Read the full transcript of Professor Thomas G. West’s lecture on Constitution 101 (Lecture 2) titled “Natural Rights and the American Revolution”, Premiered Oct 2, 2019.
Listen to the audio version here:
TRANSCRIPT:
Introduction
THOMAS G. WEST: Hi, I’m Dr. Thomas West, Hillsdale College. I teach in the politics department. I’m a professor of politics. And my talk today is going to be on natural rights and the American Revolution. And the topic is a good one because it indicates two things. One is a theory, a theoretical concept, natural rights. And the other is a historical event rooted in a time and place, the American Revolution.
So in order to understand our founding, it’s important, I think, to grasp the connection between theory and practice, between the ideas that motivated or that helped the founders to structure their activities and actions against Britain. And at the same time, to understand what the practical fight was all about with the British that led to American independence.
Colonial Relationship with Britain Before the Revolution
In the period leading up to the revolution and independence in 1776, people in the colonies had been pretty much left alone by the British with some exceptions. There was a long period in which there was a kind of uneasy truce, you might say, between the colonial legislatures elected by the colonists and the royal governor sent over from the king and from Britain. And there was a rivalry there. The colonial legislatures tended to get their way, much to the chagrin, often, of the British officials. And that was an arrangement that lasted for quite a while.
But then there was the French and Indian War, which changed everything. That war concluded in 1763 with the Treaty of Peace that then led both sides, both the British and the Americans, to think very differently about their relationship with each other.
From the British side, they became increasingly impatient with the colonists, now that there was no longer the French threat on the northern border to worry about. They needed the colonists to fight the French, which had been a theme throughout the 18th century, but now the French were defeated. They’re gone as a serious power in North America, and it’s up to – then it became the British Empire. But that meant that they didn’t – the British government didn’t have to treat the colonists so politely. And they also pointed out, colonists, we’ve been defending you all this time, and you haven’t been paying taxes, or at least not very many taxes. So we’re going to do something about that. We’re going to start taxing you, and we’re also going to start making it clear to you that you’re part of the empire and you have to obey us.
On the colonial side, of course, the Americans’ attitude was, now that the French threat is gone, we don’t need the British as much. So all that time when the British were saying, you know, you need us, and they did need – the colonists did need the British forces to – with respect to the French. Now it was, let’s go off on our own, or at least let’s not be pressed and pushed around by the British. There was not an immediate desire for independence in 1763, but the attitude of the Americans was, let’s not let the British push us around anymore. Let’s stick to our own way of doing things and make the British acknowledge that.
That led to the crisis that started in the 1760s, 70s, leading up to the actual Declaration of Independence in 1776.
Natural Rights Doctrine
What the colonists were doing throughout this period is not just reacting in a visceral way to their desire to be free, but they also had at hand, ready at hand, a doctrine of natural rights and natural law which had been around the colonies for quite a while. These ideas had come into the colonies sometime around 1710 or shortly thereafter, became widely known and discussed in the colonies throughout that period between 1710 and the end of the French and Indian War 50 years later.
The Americans therefore were able to say, look, it’s not just a matter of our wish to not be dominated by you people, you British. It’s also we have a right to be free. We have a right to self-government. And the British, of course, in response said, no, you don’t. You’re part of the empire. You have to obey the parliament. And that’s the story. That’s the end of it. We might compromise. We might let you have a little freedom. But that was the gist of what happened.
So what the appeal to the natural rights doctrine, which began in earnest in the 1760s, was an appeal to a doctrine that claims to be universally true for all human beings everywhere. And that’s what gave the revolution its peculiar flavor of not just being a local quarrel between this and that group, but a quarrel that was made in the name of universal principles of natural law, natural rights, of something that is true now and forever and will always be true about human relationships.
That teaching of the natural law is stated all over the place in founding era documents. You could find in the Declaration of Independence, most famously. You see it in state after state, states that put together constitutions. Most of them had bills of rights, had statements of principle. These doctrines were widely held. You hear occasionally some people will say, well, that was just Jefferson’s idea, and he was influenced by the French. That’s ridiculous. These ideas had been around the colonies for 60 years by that time and widely accepted and known and became officially part of the record in the revolution.
Understanding Equality in the Declaration
And what you find in these state constitutions is various restatements of the same ideas that are in the Declaration of Independence, and they help to clarify.
So in the Declaration you have all men are created equal, and that has led lots of people to make all kinds of assumptions about men and women, about blacks and whites, and so on. It’s not about human equality in the sense of we’re all the same. It’s about human equality in the sense of no one has the right to dominate anybody else without their consent.
