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A Conventionalist and Historical View of American Rights

By Barry Alan Shain

Two hundred years ago, British North Americans used with ease the language of rights. From the earliest days of the colonies, moral, religious, legal and constitutional rights were both claimed and contested. Among the most hotly debated were the constitutional rights of colonial legislatures and those of governors. Other rights, both individual and corporate, were also to be guarded: land claims, commercial contracts, those of ministers and of their congregations and, possibly most importantly, the right of individual religious conscience standing in opposition to the right of a community to constrain it in service to God and the common good.

The 18th Century Vocabulary of "Rights."

Until the end of the 17th century, except in Rhode Island and Pennsylvania, the right of individual conscience was not protected against the majority's corporate right and duty to guard against blasphemy. By the middle years of the 18th century, however, this right had come to be accepted as the first and only inalienable individual right. It gained this unique stature because of its particular nature and importance, i.e. no one could act in one's stead before God. Thus, no individual could legitimately surrender this inalienable liberty, the first of its kind in the history of widely recognized rights.

In the vocabulary of the time, various claims to legal or constitutional exemptions were inexactly divided into privileges, liberties and rights. Each claim of whatever variety, be it individual or corporate, was in effect a customary or contractual protection from constraint or a special allowance owned or awarded an individual or group. They differed in how secure each was from revocation:

  • The least secure were privileges, mostly corporate or familial, in that they lacked a binding contractual guarantee — often resting on the changeable largesse of a political superior.
  • Liberties were generally more secure; they were promises, usually made to a particular group by a sovereign during a time of crisis.
  • Finally, rights were the most protected as they were contractually enforceable, customary legal holdings, or constitutional property, awards or exemptions.

Political Rights Belonged to Groups, Not Individuals, and grew out of Historical Conventions.

In the realm of 17th century English politics, both the monarchy and the Parliament claimed constitutional rights that grew out of their long and contentious history. Similarly, in the 18th century, colonial charters were viewed by Americans as long-held constitutional guarantees of corporate political identity and the customary right of limited self-government.

Most political rights were viewed as a form of inherited property that the King, particular groups or more broadly "the people," enjoyed through long established practice. This was especially true of British North Americans who claimed equality with the British at home. They claimed they had inherited and continued to possess, since the 17th century founding of most of the colonies, the British constitutional right of legislative self-government (colonial governors and the British Privy Council enjoyed veto rights). They believed that they possessed this right for a number of reasons: among them, because they had brought such English constitutional rights with them, had done nothing to merit their loss and, thus, continued to enjoy them as an English birthright; because their ancestors had earned them through their sacrifice of blood, sweat and riches, and had passed them on to the current generation as an inheritance; and because this right had been awarded them in their colonial charters, a fact that long-lived British practice importantly corroborated.

Within Nations, Constitutional rather than Natural Rights were more Valuable.

On both sides of the Atlantic, however, an older language of moral, religious and political rights existed as well — a confused mélange of divine and natural right claims that, on rare occasions in political discourse, took as its object the individual rather than a group or a people. This language, with roots in 17th century English and Continental political-theological writings and constitutional struggles between the English King and Parliament, claimed that individuals (including kings) or certain groups (most importantly Parliament) had certain inalienable freedoms or rights that were God-given and, thus, could not be denied by man. In a rarer and still more radical form, it was held that all individuals were "naturally" equal and entitled to certain protections as a result of shared rational abilities.

Until 1774-75, most politically responsible and legally educated colonists (with the exception of Calvinist and anomalously republican New Englanders) studiously avoided using in state papers the difficult to control language of natural individual rights. Indeed, in the 1760s and the early years of the 1770s, it was much more common to find such language advanced by political radicals in Britain.

At the outbreak of the imperial crisis in 1764, unlike 17th century authors, few colonial essayists emphasized that the British common law and constitution, like natural law more broadly, incorporated God-given legal and political standards. With 19th century positivism looming over the horizon, most of the politically influential men in both Britain and North America were moving away from such naturalistic views and toward ones resting on the positive-law enactments of the Glorious Revolution on which Parliament's supremacy rested. Ironically, it would be to the older "higher-law" language of 17th century English constitutionalism to which separatist Americans recurred before invoking the possibly more modern language of natural human rights. (It is not a small matter that American lawyers preferred a reactionary English defense of monarchical prerogative rather than embracing a novel one of natural human rights.) American whigs were, thus, in an awkward position of simultaneously wanting to embrace the spirit of the Glorious Revolution that elevated the standing of the people's legislature, Parliament, while needing to deny its institutional British outcome, its absolute sovereignty.

