Natural Rights The Freedom to Flourish. Jack Painter. Working draft: November 11, 2018

Transcription

1 Natural Rights The Freedom to Flourish Jack Painter Working draft: November 11, 2018

2 Preface About this essay Acknowledgements Introduction Table of Contents Part 1 The existence and justification of rights 1. The idea of rights 2. Weaknesses in existing theories 3. The need for a new approach Part 2 Natural ends 4. We seek happiness as an ultimate end 5. Ethical happiness versus psychological happiness 6. The challenge of moral relativism Part 3 Necessary means and conditions 7. Rational and social activities expressing virtue 8. The role of virtue 9. Peaceful coexistence and essential resources 10. Freedom within appropriate boundaries Part 4 Defining appropriate freedom 11. A method of reasoning and key assumptions 12. The need for boundaries on physical interference 13. The need for private property and consensual transfer Part 5 Justifying maximum equal freedom 14. The case for equal freedom 15. The case for maximum equal freedom

3 16. The case for absolute maximum equal freedom Part 6 Natural rights defined by maximum equal freedom 17. The characteristics of natural rights 18. Laws and a legal system that secure our natural rights 19. Empirical evidence of natural rights Part 7 Resulting moral imperatives 20. Government s obligation to secure natural rights 21. Our individual obligation to honor the natural rights of others Part 8 Promoting virtue; mitigating misfortune 22. Promoting intellectual and moral virtues 23. Mitigating misfortune Part 9 - Comparing natural rights to other moral principles 24. Relationship to religious principles 25. Relationship to popular moral principles 26. The flaw in patterned theories of justice 27. The morality of free market competition Part 10 - Modern threats to natural rights 28. The modern failure to secure natural rights 29. The application of natural rights to some current issues Part 11 - Responding to threats to natural rights 30. How to secure natural rights 31. Conclusion

4 We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men s labor.... The shepherd drives the wolf from the sheep s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty.... Abraham Lincoln, Address at a Sanitary Fair, Baltimore, April 18, 1864

5 Preface When I was in grade school in the early 1960s, disputes over what people did or said were often resolved by saying, It s a free country. Even at a young age, we recognized that people have a right to be left alone if they are minding their own business and not interfering with others who are doing the same. My generation grew up during the Cold War with the Soviet Union and took particular pride in America s long heritage of freedom. In school, we studied the Declaration of Independence and the self-evident truth that all Men are created equal and are endowed by their Creator with certain unalienable Rights including Life, Liberty and the pursuit of Happiness. We considered July 4 th celebrations an opportunity to reaffirm our national creed of natural rights embodied in these famous words. Events around the world often reinforced the idea that people elsewhere yearned for the freedom Americans enjoy. Americans saw Soviet tanks quell freedom movements in Hungary (1953) and Czechoslovakia (1968) and watched East Germans make daring attempts to escape to the West over the Berlin Wall ( ). In 1989, we watched dramatic live TV coverage of brave Chinese students risking their lives to demonstrate for freedom in Tiananmen Square. As a child, I visited national monuments that memorialized what our Founding Fathers said about liberty and equality. As a teenager, I read Carl Sandberg s multivolume biography of Abraham Lincoln, and I was inspired by Lincoln s single-minded dedication to the idea that all human beings have inherent natural rights and his vision of America as a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal. When I attended law school in Charlottesville, Virginia, I visited Thomas Jefferson s home, Monticello, and was fascinated by his life and legacy. One thing struck me in particular - at Jefferson s request, his gravesite inscription says only: i

6 Author of the Declaration of American Independence of the Statute of Virginia for Religious Freedom and Father of the University of Virginia. Why did Jefferson think his authorship of the Declaration of Independence and a law protecting religious freedom was more important than being President of the United States? Years later, I realized the answer. Above all, Jefferson was proud of furthering the idea of natural rights, an idea others (like John Locke) developed before him but that Jefferson enshrined in the Declaration of Independence and later called an expression of the American mind: We are all born free and equal (no one is the natural ruler over another), so we have equal inherent (natural) rights to life, liberty and property (the fruits of our labor) that pre-exist government. Some of our natural rights are inalienable, which means we cannot consent to give them up permanently even if we want to. We form government to secure our natural rights, and its legitimacy depends on our unanimous tacit consent to an unwritten social contract that government will secure our natural rights. Government s first duty is to secure our natural rights, and it exceeds its legitimate authority under the social contract if it violates them. In this traditional view, natural rights define moral limits on the authority of others (including government) to coerce or constrain us. In effect, they are a claim to live as we see fit (to be left alone) as long as we honor the equal claim of others to do likewise. They involve questions of justice (right and wrong) concerning how much freedom from coercion and constraint justice requires, as opposed to questions of ethics (good and bad) concerning how best to use that freedom. Also, they are not enforceable laws but rather a pre-political moral standard that enables us to determine whether our laws are just. My interest in politics over the past ten years exposed me to fundamental issues about how our claim to freedom (natural rights) relates to notions of ii

