“In the beginning, there was Locke.” That sums up how many scholars have long conceptualized the American Founding’s primary philosophical inspiration. They have good reason to do so.
Many intellectual sources, ranging from Montesquieu to Blackstone and the Bible, influenced those Americans who shaped the founding era. Yet an emphasis on natural rights, as Thomas G. West demonstrates in his meticulously researched 2017 book, The Political Theory of the American Founding, is the most consistent thread permeating the thought of politically prominent Americans from all regions, states, religions, and economic backgrounds. West shows how a preoccupation with protecting inviolable rights manifests itself not only in key founding documents (such as the Declaration of Independence, the U.S. Constitution, and the Bill of Rights) but also in numerous state constitutions and laws.
According to some conservative critics of the American experiment, therein lies the problem. Integralists and some communitarians generally see a straight line between Lockean natural rights thought and the absolutization of subjectivity and autonomy that marks much of America today. It ultimately gave us, so the argument goes, Justice Anthony Kennedy’s assertion in Planned Parenthood v. Casey (1992) that liberty involves the right to define reality as we see it.
Much current American political discussion is certainly characterized by the logic of “I feel or desire X, therefore I am entitled as a matter of right to X.” It is less evident to me, however, that eighteenth-century natural rights thought is a significant culprit for such non sequiturs.
That is partly because there are so many other contenders. These range from widespread practical Nietzscheanism in the academy to the sentimental humanitarianism that has invaded so many Jewish and Christian congregations, and that increasingly functions as some Americans’ de facto religion. More importantly, theories that explain present-day problems by reference to the Founding Era’s stress on natural rights start to falter once we examine how these ideas were typically understood at the time.
Natural Law Constrains Natural Rights
Throughout the twentieth century, prominent legal scholars of key founding texts argued that educated, eighteenth-century Americans regarded the idea of natural rights as suggesting a fairly unimpeded amount of freedom. Figures such as Calvin R. Massey and Bennett B. Patterson held that this reflected the conviction among Americans that natural rights came immediately from natural law and were consequently more authoritative than constitutional law and legislation.
Up to a point, this remains a fair reading. In his 1985 classic Novus Ordo Seclorum: The Intellectual Origins of the Constitution, Forrest McDonald pointed out that Lockean natural rights theory was especially useful for those who wanted to legitimize the severance of ties with Britain. Nonetheless, we should not downplay the degree to which eighteenth-century Americans believed that the same natural law that gave rise to natural rights also constrained the scope and use of those rights.
This perspective prevails throughout the sources from which these Americans drew these ideas. Such authorities included Locke but also Protestant natural law figures like Emer de Vattel, Hugo Grotius, Jean-Jacques Burlamaqui, and Samuel von Pufendorf. These thinkers maintained that reasoning rightly involved reflection on how to promote and protect a natural right vis-à-vis other natural rights, those civil rights acquired through living in political society, the duties in justice and charity that everyone owed to everyone else, and people’s responsibilities to themselves.
Consider, for instance, Locke’s treatment of property. He argued that the law of nature decrees that no person can possess such a “Portion of things of this World” as to deprive
his needy Brother a Right to the Surplusage of his Goods. . . . As Justice gives every man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much out of another’s Plenty, as will keep him from extreme want.
That is not exactly the approach to property that we find, for instance, in Thomas Aquinas. Aquinas regards our duties to those in extreme need as not only a question of charity but a matter of justice. Nonetheless, Locke clearly believed that man’s natural right to property derived from natural law was constrained by obligations springing from the same law of nature.
More generally, the notion that natural liberty somehow gave people a license to act contrary to natural law was considered absurd by Americans writing during the Founding Era. Indeed, it was normal for Americans to describe immoral acts as things that, in the words of the first chief justice of the Northwest Territories and a major general in the Continental Army, Samuel H. Parsons, “disgrace human nature.”
Prominent clergymen of the period such as Rev. Moses Hemmenway, a Harvard graduate and regular correspondent with President John Adams, expressed similar views. In a 1784 sermon delivered to Governor John Hancock and legislators of the State of Massachusetts, Hemmenway preached that “Natural Liberty does not consist in an exemption from the obligations of morality and the duties of truth, righteousness, and kindness to our fellow men. . . . Our natural rights are bounded and determined by the law of nature.”
