Thomas Jefferson, as it turned out, was to die on July 4, 1826, the fiftieth anniversary of the Declaration of Independence, but of course nobody knew that in advance. So it happened that the mayor of Washington, D.C., invited Jefferson to help the capital city celebrate that capital event. Ill health prevented Jefferson’s attendance. He sent instead what proved to be his last letter, a letter in which he attempted to state what he took the Declaration and the revolution it announced to mean to the world: “May it be ... what I believe it will be, the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves. . . . All eyes are opened, or opening to the rights of man.”1 The American Revolution, according to Thomas Jefferson, was about the “rights of man.”
Except for the fact that the exact phrase rights of man was not much in use in the America of the 1770s, evidence more contemporaneous with the Revolution supports Jefferson’s judgment. Leaving aside pamphlets, newspapers, sermons, and other unofficial expressions of opinion (where appeal to natural rights was profuse and consistent) and concentrating only on official or semiofficial documents, we can see how pervasive the appeal to natural rights was.2 Jefferson’s own Declaration of Independence is surely the most famous example, for it has plausibly been called “the paper which is probably the best known that ever came from the pen of an individual.”3 Among the “truths” there held “to be self-evident” were these: “that all men . . . are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; [and] that to secure these rights governments are instituted among men.”
As Jefferson always said, his Declaration was not in the least unique in its appeal to natural rights. The 1772 Boston declaration of “The Rights of the Colonists” (drafted by Samuel Adams) began with a long list of “the natural rights of the colonists as men,” among which were the familiar rights to life, liberty, and property together with “the Right to support and defend [those rights] in the best manner they can.”4 Prior to the Declaration of Independence the most significant statement by an America-wide body was the Declaration and Resolves of the First Continental Congress, issued in 1774; that document declared in its first resolution the familiar triad of rights: “life, liberty, and property,” rights held under “the immutable laws of nature.”5
When independence came in 1776 and the new states moved to form constitutions most included a statement about natural rights either as part of the justification for independence or as part of the statement of fundamental principles meant to underlie the constitution. George Mason’s important draft of the Virginia Declaration of Rights of June 1776, for example, began by stating those rights “which . . . do pertain to them and their posterity, as the basis and foundation of government.” The rights so declared are close if not quite identical to those listed in Jefferson’s Declaration: “that all men . . . have certain inherent natural rights . . . among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”6 The Virginia statement on rights was copied almost verbatim into the revolutionary Pennsylvania Declaration of Rights of August 1776.7 The Delaware Declaration of Rights, adopted in September of 1776, also appealed to “natural and inalienable rights” and included the usual “right to be protected in the enjoyment of life, liberty, and property,” as well as a “right to worship Almighty God according to the dictates of their own consciences and understandings.” 8 The Georgia Constitution of 1777 did not speak of natural rights but of acts of the British government “repugnant to the common rights of mankind,” which in the context of the whole document appear to be much the same as the rights affirmed in the other documents.9 The New York Constitution of 1777 based itself on the right of the people of New York “to institute and establish such a government as they shall deem best calculated to secure the rights, liberties, and happiness of the good people of this colony.”10 Vermont more or less followed Virginia in affirming the “natural, inherent, and unalienable rights” of men, and in insisting that “all government ought to be instituted and supported . . . to enable the individuals who compose it, to enjoy their natural rights.” Like the Continental Congress that issued the Declaration of Independence, the Vermonters recognized that “whenever those great ends of government are not obtained, the people have a right . . . to change it, and take such measures as to them may appear necessary to promote their safety and happiness.”11
Finally, the last two of the revolutionary constitutions also gave prominent place to natural rights. The opening words of the 1780 Massachusetts document could hardly have highlighted the theme of rights more: “The end of the institution . . . of government is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights and the blessings of life.”12 Its first article declared the “natural, essential and unalienable rights” which “all men” possess. The list is familiar: “the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking their safety and happiness.”13 The New Hampshire State Constitution spoke almost identically of natural rights as its neighbor Massachusetts.14 The Americans were neither ignorant of nor shy about appealing to natural rights. Jefferson was correct: The American Revolution was indeed about “the rights of man.”