Americans, in the main, defended their corporate political rights of self-government and common-law trials using the constitutional and common-law language of Britain and that of customary colonial privileges, liberties and rights. Individual rights, per se, were never mentioned in the polemics on either side, except when Loyalists warned and then complained of having lost them. Of course Parliament, in kind, responded in defense of its sovereign rights. Thus, the pre-eminent constitutional issue of the conflict was joined: both sides, until the spring of 1776, defended different readings of the unwritten British imperial constitution, and claimed corporate political rights that could not be relinquished without, according to their defenders, dire consequences — slavery according to the Americans and the re-emergence of monarchical tyranny according to the British.

Many Leading American Patriots Avoided the Language of Natural Rights.

The desire to avoid placing the American defense of corporate self-governance on a natural rights foundation was especially true of the dominant conservatives in the middle and southern colonies (Virginia, with both conservatives and radicals was an exception); men like John Jay, James Duane, the Morrises, the Livingstons, James Wilson, John Dickinson and the Rutledges. From the scant evidence available on what shaped their thinking, they seemed to have avoided natural rights claims because they considered them constitutionally suspect and because of their incipient fears of legitimating a set of socially corrosive claims with hard to foresee consequences.

Still, on July 4, 1776, a majority of the colonies' delegates endorsed a Declaration of Independence with such language. In it, they explained to the bankers of Europe, Whig and radical supporters in England, the French and Spanish governments, and to those many Americans still opposed, the reasons for their break with Britain. In part, they used natural rights language because they were no longer free to appeal to British constitutional rights. Now, they had, even if only temporarily, to defend hallowed British civil rights (this did not change) on a new foundation, that of natural individual rights. The initial phase of a newly born struggle between two powerful languages of rights had begun. At least in the short term, the language of natural, abstract and individualis¬tic rights prevailed over the language of conventional, customary and corporate rights.

When independence came, conservatives, along with Loyalists and the politically indifferent — to say nothing of women, Native Americans, African slaves, indentured servants, un-enfranchised property-less men and those from the backcountry who were under-enfranchised — formed a majority in most colonies. Yet, unlike like-minded Loyalists, conservative patriots awarded their allegiances to their newly independent states and, consequently, came to work with the newly elevated language of natural rights. But almost immediately they began to conspire to regain control over popular political processes, to re-create and re-assert the power of a super-ordinate government (like that of Britain) over the popular governments of the states (culminating in the Constitution), and to limit the legitimacy of natural rights discourse. As with Pandora's Box, however, this proved difficult.

It seems, therefore, that the future history that the preamble and like words would come to enjoy, both in terms of their tension-ridden democratic and individualistic potential, were not well understood by Congressional delegates who, under the enormous demands of running a war and creating a government without the aid of an executive branch, sanctioned the preamble of the Declaration with little debate. Some years later, Edmund Randolph looking back on concerns raised regarding the antecedent and comparable natural rights language in the June 1776 Virginia Declaration of Rights wrote that "perhaps with too great an indifference to futurity, and not without inconsistency, that with arms in our hands, asserting the general rights of man, we ought not to be too nice and too much restricted in the delineation of them." But, he importantly added, "the slaves not being constituent members of our society could never pretend to any benefits from such a maxim." The radical implications of the inalienable natural rights language of the these two seminal Declarations were, at best, only dimly understood and, at worst, believed to be controllable.

Natural vs. Civil rights.