7 equality and the proper role of government. Does equality mean having equal natural rights (formal equality) even if that permits the emergence of inequalities of wealth, power and status? Or does it mean seeking more equal outcomes (substantive equality) by redistributing wealth, power or status or allowing or requiring favored treatment for some? Over one hundred years ago, in answering these questions, leading progressive intellectuals in the United States explicitly rejected our country s founding idea of natural rights. They saw that idea as out-of-date and an impediment to government efforts to achieve substantive equality (more equal outcomes). To further that goal, they redefined human rights as a positive claim to receive the goods and benefits we need to fully realize our capabilities. Until several years ago, I thought their rejection of natural rights had not deeply affected our broader culture because of our country s deep tradition of defining freedom as the liberty to live as we see fit as long as we honor the same right of others. After all, we have a Statue of Liberty, not a Statue of Equality. We also had just won a long, drawn-out struggle with an ideological opponent (the Soviet Union) committed to the Marxist idea of state ownership of the means of production and of equal and free access to consumption. My assessment has changed, and I now believe the rejection of natural rights by progressives over a century ago has spread broadly and deeply into our culture. A pivotal moment occurred for me when I was watching a national morning news show, and the host in effect instructed listeners that rights are privileges granted by government, not something we possess independently of government. My first reaction was How can he say that? Hasn t he read the Declaration of Independence? Isn t he aware of the self-evident truth that we have unalienable rights? My next reaction was to start researching natural rights theory to better understand the source of our natural rights. I quickly discovered that existing theories of natural rights don t provide complete answers. For example, the natural rights theory of John Locke (on which Jefferson relied) is both too weak and too strong. It is based on a iii

8 natural duty to preserve mankind that justifies a right to life but arguably doesn t justify all of Locke s rights to liberty and property and may even justify a right to receive goods and benefits from others (substantive equality). In any event, many philosophers dispute the idea of natural rights entirely. As I continued my research, it also dawned on me that there are currently two powerful, deeply ingrained ideologies in our society progressivism and legal moralism that seem inconsistent with our country s founding principles. Modern progressives seek, among other goals, to achieve social justice through laws that redistribute wealth, power or status or allow or require favored treatment for some people. Legal moralists seek to dictate private morality through laws that prohibit certain private, consensual behavior they consider immoral. These two ideologies are associated with different political coalitions ( progressives and conservatives ), but they both impose their vision on others by force - forced charity in the case of progressivism, and forced virtue in the case of legal moralism. Progressives do so by expanding the idea of rights so certain people (and groups) have a right to receive goods and benefits from others (such as a right to healthcare or a living wage). Legal moralists narrow the idea of rights by outlawing certain private, consensual behavior that doesn t violate the natural rights of others (such as gambling, prostitution, homosexual relations, drug use, and pornography). In my view, both ideologies are incompatible with our country s founding idea of natural rights. 1 At a minimum, they tolerate violations of natural rights to achieve their goals. Worse, by doing so, they render natural rights meaningless - they require government to resolve rights claims by weighing competing interests, which is what government does anyway in the absence of 1 Admittedly, at the time of our country s founding, there were laws that prohibited sex outside marriage, adultery, prostitution, and sodomy, but enforcement was lax and amounted to a policy of Don t ask, don t tell. Government did not aggressively enforce these laws until the late 1800s. Thomas G. West, The Political Theory of the American Founding (Cambridge University Press, 2017), at Ironically, legal moralism about sexual matters arose out of the Progressive ideology. Id. at 234. iv

9 rights, so rights don t add anything to the analysis. In effect, rights become government-granted privileges that are approved by whoever is in charge (in our system, a majority). Government can limit your privileges if it so chooses, so there is no principled limit on government coercion and constraint. So what is wrong with saying a majority has a legitimate claim to unlimited power? Well, for one thing, it is not true because the unwritten social contract that precedes government doesn t give a majority the power to violate natural rights. If it did, the majority could rightly vote to enslave a minority. Does anyone believe our social contract permits that? Further, pretending a majority has a legitimate claim to unlimited power is dangerous. Without the idea of inherent (natural) rights, there is no principled basis to object to majority overreach, such as progressive era laws that imposed forced sterilization on tens of thousands of feebleminded people, legal moralist laws outlawing interracial marriage, racist Jim Crow laws in the South, and laws imprisoning Japanese-Americans during World War II. If you are thinking our courts won t permit those types of laws, keep in mind that the U.S. Supreme Court upheld all these laws when they were first challenged. Because natural rights are so critical to making a moral case against unjust laws, I decided to examine objections to natural rights and explore ways to overcome them. This essay is the result of that effort. It relies heavily on the ideas developed by prominent scholars and philosophers and attempts to integrate them into a unified, coherent philosophy of natural rights. I conclude that to flourish human beings need appropriate freedom, and natural rights define that freedom. My key points: We have natural ends - We all seek happiness (in the sense of flourishing as opposed to pleasure or good mood) as an ultimate end. This type of happiness is an objective state that I refer to as ethical happiness. Natural rights are a necessary means to pursuing ethical happiness Pursuing ethical happiness requires freedom within appropriate boundaries and the practice of virtue. Appropriate boundaries allow us to act short of v

