in the natural world. Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world.”11
In this sense, natural laws govern every human endeavor, not just politics. They undergird what may be called “normative disciplines,” by which I mean those bodies of knowledge that guide human conduct—bodies of knowledge that tell us how we ought to act if we wish to achieve our goals. To illustrate this, Goodrich offered examples from agriculture, engineering, and architecture:
He who neglects the cultivation of his field, and the proper time of sowing, may not expect a harvest. He, who would assist mankind in raising weights, and overcoming obstacles, depends on certain rules, derived from the knowledge of mechanical principles applied to the construction of machines, in order to give the most useful effect to the smallest force: And every builder should well understand the best position of firmness and strength, when he is about to erect an edifice.12
To ignore these principles is nothing short of denying reality, like jumping off a roof imagining that one can fly. “For he, who attempts these things, on other principles, than those of nature, attempts to make a new world; and his aim will prove absurd and his labour lost.”13 By making “a new world,” Goodrich meant denying the nature of the world in which we live. He concluded: “No more can mankind be conducted to happiness; or civil societies united, and enjoy peace and prosperity, without observing the moral principles and connections, which the Almighty Creator has established for the government of the moral world.”14
The fact that Goodrich was a relatively obscure public figure—though his son would become a Federalist congressman from Connecticut—shows the commonplace understanding of natural law. And Goodrich’s task was to remind the Connecticut delegates of the proper understanding of what the Declaration referred to as “the Laws of Nature and of Nature’s God.”
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.
The most famous line of the Declaration, and for some the only line they know. The Committee of Five’s draft referred to these as “inalienable” rights, but for reasons unknown the word was changed to “unalienable” sometime in the process of printing it for the public. Inalienable was the more common term.
What does it mean for a right to be “inalienable”? It means that it is a right you cannot give up even if you want to and even if you consent to do so, unlike other rights that you can agree to transfer or waive.15 In Mason’s words, it is a right that cannot be deprived or divested by any compact. Why the claim that these rights are inalienable? The founders wanted to counter England’s claim that, by accepting colonial governance, the colonists had waived or alienated their rights. With inalienable rights, however, you always retain the ability to take back any right that has been given up. Unlike an alienable right—like a right to a car that can be sold and then belongs to the buyer—with an inalienable right, you can always change your mind.
The standard trilogy throughout this period was “life, liberty, and property.” For example, in 1774, the Declaration and Resolves of the First Continental Congress had asserted that “the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts,”16 have the following rights: “That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.”17 Or, as the influential British political theorist John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”18
George Mason’s oft-repeated formulation combines the right of property with the pursuit of happiness: “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” Interestingly, Mason’s draft was slightly altered by the Virginia Convention in Williamsburg on June 11, 1776. After an extensive debate, the adopted version read:
That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.19
The Virginia Convention balked at Mason’s specific wording because “it was not compatible with a slaveholding society.”20 It changed “are born equally free” to “are by nature equally free,” and “inherent natural rights” to “inherent rights.” Then by adding “when they enter into a state of society,” defenders of slavery could contend that slaves were not covered because they “had never entered Virginia’s society, which was confined to whites.”21
Yet it was the language of Mason’s radical draft—rather than either Virginia’s final wording or Jefferson’s more succinct formulation—that became the canonical statement of first principles. Massachusetts, Pennsylvania, and Vermont adopted Mason’s original references to “born equally free” and to “natural rights” into their declarations of rights while omitting the phrase “when they enter into a state of society.” Indeed, it is remarkable that these states would have had Mason’s draft language, rather than the version actually adopted by Virginia, from which to copy.
Virginia slaveholders’ concerns were warranted. Mason’s formulation proved to be judicially enforceable when, in 1783, the Massachusetts Supreme Judicial Court relied upon it to invalidate slavery in that state. And its influence continued. In 1823, it was incorporated into an important opinion by Justice Bushrod Washington defining the “privileges and immunities” of citizens in the several states as “protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.”22
Justice Washington’s opinion, with Mason’s language at its core, was then repeatedly quoted by Republicans in the Thirty-Ninth Congress when they explained the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, which reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It was this constitutional language that Republicans aimed at the discriminatory Black Codes by which Southerners were seeking to perpetuate the subordination of blacks, even after slavery had been abolished.
