Professor Svetozar Minkov, Roosevelt University
The word “right” occurs only once in the original United States Constitution—in Article I, section 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” — but the
Is the Constitution’s single use of rights here accidental or is it an indication that technological progress is central to the American experiment?
near-absence of the word from the Constitution cannot conceal the crucial role individual rights—both natural and positive—play in American history and political thought.
The Constitution itself presupposes individual rights in its establishment of the rule of law. And it implicitly refers to such rights in its preamble:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the
Does justice encompass rights? Does it include more than rights?
common defence, promote the general Welfare, and secure the Blessings
What is the relation between the general welfare, justice, and rights?
of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The preamble suggests that the people have a right to “form a more perfect union” and the “blessings of liberty” that Union is to secure are analogous to “rights.”
How are the blessings of liberty the same or similar as rights? And how might they differ from rights?
And then there is the majestic Bill of Rights, correcting the almost complete silence about rights in the Constitution. To be sure, Madison, who introduced the Bill of Rights, had spoken of it in strategic terms: the objective of the amendments was to “give satisfaction to the doubting part of our fellow-citizens,” that is, to appease the Anti-Federalists. Madison believed that the Anti-Federalists misleadingly “taught [people] to believe” that the Constitution by itself endangered their liberties.
By being too centralized and powerful.
Combating this misapprehension, Federalist Paper 84 (written by Alexander Hamilton) argues that the preamble to Constitution was a “better recognition of popular rights than volumes of aphorisms which make the principal figure in several of our State bill of rights and which sound much better in a treatise on ethics than in a constitution of government.”
Why does Hamilton think a list of rights is more abstract or textbook-like than the institutional arrangements of the Constitution?
But all this is to say that Madison and Hamilton thought that rights were implied, fundamental to, and sufficiently protected by the Constitution itself.
Protected against whom or what? And what does it mean that the First Amendment—and thus perhaps all of the Bill of Rights—addresses an injunction to Congress—“Congress shall make no law…”? Shouldn’t rights be protected against the encroachments of the executive and judiciary branches as well?
And it was partly because of the Constitution’s silent but powerful support for rights, that the rights explicitly enshrined in the Bill of Rights became the core of American self-understanding and political life.
Even if it is undeniable that the idea of rights is intimately related to the heart of the Constitution and the spirit of the United States, this only raises further questions:
- What are the philosophical and historical foundations of rights? What are the theoretical and practical arguments for them? Are the ultimate arguments for the existence of natural rights philosophical and even scientific or are they merely pragmatic?
- What, in the first place, is the meaning of a “right”? An instinct or powerful desire? An ability or a liberty? A privilege?
- Which right or rights is/are most important or most fundamental?
- If a right implies that something or someone owes us something, how was this debt incurred? Put another way, if I have a right, does that mean someone else has a duty toward me?
- What is a natural right? Is the nature referred to in “natural right” human nature or nature more broadly? Does a natural right have a theological basis or is it, conversely, an assertion of human right or entitlement against God and perhaps against nature?
On the Citizen and Leviathan
Hobbes’s On the Citizen and his Leviathan are foundational works of modern political philosophy.  They contain the profound reorientation of political thought from a focus on duties to a focus on rights. Hobbes established the natural rights of the individual—rights that are prior to all duties, prior to all government, and even prior to all society. Hobbes was the theoretical discoverer of the primacy of individual rights, and the one to puts rights on a solid basis, even though he was not a republican or a democrat. In fact, he may have driven to be a monarchist precisely because he was anxious to secure individual rights and feared that a republic may be too chaotic or anarchic to do so.
There is another paradox in Hobbes’s discovery of individual rights. Hobbes found the deepest justification of individual rights, not in proud, confident, or certain self-assertion, but in the realization that happiness is elusive and human life insecure. This state of affairs endows each of us with a rock-bottom individual liberty, with a justification to pursue happiness, “the assuring of a contented life.”
Questions to consider as you read the selections:
- What is the strongest impulse in human nature and how does it express itself in a natural right (On the Citizen I.7)?
- On what basis does Hobbes deny in ch. XI that there is an ultimate or final purpose of human life? On the basis of natural science? Of human experience? Of an analysis of human psychology?
- What is the main desire (or right) in Hobbes? For life? For a life of contentment? For dominance?
- What are the arguments for equality that Hobbes makes in ch. XIII?
- What is the relation of desire for life, equality, and the right to live as we see fit?
De Cive/On the Citizen
Chapter 1, Paragraph 7
Among so many dangers therefore, as the natural lusts of men do daily threaten each other withal, to have a care of one’s self is not a matter so scornfully to be looked upon, as if so be there had not been a power and will left in one to have done otherwise. For every man is desirous of what is good for him, and shuns what is evil, but chiefly the chiefest of natural evils, which is death; and this he doth by a certain impulsion of nature, no less than that whereby a stone moves downward. It is therefore neither absurd nor reprehensible, neither against the dictates of true reason, for a man to use all his endeavors to preserve and defend his body and the members thereof from death and sorrows. But that which is not contrary to right reason, that all men account to be done justly, and with right. Neither by the word right is anything else signified, than that liberty which every man hath to make use of his natural faculties according to right reason. Therefore the first foundation of natural right is this, that every man as much as in him lies endeavour to protect his life and members.