10 interfering with the equal freedom of others and permit the self-authorship we need to pursue ethical happiness. Natural rights (including private property and freedom of contract) define those boundaries. Government must secure our natural rights By doing so, government honors the tacit unwritten social contract underlying its formation. Individuals must honor natural rights By doing so, individuals act justly, a cardinal virtue necessary for the pursuit of happiness. Because ethical happiness is an objective (not subjective) state, a theory of natural rights based on the pursuit of ethical happiness is more objective than traditional theories, which rely on a vague duty to preserve mankind (John Locke) or to honor the autonomy others need to achieve a meaningful life (Robert Nozick). As a result, unlike traditional theories, my theory is neither too weak (it justifies not only a right to life, but also rights to liberty and property), nor too strong (it stops short of justifying incompatible rights to receive goods and benefits). My vision of natural rights can be summed up in one phrase: the freedom to flourish. Honoring them doesn t guarantee we will flourish, but it makes flourishing possible in a way that is consistent with the true meaning of tolerance: live and let live. As I explain, it also helps resolve tough issues, such as same-sex marriage (hint: freedom of contract), the war on drugs, and immigration. Securing our natural rights is a noble goal at the core of our heritage of freedom. By understanding and rededicating ourselves to that goal, we can return to our founding principles of freedom and enrich the lives of all Americans. Jack Painter November 2018 vi

11 About This Essay In this essay, I make the case that (i) human beings have natural ends, (ii) natural rights are a necessary means of achieving those ends, (iii) government has a moral obligation to secure natural rights for all, and (iv) individuals have a moral obligation to honor the natural rights of others. The key ideas are: Natural ends - We all seek happiness as an ultimate end, not a means to an end. That ultimate end is a state of flourishing (ethical happiness that is the property of a life) as opposed to mere pleasure or good mood (psychological happiness that is the property of a person). We achieve it by accumulating real goods that satisfy our natural needs (goods of having, doing and being) while enriching our lives with various harmless apparent goods that satisfy our acquired wants. Ethical happiness is objective, not relative to time and circumstances, and long-term. It is a totality of goods that varies by person because we differ in the choices we make in acquiring real and apparent goods and the degree of misfortune we experience. Necessary means - The pursuit of happiness requires freedom within appropriate boundaries (so we can choose our ends and means and exercise self-authorship) and the practice of virtue (so we can control and direct our emotions and passions and use our freedom wisely), although it can be impeded by misfortune. We need freedom to cultivate virtue, and the practice of virtue helps us use our freedom properly in the pursuit of happiness. Of course, misfortune (including undeserved disadvantages) can impede our pursuit of happiness. Freedom within appropriate boundaries means maximum equal freedom without infringing or threatening the equal freedom of others. This maximizes our flourishing (and ensures self-authorship, a means of flourishing and a form of flourishing), is consistent with a necessary presumption of liberty, and is i

12 required by the limits on government authority imposed by the tacit unwritten social contract underlying the formation of government. Maximum equal freedom defines our natural rights as (1) private property (ownership and control over our bodies and possessions), (2) freedom of contract (the right to transfer property or refuse its transfer), (3) self-defense, and (4) the remedy of restitution for natural rights violations. Natural rights are natural because they are a precondition to achieving our natural end of pursuing happiness. Translating these abstract concepts into legal precepts is challenging, but there are ways to overcome those challenges. The rule of law is critical in communicating and enforcing the resulting legal precepts. Moral imperative on government Government must secure our natural rights to honor the tacit unwritten social contract that underlies its formation. It can promote virtue and mitigate misfortune but must do so consistent with natural rights. Moral imperative on individuals Each person should pursue happiness (flourishing) (using should in the sense of having reasons to do so), and that requires the practice of virtue in exercising freedom, including the virtue of justice, a cardinal virtue (along with wisdom, courage and moderation) necessary for pursuing happiness. Practicing the virtue of justice requires us to honor the natural rights of others. This essay is organized as follows: The Introduction explains how our founding idea of natural rights has been challenged and why abandoning natural rights and accepting unchecked majority rule is dangerous. Part 1 explains the inadequacies of existing theories of rights and the need for a new approach in justifying and defining natural rights. ii

