Rights claims have always been central to American political discourse. This fact is suggestive of great continuity. Closer inspection of these claims reveals, however, that there has been significant disagreement historically over who is entitled to what rights and why. In this section we shall focus upon the two most influential conceptions of rights that have shaped our governance historically.
During the dispute culminating in American independence from British rule, the colonists invoked rights having their source both in the positive (or man-made) law and then more fundamentally in the natural law. In its 1774 Declaration and Resolves, for example, the First Continental Congress identified “the principles of the English constitution, and the several charters or compacts,” as well as “the immutable laws of Nature” as the source of the colonists’ rights (Declaration and Resolves of the First Continental Congress, October 14, 1774). In its July 1776 Declaration of Independence, however, the Continental Congress grounded the rights of the individual in the “laws of Nature and Nature’s God.”
It would be easy to fault the Founders for not mentioning women in that statement, unless we remember that to their way of thinking, “men” and “mankind” were acceptable ways to describe groups that include men, women, and children. We might also fault them for allowing slavery to persist, even as they wrote a document about human freedom. What we should keep in mind, however, is that we base our belief that slavery is wrong on the very ideas embodied in the Declaration of Independence and the United States Constitution.
The equality of men, in the sense of humankind, is the core tenet of the Founders’ understanding of the “immutable laws of Nature.” “We hold these truths to be self-evident,” the Declaration proclaimed, “that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” In the Founders’ view, no human being is so decisively superior to other adult human beings that he is entitled to direct their actions without their express consent. By Nature, in other words, all adult human beings, regardless of their race, sex or class, are free to rule themselves or, what is the same, to exercise the same “inalienable rights,” including the right to life, physical liberty, acquire and use property, marry and raise children, communicate one’s opinions, and worship God according to the dictates of one’s conscience. These rights are not conferred upon man by the positive or man-made law, but, rather, are “natural” in character because they have their source in human nature itself.
Even though some of their beliefs don’t fit our modern sensibilities, the Founders embraced world-changing ideas about justice and freedom. To appreciate this, it is helpful to understand how people were governed in the centuries before America’s Founding.
The Founders’ understanding of the equal, natural rights of man gives rise, in turn, to the social compact theory of government. Because no one possesses an inherent right to rule over other adult human beings, no government exists by Nature. Rather, as the Declaration noted, “governments are instituted among men, deriving their just powers from the consent of the governed.” If man is by Nature free the only way one adult comes to have a right to rule over another is through his consent. “[T]he people,” Publius observes in Federalist No. 49, “are the only legitimate fountain of power” (James Madison, Federalist No. 49, 1788). For the Founders, then, government is created by the creature of the people, not the other way around. The Founders’ understanding of the equal, natural rights of man also determined the legitimate aim and hence scope of government. Although men are by Nature free, and thus entitled to direct their own actions, the Declaration implied that they were nonetheless unable to exercise their freedom well in the absence of a government. “That to secure these rights,” the Declaration continued, “governments are instituted among men.”
James Madison made the same point in Federalist No. 51. “If men were angels,” he wrote “no government would be necessary” (James Madison,Federalist No. 51, 1788). But men are not angels and will never be so wholly rational and virtuous as to resist all temptation to interfere with the equal rights of others. To better secure what is left insecure in a state outside of government, individuals agree to establish a government. In principle, then, the legislative power of government is not absolute: it cannot rightfully exercise its delegated powers for whatever purpose it chooses. Rather, it is obliged to exercise its powers in an effort to restrain those who would violate its members’ exercise of their natural rights; it must also restrain its own interference in order to ensure wide scope for individual decision-making.
Throughout history, most people have been treated unequally by their rulers. Unless one were born into a privileged family or tribe, there was little access to the precious resources that are taken for granted in a prosperous societythings like meat, well-defended shelter, and education. In many cases people might be enslaved, or something close to it. People were treated unequally, both so that the powerful could have more comfort, and because rulers believed most people couldn’t be trusted to make decisions about how society should operate.
As we have seen, the Founders declared that no one has a right to rule others simply because of the family into which he’s born. Instead, they believed that everyone is born with certain rights and that the law should equally protect people’s freedoms and property.
For the Founders, in short, governments derive their powers from the “consent of the governed,” and are also obliged to enhance this might lead to the second understanding: rights enhanced by government individuals’ ability to exercise their equal, natural rights.
The United States experienced significant economic and social changes in the late nineteenth century, but the United States was also in the midst of a profound philosophical change. In this period progressive reformers, exchanged the Founders’ understanding of the social compact in favor of a new conception of the State.
This was important to the Founders because they believed government exists not only to make rules; but also to ensure justice.
Charles E. Merriam was one of the most influential political scientists of this period. In a 1903 survey of his fellow progressive social scientists, Merriam concluded:
As American ideas about equality changed, we enacted laws to free American slaves and to extend voting rights to women and those without property. We moved to stop government agencies from treating African Americans unequally, whether by denying them the right to vote, denying them access to city-owned hospitals, or simply failing to extend to them the same police protection enjoyed by other citizens.