Chapter XI, “Of the Difference of Manners” (Paragraph 1)
By manners, I mean not here, Decency of behaviour; as how one man should salute another, or how a man should wash his mouth, or pick his teeth before company, and such other points of the Small Morals; But those qualities of man-kind, that concern their living together in Peace, and Unity. To which end we are to consider, that the Felicity of this life, consists not in the repose of a mind satisfied. For there is no such Finis Ultimus, (utmost aim,) nor Summum Bonum, (greatest good,) as is spoken of in the Books of the old Morall Philosophers. Nor can a man any more live, whose Desires are at an end, than he, whose Senses and Imaginations are at a stand. Felicity is a continual progres of the desire, from one object to another; the attaining of the former, being still but the way to the later.
What consequences does this definition of felicity or happiness have for one’s idea of rights? If one’s happiness is a constant work in progress, does this limit or augment one’s right to pursue happiness?
The cause whereof is, That the object of man’s desire, is not to enjoy once onely, and for one instant of time; but to assure for ever, the way of his future desire. And therefore the voluntary actions, and inclinations of all men, tend, not only to the procuring, but also to the assuring of a contented life….
Chapter XIII, “Of the Natural Condition of Mankind, as Concerning Their Felicity and Misery” (Paragraphs 1 and 2)
Nature hath made men so equall, in the faculties of body, and mind; as that though there be found one man sometimes manifestly stronger in body, or of quicker mind then another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himself any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest,
What do you think of this hard-headed or low-minded justification of equality (not, for example, the infinite dignity of each individual)?
either by secret machination, or by confederacy with others, that are in the same danger with himselfe.
The Second Treatise
In 1689, John Locke published anonymously Two Treatises of Government. In the First Treatise, Locke had undermined Robert Filmer’s theory of the “Divine Right of Kings” to rule. Locke challenged Filmer’s argument in his 1680 Patriarcha that all legitimate political rule is traceable to the first father of humankind, Adam. Confident that he had deprived such theocratic claims of their force, Locke then presented his own positive and rational teaching in the Second Treatise. The work defines and defends political rights, especially the right to property, and relates those rights to human freedom and equality. It is sometimes noted that the phrase “life, liberty, and the pursuit of happiness” is almost wholly taken out of Locke. And since Locke at one point defines “property” more broadly as “life, liberty, and estate” (section 87 of the Second Treatise), the right to property may be said to be the most fundamental and comprehensive right for Locke, as it was later for Thomas Jefferson.
Questions to consider when reading the selections:
- In Chapter II, what is the relation between freedom and equality? Is one prior to, or more fundamental than, the other?
Consider also the order of equality and liberty at the beginning of the Declaration of Independence.
- In Chapter V, what are the arguments for the right to private property? Is private property more necessary or better justified in a world of plenty or in a world of scarcity?
- Is there a right to unlimited acquisition of private property? If not, what limitations are there?
- In Chapter VIII, what are the steps in the argument that all obligations to others are derivative from agreement or consent?
Second Treatise of Government
Chapter II, “Of the State of Nature”
Section 4. To understand political power right, and derive it from its original,
Does this mean all political power is derivative from another kind of power? If so, what is the power that precedes political power?
we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.
Chapter V, “Of Property”
Section 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself.
Not even a Creator God?
The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and
What does it mean to “mix one’s labor” with something? Does, for example, stealing an object amount to mixing one’s labor with the object?
thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.
Section 28. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given
There is a natural plenty or abundance. But how does this claim square with the claim in section 43 below that nature has provided “only the almost worthless materials”?
him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.
Section 37. This is certain, that in the beginning, before the desire of having more than man needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man; or had agreed, that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great
The introduction of money seems to be based on our desire for more than we need. But how is one to square that claim with the praise of the benefit of money in sections 49 and 50 below?
piece of flesh, or a whole heap of corn; though men had a right to appropriate, by their labour, each one of himself, as much of the things of nature, as he could use: yet this could not be much, nor to the prejudice of others, where the same plenty was still left to those who would use the same industry. To which let me add, that he who appropriates land to himself by his labour, does not lessen, but increase the common stock of mankind: for the provisions serving to the support of human life, produced by one acre of inclosed and cultivated land, are (to speak much within compass) ten times more than those which are yielded by an acre of land of an equal richness lying waste in common. And therefore he that incloses land, and has a greater plenty of the conveniencies of life from ten acres, than he could have from an hundred left to nature, may truly be said to give ninety acres to mankind: for his labour now supplies him with provisions out of ten acres, which were but the product of an hundred lying in common. I have here rated the improved land very low, in making its product but as ten to one, when it is much nearer an hundred to one: for I ask, whether in the wild woods and uncultivated waste of America, left to nature, without any improvement, tillage or husbandry, a thousand acres yield the needy and wretched inhabitants as many conveniencies of life, as ten acres of equally fertile land do in Devonshire, where they are well cultivated?