Despite this plentitude of apparently incontrovertible evidence many competent historians and other students of the Revolution deny the importance of natural rights. One of the best-known legal historians of our time, John Philip Reid, titled one of his essays, “The Irrelevance of the Declaration,” by which he meant the irrelevance of the Declaration read as a document of natural rights and natural law; he also pronounced “the irrelevance of natural law,”15 not only to the Declaration of Independence rightly understood, but also to the revolutionary cause as a whole. Natural rights is a topic that has received much “emphasis” from historians, but it “was of little concern to people during the pre-revolutionary era.”16 Reid also insisted, in one of his books, that the “British Constitution, not Locke [and his natural rights philosophy] supplied American Whigs with their theoretical motivation.”17 He claimed as well that “(e)very right for which the Americans contended was located in British constitutional theory.”18
An equally prominent political historian, Jack Greene, has argued that the American position in the Anglo-American dispute was principally informed not by a notion of natural rights but by traditional notions of the rights of Englishmen, the royal charters of the separate colonies, and especially by “long standing constitutional custom” and historical precedent. For Greene, the Anglo-American dispute “is essentially a constitutional one pitting opposing interpretations of the colonial position in the imperial order.”19
The Americans of the revolutionary era indeed supply important testimony on behalf of those who emphasize the constitutional rights of Englishmen: Those who opposed the British and eventually led the Revolution called themselves Whigs, a title pointing back to those who made the Glorious Revolution of 1688–1689 in Britain, a revolution usually taken (and so taken by colonial Americans) to be a quintessential expression of British constitutionalism.
We cannot dismiss the tendency to ignore or deny or depreciate natural rights as a mere error, but must see instead a genuine paradox: How can it be that natural rights, prominent on the very surface of the Revolution, can yet plausibly be denied by eminent scholars and politicians? How did the Americans of the revolutionary moment understand natural rights and what role did those rights play in the revolution they made?
Reid, Greene, and the others insist the American Revolution was not about natural rights but about constitutional rights, or rights of Englishmen. Those latter rights found their most authoritative expression in the Declaration and Bill of Rights issued at the time of the Glorious Revolution of the late seventeenth century. We can only begin to clarify the role and meaning of natural rights in the American Revolution by beginning with a comparison of the two revolutions and their respective theories. Contrary to what many scholars say, the two revolutions were really quite different, but it is easy to be deceived because each revolution produced a document that purported to “declare” the causes of, and thus explain and in some sense justify, its revolution. The very names of the two documents suggest similarity between them: The Glorious Revolution produced a Declaration of Rights that sounds like very much the same sort of a statement of a philosophy of rights that the American Declaration of Independence is.
To understand what natural rights theory is and the differences between it and the notion of rights in the English document it is helpful to lay out a series of variables that together go to make up what we might call a “regime of rights.” The key variables are: 1) the source and 2) the possessors of rights; 3) the bearers of corresponding duties; and 4) the substance and 5) the function of rights. When compared along these dimensions we will see that the English and American theories of rights differ nearly altogether. (Although it is beyond the scope of this essay, a similar comparison between the American and French declarations of rights would display how close if not quite identical these two are.)
According to the Declaration of Independence the source of rights is “the Creator.” The creator as understood in the Declaration appears to be not so much the God of Christianity or revealed religion but the God of nature, for the document speaks of “the laws of nature and of nature’s God.” “Nature’s God” is the God who stands behind nature, is visible in nature, and is accessible to the natural human faculties. The creator is thus “nature” understood as the product of a divinity, whose existence is inferable from nature itself. In principle the God of nature is knowable by all human beings according to public standards of truth; the God of nature is emphatically not the God known only to one or another specific religious tradition.20
In the English Declaration of Rights, on the other hand, “the rights and liberties asserted and claimed . . . are the true, ancient and indubitable rights of the people of this kingdom.” These are “ancient rights and liberties.” The English document is nowhere near so explicit as the American document, but it pointedly does not find the source of rights in nature or nature’s God. If anything, they derive their authority, their very being perhaps, from their antiquity: not nature or a divinity but history and prescription.
Perfectly in accord with tracing the source of rights back to nature or nature’s God, the American Declaration asserts these rights to be the endowment of all men. Not deriving from a sectarian God, the rights most certainly are not limited to members of any sect, or even to Christians. Contrary to what is often said, the rights belong to men of other races as well, at least according to those who drafted the American document. The drafting committee’s version includes as one of the most serious charges against the king the accusation that he had “waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the person of a distant people . . . [by] carrying them into slavery.” There can be no doubt that Jefferson and his fellow drafters considered the slaves to be men and rights possessors. True, this clause was dropped from the final version of the Declaration, but not because it was doubted that the slaves possessed natural rights.21
Equally in accord with tracing the source of rights to antiquity and prescription, the English document declares rights that belong only to “the people of this kingdom,” not to “all men.” Most of the rights proclaimed are not even rights of the English people taken individually. For instance, the first “right of the people” announced is “that the pretended power of suspending laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.” This and most of the other rights are not possessions or endowments of the English people, but are powers of Parliament, or perhaps better yet, nonpowers of the monarch acting without Parliament. It is as though America would proclaim it a right that the Senate give its advice and consent to treaties. This is clearly a very different matter from the kind of individual rights asserted in the natural rights philosophy, or even in the Constitution’s Bill of Rights.
