Making Sense of the Founders: Politics, Natural Rights, and the Laws of Nature

 
 

It is often alleged that the American founders lacked a unified and coherent political theory. To the contrary, a recent book by Thomas West shows that the founders broadly agreed on a philosophy of natural rights, calling for both the protection of liberty and the promotion of virtue.

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Did the American founders share a unified and coherent political theory? Most scholars today would laugh at the question and then say no. The political thought of the founders, Alan Gibson suggests, summarizing the scholarly consensus, “is best understood as an amalgam of liberalism, republicanism, and perhaps other traditions.” Those other traditions, some no doubt would insist, include illiberal notions of American identity as exclusively white and male. Others might highlight the significant impact of Protestant Christianity or the English common law in shaping the intellectual milieu of the founding. The underlying point would remain: the founders borrowed liberally from a variety of traditions in a way that was politically revolutionary but theoretically incoherent.

Thomas West disagrees. The Potter Endowed Professor in Politics at Hillsdale College, West argues in his important new book The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom that the founders did in fact share a “theoretically coherent understanding” of politics rooted in natural rights philosophy. Other traditions were of course present, but the founders, West insists, embraced these other traditions in their official public documents and pronouncements only to the extent that those traditions could be enlisted as allies of the natural rights philosophy. When natural rights conflicted with elements of the common law, customary practices, or religious tradition, it was the natural rights tradition that won the day. Public documents and the affairs of state—rather than sermons, commentaries, private letters, or other musings—“point to natural rights and the laws of nature as the lens through which politics is understood.”

The founders’ natural rights philosophy begins with the premise that we are all by nature equally free in the very limited sense that no one person has a divine birthright to wield political authority over others without their consent. Our basic natural rights follow from our natural equality. As naturally equal and independent human beings, no one may rightfully take the life, restrain the liberty, or destroy the property of another. Life is the first natural right; liberty the second. Property follows closely behind as an implication of our natural liberty. “If we are ‘born free and equal,’” West concludes, summarizing the teaching of several founding era documents and state constitutions, “we own ourselves, and our liberty necessarily includes the ‘free exercise of [one’s] industry, and the fruits acquired by it’—to acquire things useful and enjoyable for life.” Other natural rights recognized in these founding sources are the right to religious liberty, the right to pursue happiness, the right to conjugal marriage, and the right (recognized in some documents) to reputation, i.e., to be free from the libelous destruction of one’s good name in a way that inhibits one’s ability to acquire property and pursue happiness.

Based on this initial treatment, we might conclude that the founders’ natural rights philosophy was heavy on individual rights and short on individual duties. Many scholars read the founding in precisely this way. “Human beings, in the framers’ creed,” the late Wilson Carey McWilliams wrote, “are by nature free, morally independent without obligations to nature or to their fellows.” Not so, according to West. The laws of nature set the moral limits of the natural right to liberty in many founding era sources. Liberty is not license. The founders recognized pre-political natural duties rooted in human nature, including duties to provide for and rule children for their own good before the age of consent. Those natural duties, in West’s retelling, however, are pretty well limited to respecting the natural rights of others. We are naturally free, but we are not free to infringe another’s natural rights.

Reason can only get us so far. As George Washington admonished in his Farewell Address, “religion and morality are indispensable supports” to political prosperity and the “firmest props of the duties of men and citizens.” The problem, according to West, is that reason does not disclose categorical imperatives, which say that it is categorically—unconditionally—your duty to do x, y, or z. Rather, reason simply points to hypothetical imperatives: if you want to be happy, then you should do x, y, or z. Reason, without the further aid of religion and morality, does not really impose moral obligations at all. “The laws of nature, founded in reason’s judgement of what is useful for human life and happiness,” he writes, “become morally obligatory only when they take on a juridical or legal character.” In the state of nature, then, rights are primary, and the derivative laws of nature do not become morally obligatory until connected with a divine source or until human will, through the social compact, incorporates respect for natural rights into the obligations of the positive law.

How much can we squeeze out of the founders’ general natural rights philosophy in terms of actual public policy? Much more than we might expect. Since our rights are insecure before the advent of government (or after its breakdown), we voluntarily create government by social compact. The social compact, according to the founders, is real and not hypothetical. What the founders called the state of nature is a state of anarchy devoid of stable political authority. Such a state has existed, and in fact continues to exist in some parts of the world. Free people in the state of nature flee the insecurity of anarchy to create a political authority that will secure natural rights. From our basic natural rights in the state of nature, we can deduce desirable and prudential legal rights. Most of what is found in the US Bill of Rights is related, conceptually, to some basic natural right. The right to free association is an aspect of natural liberty, for example, and the right to bear arms is related ultimately to the right of self-preservation. Even the common law rights to fair criminal procedures, trial by jury, and the like, are implications of our basic natural right to liberty. As West concedes, the “list of natural rights is potentially infinite”—yet the limiting factor is that “all natural rights are instances of the equal liberty of all human beings by nature.”