The founders had a way of – they had different formulations of this. For example, Virginia, all men are by nature equally free and independent. Or Massachusetts, all men are born free and equal. These were different versions of the same thought, that no one has the right to rule another, that there is a – and that was also put in moral language in terms of rights and natural law.
So the right, the natural right idea arises from the notion that not only are we born equal in the sense nobody is ruling, we also have a right, a moral claim that we can make on behalf of that state of we do belong. We do deserve to be equal and free and equally free.
And from that then comes the idea of a natural right to liberty from which in the founders’ minds, all the other rights in one way or another can be derived.
If you have a right to be free, not to be ruled by another, that means the right not to be assaulted, not to be killed by another, thus the right to life. If you have the right to be free to use your own mind and your own body to acquire property, that means you have a right to property. If you have a right not to be dominated in the way you worship God, that’s a religious freedom right.
The basic idea is all men are born free in the sense that everybody who is part of a government ought to have given that person his or her consent to be part of that government. Equality then can be understood to be a moral claim in two ways. One is it’s about the moral rights and obligations of human beings to each other. And as I said just now, the basic right to liberty and all the other rights that follow from it. And the other is a claim about the right to rule.
Who has the right to rule, born equally free and independent, means not born into a slave relationship or subordinate relationship. Understand, of course, when they talked about this, they didn’t mean children. They always understood children are under the temporary control or wardship of their parents. But that was always understood to be a wardship that was a preparation for freedom once the children grow up. There was no idea of patriarchy throughout life in the founder’s conception.
THOMAS G. WEST: reached the age of majority, let’s say 21 typically in American law at that time, you’re free. Free of your parents. And from then on you are free of everything unless it’s the laws that you’ve given your consent to obey. And it’s that consent, it’s that giving of consent collectively that is what creates a nation, creates a people that is then to be governed by a particular form of government. Founders used the term social compact to mean the agreement we all make with each other, fellow citizens make with each other, to form a government and to accept the rules made by that government. And once you’re in the social compact, you then become an exclusive body apart from the rest of humanity. And the government you’re creating is for you, your fellow citizens and protection of you and your rights. It’s only for the protection of you and your rights, not for the protection of the rest of mankind and their rights.
So what does it mean to be free and equal in a day-to-day situation? I like to use the example of a job. When you apply for a job, you are saying to the employer, I have something valuable to offer you, my labor. And if you offer me something valuable, let’s say pay a salary, we’ll make an agreement. And the agreement is an agreement between equals. I agree to be ruled by you insofar as I’m employed by you. You agree to pay me. And it’s a relationship of subordination. It’s not a relationship of permanent subordination. That would be slavery. An employment contract always has limits beyond which the employer is not allowed to go in order to protect the life, liberty, and property of the employee. But that’s one example, a simple example of how equality works in practical life and day-to-day life.
Now, the idea of consent of the governed is fundamental to the founding. And, in fact, the revolution itself was primarily fought in the name of consent because the issue was can the British impose taxes upon our people without the consent of our own locally elected legislative bodies? And the answer was no, they can’t. And taxes and any form of government intrusion on our life, liberty, or property has to be with the agreement of the people who live under that government. And that has to be expressed through elected legislatures or through democracy where people get together in person as, say, in a New England township.
Now, that consent, what did that actually mean in practice in terms of structuring government? Do we want to have a legislative body? Is it a good idea to have an executive? What about judging? What about courts? All of that had to be worked out and thrashed out, and that was an area where a lot of the disagreements in the founding came forward. There was general agreement on consent in the form of elections, a general agreement that government needed to have some kind of an executive for prosecutions, for directing the armed forces, for dealing with sudden problems like an uprising or organizing the militia. But the disagreements in terms of structure of government I’m not going to go into today. That’s going to be the topic of the next couple of talks in this series.
The Purpose of Government: Securing Rights
What I am going to focus on today is the subject of what government is supposed to do once it’s formed. The Declaration of Independence has a nice formulation:
To secure these rights, governments are instituted among men.
To secure these rights. What does that mean? What does security of rights mean? You can also look at the state constitutions and say, how did they describe the purpose of government? Was it the same? Was it security of rights? And the answer is, well, sometimes they use different language. One of the terms that was often used to explain the purpose of government is the word protection. Protection is what the government is supposed to do, meaning protection against harm to your own life, liberty, and property.
And that protection has two sides. It’s the side of the national government against the outsiders, potential foreign attack, and protection against your fellow citizens who might harm you, harm your life, liberty, or property because they’re misbehaving. So protection – let me just give you an example from the Virginia Declaration of Rights:
Government ought to be instituted for the common benefit, protection, and security of the people, nation, or community.
