The Tradition of Rights
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.”
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.
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.
“Government,” as Madison wrote in 1792, “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” (Madison, “On Property,” 1792).
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.
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:
“The individualistic ideas of the ‘natural right’ school of political theory, indorsed in the Revolution, are discredited and repudiated. The notion that political society and government are based upon a contract between independent individuals and that such a contract is the sole source of political obligation, is regarded as no longer tenable [a valid theory].” He added, “The doctrines of natural law and natural right have met a similar fate” (Charles E. Merriam, A History of American Political Theories, 1903).
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 faculties – e.g. their physical, mental, and moral capacities – as fully as possible. In their view, only this right of “self-development” was “innate” or “essential” in character.
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.
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 insurance – e.g. workman’s compensation, unemployment compensation, old-age insurance and health insurance – as well as greater public provision of various material, educational and other cultural resources to further offset the developmental constraints of less affluent Americans.
In 1944, President Franklin D. Roosevelt, whose presidency did so much to implement these rights on the federal level, hailed them as representing, in effect, a “second Bill of Rights.”
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).
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.
Ancient Republics and European Charters
In this lesson, students will compare and contrast excerpts from The Republic of Plato and selected Federalist Papers by James Madison to determine in what ways Madison agreed and disagreed with Plato, regarding human nature the proper role of government in a society. What influence did Plato have on James Madison and the writers of the Constitution? In what ways did they agree? In what ways did they disagree?
Colonial Experience with Government and Economics
When European colonists came to North America, they faced the challenge of establishing societies that reflected their identity and mission for God. Experiments with economic and civil liberty followed in the name of the common good. Colonists and, later, the Founding generation became convinced that legally requiring individuals to commit their labor or their money towards a communal farm or church, with no regard for individual contribution or conscience, violated principles of justice. The link between economic liberty and the liberty of conscience became clear to many, and is responsible for liberating “a field without an horizon ... to the exploring and ardent curiosity of man.”
Rights and the Declaration of Independence
The Declaration of Independence, based in part on the philosophy of John Locke, was an “expression of the American mind”. Going back to Magna Carta, British nobles had petitioned the monarch demanding limits to his power. But Locke argues and the Declaration of Independence asserts that legitimate government is based on the consent of the governed. Locke’s ideas were too democratic, too revolutionary for his time in England, but a century later they had a firm hold in the American colonies, and in 1776 they were the basis of the original and most fundamental American statement of rights, the Declaration of Independence.
The Articles of Confederation
In 1777, the Second Continental Congress adopted the Articles of Confederation, the first government of the independent United States. The Articles created a “confederacy,” an association of sovereign states. Every state was its own country, except with respect to those powers expressly delegated to the U.S. Congress, and it agreed to do certain things for and with the other states in the confederacy. But by the mid-1780s, more and more people were becoming concerned about problems with the Articles.
The Constitutional Convention
During the “critical period” after the American Revolution, many were concerned that the Articles of Confederation were inadequate for the states to grow commercially and economically. The Confederation Congress announced a meeting to revise the Articles of Confederation, but not everyone was convinced that the Articles needed revision—or even that the goals of the Convention were admirable. Divisions emerged among the delegates regarding centralized power, executive power, representation, and slavery. This lesson plan includes six activities. The activities may be taught in sequence as a comprehensive overview of the Constitutional Convention or individual activities may be taught as stand-alone lessons.
The Ratification Debate
After the Constitution was completed and signed by 39 delegates on September 17, 1787, many of the debates from Independence Hall continued in the debates over ratification in the states. For the Constitution to go into effect, at least nine states would have to ratify (or agree to adopt) it. A party division arose: Federalists argued in favor of ratification, Anti-Federalists against. Leading Federalists James Madison and Alexander Hamilton made a case for ratification in the Federalist Papers. Leading Anti-Federalists were Patrick Henry and George Mason. Mason had attended the Convention but refused to sign the final document, arguing that the central government created by the Constitution would be a threat to liberty and would take away power from the individual states.
The Bill of Rights – Docs of Freedom
The Anti-Federalists had many objections to the Constitution, and one of them was that it did not have a bill of rights. Madison was worried that listing some rights would leave those rights that weren’t listed more vulnerable to infringement. But Jefferson put aside Madison’s concerns about the risks of a partial listing of rights, arguing, “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.” Amid the drama of the ratification debate, Madison promised to introduce amendments in Congress. The Bill of Rights, a list that would serve to clarify and emphasize the limited nature of the national government, was ratified and added to the Constitution in 1791.
Early Challenges in the Constitutional Republic
The ink was barely dry on the Constitution when the first challenges to its protections arose. These early challenges to the new constitutional republic often involved the meaning of the Constitution itself. What did its words actually mean, and who would get to decide?