The natural rights philosophy leads to certain broad conclusions for domestic and foreign policy. If government exists to secure natural rights, then government policy should be aimed (quite obviously) at securing these rights. In foreign policy, that means protecting citizens from violence and other threats to natural rights, establishing a non-interventionist foreign policy that does not impose political order on others without their consent, and enacting trade policies that aim to increase US “prosperity and national defense.” Immigration should be limited to people from countries with like customs and manners so as to encourage assimilation and ensure a broad cultural respect for natural rights. In domestic affairs, the law should apply equally to all, and laws governing crime, property, contract, and the family should aim at securing natural rights. Political economy will be broadly liberal, protecting private ownership of property, ensuring the freedom of markets, and establishing sound money to safeguard both property rights and economic liberty. Although not direct implications of the natural law, some other policies and constitutional structures are the “inventions of prudence” (to borrow a phrase from Federalist 51) shown by historical practice to be useful for establishing good government: federalism, separation of powers, an independent judiciary, and the like.

A regime protecting natural rights requires, for its maintenance, a minimum level of virtue in the people. Parting ways with many scholars who see liberty and virtue as incompatible, West argues that the founders in fact saw them as two sides of the same coin. There is no conflict between liberalism, which emphasizes individual liberty, and republicanism, which emphasizes virtue and obligations to the community. In reality, liberty (understood in terms of natural rights) can be sustained only by individuals who embody the social virtues of self-restraint, the republican virtues of citizenship, and the manly virtues of self-assertive vigilance in defense of free institutions. Government, therefore, cannot be neutral with respect to the virtues necessary for a free society to flourish. Through support for public education, promotion of religion as a means of inculcating broad support for the natural rights philosophy, and laws encouraging family formation and stability, the government promotes morality, religion, and civic virtue to the end of securing liberty. In other ways, as well—through laws, speeches, writings, awards, and anthems—the political regime itself should aim to shape public opinion in a way that is hospitable to liberty.

West’s project in this book is descriptive and not prescriptive. He is trying to capture and accurately describe a coherent natural rights philosophy broadly shared by the American founders, understood here to include those influential public officials at both the state and national level who built the political institutions of the United States during the period from about 1760 to 1800. Although acknowledging that multiple traditions were of course influential during the founding, West isolates the natural rights tradition as a dominant lens through which the founders viewed politics and public policy.

At times, West is refreshingly politically incorrect in his description of the founders’ thought. The Continental Congress denounced the “merciless Indian savages” in the Declaration of Independence not because they were Indians, West writes, but because they were savages. Regarding coverture, we might ask how the founders could have justified a doctrine that gave the family one legal existence; they might ask us, West points out, why we think a man should have no legal right to live with his own children. Slavery was an open and flagrant violation of natural rights, but West notes that the founders thought slavery was on a collision course with the natural right to self-preservation. “We have the wolf by the ears,” Jefferson said metaphorically about slavery. “We can neither hold him, nor safely let him go.” In these descriptions, West does capture a world that is very different than our own, while still managing to avoid the historicist penchant for ruling out the possibility that the founders might have something to teach us.

The Political Theory of the American Founders does a wonderful job of correcting some of the caricatures of the political thought of eighteenth-century Americans as amoral, areligious, individualistic, or otherwise hostile to public virtue and the moral conditions of freedom. The key, for West, is recognizing that the founders distinguished the purpose of politics (securing rights) from the purpose of life (happiness), and the founders created a society that remained open to the private pursuit of nobility, wisdom, piety, and the higher goods that were supposedly sublimated by the founders into the base pursuit of material gain.

Throughout, West leaves open the question whether the founders’ philosophy is true. I venture a preliminary answer: yes, for the most part, but only because they were buoyed by those other traditions—notably Christianity, the common law, and elements of classical theological natural law—and thereby built better than they knew.

Justin Dyer is Associate Professor of Political Science at the University of Missouri. He is the co-author (with Micah Watson) of C.S. Lewis on Politics and the Natural Law.

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