Rights are fundamental principles upon which every government in history has built the foundations of legitimacy, forming the basic structure and content of law.
(This article was written for the Federalist Coalition and was originally posted at federalistcoalition.com on September 6, 2017.)
Rights are fundamental principles upon which every government in history has built the foundations of legitimacy, forming the basic structure and content of law. The variances of political philosophy and morals in society, as represented in dramatically different approaches to government, center around alternate approaches to and understandings of the definition of rights and upon whom such rights are naturally conferred. Even a philosophy of absolute despotism concedes and preaches the existence of rights, for how else could such a government convince its people of its right to dominate their lives?
Prior to the Age of Enlightenment, rights were not generally considered to be universal in nature nor invested equally in all mankind. While the philosophers of kings recognized rights as being inherent and natural gifts of God, they held them to be reserved for individuals whose birth and position manifested a divine decree of the right to rule. This “right to rule” meant that every natural right that might belong to individuals was accumulated and bestowed solely upon the Monarch, the father of his people, absolute master of his realm and all who dwell therein. With this understanding of political philosophy, it’s no surprise Pope Innocent III threatened King John with excommunication from the Catholic Church if he observed the agreements of the Magna Carta.
The Great Minds of the Enlightenment such as Locke, Montesquieu, Voltaire, Smith, and Rousseau were considered by many in their time to be radicals and discontents who were attempting to turn the established order upside down. Indeed, their arguments were not that rights are given to government by God to rule over mankind with absolute authority, but that nature and nature’s God bestowed all original rights upon individuals and that government only gains authority by consent of those who would be governed.
Certain American revolutionaries, such as Jefferson, Madison, and Adams, were energetic students of the Enlightenment Era and recognized the unique opportunity of American independence to craft a government built upon its theories. This is why the republic formed by the adoption of the US Constitution is often called “The Great Experiment”, for it was forged upon new and radical ideas of the rights of humanity and gave us a nation wholly unique and distinct in the history of mankind.
While the writings of the philosophical and political pioneers we call the American Founders concern themselves with various and sundry considerations, they are fundamentally concerned with the enumeration of rights and the processes of an equitable form of representative government to preserve and protect those rights. While there was much disagreement, even at the time, there were enough areas of common belief that modern historians categorize the whole of it into a generally defined philosophy of political thought and form of government process. These are classical liberalism and federalism.
The connection between philosophy and application in process creates a unique question and consideration: are rights solely granted by nature and nature’s God or can rights be granted by government upon its people?
If we are to believe that rights originate with the individual and that government only has authority and legitimacy by consent of the governed, it appears clear that government would not be able to grant additional or created rights…at least at first glance. The reality of government as it attempts to adhere to philosophy muddies the waters considerably.
To make it clear, a natural right is a right that exists independent of government and its laws. It is a right we can deduce through logic and an understanding of human nature to have been bestowed upon men in their first instance. Put any man or woman alone in the wilderness, cut off completely from society and its laws, they would still possess certain freedoms of will inherent to their existence. They would have the right to live, to fight to remain living, the right to take and own what they choose to seize as their own, and the right to seek happiness as they see fit.
The majority of the rights enumerated in the Bill of Rights are natural rights, deduced through reason and meant to be protected against abuse by our form of government.
But, what of the rights we consider inherent to equitable representative government that do not exist in our wilderness scenario? These rights only become manifestly necessary after a form of government is agreed upon.
Back to the man or woman alone in the wilderness. Could they, absent any knowledge of our political philosophies, deduce independently that they have the right to vote? Or, can even a group of men, loosely bound to each other for mutual protection in the wilds, gain any concept of the right to vote until some form of social contract and basic governance is established?
Herein lies the difference between natural rights and civil rights.
A civil right is a right which protects the natural freedoms of individuals from infringement due to the realities created by the existence of government, of social organizations, and interactions with other private individuals.
Some philosophers, such as Thomas Aquinas, have argued there is no such thing as civil rights. They claim that any right not grounded in natural law is no right at all, but a pretense of a right. This, however, is an argument of abstract technicalities. It is hard to lay a clear line of separation between natural rights and civil rights, not only because of the changing sentiments of philosophies in mankind, but because they are inherently and inevitably connected.
