NATURAL RIGHTS AND THE CONSTITUTION

The Constitution as it came from the Philadelphia convention contained no bill of rights. Indeed, the word right (or rights) appears only once in it, and there only in the context of Congress's power to promote the progress of science and useful arts "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article 1, section 8). In the view of the Anti-Federalists, the Constitution should have begun with a statement of general principles, or of "admirable maxims," as patrick henry said in the Virginia ratifying debates, such as the statement in the virginia declaration of rights of 1976: "That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter 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." In short, a bill of rights ought to be affixed to the Constitution containing a statement of natural rights.

The Federalists disagreed. They conceded that the Constitution might properly contain a statement of civil rights, and they were instrumental in the adoption of the first ten amendments which we know as the bill of rights, but they were opposed to a general statement of first principles in the text of the Constitution. However true, such a statement, by reminding citizens of the right to abolish government, might serve to undermine government, even a government established on those principles. And, as Publius insisted, the Constitution was based on those principles: "the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS" (the federalist #84). It is a bill of natural rights, not because it contains a compendium of those rights but because it is an expression of the natural right of everyone to govern himself and to specify the terms according to which he agrees to give up his natural freedom by submitting to the rules of civil government. The Constitution emanates from us, "THE PEOPLE of the United States," and here in its first sentence, said Publius, "is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a constitution of government." Natural rights point or lead to government, a government with the power to secure rights, and only secondarily to limitations on governmental power.

This is not to deny the revolutionary character of natural rights, or perhaps more precisely, of the natural rights teaching. The United States began in a revolution accompanied by an appeal to the natural and unalienable rights of life, liberty, and the pursuit of happiness. But these words of the declaration of independence are followed immediately by the statement that "to secure these rights, Governments are instituted among Men." Natural rights point or lead to government in the same way that the Declaration of Independence points or leads to the Constitution: the rights, which are possessed by all men equally by nature (or in the state of nature), require a well-governed civil society for their security.

The link between the state of nature and civil society, or between natural rights and government, is supplied by the laws of nature. The laws of nature in this (modern) sense must be distinguished from the natural law as understood in the Christian tradition, for example. According to Christian teaching, the natural law consists of commands and prohibitions derived from the inclinations (or the natural ordering of the passions and desires), and is enforced, ultimately, by the sanction of divine punishment. According to Hobbes and Locke, however—the principal authors in the school of natural rights—the laws of nature are merely deductions from the rights of nature and ultimately from the right of self-preservation. Because everyone has a natural right to do whatever is necessary to preserve his own life, the state of nature comes to be indistinguishable from the state of war where, in Hobbes's familiar phrase, life is solitary, poor, nasty, brutish, and short; even in Locke's more benign version, and for the same reason, the state of nature is characterized by many unendurable "inconveniences." In short, in the natural condition of man the enjoyment of natural rights is uncertain and human life itself becomes insufferable. What is required for self-preservation is peace, and, as rational beings, men can come to understand "the fundamental law of nature" which is, as Hobbes formulates it, "to seek peace, and follow it." From this is derived the second law of nature, that men enter in a contract with one another according to which they surrender their natural rights to an absolute sovereign who is instituted by the contract and who, from that time forward, represents their rights. More briefly stated, each person must consent to be governed, which he does by laying down his natural right to govern himself. In Locke's version, political society is formed when everyone "has quitted his natural power"—a power he holds as of natural right—and "resigned it up into the hands of the community." In the same way, Americans of 1776 were guided by "the Laws of Nature and of Nature's God" when they declared their independence and constituted themselves as a new political community. Commanding nothing—for these are not laws in the proper sense of commands that must be obeyed—the laws of nature point to government as the way to secure rights, a government that derives its "just powers from the consent of the governed." (See social compact theory.)

It is important to understand that in the natural rights teaching neither civil society nor government exists by nature. By nature everyone is sovereign with respect to himself. Civil society is an artificial person to which this real person, acting in concert with others, surrenders his natural and sovereign powers, and upon this agreement civil society becomes the sovereign with respect to those who consented to the surrender. It is civil society, in the exercise of this sovereign power, that institutes and empowers government. So it was that "we [became] the People of the United States" in 1776 and, in 1787–1788, that we ordained and established "this Constitution for the United States of America." The Constitution is the product of the "will" of the sovereign people of the United States (The Federalist #78).

The power exercised by this people is almost unlimited. Acting through its majority, the people is free to determine the form of government (for, as the Declaration of Independence indicates, any one of several forms of government—democratic, republican, or even monarchical—may serve to secure rights) as well as the organization of that government and the powers given and withheld from it. It will make these decisions in the light of its purpose, which is to secure the rights of the persons authorizing it. This is why the doctrine of natural rights, if only secondarily, leads or points to limitations on government; and this is why the people of the United States decided to withhold some powers and, guided by the new "science of politics" (The Federalist #9), sought to limit power by means of a number of institutional arrangements.

Among the powers withheld was the power to coerce religious opinion. Government can have authority over natural rights, said thomas jefferson, "only as we have submitted [that authority] to them, [and] the rights of conscience we never submitted, we could not submit."

Among the institutional arrangements was the separation of powers, and the scheme of representation made possible by extending "the sphere of society so as to take in a greater variety of parties and interests thus making it less probable that a majority of the whole will have a common motive to invade the rights of other citizens" (The Federalist #10). First among these rights, according to Locke, is the property right, for, differing somewhat from Hobbes in this respect, Locke understood the natural right of self-preservation primarily as the right to acquire property. Publius had this in mind when he said that "the first object of government … [is] the protection of different and unequal faculties of acquiring property" (The Federalist #10). The large (commercial) republic is a means of securing this natural right as well as the natural right of conscience, for, within its spacious boundaries, there will be room for a "multiplicity of [religious] sects" as well as a "multiplicity of [economic] interests" (The Federalist #51).

Just as a "respect to the opinions of mankind" required Americans to announce the formation of a people that was assuming its "separate and equal station … among the powers of the earth," so a jealous concern for their natural rights required this people to write a Constitution in which they not only empowered government but, in various complex ways, limited it.

Walter Berns
(1986)

Bibliography

Jaffa, Harry V. 1975 The Conditions of Freedom: Essays in Political Philosophy. Pages 149–160. Baltimore: Johns Hopkins University Press.

Storing, Herbert J. 1978 The Constitution and the Bill of Rights. Pages 32–48 in M. Judd Harmon, ed., Essays on the Constitution of the United States. Port Washington, N.Y.: Kennikat.

Strauss, Leo 1953 Natural Right and History. Introduction and chap. 5. Chicago: University of Chicago Press.