Here, then, we enter the "real" and continuing debate over the meaning of rights in early national history. What must be determined is whether the claimed rights were natural but of little relevance to daily political and social life; common civil ones and, thus, anything but inalienable; or something new being advanced by radicals, that is, rights that were simultaneously natural and civil and, thus, inalienable in society. Based on the limited evidence at our disposal, contra the claim of many past and contemporary admirers of new radical "natural rights," it seems certain that most of the Congressional delegates understood the preamble's rights claims to be traditional natural rights, that is, rights that had little standing inside of society. In the most common understanding of the time, men upon entering society surrendered their equality and almost all of their natural rights in lieu of alienable civil rights (except, as noted earlier, that of religious conscience and, in many cases, that of a people to self-government). These civil rights (and privileges, liberties and immunities), unlike natural rights, were protected by a polity within the limits set by historical contingencies and public need, not the absolute, though unenforceable, standards of natural law.

Accordingly, natural liberty and rights were fully inalienable only under a limited number of conditions: most importantly, in theory, when an individual was in a pre-social setting; or as the Declaration described the colonists, when the constituent members of one people or nation attempt to deprive another of them; or as the Virginia Bill of Rights explained, when one generation tries to "deprive or divest their posterity" of them. These three environments — pre-social, between nations or peoples, or inter-generational — were outside the boundaries of civil law and were ones in which natural rather than civil rights were preeminent and, thus, understandably featured in the preamble's rights claims (the preponderance of the Declaration, the 28 indictments of the King, however, focused wholly on his denial of America's British constitution­al rights). As Americans claimed, one generation could not surrender the rights of its descendants nor could one people give up its natural rights to another. Civil rights were another matter and, by most, were understood as alienable. As will soon become clear, there was no similar prohibitions against limiting the civil rights of any group, class, gender, or race. Such denials were common. Only by understanding the traditional 18th century difference between natural and civil rights (and their respective distance from the new natural rights that were both inalienable and social) do the preamble's rights claims make sense and free the Congressional delegates of the stain of rank hypocrisy.

Most "Founding Fathers" Awarded Limited Standing to Individual Natural Rights.

Thus, when trying to assess how limited the range of traditional natural rights was, and how selectively civil rights claims were defined in revolution¬ary-era state and national declarations, it must be kept in mind that Congressional and state delegates were men who endorsed the following:

  • The limitation of political and certain civil rights to property-owning adult males;
  • The denial of most property rights to married women;
  • In many instances, the owning of chattel slaves;
  • The rampant, wholesale and enthusiastic dispossession, either by force or thievery, of the lands of Native Americans;
  • The grievous under-enfranchise­ment of the majority of property-owning males in the western portions of their states;
  • The suppression, most particularly in New England (excepting Rhode Island) where religious establishments would be maintained until well into the 19 th century, of equal religious rights for minority groups; and
  • The maintenance or strengthening of religious-based barriers, including the supposedly radical constitution of Pennsylvania, that debarred all but Trinitarian Protestants, most particularly excluding Catholics, from elected state office (and, thus, from being Federal Senatorial electors and in many instances, Presidential electors).

These same men, who (in the eyes of some) supposedly endorsed an individualistic radically new understanding of natural rights, while enthusiastically denying political and most civil rights, even the most basic, to men who were suspected of maintaining loyalty to their still legal governments.

The American Revolution was not Fought in Defense of Radical Natural Rights nor did most of the "Founding Fathers" Understand the Implications of a "Natural-Rights Philosophy."

After two centuries of effort by historians, little evidence has yet been advanced demonstrating that these predominantly classically educated, conventionally religious, wealthy, elitist, socially respected, slave-owning, committed participants in a system of married gender inequity, and eminently practical lawyers, merchants and planters endorsed in 1776 a political or moral philosophy of radical natural individual rights (that is, natural rights that could not be socially limited). There is no evidence that these men hoped to overthrow colonial political practices and replace them with radically democratic or liberal institutions unknown and unsought in colonial America.

In America's differences with the British ministry, not one of the politically responsible leaders of a state assembly or of Congress defended anything approaching a revolutionary set of democratic or liberal changes in America's elite-dominated politics. America's leading men, those who were not Loyalists, were fighting against the British Parliament in defense of their continued right to self-government. They had no interest in changing the rules that allowed the few to rule over the many.

In sum, almost everything written and done during the 1770s by the delegates of the Continental Congress suggest that they did not understand or foresee what subsequent generations believe they naively or even providentially (as Lincoln held) endorsed in the natural rights language of the preamble of the Declaration of Independence.