Although Jefferson’s version in the Declaration would later become an embarrassment to a people who allowed the continuation of chattel slavery, making a public claim like this has consequences. That is why people make them publicly—to be held to account. Eventually, the Declaration became a linchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. It had to be explained away by the Supreme Court in Dred Scott.23 It was much relied upon by Abraham Lincoln. And ultimately it needed to be repudiated by defenders of slavery in the South because of its inconsistency with that institution. But all this lay in the future.
That to secure these rights, Governments are instituted among Men . . .
Another overlooked line, but for our purposes, possibly the most important. Here, even more clearly than in Mason’s draft, the Declaration stipulates that the ultimate end or purpose of republican governments is “to secure these” preexisting natural rights that the previous sentence affirmed were the measure against which all government—whether of Great Britain or the United States—will be judged. This language identifies what is perhaps the central underlying “republican” assumption of the Constitution: that governments are instituted to secure the preexisting natural rights that are retained by the people. In short, that first come rights and then comes government.
. . . deriving their just powers from the consent of the governed.
For reasons I will explain in this book, there is a tendency today to focus entirely on the second half of this sentence, referencing “the consent of the governed,” to the exclusion of the first part, which refers to securing our natural rights. Then, by reading “the consent of the governed” as equivalent to “the will of the people,” the second part of the sentence seems to support majoritarian rule by the people’s “representatives.” In this way, “consent of the governed” is read to mean “consent to majoritarian rule.” Put another way, the people can consent to anything, including rule by a majority in the legislature who will then decide the scope of their rights as individuals.
But read carefully, one sees that in this passage the Declaration speaks of “just powers,” suggesting that only some powers are “justly” held by government, while others are beyond its proper authority. And notice also that “the consent of the governed” assumes that the people do not themselves rule or govern, but are “governed” by those individual persons who make up the “governments” that “are instituted among men.”
The Declaration stipulates that those who govern the people are supposed “to secure” their preexisting rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered “by any compact.” Therefore, the “consent of the governed,” to which the second half of this sentence refers, cannot be used to override the inalienable rights of the sovereign people that are reaffirmed by the first half.
In modern political discourse, people tend to favor one of these concepts over the other—either preexistent natural rights or popular consent—which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the “fundamental” or “human” rights of individuals and minorities.
If we take both parts of this sentence seriously, however, I believe this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed. In other words, the “consent of the governed” tells us which government gets to undertake the mission of “securing” the natural rights that are retained by the people. After all, justifying the independence of Americans from the British government was the whole purpose of the Declaration of Independence.
In Chapter 3, I will explain how the tension between the concepts of “natural rights” of the people and “the consent of the governed” was also resolved by the idea of presumed consent. The people as a whole can only be presumed to have consented to what was actually expressed in the written Constitution and, absent a clear statement to the contrary, they cannot be presumed to have consented to surrender any of their natural rights.
Later in our history, the uncertainty of ascertaining natural rights will be addressed by shifting the question from specifying particular rights to critically examining whether any particular restriction of liberty can be shown to be within a “just power” of government—that is, a power to which any rational person would have consented, such as the equal protection of their fundamental rights, including their health and safety.
That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness.
This passage restates the end of government—human “safety and happiness” (again echoing Mason)—and identifies the “form of government” as simply a means to this end. Therefore, the people have a right “to alter or to abolish” any form of government when it “becomes destructive of these ends,” as the Americans declared the British colonial government to be in the list that followed.
Jefferson adopted this passage from Article 3 of George Mason’s draft Declaration of Rights, which affirmed “that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conductive to the publick Weal.”24
The political theory announced in the Declaration of Independence can be summed up by the proposition I mentioned above: First come rights and then comes government. According to this view:
• The rights of individuals do not originate with any government, but preexist its formation.
• The equal protection of these rights is both the purpose and first duty of government.
• Even after government is formed, these rights provide a standard by which its performance is measured, and in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition.
• At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.
WHY THE DECLARATION WAS RIGHT
This is powerful stuff. At the founding, these ideas were considered to be “self-evident.” Today, however, the idea of natural rights is obscure and controversial. Oftentimes, when the idea comes up, it is deemed to be archaic. Moreover, the Declaration’s claim that such rights “are endowed by their Creator” leads many to characterize natural rights as religiously based rather than secular. This is a misunderstanding of the concept of natural rights.
So let me now turn from what the founders said and believed to why they were correct to do so. To turn from what they wrote in the Declaration of Independence and the Constitution to why what they wrote still makes sense—if properly translated into ideas that are commonly held today. In short, I want to explain why we the living ought to follow the text of our Republican Constitution.