13 Part 2 explains how happiness (in the sense of flourishing) is an ultimate end we seek. Part 3 explains why the pursuit of happiness requires freedom within appropriate boundaries and the practice of virtue Part 4 defines appropriate boundaries on freedom as prohibiting actual or threatened physical interference with others. It also explains why those boundaries require private property and consensual transfer and why self-defense and restitution are proper remedies for violations. Part 5 explains the case for maximum equal freedom and absolute protections against interfering with that freedom (with limited exceptions). Part 6 explains how maximum equal freedom defines our natural rights to private property, freedom of contract, self-defense and restitution. Part 7 explains why government is obligated to secure natural rights and why we as individuals are obligated to honor the natural rights of others. Part 8 examines government s role in promoting virtue and mitigating misfortune, the limits of that role, and the risk of violating natural rights in attempting to promote virtue or mitigate misfortune. Part 9 contrasts natural rights with other popular moral principles. Part 10 discusses modern threats to natural rights. Part 11 identifies ways we can respond to those threats. iii

14 Acknowledgements My analysis draws heavily on the ideas of a number of philosophers and writers, including: Aristotle s idea that happiness (in the sense of flourishing) is the ultimate end we seek; philosopher Philippa Foot s ideas about natural goodness; philosopher Henry Veatch s belief in objective truth about human good and goodness; Georgetown law professor Randy Barnett s analysis that securing natural rights (and the decentralized decision-making they permit) allows us to act on our knowledge and self-interest while taking into account the otherwise inaccessible knowledge and self-interest others; philosopher Anthony de Jasay s argument that a presumption of liberty is a logical necessity; and philosopher John Hasnas s analysis of the moral foundation of what he calls empirical natural rights. [Other acknowledgements to be added.] iv

15 Introduction The United States was founded on a core idea enshrined in the Declaration of Independence that all human beings have inherent equal rights that define a zone of protection from coercion and constraint by others. This essay discusses the justification for and implications of that idea. Rights as so conceived impose moral limits on the use of force by defining when persuasion is required. When we have rights, others must persuade us to act or refrain from acting and cannot simply resort to force to get their way. This applies when others act individually to coerce or constrain us or band together (through government) to make laws that coerce or constrain us. The challenge in defining rights is to identify the moral line between persuasion and coercion. 1 Not all our moral obligations to others are enforceable by law; some require voluntary compliance, meaning persuasion. For example, we may have a moral obligation to give money to a beggar, but that doesn t mean the beggar has a right to forcibly take our wallet. Setting the proper limits on coercion and constraint is critical to human flourishing. To flourish, we need an appropriate degree of freedom to think and act. If others can arbitrarily force us to do things we do not want to do, prevent us from doing things we want to do, or club us over the head and take our possessions, life isn t very secure, and we face real challenges in surviving and flourishing. 1 As the poet, John Milton, said, [H]ere the great art lies, to discern in what the law is to bid restraint and punishment, and in what things persuasion only is to work. John Milton, Areopagiticia (London, 1644) at AR. 39, (accessed September 11, 2017) 1

16 A question of justice Justice involves the propriety of using force against others. It is wrong (unjust) to use coercion against others when only persuasion is warranted. For example, it is unjust to make a person your slave and to take the fruits of their labor against their will. But how do we define justice? When is it right to engage in coercion, and when is it wrong? Are there principles that resolve that question? If not, is it simply a matter of might makes right, where we define might as the rule of the stronger, the rule of a majority, or something else? Are these questions of justice even relevant in modern America? After all, we live in a society that works reasonably well. We have laws that prevent murder and theft and a court system that enforces those laws. If our government permits our neighbors to use unjust force against us or engages in the unjust use of force itself, won t the American people quickly put a stop to it? Most people don t spend much time thinking about these issues. Many are too busy in their daily lives to focus on the topic. Others think our courts or majority rule will prevent or minimize the unjust use of force, so things will work out in the future as they have in the past. They may even take comfort in the adage that The arc of the moral universe is long, but it bends towards justice. 2 But even if we rely on the good will of our fellow citizens or the forces of history to check the unjust use of force, don t we still need a theory of justice to guide us? How can a society prevent or eliminate injustice if it cannot define it? Are there objective principles that can guide us, or are we forced to take a 2 This quote is based on an 1853 sermon by abolitionist Theodore Parker and was subsequently used by Martin Luther King, Jr. in his writings and speeches. See 2