Though civil rights only manifest themselves as necessary upon the creation of instituted government and may vary depending upon the structure such government takes, true civil rights are still nevertheless grounded in natural law, as their core purpose is to protect the integrity of natural rights in the face of a government given authority in certain aspects of our lives. To return to the example of the right to vote, while such a right is not inherently manifest in the independent existence of a man, it nevertheless becomes inherently necessary to grant a voice at the table of government once established, in order to maintain the rights which are inherently natural.
So, to be clear, natural rights are universal and inalienable regardless the form a government takes and constitute the minimum of expected freedoms a government must protect, whereas civil rights are enumerated by law and relative to specific considerations in order to maintain equity given the unique aspects of governed society.
All of these considerations seem clear until we consider other forms of rights as expressed in alternate political philosophy and varying interpretations of the purpose of rights. Chief among these politically disorienting ideas is an expectation that the presence of certain rights should lead to equal outcomes as well as the idea of collective rights.
Collective, or group rights, are rights said to exist by nature of association that would not exist independently. These are not the same as civil rights because whereas their nature is to uphold natural rights given the realities of governed society, collective rights would be unique to the specific association and have as motivation the intended betterment of the collective, often at the expense of the individual and their natural rights.
A belief in collective rights, and subsequent negligence of natural rights, has arisen several times in in the past two centuries, often resulting in blood and sorrow. The Confederate States of America founded itself on the idea of States Rights, maintaining the collective of the American South had a right to the economic and social benefits provided by slavery, regardless of the natural rights of the slaves themselves. Socialist and Communist countries preach the rights of the workers and often limit or destroy the concepts of individual property and other natural rights in order to protect the collective rights of the proletariat against the abuses of the capitalist bourgeoisie, but often open doors for similar abuses from an unchecked centralized government.
The reality is, there is no such thing as collective rights. Only individuals think, feel, and act. Membership in groups or collectives may grant individuals additional privileges or authority, and members of the group can grant authority and legitimacy to the hierarchy of the group, but natural rights cannot be changed or thwarted and civil rights hold legitimacy only in their protection of natural rights. To believe that any collective or group can grant itself the right to suppress rights is a tyrannical and regressive step backwards towards the philosophies of kings and despots and, rather than building upon the ideas of natural and civil rights, provides a basis for tearing them down.
An even more quietly creeping alternate philosophy is the one that holds properly applied rights and freedoms should inevitably lead to equal outcomes. This philosophy has led many who claim respect for natural and civil rights away from the sphere of natural law. They see the presence of unequal outcomes and take it to mean there is inequality inherent in the system itself. They often eventually seek to wield the powers and authority of government to ensure equal outcomes, which inevitably leads to gentle but building assaults on natural and civil rights and the tweaking or even suspension of rights and freedoms.
True liberal government and the actual application of natural law concerns itself, not with equal outcomes, but with equal opportunity. Reason and logic tells us that men and women, while born equal in the eyes of God and respected as such in the eyes of the law, do not have equal capacities, motivations, or aspirations. This is an inescapable reality, one which tells us that a focus on government policies guaranteeing equal portions of necessities and outcomes must inherently damage and lessen the natural and civil rights of those blessed with stronger wills and natural talents above their peers. There is no aspect of natural law that suggests a reasonable expectation for equal outcomes. The only thing natural law guarantees and supports is the expectation for equal opportunity for success.
The great crisis which American government has been faced with in the last century is understanding how to craft civil rights and liberties to match the challenges of an industrialized and modern world which focus on the maintenance of natural liberties as opposed to deviating towards the support of collective rights or the attempt to guarantee equal outcomes which ultimately damage natural rights.
If we are to ensure that this “Great Experiment” continues to endure and thrive we must reaffirm the importance of the principles and ideals upon which it was originally founded and ensure that government operates within the sphere of natural law, holding the maintenance of natural rights as paramount while looking to the establishment of civil rights which can appropriately deal with the unique challenges our nation faces.
Our founders left for us a strong foundation of equitable and free governance, built upon philosophies of reason and logic, and the greatest tragedy I can contemplate would be the squandering of such a noble inheritance by unwittingly adopting and supporting philosophies which do not hold the rights of humanity as self-evident and inalienable.
-Justin W. Stapley (The Millennial Federalist)
Categories: Politics and Philosophy