The rights-bearing entities in the English Declaration are for the most part political bodies. It is the “right of the people” that political bodies exercise their own powers, an important feature of constitutional government but not at all the same as natural rights. The commitment to constitutionalism in the Declaration of Rights means, in the first place, a commitment to nonabsolutism: The king does not possess powers to make laws (or ignore laws), to tax, to jail people, to deploy the armed forces of the community all by himself. The core is the sharing of power—those major powers of the community can be exercised only by joint action of king and Parliament.
According to the theory of the constitution as embedded in the Declaration of 1688 the sharing of power between these political bodies bespeaks a deeper kind of sharing—the joint possession of authority by the different estates or classes of the realm. The Declaration is promulgated in the names of “lords spiritual and temporal, and commons.” The two first comprise the House of Lords, the last is represented in the House of Commons. Together, they make up the kingdom. The Declaration’s constitutionalism at bottom is this sharing or participation in rule among these elements of the community and the monarch. This notion of constitutionalism harkens back at least to Aristotle and Polybius and their theory of the mixed regime, or, as it was often called in England in the seventeenth century, the Mixed Monarchy.
Finally, and perhaps most definitively, English constitutionalism is meant to procure rule of law, rather than the mere rule or will of the monarch, which is best guaranteed by maintaining the integrity and centrality of Parliament as the embodiment of the community whose active and shared consent is needed for laws to exist.
Little of this is contrary to the implications of the natural rights philosophy (especially not the emphasis on rule of law and nonabsolutism), but there are significant differences. According to the Declaration of Independence (and Locke, whom the Americans are following here) human beings possess their rights not as members of an organized community, not as a member of one of the “estates” of the kingdom, but in a far more primitive way. First, as already noted, these are rights of individuals, equally possessed by each and every, whatever their place in society. Second, they are an endowment from their “creator”; that is to say, not only not the gift of history or society, however understood, but inherent in each (as the Virginia Declaration of Rights and other of the state formulations had it). They are also in an important sense primitive and original; human beings according to the Declaration of Independence possess these rights prior to the formation of government (conceptually and perhaps historically), for it is for the sake of these rights that “governments are instituted among men.” Jefferson’s text indicates this by identifying the rights as belonging to human beings in the situation of equality (no government, no authority) in which they were created. The natural rights belong to human beings in what political philosophers of the age often spoke of as a “state of nature,” a notion that does not necessarily imply human beings ever existed in a state of solitariness. The real point of the doctrine of the state of nature is to deny the position taken in the Declaration of Rights. Human rights are not a result of the way society is organized or authority within it arranged; rights are not in any sense a social gift or product—although the security of rights, a rather different matter, is.
Every right in the full sense implies a corresponding duty in someone. These duties may vary a good deal in character, ranging at one end from a simple duty of forbearance in (some) others to a duty to supply that to which the rights bearer possesses a right. Thus the right to free speech imposes duties on the government in particular: the duty to forbear from interfering with the exercise of the right. At the other end, the rights accruing to Peter from his contract for lawn care service by Paul imply a duty in Paul to supply the services contracted for.
In the case of the American Declaration the rights belong to “all men” in a condition prior to and independent of political life. The corresponding duty bearers would thus seem to be “all comers”—all other human beings and collectivities (e.g., government) when such are in place. The duties in the first instance appear to be merely of forbearance—Peter’s right to life implies only Paul’s duty not to interfere with Peter’s life, not the duty to give Peter life! Since government is “established” to secure rights according to a kind of contract, government becomes the duty bearer corresponding not only to the primary natural rights but also to a derivative right to security in one’s rights. This is more than a duty to forbear; it is the duty to supply the protection. If government fails to do this, then it has not lived up to its obligation and the people have the right to “alter or abolish” the malevolent or incompetent government that fails to perform its duties. This is the so-called right of revolution, which the Declaration of Independence is especially keen to announce and justify.
The duty bearers corresponding to the rights in the English Declaration are not so easy to identify, largely because the rights listed are so various. So far as they are mostly affirmations of limitations on the power of the king, or, conversely, affirmations of parliamentary powers, the duty bearer seems mostly to be the king. Thus, it is the king who is explicitly identified as the one who is not to “suspend the laws . . . without consent of parliament.” Likewise, the right of “raising or keeping a standing army within the kingdom in time of peace, unless it be with the consent of parliament” seems to impose a duty of forbearance on the king.
The American Declaration lists a series of “unalienable rights” but it specifies that these are only some “among” those with which “all men” are “endowed.” There is nonetheless a kind of coherence to the list supplied, as there is to the more common list of “life, liberty, and property.” The other documents of the revolutionary era should make clear that the substitution in the Declaration of Independence of a right to the “pursuit of happiness” for a right to property certainly does not necessarily signify a rejection of the latter right.22 Many of the state constitutions contained both, so obviously the “pursuit of happiness” does not in any sense cancel the right to property. John Adams’s formulation in the Massachusetts document is suggestive, for he lists the standard life, liberty, and property, and then says “in fine, that of seeking and obtaining their safety and happiness.” The “in fine” suggests that Adams sees the happiness right as a summative right, the resultant and ultimate product of the other rights.