17 subjective approach and define injustice the way Supreme Court Justice Potter Stewart defined pornography ( I know it when I see it. 3 )? The answer in the Declaration of Independence natural rights At the time of our country s founding, there was widespread belief in a theory of justice based on the idea of inherent human rights called natural rights. Our Declaration of Independence refers to this idea when it says: 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 Although our Founding Fathers did not invent the idea of natural rights, it played a key role in their thinking. The framers of our Constitution subsequently created a legal framework for our government designed to protect our natural rights in a number of ways, 5 and the Bill of Rights specifically refers to this idea when it refers to the rights retained by the people. 6 The general meaning of natural rights The fundamental idea of natural rights is that we have a right to live as we see fit as long as we honor the equal rights of others to do the same. In effect, we have a zone of non-interference that forbids others (individually or collectively through government) from using force or fraud (a form of indirect 3 Concurring opinion by Justice Potter Stewart in Jacobellis v. Ohio, 378 U.S. 184 (1964). 4 The Declaration of Independence. 5 The U.S. Constitution protects natural rights in a number of ways, including enumerated and limited powers, division of powers between the states and the federal government, separation of powers between three co-equal branches of government, and checks and balances. 6 The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other retained by the people. Ninth Amendment to the United States Constitution. 3

18 force) to interfere with our use and enjoyment of our bodies or property as long as we respect the same rights of others. 7 This is the basis for various human rights, including the right to our lives, freedom of conscience, freedom of association, freedom of speech, and private property. These rights protect us from violence and arbitrary rule by others, and they are an essential condition to our pursuit of happiness (flourishing). But they are not a license to do anything we want and can be forfeited if we don t honor the equal rights of others. What about slavery? Some historians question whether our Founding Fathers really believed all human beings have natural rights. 8 After all, slavery existed at the time of our Founding and continued after that, and some of our Founding Fathers owned slaves. 9 It is true that many of our Founding Fathers strongly opposed slavery 10, and even slaveholders like George Washington, Thomas Jefferson and James Madison condemned it as morally wrong David Boaz simplifies the idea of natural rights as follows: Don t hit other people. Don t take their stuff. Keep your promises. David Boaz, The Top Ten Ways to Talk About Libertarianism, Cato Policy Report, January/February 2013, (accessed November 22, 2015) 8 Thomas West cites historians who say the words all men are created equal did not include Blacks. See Thomas G. West, The Political Theory of the American Founding (Cambridge University Press, 2017), It is also true that at the time of the founding, women did not have the same legal rights as men. Internally, the husband was legally the head of the family, and outside the family, men mostly though not always had the exclusive right to vote, serve on juries, and to be appointed to public office. Thomas G. West, The Political Theory of the American Founding (Cambridge University Press, 2017), 67. It was widely accepted that the rights and duties of husband and wife were different but complementary.... Id. The founders may have been wrong, but their judgments were not based on the idea that women are created unequal. Id. Take, for example, the right to vote, which women did not have nationally until the ratification of the nineteenth amendment to the U.S. Constitution in The right to vote is a civil right granted by law, not a natural right to be left alone. This is illustrated by the fact that 18 year olds did not have the right to vote until ratification of the twenty-six amendment to the U.S. Constitution in Repealing that amendment and denying 18 year olds the right to vote would not violate their natural rights. 10 For example, Benjamin Franklin, John Jay, Alexander Hamilton, and John Adams all strongly opposed slavery. While he was in England in 1772, Franklin declared in a public paper that if procuring liberty for all slaves was 4

