Monday, January 4, 2010

James Hanley on the Natural Rights Framework of the American Founding

By James Hanley, PhD

[Note: What follows is taken from this comment at Positive Liberty---JR.]

Just how much of a natural rights framework did the Founding have? I’m not persuaded there was that much of it. Obviously the Declaration is firmly based in a natural rights framework, but that was Jefferson’s style. He only ended up writing it because the rest of his committee knew that a) he was an eloquent writer and b) he was the young kid on whom they could foist the work. For many, perhaps most, of the delegates to the Continental Congress, it may have just sounded good, without them thinking too deeply about how the ideas ought to be applied in their own states upon achieving independence.

The American “Founding,” was multiple events. It was the declaring of independence, via a document based on natural rights. It was the successful fighting of a war, itself not obviously based on natural law. It was later the drafting of a federal constitution, clearly not based on natural law. But in between it was also the drafting of constitutions for the 13 brand new countries–and, yes, they were 13 countries united in a “league of friendship,” rather than a single new country–with varying levels of protection for rights, which is to say, varying levels of natural rights influence. And that federal constitution left as much of that diversity in place as was consonant with establishing tighter ties that bind, which is to say that it paid little, if any, attention to the natural rights of the citizens of the individual states.

28 comments:

Tom Van Dyke said...

As Dr. Hanley points out, there's more to the Founding than the Constitution.

But as for the Constitution itself, it appears that Hanley and Bork agree!

http://findarticles.com/p/articles/mi_m1282/is_n2_v46/ai_15001401/?tag=content;col1

Now, that's one for the history books.

Pinky said...

.
The mark of a cynic is that they hold their self above others to whom they tend to disrespect as being unequal to them.
.
That attitude helps the cynics lift themselves up over others and gives them reason to believe they know what's best for society.
.
Dr. Hanley's attitude of the "Founding" appears to be somewhat cynical.
.
Is he the one who hails from Hillsdale College which is so famous for its paleo-conservative stance? That's the college that is so highly recommended by Rush Limbaught.
.

James Hanley said...

John,

Thank you for posting this here.

Re: TVD,

The idea that the Constitution is not informed by the Declaration is common enough that I think it's just a case of Mr. Bork and I both being members of a large and non-very exclusive club (i.e., the only kind that would ever have me as a member).

Re: Pinky,
No, I'm not from Hillsdale, although I'm in the next county over. In their defense, the college's reputation is driven more by its administration than by its faculty. I've met some fine folks from there who could hardly be described as paleo-conservatives. (They may have some--I just haven't met them.)

I'm puzzled--actually, startled--by your description of my argument as "cynical." I honestly have no idea what about my statement you find fitting of that description.

Pinky said...

.
I wouldn't argue with you regarding your comments; but, I could use a little more dialogue on your part.
.
Here's what you wrote:

Obviously the Declaration is firmly based in a natural rights framework, but that was Jefferson’s style. He only ended up writing it because the rest of his committee knew that a) he was an eloquent writer and b) he was the young kid on whom they could foist the work. For many, perhaps most, of the delegates to the Continental Congress, it may have just sounded good, without them thinking too deeply about how the ideas ought to be applied in their own states upon achieving independence.
.
What I've emphasized seems cynical to me. Maybe you didn't mean that to come off that way?
.
The remainder of your post seems to be in unison with what even the most well informed believe is the case. I guess I could question why you didn't say that among the most important and long lasting purposes on which America was Founded was the creation of the idea that rights belong to the people and that they come from within the beings of the people where they were implanted by their creator.
.
And, as you will notice, I didn't say your post was cynical; but, only that it appears to be so.
.

James Hanley said...

Pinky,

OK, I see your point. I think I need to deal with the two highlighted sentences separately to respond appropriately.