The rights affirmed in the Declaration, or in the parallel documents of the age, have an intellectually satisfying coherence. The first right, the right to life, is a right to what is most one’s own, one’s life. Given the nature of a human life, it is difficult to see how it could be anything other than one’s own, how it could in any sense belong to others. Given the dependence (or base) of life in or on the body, the right to life must contain a right to bodily immunity, the right not to have one’s body seized, invaded, controlled by others.
The right to liberty extends the right to life: Not only does one possess a rightful immunity against the depredations of others on one’s body, but one has a right to the use of one’s body. Human beings are such that we can take control of our bodies and invest our bodies’ movements with our intentions and purposes; we can act. The natural right to liberty proclaims the prima facie rightfulness of active use of the body. The right to liberty, like the right to life, carries along with it a corresponding duty in others of forbearance, but in itself it is more active than the right to life.
The right to property involves an extension of rights from the spheres of one’s own life, body, and actions to the external world. It proclaims the rightful power of human beings to make the external their own in the same way they can make their bodies their own. Philosophers within the liberal tradition, most memorably Locke and Hegel, took great effort to justify this seemingly problematic extension of right from what is most clearly one’s own, one’s body and actions, to what is not evidently so, external things. We cannot here follow out that effort, but much of the subsequent history of political thought and practice has consisted in an effort to come to terms with that extension and its justifications, where coming to terms often means, as in the case of Rousseau and Marx, challenging the legitimacy of the extension.
The three basic rights together amount to the affirmation of a kind of personal sovereignty, a rightful control over one’s person, actions, and possessions in the service of one’s intents and purposes. When seen as an integrated system of immunities and controls the specific rights add up to a comprehensive right to pursuit of happiness, i.e., the right to pursue a shape and way of life self-chosen. Of course this right, as well as the other more specific rights, is not absolute. The rights of specific others, as well as the public good, i.e., the genuine common needs of the community, serve as valid limitations on one’s rights.
The rights affirmed in the American Declaration thus do form a kind of system, coherent, complementary, intelligibly related to each other. This quality differentiates the rights in the American Declaration from those in the English Declaration. The latter lists thirteen rights, ranging from the rights that the king not suspend or dispense with laws, not levy taxes, not keep a standing army without the consent of Parliament, to the rights of subjects “to petition the king” and not to be subjected to excessive bail. The rights, as stated earlier, are part of the English commitment to constitutional government, but they hardly form a system of inherently interrelated parts. Although obviously important, the rights in the Declaration of Rights do not reach the level of fundamentality or universality visible in the Declaration of Independence’s rights.
Natural rights hold an obvious place of high honor in the scheme of political thought put forth in the American Declaration: “in order to secure these rights governments are instituted among men.” The securing of natural rights is altogether the end or purpose of legitimate government. Government operates via laws and the use of legitimate coercive authority to control and limit what people may do. The very fact of legitimate government proves that the various rights cannot be “absolutes.” As Jefferson said in 1802, “Man . . . has no natural right in opposition to his social duties.”23 The law can properly limit rights and can intrude into the basic sphere of immunities of the individual. But this may be done only when justified; as a provision of the American Constitution later stated, “no person may be deprived of life, liberty, or property without due process of law.” Law correctly limits rights not only on behalf of the specific rights of others but also in pursuit of “the public good.” Rights securing requires a community and an effective government, and these in turn have many requisites not translatable directly into rights of specific individuals. The most obvious case is defense. Equally important, if less obvious, is what we might call a society’s “rights infrastructure”—the pattern of social institutions and characterological types that makes rights securing possible. Although rights securing requires government (coercive authority) it cannot rely solely on government: We do not and cannot have a policeman on every corner. Also, we must have policemen on whom we can rely to secure rather than oppress rights.
Just what rights infrastructure requires has turned out to be a very controversial matter within liberal political communities. Some, like John Stuart Mill and contemporary libertarians, limit legitimate governing action to more or less direct rights-securing behavior.24 All else would be rejected as unjustifiable paternalism. Others say that society may legitimately foreclose such options to individuals as the right to use drugs or to view pornography, because widespread practices such as those derogate from the rights infrastructure, for instance, by eroding the necessary personal responsibility of citizens or by diminishing the necessary respect for others as full-blown and autonomous rights bearers. Concern for the rights infrastructure may also require that governments provide services beyond direct protection to rights; for example, Thomas Jefferson was of the view that public education was a requisite to the rights infrastructure.25 Some level of social support may also be requisite.26 The natural rights philosophy of the American Revolution does not necessarily mean what some take it to mean—the sole legitimacy of the so-called night watchman state. However, it does not necessarily imply (or foreclose) what others take it to mean—the modern welfare state.27 The natural rights theory is quite certain in affirming the ends of political life (“to secure these rights”), but there is nonetheless a great range of possibilities as to what this requires in practice. The coming of liberal politics cannot mean the end of politics, for there remain many difficult political questions to be addressed—and readdressed—within a natural rights polity.28
Rights not only function as standards for the conduct of good and legitimate government but also serve, as the Declaration makes clear, as standards for the invocation of one of the important rights, the right to alter or abolish governments that are “destructive of these ends,” that is, the security of the primary rights. The “present King of Britain” evinces by his “long chain of abuses and usurpations . . . a design to reduce [the Americans] under absolute despotism,” a form of government that does not recognize or secure their rights.