19 But while they talked the talk, they did not walk the walk when they created our Constitution. They failed to end slavery in the Constitution, and they included a Fugitive Slave Clause, which said a person held to service or labor who escapes to a free state would not be free but must be delivered back to the person to whom the service or labor is due. 12 not possible, England at least could abolish the African commerce in slaves, and [declare] the children of present Slaves free after they become of age, and he referred to the constant butchery of the human species by the pestilential destestable traffic in the bodies and souls of men. Benjamin Franklin, Writings (New York: Library Company of America, 1987), Franklin became president of the Pennsylvania Society for the Abolition of Slavery in 1787, and two years later, he signed a statement by the society that called slavery an atrocious debasement of human nature. Id In 1790, he signed a letter to Congress stating that equal liberty was originally... and is still the birth-right of all men and urging Congress to abolish slavery. tor/chapter_4/quaker_petition_on_slavery.pdf (accessed April 28, 2018) Jay was a founder of the New York Manumission Society, which promoted the abolition of slavery in New York, and Hamilton was an early member of that society. John Adams said, Every measure of prudence, therefore, ought to be assumed for the eventual total extirpation of slavery from the United States... I have, throughout my whole life, held the practice of slavery in... abhorrence. John Adams, letter to Robert J. Evans, June 8, (accessed November 30, 2017) 11 In 1786, George Washington wrote about slavery saying, There is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of it. Washington eventually acted on that belief by providing in his will that his slaves would be freed upon the death of his wife. Thomas Jefferson, who owned slaves his whole life, was a consistent advocate against slavery. As a state representative, he proposed legislation to free slaves in Virginia. His draft instructions to the delegates of the First Continental Congress called for the end of the slave trade. And his first draft of the Declaration of Independence condemned the King for the slave trade and stated that slavery violates the most sacred rights of life and liberty. Those passages were removed at the insistence of the delegates from Georgia and South Carolina. In 1781, in writing about slavery, Jefferson said, I tremble for my country when I reflect that God is just: that his justice cannot sleep forever. Thomas Jefferson, Notes on the State of Virginia, Query XVIII, Ford, Paul Leicester, ed. The Writings of Thomas Jefferson. New York: G.P. Putnam's Sons, , vol. 4:232. For a detailed discussion of Jefferson s views on slavery and other matters, see Jon Hersey, Thomas Jefferson: Word and Deed, The Objective Standard, September 3, 2017, senc=p2anqtz--q04eak_r6f319uxaqbqooyyt8oaisqhhbkj3pnt6q9kujpddyswm- SOYHAAHYctxBQFfJXB-FqTYUgZVXLwCDN-hCCg&_hsmi= (accessed April 19, 2018). James Madison condemned slavery at the Constitutional Convention: We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. Records of the Federal Convention of 1787, edited by Max Farrand (New Haven, CT: Yale University Press, 1911), vol. 1, 135. In 1785 he supported a bill Jefferson wrote that sought to implement gradual abolition. Timothy Sandefur, The Genius of James Madison, The Objective Standard, April 19, 2018, (accessed April 26, 2018). For a detailed discussion of Madison s views on slavery and other matters, see Sandefur, The Genius of James Madison. For a discussion of the founders views of slavery, see Thomas G. West, The Political Theory of the American Founding (Cambridge University Press, 2017), Article IV, Section 2, Clause 3 of the United States Constitution. (accessed April 26, 2018) 5

20 On the other hand, it seems clear it was not possible for our Founders to end or limit slavery at that time. 13 And importantly, they took great care to make sure our founding documents provided no moral sanction to slavery. 14 The U.S. Constitution and the Bill of Rights do not mention the word slave or slavery, and nothing in them says that one human can own another or that slaves are not fully human. 15 Most important, our founding documents put slavery on the road to extinction. The Northwest Ordinance of 1787, considered the third organic law of the United States, prohibited slavery in the territories northwest of the Ohio River, 16 and the U.S. Constitution adopted the same year permitted Congress to cut off the foreign slave trade after twenty years. 17 As Abraham Lincoln said in 1858, Why stop [slavery s] spread in one direction and cut off its source in another if they did not look to its being placed in the course of ultimate extinction? 18 Nevertheless, it was certainly hypocritical for those who condemned slavery to continue to own slaves. And while some of the Founders who owned slaves (like Jefferson) were public about their opposition to slavery, others (like 13 If that government had attempted to secure in their fullness the natural rights of all Americans, not to mention all men everywhere, the experiment of such a government would have met disaster before it had been fairly attempted. Harry Jaffa, Crisis of the House Divided, An Interpretation of the Issues in the Lincoln-Douglas Debates, 50 th Anniversary Edition (University of Chicago Press, 2009), During the Constitutional Convention, James Madison said he thought it wrong to admit in the Constitution the idea that there could be property in men. Records of the Federal Convention, col. 2, The provision that counted slaves as 3/5ths of a person for purposes of the allocation of House seats was a compromise designed to limit the power of slave states. In Federalist 54, James Madison appealed to opponents of slavery to support this compromise by arguing that excluding slaves entirely in computing congressional representation would consider this unfortunate race more completely in the unnatural light of property than the very laws of which they complain...." Federalist 54, 54/ (accessed November 30, 2017) 16 See Note that in 1784, Thomas Jefferson unsuccessfully proposed banning slavery from all territory west of the original thirteen States. Thomas G. West, The Political Theory of the American Founding (Cambridge University Press, 2017), Article 1, Section 9, Clause 1 of the United States Constitution states, The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight Seventh Joint Debate, Abraham Lincoln and Stephen A. Douglas, Alton, Illinois, October 15,

