Professor Peter Myers, University of Wisconsin-Eau Claire
Should a constitution have a bill of rights? If so, what rights should it include? If we want to think clearly about our own constitution’s Bill of Rights, we need first to understand the idea of rights. Although claims about rights are common in our everyday language, this is not as simple a task as it may seem.
Usually when we claim rights, however, we are saying more than just this one thing. Notice again the language: I have a right to this or that thing. When we claim rights, we are making claims about what is properly ours, what belongs to us. We can then define a right in simple terms as a kind of property, or an entitlement to a given thing. Yet, to say that we have rights is not necessarily to say that we are secure in the actual exercise or enjoyment of rights; it is only to say that we are justified in demanding such security. We can then define a right in more precise terms as a justified and enforceable claim to a given action or object.
A claim of right is thus a twofold claim: it is a claim of permission for myself and a claim of restraint or forbearance on the part of others. The U.S. Constitution recognizes this two-dimensional character of rights when it uses the language of privileges and immunities. (See Article IV, section 2.) A privilege in this basic sense is a right or a freedom to do a given thing. An immunity is a right against, or a freedom from, others acting to prevent or impair a person in their exercise of a given right.
In the tradition of political philosophy, these two dimensions of the idea of rights are indicated in the following selections by the political philosophers Thomas Hobbes and John Locke and the American statesman James Madison.
Notice in particular Hobbes’s emphasis on rights as liberties, and Locke’s and Madison’s emphasis on rights as properties, with the correlative indication of how rights in this two-dimensional sense confer reciprocal duties upon oneself and others.
Thomas Hobbes (1588-1679) was an English philosopher. His most famous work, Leviathan (1651), is among the classic founding texts of modern political philosophy.
The right of nature, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto.
By liberty, is understood, according to the proper signification of the word, the absence of external impediments: which impediments, may oft take away part of a man’s power to do what he would; but cannot hinder him from using the power left him, according as his judgment, and reason shall dictate to him.
A law of nature, lex naturalis, is a precept or general rule, found out by reason, by which a man is forbidden to do that, which is destructive of his life, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved. For though they that speak of this subject, use to confound jus, and lex, right and law: yet they ought to be distinguished; because right, consisteth in liberty to do, or to forbear; whereas law, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.
Second Treatise of Government
John Locke (1632-1704) was, later in life, the most famous philosopher of his day and the seminal figure in the emergence of classical liberal political philosophy. Although he was an Englishman, he has been called “America’s philosopher” due to the influence of his ideas of natural rights, government by compact, and religious toleration in revolutionary and founding-era America.
The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.
…. it is not without reason, that [one] seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.
The great and chief end, therefore, of men’s uniting into common-wealths, and putting themselves under government, is the preservation of their property.
The Virginian James Madison (1751-1836), the fourth president of the United States, is often known as “the father of the Constitution.” He was a key delegate at the Constitutional Convention of 1787, a coauthor of The Federalist Papers, and as a member of Congress, played a primary role in the framing of the Bill of Rights.
This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.
In the former sense, a man’s land, or merchandize, or money is called his property.
In the latter sense, a man has a property in his opinions and the free communication of them.
He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his person.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.
Where there is an excess of liberty, the effect is the same, tho’ from an opposite cause.
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own….
….If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.