The progressives thus frankly set aside the Founders’ understanding of equal, natural rights as the basis of its members’ legal rights. Rather, the reformers affirmed that “every one has a right to be what he was meant to be; that he has a right to develop himself, to maintain and carry out his true nature.” In other words, the progressives held that individuals have a “moral claim” to develop their innate but unrealized facultiese.g. their physical, mental, and moral capacitiesas fully as possible. In their view, only this right of “self-development” was “innate” or “essential” in character.
A long period of mistreatment had contributed to substantial poverty in African-American communities, and this was not the only inequality in the United States. A growing economy presents numerous opportunities for people to start new businesses, or find ways to earn money using their particular skills and ideas. Just as varied abilities (and sometimes luck) ensure that different players on a baseball team will score different numbers of runseven when they’re all playing by the same rulesa free economy yields different rewards. It offers substantial benefits to everyone participating in it, but especially large rewards for people whose luck, skill, or perseverance makes them exceptional.
As the progressives understood it, then, the purpose of the State was to organize a society whose every relation promoted a higher level of physical, mental and moral development among Americans generally than had previously been achieved. This aim could not be achieved unless the various hereditary defects and social/environmental obstacles that frustrated the development of Americans were reduced, perhaps even eliminated in order to elevate the physical, mental, and moral quality of American life. To do this the law would have to exert a far higher degree of government control over citizens than had previously been the case. It would also have to treat Americans facing different developmental obstacles quite differently.
Despite the Great Depression and two world wars, Americanseven the poorest Americanssaw their standard of living rise tremendously during the twentieth century. Our understanding of equality and fairness was changing, however. While the Founders believed government should protect everyone’s rights impartially, many Americans came to believe that outcomes should be more equal. We began to take money from some individuals to give to others, and to offer special benefits, like preferential treatment for minority-owned firms seeking government contracts. In order to achieve more equitable outcomes, in other words, our government began to treat people unequally.
The earlier progressives thus famously criticized governmental protection of the equal right to contract, as merely enabling employers to take advantage of poorer workers, thereby securing terms of employment detrimental to the workers’ ability to improve themselves. To correct this inequality, the progressives advocated laws denying employers a legal right to enter into contracts for hourly wages beneath the minimum wage and for hours in excess of the legal maximum. They also advocated social insurancee.g. workman’s compensation, unemployment compensation, old-age insurance and health insuranceas well as greater public provision of various material, educational and other cultural resources to further offset the developmental constraints of less affluent Americans.
Some people see this as necessary to pursue equal treatment. Their point is that if the game has been rigged to keep some people from scoring, it is not fair to just start treating everyone equally, because some are now behind in the game. Efforts to redistribute wealth and adjust racial, ethnic, and gender proportions in workplaces and even sports teams are, they believe, necessary to achieve the Founders’ vision of a society where everyone has equal protection under the law.
But the earlier progressives did not believe that mere social or environmental reforms could eliminate every obstacle to progress. They worried that if the law continued to secure the equal, legal rights of “defective” Americans to live independently, get married and have children, they would simply reproduce children like themselves who would consequently stunt, maybe even reverse, the improvement of Americans generally. The reformers thus favored compelling “defectives” to reside in state-run institutions, denying them the right to marry, and subjecting them to compulsory sterilization. Progressive like Margaret Sanger, the founder of what would become Planned Parenthood, advocated for sterilization. In a 1926 issue of Birth Control Review, Sanger stated: “Here is only one reply to a request for a higher birthrate among the intelligent, and that is to ask the government to first take the burden of the insane and feeble-minded from your back. Sterilization for these is the answer” (Margaret Sanger, Birth Control Review, 1926).
Others argue that two wrongs do not make a right, and that we are punishing people who did nothing wrong for the sins of their ancestors. People are getting accustomed to living on government programs, they say, creating long-term dependency.
No student of American history or government can begin to understand how contemporary Americans think about their rights without examining the century-long great debate over our understanding of rights.
Americans disagree about what our government should doif anythinggiven the unequal outcomes that naturally occur in a free society. Thankfully, the Founders crafted a political system we can use to work out our disagreements. What we should avoid, meanwhile, is taking for granted that we will always enjoy the equality our Founders promoted. We each depend on our government to protect our rights equally, but we have to remember that this depends, in turn, on citizens upholding that ideal.
For example, if we see someone who is charged with governing otherswhether a senator, a mayor, or even a homeowners association presidentallow favored members of the community to get by without following rules, or, worse still, make rules designed to hurt those they disfavor, we should question the justice of this.
nn”We hold these truths to be self-evident, that all men are created equal…”
“That alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own” (James Madison, “On Property,” 1792).nn
The scales of justice are a symbol for the justice system in the United States.
The Constitution protects justice for all citizens in the United States.nnequality,Declaration of Independence