21 Madison) were generally silent about the issue and in subsequent years declined to act to limit or end slavery. 19 As the country grew in the 1800s, there were great debates over whether to permit the extension of slavery into the new territories. During those debates, Senator John C. Calhoun, a leader of the pro-slavery forces, strongly criticized the Founders for their belief in the universal equality of human beings. In 1848, he called it the most dangerous of all political errors and declared that We now begin to experience the danger of admitting so great an error to have a place in the declaration of our independence. 20 Ten years later, in 1858, when Abraham Lincoln debated Stephen Douglas for a U.S. Senate seat, Douglas took the position that the natural rights cited in the Declaration of Independence did not apply to Blacks. Lincoln, who had researched the issue extensively, responded forcefully that no one had made that claim until a few years earlier when the necessities of the present policy of the Democratic party, in regard to slavery, had to invent that affirmation. 21 During the debates over slavery before the Civil War, Frederick Douglass, a former slave (and no relation to Stephen Douglas) strongly defended the vision and integrity of the Founders. In 1852, on the seventy-sixth anniversary of the Declaration of Independence, he gave a rousing speech condemning slavery and defending the Founders against the charge they were imposters for permitting the continuance of slavery. He said I differ from those who charge 19 Unlike Jefferson who more than once risked his reputation by publicly denouncing slavery Madison undertook no significant public effort against it. Sandefur, The Genius of James Madison. In 1791, when a Virginia Quaker sent [Madison] an antislavery petition that he wanted Madison to introduce on the floor, Madison declined. Id. 20 Thomas G. West, The Political Theory of the American Founding (Cambridge University Press, 2017), quoting John C. Calhoun at During the fifth Lincoln/Douglas debate in 1858, Abraham Lincoln responded to Stephen Douglas s claim that Blacks were not included in the Declaration of Independence when he said, I believe that the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration of Independence; I think it may defy Judge Douglas to show that he ever said so, that Washington ever said so, that any President ever said so, that any member of Congress ever said so, or that any living man upon the whole earth ever said so, until the necessities of the present policy of the Democratic party, in regard to slavery, had to invent that affirmation. Fifth Joint Debate, Abraham Lincoln and Stephen A. Douglas, Galesburg, Illinois, October 7,

22 this baseness on the framers of the Constitution of the United States. It is a slander upon their memory, at least, so I believe. Referring to the Constitution, he said In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing: but, interpreted as it ought to be interpreted, the Constitution is a glorious liberty document, and I defy the presentation of a single pro-slavery clause in it. On the other hand, it will be found to contain principles and purposes, entirely hostile to the existence of slavery. 22 As scholar Bernard Bailyn has said, What is significant in the historical context of the time is not that the liberty-loving Revolutionaries allowed slavery to survive, but that they even those who profited directly from the institution went so far in condemning it, confining it, and setting in motion the forces that would ultimately destroy it. 23 The power of the idea of natural rights The idea of natural rights in the Declaration of Independence has helped transform the world. It was the intellectual justification for the abolition of slavery in the United States in the mid-1800s and the recognition of the equal rights of women in the early 1900s. It is the basis for market economies here and around the world that have lifted millions of people out of poverty. It has inspired oppressed people in many other countries, including the demonstrators on Tiananmen Square in China in 1989, who erected a Goddess of Democracy and Liberty as a symbol of human rights (accessed July 5, 2017) 23 Bernard Bailyn, The Ideological Origins of the American Revolution, enlarged ed. (Cambridge: Harvard University Press, 1992), See 8