Most striking, by contrast, about the English Declaration of Rights is how silent it is on the ends of government. It contains nothing corresponding to the Americans’ firm announcement of the ends of political life. The rights do not function as a justification or triggering condition for the invocation of the right of revolution, either, for the document nowhere invokes or affirms such a right or describes the action being taken in 1688 as a revolution. The king is said to have “abdicated,” not been deposed or overthrown.
The rights announced, having far more the character of constitutional powers and arrangements than of rights in the ordinary sense, seem to be means rather than ends. One would not say, for example, that the right of Americans to have the Senate advise and consent to treaties is an end of the polity. The Declaration of Rights sets out intently silent about the ends these means serve. The Americans, it is clear, are far more theoretical; they state a position, briefly and concisely to be sure, that has all the earmarks of a theory—rationalist, systematic, comprehensive. The English document has little discernable theory to it.
This brief survey of the two rights regimes helpfully clarifies the American natural rights theory by holding it up beside such a starkly contrasting alternative position. The differences are so clear, indeed, that one wonders how competent observers can disagree over which of them was the driving presence in the American Revolution. The resolution of this conundrum lies in the peculiar dynamics of the American Revolution: The Revolution was, in some sense, about both kinds of rights. The Americans, especially at first, merely agitated for the “rights of Englishmen,” rights they claimed they had securely enjoyed before British policy began to shift at the end of the French and Indian War a decade or so before the Declaration of Independence. The Americans asserted that these were rights they possessed under their colonial charters or under the general principles of the constitution as specified in the 1688 Declaration of Rights.
By 1776 (well before that, actually) the Americans were also appealing to their natural rights under the social contract theory of politics that they wrote into their revolutionary-era statements. In fact, the copresence of appeals to both constitutional rights (as in the Declaration of Rights) and natural rights (as in the Declaration of Independence) has posed a problem of interpretation for generations of students of the Revolution. The two most prominent explanations for this phenomenon are the Succession Thesis and the Irrelevancy Thesis. According to the first, the Americans began with appeals to positive right—constitutional and charter rights—and, unsuccessful with this appeal, radicalized their position over time, ending up with the appeal to natural rights (including the right of revolution) by the time of the Declaration of Independence.29 Proponents of the Irrelevancy Thesis, on the other hand, deny that the two kinds of appeals succeeded each other in such a neat temporal order. Indeed, although natural principles of right were aired more frequently as the controversy moved the Americans closer to independence, the Americans never gave up on the appeal to constitutional rights and these latter were always the important ones. The invocation of natural rights lent some rhetorical cachet to the movement but signified little more.
Neither the Succession or the Irrelevancy Thesis captures the place of natural rights in the American Revolution as well as a third position, the Amalgam Thesis. As both the other theories agree, the Americans began with an appeal to their rights as Englishmen, their rights under the constitutional settlement that concluded the Glorious Revolution. The controversy between America and Britain was indeed a legal/constitutional one above all. The single most striking fact about that constitutional battle, however, is that both parties appealed to the same constitutional principles (those in the 1688 Declaration of Rights) and derived their own versions of the normative imperial constitution from that appeal.
The constitutional issues raised in the more than decade-long controversy were far more complex than a brief essay like this can encompass, however. To simplify in a way that does not falsify overly much, it is sufficient to note that the British expressed their notion of the constitution in the series of acts of legislation, taxation, and administration that became the center of controversy in the 1760s and 1770s. The most revealing of these was the Declaratory Act of 1766, passed at the same time that Parliament repealed the hated stamp tax. The operative part of the law was drafted to put the Americans on notice that, even though giving in to American wishes and protests about the Stamp Act, Parliament was not conceding an inch on the constitutional principle at stake: “[B]e it declared by the King’s most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that the said colonies and plantations in America have been, are, and of right ought to be subordinate unto and dependent upon the imperial crown and parliament of Great Britain, [which], had, hath, and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown in Great Britain, in all cases whatsoever.” Strong stuff, but it was a most plausible interpretation of the British constitution as that received authoritative exposition in the Declaration of Rights. The mandate there was rule by joint authority of king and Parliament. The Declaratory Act says no less: The colonies are presumed bound and subject to all relevant acts of king and Parliament. Conceding that the Americans possessed “the rights of Englishmen,” their right was fulfilled when the king acted in and through Parliament.