As the explanation by Rev. Goodrich shows, these laws of nature are based on the regularities of nature, and then “the Almighty Creator” is identified as the source of this order. In the Declaration, this same relationship is reflected in the distinction between “the Laws of Nature” and “Nature’s God.” So natural law operates to guide human conduct even if the natural order was not divinely established. Even if there is no deity, crops will fail and buildings will fall if these laws are ignored.
So too will societies fail to provide the conditions under which human beings can pursue happiness while living in proximity to each other if the natural rights of the people are not respected and protected. As the renowned Dutch natural rights theorist Hugo Grotius famously (and bravely) affirmed: “What we have been saying [about the existence of a natural law of justice] would have a degree of validity even if we were to concede what cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him.”25
But was the founding generation right to believe in natural rights? How do we identify these rights? In what sense can we say that they precede government? I have presented a fuller explanation and defense of natural rights in my previous book, The Structure of Liberty: Justice and the Rule of Law, which I will merely summarize here. I do not claim that this normative defense of natural rights was held by all the founders. My object now is not historical but is instead to provide a reason why we today should share the founders’ belief in natural rights.
Let’s start by distinguishing between “natural law” and “natural rights.” The idea of natural law is mysterious to us today. We are accustomed to thinking of law as a command of the legislature, or perhaps the command of a government official or judge, that is enforced by a government. A natural law, whatever that might be, that was not incorporated into a command enforceable by government seems hardly worth the paper it isn’t written on. How can there be a law in any meaningful sense in the absence of government recognition and enforcement?
But when we think of the disciplines of engineering or architecture, the idea of a natural law is not so mysterious. For example, engineers reason that, given the force that gravity exerts on the structure of a building, if we want a building that will enable persons to live or work inside it, then we need to provide a structural foundation, walls, and roof of a certain strength. The principles of engineering, though formulated by human beings, are not a product of their will.
I am not claiming that these natural laws are like the “laws” of the physical sciences. The physical sciences are purely descriptive and explanatory disciplines. They say nothing about what human beings should or should not do. In contrast, the disciplines of engineering and architecture are normative in that they instruct us on how we ought to act—given the nature of the human beings, the world in which they live, and the purpose at hand.
Nor need one be an engineer or an architect to formulate similar “natural law” normative principles. For example, the existence of gravity and the nature of the human body lead to the following natural law injunction for human action: given that gravity will cause us to fall rapidly and that our bodies will not withstand the impact, if we want to live and be happy, then we had better not jump off tall buildings.
The “principles of society” to which Goodrich referred are natural “laws” of this type. So given the nature of human beings and the world in which we live, if we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles.
True, any such natural law principles may be more difficult to discern and consequently more controversial than the principles of engineering or architecture. Partly this is because human beings are so amazingly complex and, unlike the materials from which buildings are constructed, are self-directed in pursuit of their own purposes.
But the mere existence of controversy does not render such principles nonexistent, nor does the fact that we cannot see, hear, taste, or touch them. After all, we cannot see, hear, taste, or touch the principles of engineering or architecture, either. Both sets of principles, or “laws,” are humanly constructed concepts used to explain, predict, and guide our conduct in the world in which we live.
The idea that the world, including worldly governments, is governed by laws or principles that dictate how society ought to be structured, in the very same way that such natural laws dictate how buildings ought to be built or how crops ought to be planted, was well accepted by Americans at the founding of the United States. Indeed the assumption that first come rights and then comes government was considered so obviously true as to be, in the words of the Declaration, “self-evident.” As Justice Samuel Chase famously wrote in the 1798 case of Calder v. Bull,
[t]here are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. . . . An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.26
When one mentions “natural law” some ask, “Where are these natural laws? Are they ‘out there’ somewhere? Show them to me!” Yet we do not demand that the humanly developed principles of engineering or agriculture be found somewhere in the dirt, or brick, or steel. We don’t demand of engineers and architects, “Show us where these principles are!” Nevertheless, everyone accepts that these principles must be respected if bridges are to stand and crops to grow. The “principles of society” Goodrich spoke of have the same status. If they are valid, they must be respected if people are to pursue happiness while living in society with one another.
