The prior post in this series may be found here.
The question about what constitutes the fundamental law and rights of the people, and who can articulate the existence of those rights underwent further development prior to the American Revolution. Dean Pound argues that with the Glorious Revolution of the 1688, Britain took the position that the highest law was the positive law as declared by Parliament. This was a movement away from the legal and philosophical position of Coke and Blackstone.
Thus, a philosophical conflict was set up in the streams of English law. The Americans took a position consistent with the earlier understanding and different than that developed in Britain after 1688.
The conflict is distilled in the argument over the Declaration of Independence, which the author of the essay (Manion) calls, “the best possible condensation of the natural law-common law doctrines as there developed and expounded in England and America for hundreds of years prior to the American Revolution.” (16)
It was those arguing on behalf of Parliament against the Americans who were taking the innovative position:
In 1776 the British Government was insisting that the “law of the land” and “the immemorial rights of English subjects” were exclusively and precisely what the British Parliament from time to time declared them to be. This claim for parliamentary absolutism was at variance with all the great traditions of natural law and common law as recored through the centuries from Bracton to Blackstone. (16)
At the time the Americans were insisting upon the Declaration of Independence, they saw themselves not as advancing new arguments as insisting upon old understanding of the law. Thus, ironically, the Revolutionaries were fighting against revolution.
This also means that we must be careful not to attribute the American Revolution to arguments advanced by Locke (certainly not solely to Locke). In fact, Locke contains elements which militate against the natural law arguments made in the Declaration. For instance, Locke contends that once the government has been properly instituted, “the majority have the right to conclude the rest.” (19) Natural law would argue that the majority have a limited right. They cannot deprive a minority of their natural rights.
Thomas Jefferson, writing to Francis J. Gilmer on June 7, 1816 explained that the duty of the legislature is to protect the natural rights of the citizen:
Our legislators are not sufficiently apprised of the rightful limits of their powers: that their true office is to declare and enforce only our natural rights and duties, & to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him: every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him: and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. when the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded that on entering into society we give up any natural right.
Reference was also made to James Madison’s argument in the case Robin v Hardaway 1772, before the Virginia General Court. The argument is remarkable on many grounds:
The Indians of every denomination were free, and independent of us; they were not subject to our empire; not represented in our legislature; they derived no protection from our laws, nor could be subjected to their bonds. If natural right, independence, defect of representation, and disavowal of protection, are not sufficient to keep them from the coercion of our laws, on what other principles can we justify our opposition to some late acts of power exercised over us by the British legislature? Yet they only pretended to impose on us a paltry tax in money; we on our free neighbors, the yoke of perpetual slavery. Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his laws, we are in conscience bound to disobey.
How then would natural rights be protected? The American contribution was to divide the power:
The effective limitation of sovereignty and government by division, judicial review, and democratic forces, was thus held to be a necessary corollary to the doctrine of unalienable rights….Revolutionary America believed that such an evil institution as government would certainly get out of hand unless closely checked from every side….It was not enough … to belabor sovereignty with sound philosophy. Sovereignty had to be split and checked and degraded to the point where it was obviously a servant of the people’s God-given rights. (21-22)
There were debates about the timing of the Declaration. But the philosophical argument made concerning the excess of the British government was not questioned. The pre-political rights of the people was understood by all American Founding Fathers.
This essay ends as follows:
Meanwhile, and ever more and more precariously, we continue to be the one remaining country on earth where the individual may protect his God-given rights against his own government and everybody else. (29)
Something which seems inherent in this discussion of rights is what mean by “right.” If a “right” is a pre-political “right” inherent in the individual and given by God, then it is coherent to say the government may not take away that right.
What then if the government (not God) is the source of a “right.” Such a right is merely shorthand way of naming some privilege I currently possess. But if that privilege comes only from the government and is not grounded in anything beyond the positive exercise of power by the government, depriving me of that “right” is quite different. Yesterday, I had the right to drive 45 mph on this street. Tomorrow I may only drive 35. The government’s action may be capricious, but have I really lost a “right”?
The giving or taking of such “rights” contains no moral component: I may or may not approve such a change in position, but I cannot really say I have been wrongfully treated. To say that I will not be punished or I will be punished for some behavior is all one. But calling the absence of punishment a “right” is to equivocate on “right.” If some appropriately instituted governmental authority exercises its power in some way or another, there has been no real change of “rights” even if their has been a change of law.
“Right” means merely I do not want to assert an argument and I want to prevent you from advancing an argument against my position. A “right” means something it would be morally wrong to take. But where the rights are not “natural” but merely political, then “wrong” means nothing more than what I want. Immoral thus becomes a matter of counting noses (assuming a democracy).
We could argue from some pragmatic position, which will be raised in the next essay in the Natural Law Institutes recorded proceedings, “The Natural Law and Pragmatism”.