If anything, it was those who opposed the elastic character of radical natural rights who were among the first to comprehend their possibilities. Only at the end of the century, in effect at the beginning of a new human millennium, can one find in works like Paine's Rights of Man (1791-92) a bold endorsement of the still suspect individualis¬m carried within the Declaration's easily misunderstood language of inalienable natural rights. (It is easy to see why, when the language of natural rights can mean such different things depending on its interpretation as traditional or radical.)

Philosophical and Modern Implications.

Even if one accepts this history and the unintended development of individualism that seems to have emerged from the rhetoric of natural rights ultimately employed in defending America's separation from Britain, there is nothing in this history that precludes one from welcoming the outcome. Put differently, understanding the early stages of the modern history of (radical) natural rights, adds or detracts nothing from their potential merit. An understanding of the contested history of a concept may weaken commonly accepted lazy and dishonest defenses (i.e. this is how "we" have always thought or believed), but it leaves open whether the concept deserves moral approbation. In shifting focus from history to moral philosophy, the central questions change from being ones concerned with what has been historically true to what ought to be defended.

History may serve as a helpful guide in highlighting the problems that a philosopher will confront. This is especially true here because there is a dangerous lack of symmetry between the radically individualistic content ascribable to inalienable natural rights and the prosaic communal demands of almost any imaginable natural society. The philosophy of inalienable natural rights, therefore, deserves close scrutiny rather than ready endorse¬ment.

If ever fully implemented, the radical individualism found in the contempo¬rary understanding of natural rights — standing starkly in opposition to the long enduring communal¬ism of small-town American life — would leave each individual free to determine the legitimacy of socially valued constraint. With such a possibility, one might find compelling the response of Edmund Burke, the great 18th century Whig leader in Parliament and seminal figure in the development of conservative thought, to the American crisis. He counseled, when trying to adjudicate between the rival and incompatible rights claims of the colonists and Parliament, that he was not "going into the distinction of rights, nor attempting to mark their boundaries." He explains further that "I do not enter into these metaphysical distinctions; I hate the very sound of them . . . [for such claims should be relegated] to the schools [universities]; for there only they may be discussed with safety."

Conclusion.

It is particularly ironic that one of today's most powerful moral and political languages, that of inalienable natural rights, enjoys a history in which the putative founder, John Locke, likely had no intention of giving birth to a secular and individualist understanding of man that, if taken seriously, would denigrate his divine nature and make the most important features of communal life difficult, if not impossible, to fulfill. Similarly, one of the most important theoretical expressions (the Declaration of Independence) of the philosophy of radical natural rights was a rhetorically brilliant but philosophically vacuous sentence in a wartime political document written for discrete corporate political ends. Additionally, the dominant moral and political philosophy that embraces the language of radical natural rights, liberalism, seems to have emerged out of the 18th century, or maybe still earlier out of the 17th century thought of Thomas Hobbes and John Locke, with a paternity that two or three hundred years later is still in doubt.

This philosophy, without an easily marked out continuous past rests today on what many of its most philosophically sophisticated critics on the right and left, like Alasdair MacIntyre and Richard Rorty, believe to be mutually agreed upon conventional fictions. Contemporary liberal defenders of natural rights, cognizant of their philosophical failings, have adopted what might be described as an oddly pragmatic "don't ask, don't tell policy" regarding their lack of defensible philosophical foundations. MacIntyre, however, in After Virtue rejects such a defense and attacks as unsustainable a philosophy resting on natural rights that exist only in the realm of speech and where "belief in them is one with belief in witches and unicorns." But, then, who ever said that foundational moral and political claims need rest on something other than mythic and irrational grounds? Of course, it was those historical thinkers closely associated with the development of a philosophy of radical natural rights.

It seems that many of liberalism's contemporary adherents, while undercutting the grounds upon which natural rights were initially advanced, have chosen quietly to abandon difficult philosophical questions and instead have committed themselves to insuring that political liberalism continues to thrive, with or without a rationally defensible foundation. But how long can faith-like beliefs in human natural rights, without either a credible epistemic foundation or divine religious support survive? Here the lessons of history fall silent.

Barry Alan Shain is an associate professor of Political Science at Colgate University. He is the author of The Myth of American Individualism: The Protestant Origins of American Political Thought, and Man, God, and Society: An Interpretive History of Individualism.