The Americans protested that this could not be the true and proper interpretation of the constitution. On the one hand, it was not the interpretation they were used to; for the most part king and Parliament had refrained from legislating and taxing the colonies and instead had left such matters to the colonial assemblies. On the other hand, the colonists read the constitution through the lens of the natural rights theory of legitimate government. This second kind of argument was attractive for two reasons. First, the argument from precedent was not perfectly valid; there were occasions when Parliament had exercised powers beyond those the theory validated. In such cases the colonists were forced to pick and choose among precedents, a practice that opened them to legitimate criticism so far as precedent per se was the ground of their position.
Moreover, precedent was not a very strong argument in itself, especially when precedent lacked the great antiquity the English Whigs claimed for the constitutional practices they defended. Colonial history ran nowhere as far back as Magna Charta. The argument from precedent per se ran into the related difficulty that the established practices could be explained merely to be policies pursued by king or Parliament, resting on their authority and thus reversible by the same authority.30
The colonists saw in the natural rights theory a much stronger base for their position, for they were able to use it to show the superiority of their version of the constitution over that of the British. The British version could not be correct, they thought, once one interpreted or understood the constitution in terms of the rationale for constitutional practices as those came to light in the natural rights theory. To take only the most famous example, why did the constitution, as reiterated in the Declaration of Rights, require the consent of Parliament to tax measures? If the king had the power and right to tax without the consent of Parliament, i.e., of the taxpayers or their representatives, then the right to property was not recognized; if property could be taken at the mere will of the king, then it was not really property, goods to which the owners had an exclusive right, the recognition and protection of which was the business of government. Under such a regime the subjects would not be recognized as free rights bearers. In the language of the day, they were “slaves,” neither self-owning nor genuinely owners of pieces of the external world.
Parliament could vote taxes for Englishmen and yet recognize the rights of men because Parliament represented and thus could speak and give consent for the right bearers. But the colonists were not (and they came to see, could not be) represented in Parliament. Parliamentary action vis-à-vis them, under the circumstances, derogated from their status as free and rights-bearing persons just as much as if the king acted alone. The resulting amalgam of constitutional and natural right gave the colonists a perspective on the meaning of the constitution that was by no means necessary or evident from every point of view. The amalgam in effect replaced the older notion of shared power found in the Declaration of Rights with the quite different natural rights commitments.31
The important point is that the natural rights philosophy gave the Americans a way to interpret the constitution that was at work even when they were apparently talking only about the constitution and appealing to constitutional rather than natural rights. It was thus not a major shift for the Americans to give more weight to the purely natural rights aspects of their position when the British authorities resisted the American theory of the constitution; it was also not inconsistent, with this shift for the Americans to continue to insist on their rights as Englishmen, as their amalgam led them to understand these rights. Both the Succession and Irrelevancy Theses see something of this position, but neither captures how both rights regimes intertwined in this unique amalgam.
The Declaration of Independence gives further insight into the way appeals to constitutional and natural rights interacted. As partisans of the Irrelevancy Thesis insist, that part of the Declaration which lists the misdeeds of the king identifies, for the most part, violations of the constitution, indeed in some cases violations of the very constitutional rights earlier invoked in the Declaration of Rights. Yet these abuses and grievances are introduced in an entirely different way than in the English document. They are “facts to be submitted to a candid world,” facts meant to show the king’s intent to establish “a tyranny over these states.” Showing that is important, in turn, because “when a long train of abuses and usurpations . . . evinces a design to reduce them under absolute despotism, it is their Right, it is their Duty, to throw off such government.” The list of abuses is introduced as the center of the effort to show that the conditions the natural rights philosophy says justify “altering or abolishing” the established regime do in fact exist. The Americans take constitutional violations to have such high probative value because they show that the king is unwilling to abide by the moderate, power-sharing, and rule-of-law oriented arrangement captured in the constitution. Violations of the constitution, even if they mean nothing more, imply a dangerous disposition to natural-rights-denying-absolutism.
The constitutional rights do signify more, however. Some of them, e.g., trial by jury (which the king has compromised), are readily seen as devices to help secure natural rights.32 Perhaps not everything in the Declaration of Rights can be so understood, but much can. To the eighteenth-century mind (not only English and American, but even French, as in Montesquieu) it was one of the marvelous facts of political history that England had evolved, perhaps quite unknowingly, a set of practices very suited to the task of providing for the security of natural rights (especially when these practices were interpreted with a natural rights hermeneutic). Thus, again, the appeal to constitutional rights stands as a kind of surrogate for the appeal to natural rights.