23 It is hard to identify an idea with more moral force than the principle that all men and women are created equal and have inherent rights. 25 Natural rights under attack Despite the central role of natural rights in our country s founding and their apparent moral force, natural rights have been under intellectual attack since our founding. In the early 1800 s defenders of slavery began to challenge the idea of natural rights. 26 By the mid-1800s, leading Democrats, such as Stephen Douglas, argued that the phrase all men are created equal refers only to whites and, therefore, only whites have natural rights That has not stopped critics of our founding from continuing their campaign to discredit it. Recently, they have begun to blame the Enlightenment itself for slavery in an apparent attempt to tarnish the Enlightenment and its defenders (past and present) as racist.... See Katherine Kelaidis, The Enlightenment s Cynical Critics, Quillette, June 15, 2018, (accessed June 15, 2018) Some even argue that John Locke, who influenced Thomas Jefferson s thinking on natural rights, was pro-slavery. For an explanation of why that is not so, see Holly Brewer, Slavery-Entangled Philosophy (accessed September 16, 2018). 26 See, for example, John C. Calhoun ( ). Calhoun served as U.S. senator from South Carolina, secretary of war, secretary of state, and twice as vice-president, and was a dominant figure, alongside such men as Henry Clay and Daniel Webster. Calhoun's Disquisition on Government has been called a deep look at the nature of man and government. Calhoun saw himself as the heir of Thomas Jefferson and the Republican tradition, but he rejected both the Lockean view of natural rights and the optimistic Enlightenment view of human nature and human societies. According to Calhoun, man is by nature selfish, arrogant, jealous, and vengeful, and these tendencies must be controlled by the state. There are no natural rights. Liberty is a reward and, inevitably, based upon the subjection or slavery of others. John C. Calhoun, Introduction by Jon Roland, The Constitution Society. (accessed November 30, 2017) 27 See Harry Jaffa, Crisis of the House Divided, An Interpretation of the Issues in the Lincoln-Douglas Debates, 50 th Anniversary Edition. Jaffa states, The Kansas-Nebraska Act [introduced in the Senate by Stephen A. Douglas] had said that men might have slavery in the territories if they wished to have it, and the Dred Scott decision [written by Chief Justice Roger Taney] had decided that they might not forbid it if they wished to do so, because the Constitution of the United States affirmed the right of property of slaves and forbade either Congress or a territorial legislature to interfere with that right Id. at 310 That the Negro was not a man was something that neither Douglas nor Taney would say in so many words. Id. Nevertheless, The attempt to legitimize the extension of slavery was impossible without denying the Negro s humanity or without denying the moral right of humanity or both. Id. at 313 In the course of the joint debates Lincoln finally gave it as his belief that Taney was the first man, and Douglas the second, who had ever denied that the Negro was included in the Declaration. Id. 9

24 In the early 1900s, progressives rejected the idea of natural rights altogether 28 and claimed our rights are merely government-granted privileges. 29 This eliminated an impediment to progressive efforts to expand government power to deal with various social problems. 30 The progressive plan included loosening constitutional restraints on government and transferring authority to executive branch regulatory agencies As prominent progressive scholar Charles Merriam wrote in 1915, [t]he idea that men possess inherent and inalienable rights of a political or quasi-political character which are independent of the government, has been generally given up. C. Edward Merriam, A History of American Political Theories (New York, 1915), 310. The exigencies of modern industrial and urban life have forced the state to intervene at so many points where an immediate individual interest is difficult to show, that the old doctrine has been given up for the theory that the state acts for the general welfare. It is not admitted that there are no limits of the action of the state, but on the other hand it is fully conceded that there are no natural rights which bar the way. The question is now one of expediency rather than principle. Merriam, A History of American Political Theories, Frank Goodnow, the President of Johns Hopkins University, and a prominent progressive, expressed this idea in 1916 when he wrote, The rights which he possesses are, it is believed, conferred upon him, not by his Creator, but rather by the society to which he belongs. What they are is to be determined by the legislative authority in view of the needs of that society: Social expediency, rather than natural right, is thus to determine the sphere of individual freedom of action. Frank Johnson Goodnow, The American Conception of Liberty and Government, Brown University, The Colver Lectures (Providence, RI: Standard Printing Company, 1916), Professor Ronald Pestritto explains that progressivism can be thought of as an argument to progress beyond the political principles of the American founding and, in particular, to overcome the natural-law foundations of America s original political order. It is an argument to enlarge vastly the scope of national government for the purpose of responding to a set of economic and social conditions that, progressives contended, could not have been envisioned at the founding and for which the founders limited, constitutional government was inadequate. The founders had posited what they had held to be a permanent understanding of just government, and they had derived this understanding of government from the laws of nature and nature s God, as asserted in the Declaration of Independence. The progressives countered that the ends and scope of government were to be defined anew in each historical epoch. They coupled this perspective of historical contingency with a deep faith in historical progress, suggesting that, due to historical evolution, government was becoming less of a danger to the governed and more capable of solving the great array of problems besetting the human race.... Professor Pestritto adds that this coupling of historical contingency with the doctrine of progress... reveals how the progressive movement became the means by which German historicism was imported into the American political tradition. Ronald J. Pestritto, Progressivism and America s Tradition of Natural Law and Natural Rights, (accessed February 24, 2016) For a discussion of historicism, see 31 Ronald Pestritto points out that the progressive call for a sharp increase in the scope of government power led progressives to advocate both constitutional reform and an aggressive legislative and regulatory agenda. Id. According to Professor Pestritto, progressive constitutional reform included a critique of the constitutional separation of powers and the alternative solution that they proposed: the separation of politics and administration. Id. The progressive regulatory agenda included the rise of the federal bureaucracy and the very significant role played by federal agencies in setting and enforcing national policy today. Id. Progressivism also had a massive influence on our party and electoral systems, and especially on the structure of state and local politics, including the ballot initiative, the referendum, the recall, the short ballot, and the professionalization of local government with city managers and commissions.... Id. 10