So that’s what “to secure these rights” means. Protection – benefit of protection and security of the people, nation, or community. Again, the emphasis is on our people. The government is not protecting people in Mexico or Canada or elsewhere in the world. That’s a subject that is often misunderstood today. There’s an assumption today that if human rights are universal, it’s the job of every government in the world to protect rights all over the world. The founders rejected that idea completely and totally.
Another example from the New Jersey Constitution preamble: the King of Great Britain has refused protection to the good people of these colonies, therefore we have a right to revolution. Refused protection, that was the one word. You’re not protecting us against injury, and in fact, as New Jersey went on to say, you’re attacking us, you’re harming us. You’re harming our people, you’re putting soldiers here and shooting at us.
Government’s Protective Duties
So then the question becomes, all right, what policies does government have to adopt in order to do this protecting of the people?
The first point, of course, is protecting against outsiders by means of armed forces, by means of what we call foreign policy. Diplomacy, statecraft, negotiation, perhaps making alliances, but in the end, it comes down to do you have soldiers in the field who can physically defeat a potential or an actual threat to the life, liberty, and property of American citizens?
So this first part of government’s protection or protective duty is about armed forces, and that, of course, does include border enforcement. One of the points of having a nation of your own is it’s for the people who live here. Anyone who wants to come here has to ask permission, and permission is not automatic. It’s given, again, by consent of the governed, by the consent of the people who live here. The idea of a universal right to immigrate to a nation that says, I don’t want you here, founders would have said, no, that’s immoral. That’s a violation of the moral principle that all men are created equal and that we, therefore, who have created our own government, have a moral right to say, who will be our future fellow citizens? That’s our duty and our right, not someone else’s.
The second part of protection and what government has to do to protect is to create laws against crimes. That’s the most urgent part of the domestic politics side of the founders’ argument. And so one of the topics that came up early on in America during the revolution and in its aftermath was to create constitutions and laws to protect citizens, criminal laws, for example.
Jefferson had a great quote on that in his proposed revision of the laws of the state of Virginia in 1778 in which he states that it’s precisely because vicious and immoral men who try to take away the rights of other people that we have criminal law. And without criminal law, he said, the purpose of society would not be achieved, by which he meant protection and security of life, liberty, and property.
So if you ask people today, sometimes I’ll ask my students, how does the government secure our rights? They’ll often give you a statement like, “Well, that’s what the Supreme Court is for and they have rules against discrimination and so on.” Well the founders would say, no, government protects your rights not just through the judiciary but through all three branches of government. You have to have a legislature to make laws. You have to have an executive to carry out arrests and prosecutions and punishments and a judiciary to decide, is this person who’s accused by the government truly guilty or not guilty? You need all three branches. That’s what makes government protection possible through criminal law.
And that’s what we see occasionally on TV shows based on this idea – trials, people prosecute. That’s how it’s supposed to work. One of the characteristic features of government today in America is the deprioritization of criminal law enforcement. Not everywhere, but especially in major cities of America today, the ability of police and prosecutors to find criminals, prosecute them successfully and have them punished is
There are some cities in which the police, if they’re called out on a theft, if you call the police and say, somebody stole something out of my house, they’ll go, “Okay, we’ll fill out a report for you, you can take it to the insurance company. But no, we’re not going to look into it.” Founding fathers would say, you guys don’t get what government is for. It’s for protection. And protection means you have to deter crime by making it clear to people who commit crimes, they’re going to pay a penalty.
So figure out what’s wrong, what happened, why do our priorities somehow go somewhere else? And if you ask police departments today or prosecutors, they’ll say, “Well, we don’t have a budget for it,” which means something has gone wrong at the level of the state legislature or at the level of city government where money is being spent on something that is of lower priority than actual protection of the lives and properties of citizens. That’s a problem from the point of view of the founders, but it is the way we do government today.
Equal Protection and Due Process
One could sum up the founders’ conception of law enforcement that was developed during the revolution in two phrases, equal protection of the laws and due process of law. Equal protection meaning, in the founders’ view, equal protection meant when there’s going to be a rule, a general rule that applies to everybody. It will define what crimes are and it will say what the penalties are going to be. And government’s duty is to provide equal protection.
So no matter how wealthy the perpetrator might be, what race he might be or the sex of the person committing the crime, government has the same obligation to prosecute and punish in the same way anyone who commits the crime. That’s fundamental.