This widely perceived congruence between established practice and the natural standards of right is one factor that made the American Revolution so much more successful than the French Revolution. In the latter case, the new order to be brought in differed so radically from the old order that a massive demolition job had to be performed before anything new could be built. In America this was not the case; although the Americans innovated in many and important ways, they were also free to maintain deep continuities with the precedent order at the level of both political structures and the legal system.
Although continuity with the political and legal past was indeed a prominent part of the story of the American Revolution, one must not overstate that point either. The Revolution saw a significant movement for widespread legal, political, and social reform, the most well-known example of which probably is Thomas Jefferson’s sponsorship of a “revisal” of the Virginia legal code in the wake of the Revolution.33 As Jefferson and his fellow legislators saw it, the natural rights philosophy required major changes in the laws of the state, changes ranging from the law of land tenure to the disestablishment of the Anglican church; Jefferson could not achieve all that he sought, such as a major initiative in public education and provision for the gradual abolition of slavery. Nonetheless even his failures—and the failures of the revolutionary generation as a whole—indicate the issues that would find themselves on the agenda of nations making the commitment to natural rights.
Political innovation of great significance also occurred, as the Americans indicated when they adopted as the motto of the new nation the slogan novus ordo saeclorum, a new order for the ages. That very commitment to innovation revealed in summary form the great distance the commitment to “the rights of man” had led the Americans from the political implications the Britons of 1688 drew from their rights regime.
The English Declaration of Rights presented itself as aiming at nothing more than the reaffirmation and reestablishment of old rights, i.e., of the traditional constitutional order, and at “settling the succession of the crown.” The latter was necessary because of the alleged “abdication” by James II; the former because of that same king’s repeated violation of rights. Careful scholars like Lois Schwoerer insist that the post-1688 regime contained far more innovation than the document announcing it let on;34 granting that, and granting that the assertion of an unequivocal right to control the succession was also innovative, nonetheless it signifies greatly that the document had no theoretical resources to contain or justify any innovations. Moreover, the innovations it promoted were less those making for a new order and more a filling in and perfecting of the old order. The Declaration, as already suggested, aimed to reaffirm and perfect the existing regime of shared authority among the estates.
The political innovativeness of the Americans found expression above all in a principled commitment to republicanism, that is, to government drawn from the great body of the people and operating according to the principle of majority rule. This commitment to republicanism meant that the political order underwritten in and supported by the English Declaration of Rights was definitively rejected as illegitimate: no king, no nobles, no politically empowered clergy. The Americans concluded that the “rights of man” required a republican government for at least two reasons. Since the rights of man implied also the primal equality of all human beings in a hypothetical state of nature, all political power had to be conceived as deriving from the consent of the governed and to be solely for the sake of securing the rights of the governed and the public good. No one could lay claim to even a particle of political power merely on the basis of birth or nature. Furthermore, political society tests in universal human qualities independent of religious or theological commitment. Hierarchies within churches thus have no more of a claim to political authority than do hereditary nobles or monarchs. The embrace of natural equality does not require a rigidly egalitarian society or polity, but it does require that all political power ultimately be traceable to the people. As James Madison put it in Federalist 39: “[I]t is essential . . . that [government] be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it . . . It is sufficient . . . that the persons administering the government be appointed, either directly or indirectly, by the people.”35
The need for dependence on the people was reinforced by reflection on the purposes of government under the natural rights philosophy. Since government exists to “secure” the rights of the people rather than for some purposes of the rulers, government can be best kept “on task” if it is thoroughly responsible to and dependent on the people. The Americans were convinced that king and Parliament, precisely because of their lack of responsibility to the ruled in America, acted without due regard for the rights and interests of the colonials.
With the commitment to republicanism (in our terms, democracy), revolutionary-era America introduced a new standard into political life, a standard that had an astounding impact on the world. Although that commitment was an inference from natural rights, it also contributed to the American paradox of rights: The Americans spoke so much of republicanism that this came to appear to many to be their primary commitment, perhaps even a commitment conflicting with rights. That was not so, however, since republicanism for them, like the appeal to their rights under the English constitution, was an appeal permeated with natural rights. The paradox within the paradox of natural rights in the American Revolution is that very often even when (or especially when) the Americans were not speaking explicitly of rights, their discourse and actions were driven by their attachment to “the rights of man.”
Jefferson to Roger Weightman, June 24, 1826, in Thomas Jefferson: Writings, Literary Classics of the U.S., ed. Merrill Peterson (New York: Viking Press, 1984), 1517.
John Phillip Reid, “The Irrelevance of the Declaration,” in Law in the American Revolution and the Revolution in Law: A Collection of Review Essays in American Legal History, ed. Hendrik Hartog (New York: New York University Press, 1981), 49–50.
Moses Coit Tyler, “The Declaration of Independence in Light of Modern Criticism,” in A Casebook on the Declaration of Independence, ed. Robert Ginsberg (New York: Crowell, 1966), 94; Joseph Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Alfred A. Knopf, 1997), 10, 63–64.