This natural law account of the “principles of society” assumes, of course, that “happiness . . . peace and prosperity” are appropriate ends. Yet, once again, the normative disciplines of agriculture, engineering, and architecture are also based on the assumption that human existence and happiness are worthwhile. If you want to create human misery by building buildings and bridges that collapse, then feel free to ignore these natural laws.
Let me now introduce one final but important distinction that most contemporary popular discussions of natural law overlook: the distinction between natural law ethics and natural rights. As I have sketched it here, natural law describes a method of reasoning of the following type: “Given that the nature of human beings and the world in which they live is X, if we want to achieve Y, then we ought to do Z.” The subject of any particular natural law analysis fills in the “if.” When the subject is agriculture, the “if” might be “if we want to raise crops so that human beings may eat.” When the subject is engineering, the “if” might be “if we want to build a bridge so that human beings may cross a river.”
By the same token, the study of ethics may be conceived as an inquiry into the question, “How should individuals live their lives?” So “given the nature of human beings and the world in which they live (X), if a person wants to live a good life (Y), then he or she ought to do Z.” Whether we attempt to feed ourselves, build bridges, or live a good life is a matter of choice. Having made this choice, how we go about making our attempts—and whether they succeed or fail—will be constrained by natural laws at play in the real world.
Thus, applying a natural law method of reasoning to the ethical question of how people ought to live their lives would begin with an inquiry into the nature of a “good life,” resting this judgment, at least in part, on human nature. What a good life is for a human is not the same as what is good for a dog or a tree. Then, given a conception of the good life, a “natural law ethics” could potentially address nearly every choice a person confronts. Should I go to school? Which one? What should I study? Should I use drugs? With whom should I have sex? Each one of these questions can potentially be addressed by the natural law method of “given-if-then” analysis.
But the subject of a natural rights analysis is different. Or perhaps it is more accurate to say that “natural rights” are the conclusion of a natural law analysis of a different problem. Rather than asking, “How should one live one’s life?” one can ask a different question, “How should society be structured so that individuals can pursue happiness while living in proximity to others?”
Given the various problems that arise when humans live and act in society with others, the answer to this question that was universally accepted at the time of the founding was that each person needs a “space” over which he or she has sole jurisdiction or liberty to act and within which no one else may rightfully interfere. The concepts defining this “liberty” or moral space came to be known as natural rights.
Thus it is a mistake, and an all-too-common one, to equate natural law with natural rights. Natural law is a broader term referring to the “given-if-then” method of evaluating choices based on the “given” of human nature and the nature of the world. A natural law approach to ethics uses a “given-if-then” analysis to evaluate the propriety of any human action to ascertain how individuals ought to live their lives.
In contrast, a natural rights analysis seeks to determine the appropriate social structure within which people ought to be free to pursue their own happiness. It uses a natural law, “given-if-then” methodology to identify the liberty or space within which persons ought to be free to make their own choices. Whereas natural law ethics provides guidance for our actions, natural rights define a moral space or liberty in which we may act free from the interference of other persons.
Although principles of natural law ethics can be used to guide individual conduct, they should not be coercively enforced by human law if doing so would violate the moral space or liberty defined by natural rights.
In short, natural law ethics instructs us on how to exercise the liberty that is defined and protected by natural rights.
Again, I do not claim that everyone at the founding accepted this particular account of natural law and natural rights, although Elizur Goodrich’s election sermon strongly suggests that at least some did. I offer it here in defense of the Declaration’s assertion that it is “to secure these [natural] rights” that governments are instituted among men.
The belief that “first come rights and then comes government” and that these rights provide the criteria of the “just powers” of legitimate governance is the keystone of a Republican government. When properly translated into modern terms, the founding generation’s belief in natural rights no longer seems so mysterious. In fact, it is true! And this same belief animated those later Americans who founded an antislavery Republican Party and who amended our Republican Constitution to make it even more protective of these inalienable rights.
Yet, while the Declaration of Independence stated the legal basis for separation from Great Britain and the underlying political theory that justified forceful resistance to the king and Parliament, it did not provide the governing structure of the United States. Indeed, thirteen years separate the Declaration of Independence from the adoption of the Constitution of the United States, during which time the United States was governed by the much different Articles of Confederation.
Did the Constitution that was later adopted recognize the underlying political theory of the Declaration, with its roots in the natural and inalienable rights of individuals? How did it differ from government under the Articles? To answer these questions, we now turn to the framing of the Constitution, why the prevailing “democratic” theory of republicanism was rejected, and how the founders’ conception of “republicanism” was modified.