The End of Slavery and the Reconstruction Amendments
The interests of Northern and Southern states grew increasingly divergent. Eleven states eventually seceded from the Union and formed the Confederate States of America. After the Civil War, Congress required that the southern states would approve the Thirteenth, Fourteenth, and Fifteenth amendments as a condition of their re-entry into the union. The Thirteenth Amendment banned slavery throughout the United States. The Fourteenth Amendment granted citizenship to formerly enslaved people and banned states from passing laws that denied the privileges and immunities of citizens, due process, or equal protection of the law. The Fifteenth Amendment extended the right to vote to black men. The Fourteenth Amendment in particular was a dramatic departure from the Founders’ Constitution, and set the stage for dramatic increases in the size, scope, and power of the national government decades later.
The Fourteenth Amendment and Incorporation
The Bill of Rights, setting limitations on Congress, originally applied only to the national government. In the effort to protect individual rights of the freedmen, the Fourteenth Amendment was ratified in 1868. It differs from every previous amendment because it limits what state governments may do. Over the next seventy-five years, the Court’s use of the Fourteenth Amendment increased. It used the Due Process clause in that amendment to strike down many state laws and to selectively incorporate parts of the Bill of Rights into the Fourteenth Amendment so as to make them apply to states as well as the federal government. This practice, known as “incorporation,” increased the Supreme Court’s power to define rights for the entire Union, and reduced the power of the states as compared to federal power. It also reduced the power of Congress as opposed to the Supreme Court, to define which rights are properly constitutional. This changed the meaning of the Bill of Rights from a series of limits on government power to a set of rights belonging to the individual and guaranteed by the federal government.
The Progressive Era
Part of the Civil War’s legacy was a shift in the role of the national government. The defeat of the South, Reconstruction, and the Supreme Court’s interpretation of the Fourteenth Amendment gave the national government growing power over the states and the people. The Fourteenth Amendment gave the national government power (though exactly how much power was still being debated) to ensure state laws did not violate the rights of the freedmen. Additional amendments during the Progressive Era (the 1890s - 1920s) continued this transfer of power to the national government. In the name of giving power to the people, the national government was given power to tax incomes; states lost their representation in Congress, the manufacture and sale of alcohol was banned, and women achieved the right to vote.
Rights and the New Deal
Presidents Herbert Hoover and Franklin D. Roosevelt responded to the Great Depression by asking for - and receiving - much greater powers to intervene in the economy. Congress passed hundreds of bills and created dozens of new offices and agencies, dramatically expanding the size and power of federal bureaucracy. In his 1944 State of the Union address, FDR proposed a “second bill of rights.” The political rights in the 1791 Bill of Rights, he argued, had “proven inadequate” for the challenges of the times. While the natural and inalienable rights in the U.S. Bill of Rights are mostly negative in nature, the new rights FDR proposed were positive in nature. Rather than protecting the individual’s natural liberty so he would be free to pursue happiness, FDR’s list of rights was a set of entitlements and services to be provided to certain individuals at the expense of certain others.
The Great Society
The Progressive Era charted a course away from the Founders’ design of limited government to secure individual rights toward the entitlement state that guarantees benefits. Essentially, the Progressives put in place government interference to protect people from corporations. The New Deal sought to make the people more economically equal. The Great Society championed by President Lyndon Johnson continued that trajectory, focusing on protecting minorities. Under LBJ’s leadership, the national government took on the project of building a “Great Society” based on the progressive vision of wise and sophisticated leaders guiding the populace towards enlightenment. By providing basic needs and more, the view went, the government would be freeing people to pursue higher goals and achieve self-actualization. The 1960s saw the institution of sweeping new powers for the national government in the areas of civil rights and affirmative action, education, environmental protection, and many others.
Modern Debates on Rights
Decades later, both the purpose and the consequences of the Great Society are disputed. More fundamental is the question of the nature of rights themselves. Do they come from God and/or nature, or do they come from government? Or some mixture? The controversy over the Affordable Care Act (ACA) is a modern example. The ACA requires that companies provide insurance that covers birth control - including drugs that prevent the implantation of a fertilized egg, which some consider to be abortion - and sterilization. Catholics and some Protestants see these practices as wrong and contrary to the word of God. Conservatives also think it is against what is best in human nature that individuals be promised entitlements.
Rights and Responsibilities
In order to enjoy our tradition of rights in the United States, we must also fulfill responsibilities to assure that all can benefit from the liberty and equality on which the United States was founded. Many of the rights we can exercise have concrete responsibilities of actions we must take to assure the common good. This lesson will examine the differences between rights and responsibilities, and how both relate to the concept of the common good.