Samuel Adams, “The Rights of the Colonists and a List of Infringements and Violations of Rights,” 1772, in The Roots of the Bill of Rights, 2 vols., ed. Bernard Schwartz (New York: Chelsea House, distributed by Scribner, 1980), I: 200.
Declaration and Resolves of the First Continental Congress, 1774, in Schwartz, Roots, I: 216.
Virginia Declaration of Rights, 1776 (Mason Draft), in Schwartz, Roots, II: 241, 242. For the final, very similar version as adopted, see Schwartz, Roots, II: 234.
Pennsylvania Declaration of Rights, in Schwartz, Roots, II: 264.
Delaware Declaration of Rights, 1776, in Schwartz, Roots, II: 277.
Georgia Constitution, 1777, in Schwartz, Roots, II: 291.
New York Constitution, 1777, in Schwartz, Roots, II: 302; cf. II: 303.
Vermont Declaration of Rights, 1777, in Schwartz, Roots, II: 319–22.
Massachusetts Declaration of Rights, 1780, in Schwartz, Roots, II: 339.
Schwartz, Roots, II: 340.
Schwartz, Roots, II: 375–76.
Reid, “Irrelevance,” 47.
Reid, “Irrelevance,” 49.
John Phillip Reid, Constitutional History of the American Revolution: The Authority to Legislate (Madison: University of Wisconsin Press, 1991), 5.
Reid, Constitutional History, 5, 15.
Jack Greene, “Origins of the American Revolution: A Constitutional Interpretation” in The Framing and Ratification of the Constitution, ed. Leonard Levy and Dennis Mahoney (New York: Macmillan, 1987), 36, 38. For similar positions, see, inter alia, John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (Madison: University of Wisconsin Press, 1986); Stephen Conrad, “Putting Rights Talk in its Place,” in Jeffersonian Legacies, ed. Peter Onuf (Charlottesville: University Press of Virginia, 1993); Daniel Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1953), 66–98; Barry A. Shain, The Myth of American Individualism (Princeton: Princeton University Press, 1994), 246 ff; Pauline Maier, American Scripture (New York: Knopf, Distributed by Random House, 1997), 245 and context; Wilmoore Kendall and George Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1970).
For a more complete exposition, see Michael P. Zuckert, The Natural Rights Republic (Notre Dame: University of Notre Dame Press, 1996), 25–26, 59–62; see also Allen Jayne, Jefferson’s Declaration of Independence (Lexington: University Press of Kentucky, 1998), 38–40, 173–74.
On dropping the grievance on slavery, see Maier, American Scripture, 146; Thomas West, Vindicating the Founders: Race, Sex, Class and the Origins of America (Lanham, Md.: Rowman & Littlefield Publishers, 1997), 2–5. Jefferson and slavery has become in the last several decades one of the most widely discussed topics in American history. It is too large to take up here, but the most important point is the following: Whatever Jefferson’s practice as a slaveholder, and whatever his views of racial differences, and whatever his opposition to a multiracial society, he never once retreated from the position contained in the excised grievance on slavery—that slavery is a crime against human nature, that the slaves are human beings with natural rights, and that the slave trade was an abomination. The most recent reconsiderations of Jefferson and slavery are Conor Cruise O’Brien, The Long Affair (Chicago: University of Chicago Press, 1996); and Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, N.Y.: M. E. Sharpe, 1996).
For an argument that it does, see Richard Matthews, The Radical Politics of Thomas Jefferson: A Revisionist View (Lawrence: University Press of Kansas, 1984), 27.
Jefferson to the Danbury Baptist Association, January 1, 1802, in Peterson, ed., Jefferson, 510.
John Stuart Mill, On Liberty (New York: Cambridge University Press, 1989).
Jefferson, “A Bill for the more General Diffusion of Knowledge,” in Peterson, ed., Jefferson, 365.
See Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994), 271.
For example, Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).
Cf. Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).
A classic version of the Succession Thesis is Carl L. Becker, The Declaration of Independence (New York: A. A. Knopf, 1942).
See James Wilson, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Philadelphia, 1774.
For a more comprehensive exposition of the Amalgam Thesis, see Zuckert, The Natural Rights Republic, 92–117, 240–43.
On the rights-securing character of juries, consider Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia C. Miller, and Harold Stone (New York: Cambridge University Press, 1989), xi, 6.
More generally, on the transformative power of this revolution, see Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap Press of Harvard University Press, 1967), ch. 6; Gordon Wood, The Radicalism of the American Revolution (New York: A. A. Knopf, 1991).
Lois Schwoerer, The Declaration of Rights, 1689 (Baltimore: Johns Hopkins University Press, 1981), 22.
James A. Madison, Alexander Hamilton, and John Jay. The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961), 241.