Property and the invention of money leads to an improvement of what nature has given us. That is a justification of the right to ownership. But it also means that there will be inequality and “quarrels” will arise (section 51).
Section 39. And thus, without supposing any private dominion, and property in Adam, over all the world, exclusive of all other men, which can no way be proved, nor any one’s property be made out from it; but supposing the world given, as it was, to the children of men in common, we see how labour could make men distinct titles to several parcels of it, for their private uses; wherein there could be no doubt of right, no room for quarrel.
Section 43. ….nature and the earth furnished only the almost worthless materials, as in themselves. It would be a strange catalogue of things, that industry provided and made use of, about every loaf of bread, before it came to our use, if we could trace them; iron, wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dying drugs, pitch, tar, masts, ropes, and all the materials made use of in the ship, that brought any of the commodities made use of by any of the workmen, to any part of the work; all which it would be almost impossible, at least too long, to reckon up.
Section 49. Thus in the beginning all the world was America, and more so than
Meaning: underdeveloped, or in a condition of scarcity.
that is now; for no such thing as money was anywhere known. Find out something that hath the use and value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his possessions.
Section 50. But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a disproportionate and unequal possession of the earth, they having, by a tacit and voluntary consent, found out, a way how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus gold and silver, which may be hoarded up without injury to any one; these metals not spoiling or decaying in the hands of the possessor. This partage
of things in an inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money: for in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions.
Section 51. And thus, I think, it is very easy to conceive, without any difficulty, how labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it. So that there could then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and conveniency went together; for as a man had a right to all he
What does it mean that right or “conveniency” (that is, utility or usefulness) in the use of property went together and what does it mean that they may no longer go together?
could employ his labour upon, so he had no temptation to labour for more than he could make use of. This left no room for controversy about the title, nor for encroachment on the right of others; what portion a man carved to himself, was easily seen; and it was useless, as well as dishonest, to carve himself too much, or take more than he needed
Chapter VIII, “Of the Beginning of Political Societies”
Section 95. Men being, as has been said, by nature, all free, equal, and
Freedom and equality go together, but are we equal insofar as all of us are free, or do we all deserve to be free because we are equal?
independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.
Section 96. For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with
If human beings don’t already have deep natural obligations to one another, how do they create a permanent and trustworthy community among themselves? Can natural sociality be denied consistently?
a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see, that in assemblies, impowered to act by positive laws, where no number is set by that positive law which impowers
Assemblies and political bodies can make positive or conventional laws. They cannot legislate or eliminate natural rights.
them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.
The Declaration of Independence
Questions to consider in reading the passage:
- How many self-evident truths are listed?
- Could the Declaration have listed life, liberty, and the pursuit of happiness in a different order?
- What does “self-evident” mean in this context?
- What does “unalienable” mean in this context?
- Is “their Creator” the same as “Nature’s God”?
- The pursuit of happiness—rather than the attainment of happiness—is a concept that is consistent with Hobbes’s elusive “felicity.” Yet in Hobbes there is a no “utmost aim” whereas the Declaration speaks of God and Creator. Are rights in the authentic or original American sense a blend of Hobbes’s rebelliousness and Biblical loyalty?
The Declaration of Independence (Beginning)
The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind
What is the difference between the Laws of Nature and those of Laws of Nature’s God? Or are the two identical?
requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive
Does this mean that the Declaration agrees with Hobbes (see my – Minkov’s – introduction to Hobbes) that rights are always and naturally legitimate whereas no form of government is permanently and essentially legitimate?
of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
- The very manner of articulating the legislative, executive, and judiciary powers in Articles I, II, and III implies that the citizens have a constitutional right to be free, or an immunity, from all authority outside the legitimate powers delineated in the these Articles. ↵
- Speech in Congress, June 8, 1789. ↵
- The Anti-Federalists had argued that the more decentralized Articles of Confederation were truer to the principles of the American Revolution than was the Constitution. ↵
- The philosophical justification of rights came after the political assertion of rights by the English colonists. Consider, for example, the 1639 Act for the Liberties of the People by the General Assembly of Maryland: “Be it Enacted By the Lord Proprietarie of this Province of and with the advice and approbation of the ffreemen of the same that all the Inhabitants of this Province being Christians (Slaves excepted[)] Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England by force or vertue of the common law or Statute Law of England (saveing in such Cases as the same are or may be altered or changed by the Laws and ordinances of this Province)…” ↵
- For a fuller articulation of Jefferson’s foundation of natural rights, see this passage from his letter to Pierre Samuel Du Ponte de Nemours (April 24, 1816): “…I believe with you that morality, compassion, generosity are innate elements of the human construction; that there exists a right independent of force; that a right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings; that no one has a right to obstruct another, exercising his faculties innocently for the relief of sensibilities made a part of his nature…” (emphasis added). ↵