But precisely because government is so strong and powerful when it’s engaging in this activity of protecting, it also needs to follow procedures called due process of law, meaning you don’t just take somebody and punish them without giving them a chance to defend themselves. So government has to prove its case, in theory at least, in court for any significant punishment to take place.
For a person to be deprived of liberty or property or money, trial, a right to defend, a right to call witnesses, a right to speak to about to cross-examine, to deal with whatever you need to do, bring forward whatever you need to bring forward in order to show, if you can, “I didn’t do that, I’m not guilty.”
Those two concepts, equal protection of the law and due process of law, were later embodied in the 14th Amendment, which was meant to take the basic founders’ political theory of what government’s supposed to do that was developed during the American Revolution and then apply it to the states. Each state was, from then on, obliged by the federal constitution to provide the same protection of the laws and of the due process of law that was already required and expected at the federal level in its own law enforcement jurisdiction.
Federal vs. State Division of Power
One of the early debates in America was over, do we need a federal government, and if so, what should be its scope and its powers? The founders came up with a very simple way of dividing up that labor. The federal government was going to be primarily responsible for foreign policy, and the state governments for domestic policy, with some exceptions.
But basically, the federal government didn’t really have a whole lot to do in early American history other than foreign policy. Now, there were some exceptions to that. The federal government was given some powers to regulate commerce, basically to maintain a national free market, and so on. But those were general exceptions. Generally, the states handled things having to do with property law, commerce, and contracts, things of that kind. And I’ll be talking about that in a talk I give later on in the series.
Today, when we teach American government in college, we often tend to focus on the national government. That’s, of course, the exciting part, the big one that everyone notices. And of course, today, the feds have become so important, we tend to forget the role of the states, which still remains quite powerful even today.
I believe the percentage of court cases that are handled at the federal versus the state level is about over 90 percent still are state court cases. Most law, most law enforcement, most legal issues come up, not at the federal level at all. And that is how they designed it. And to that extent, it’s still there is to some extent that same division of labor still prevails.
Heroes of the American Revolution
One of the things that John Quincy Adams pointed out in a famous speech he gave on July 4th, 1821, was that the American Revolution had its heroes. And of course, everyone tends to think of things like George Washington, the other great generals of that period, the soldiers, the people who sacrificed their lives to create an independent nation. And that’s true, Adams says, that was true.
But what he adds to that is he says, you know, there are other people who were also heroes of the American Revolution, and we don’t tend to acknowledge that. Those are the people, he said, who figured out how to write the constitutions and the laws, state and federal, that have given us our liberty and enable us to sustain that liberty. They’re heroes, too, because that’s not easy to do.
What America Was Meant to Be
I want to conclude this talk by asking the question, what then was America meant to be at the time of the founding? And I want to emphasize again, ideas are not people. The ideas of the American Revolution were indeed unique to the American Revolution. But those ideas are meant to be universal for all mankind.
But it was a particular people. It was these people over in America, the British settlers, other Europeans were here, predominantly Europeans, who made the nation what it was. And they were not randomly assembled from all around the world.
One of the things the founders were very conscious of is how difficult it is to establish and sustain a political regime that is going to be a free regime, a regime of freedom. John Jay in Federalist Two points out that Americans really do belong together, not just because they hold the same political principles, and he does mention that, but also because they are:
a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.
And Jay’s point partly was, if it hadn’t been for all those things we already had in common prior to forming the Union, we might not have been able to do it. Liberty is only possible to be established in the founders’ minds if the people are capable of supporting liberty and living according to the requirements of liberty.
There are many cultures in the world today, and there were then too, where people who live in these places don’t like freedom and have no experience of freedom. The founders, in fact, doubted openly whether places like Latin America or even some places in Europe could ever maintain a regime of political freedom.
Natural rights belong to everyone in the founders’ view, but you have the right, obviously, you have the right to create a free country, but you don’t always have the ability to. It depends on who lives there and what their attitudes are and how good their leadership is.
In some cases, the founders pointed out you can’t have consent of the governed if you’re going to have any kind of protection of the rights of the individual. There was a revolution in Haiti that took place during the 1790s, and people in the founding were saying they’re not going to be able to have a free government there. You can’t have an elective government in Haiti. Probably a military despotism is the best they’re going to do. That was a quote from Hamilton.
Jefferson held the same view when he was asked about Latin America in the 1820s. He said, look, this is a place that’s going to be really difficult to form any kind of lasting free government there. I hope they can do it, he said. They ought to. They deserve it, but it’s going to be tough.
The founders had answers as to how to keep the population morally capable of being free. They didn’t think it would work everywhere, but they did think it would work here. I’ll talk about that later in the series. Thank you.