Civil Law and Natural Rights
This question of boundedness raises the issue of how eighteenth-century Americans understood the role of civil law in giving effect to natural liberty and natural rights.
The Founders stressed that natural rights limited the scope and scale of civil law. But they also held that civil law should reflect the implications of natural law—including what natural law says about how people should make free choices.
Thus we find Hemmenway stating in the same 1784 sermon that the “law of nature” binds us “to be just and benevolent to our fellow creatures, doing them all the good in our power, and offering no injury or abuse to any one.” Hemmenway then added: “It is therefore no violation of our natural liberty and rights for us not to be allowed to do wrong, and to be restrained by force and punishments, from invading the right and property of others.”
Similar reasoning reveals itself in the thought of one of America’s leading legal minds of the period. James Wilson was perhaps the founder most explicit in grounding natural rights in natural law. In his Lectures on Law, Wilson repudiates the idea that rights are derived from civil law—or, as he puts it, “flow from a human establishment”—and are therefore best understood as legal constructs of a particular time and place. As the late Daniel N. Robinson pointed out, Wilson saw natural rights as “the outward expression of an inner truth available to all who are fit for life under law.”
If that sounds more Ciceronian than Lockean, that’s because it is. Moreover, that same inner truth meant, Wilson goes on to state, that “selfishness and injury are as little countenanced by the law of nature as by the law of man. Positive penalties, indeed, may, by human laws be annexed to both. But these penalties are a restraint only upon injustice and overweening self-love, not upon the exercise of natural liberty.”
A good example of how Founders applied such reasoning to civil law concerns religious liberty. When the Presbyterian minister John Witherspoon spoke about religious freedom as a natural right of conscience, he was careful to specify that this natural right was not grounds to injure others. In Lecture XIV of his Lectures on Moral Philosophy, Witherspoon contended: “The magistrate ought to defend the rights of conscience, and tolerate all in their religious sentiments that are not injurious to their neighbors.” It was on this basis that Witherspoon argued that magistrates could enact “laws for the punishment of acts of profanity and impiety.”
Witherspoon opposed the establishment of religion and did not “wish to see any religious constitution aided by the civil power.” He was even prepared to argue for the natural rights of conscience of those whose faiths held positions considered potentially subversive of society.
Nevertheless, Witherspoon did not think that such rights allowed people to do whatever they pleased in the name of religious freedom. The same natural law that gave rise to the natural right of religious liberty also underscored the wrongness of doing harm to others in the name of religion. Naturally, courts would need to determine whether a given act constituted such a harm. What was not in dispute, to Witherspoon’s mind, was the magistrates’ duty to regulate everyone’s right to religious freedom vis-à-vis other rights and the requirements of public morality.
Overarching Theories Work . . . Until They Don’t
The more you look at founding-era natural rights philosophy, the less convincing become those theories that posit such discourse as a major source of self-centered individualism in today’s America. We can safely say that late-eighteenth-century Americans would have viewed the notion that rights could be exercised contrary to natural law as ridiculous.
It is true that many American legislators, judges, philosophers, and activists have sought to uproot the language of rights from its natural-law setting to get their way in a culture that is very responsive to rights claims. But this would have made no sense to figures like Witherspoon and Wilson. They would have viewed such actions as emptying natural rights of all their moral grounding and legal force. Certainly, as Thomas West states, many Founders described themselves as “liberal” in the sense of reverencing people’s natural rights. They did not, however, think these rights existed outside natural law or could be exercised contrary to it. Nor were natural rights considered beyond regulation by the civil law that sought to give effect to these rights in the conditions of political society.
Overarching theories can help explain how the development, application, and misuse of ideas affect societies over long periods of time. They also spur necessary debates. But if such explanations are insufficiently attentive to facts and context—especially those details that put a theory’s essential validity in doubt—they start looking much more like ideology than well-considered reflection.
The evidence suggests that conservatives who blame contemporary Americans’ desire for radical autonomy on eighteenth-century natural rights philosophy need to ask themselves whether they have fallen into the trap of ideology.