On the first one, this does in fact seem to be what happened. The committee for writing the Declaration was composed of John Adams, Benjamin Franklin, Jefferson, Robert Livingston, and Roger Sherman. Jefferson was indeed already known for his talent for eloquent writing. He also was distinctly the youngest, and at that moment in time, they mostly saw the writing as a task to be fulfilled, not a great honor. It only, after the fact, became a great honor because Jefferson did such an outstanding job. John Adams, allegedly, was rather jealous of Jefferson's fame as the author of the Declaration, as--being the prime mover behind the decision to draft it--he could have chosen to take the lead. Whether he would have written a Declaration good enough to make him as famous and revered as Jefferson, who knows? There's also the fact--noted by Adams himself--that he was not particularly popular, so he might not be a good choice. Adams also claimed, years later, that it was in part because Jefferson was a Virginian, and that Virginia needed to be placed first. Perhaps that was a cynical (or wise) political move?

As to the second sentence, I believe I must plead guilty. You are right to note it as cynical. However I see little evidence that these members of Congress took the natural rights framework of the Declaration to heart insofar as demanding that their states enshrine such ideas. Perhaps they were just too busy with the work of the Congress to have much influence back in their home states. Perhaps it's easier for all people to apply such principles to themselves when in the role of the oppressed than when in the role of the elite. Most likely, there was a range of opinion among the delegates to the Congress, with some enthusiastically in agreement with Jefferson's opening paragraphs, and others inwardly groaning at such high-flown rhetoric, but not seeing it as something to pick a fight over.

Anyway, thanks for your clarification. You were more on point than I had thought. I hope my addition further clarifies things as well.

Pinky said...

.
Thank YOU for your elaboration. You make good sense.
.
Can you comment on the idea that one of America's most influential actions at the Founding had to do with the idea that rights come from within persons and are not handed down? I'm interested in what you have to say about such a claim.
.
(Maybe you remember me? An entire branch of my family is of the Hanley genealogy--all as Irish as Irish gets to be. I love ém.)
.

James Hanley said...

Pinky,

Sorry, my Hanley's were originally Handley--as as English as could be. My grandmother was a Burke, however, so I've got some Irish coursing through my veins (and cursing through my mouth).

Unfortunately I cannot comment on the idea you mention, insofar as it's relationship to the Founding. It is distinctly outside my area of expertise. The only thing I can think of is a line from, iirc, Paine's Common Sense, in which he says we cannot be bound by the laws of dead men.

But perhaps I should note that I personally am not a natural rights advocate but a utilitarian. I would love for natural rights to be real; I just can't persuade myself that they are. (Ducks and runs for cover!)

Pinky said...

.
Maybe I'm not quite sure about the term, natural rights.
.
Does it means that our rights come from a supreme being who rules the universe or does it mean those powers human beings had in their original state before government?
.
If we have a hard time figuring out where it is that those unalienable rights originated, then we have a tougher time expanding upon them.
.
And guess what!
.
We've been expanding upon those rights ever since the Bill of Rights clinched the deal on our Constitution.
.
We're now in the process of trying to invent some expanded rights with the Health Care Reform plans we're trying to institute.
.
I go with the idea of natural rights; but, I think they are the invention of human beings. We invent them and we establish them.
.

Daniel said...

Pinky,

The idea of natural rights is that the pre-exist anyone's power to grant them. No one grants natural rights, the rights already exists. But one can recognize them. On this theory, we can recognize that there are natural rights that we hadn't recognized previously. But, if they are natural rights, we do not invent, grant, or bestow them.

I have avoided the question whether they are a creation of a Deity or are in some other way a part of the natural order or a part of what we are. Most proponents of the view are thiests (but not all), so would argue that the Deity created those rights. But they are 'natural' because they are part of nature, so can be recognized without consideration of their ultimate origin.

Pinky said...

.
So, Daniel, do Natural Rights advocates believe that Life, Liberty, and the Pursuit of Happiness are basic to their claim.
.
Isn't the right of the unborn an invented right?
.

Tom Van Dyke said...

Either that, or the notion that mother's rights trump those of the unborn is.

Daniel writes:

I have avoided the question whether they are a creation of a Deity or are in some other way a part of the natural order or a part of what we are. Most proponents of the view are thiests (but not all), so would argue that the Deity created those rights. But they are 'natural' because they are part of nature, so can be recognized without consideration of their ultimate origin.


Natural law theorists such as Suarez and Grotius proposed that even if there is no God, natural law would still exist. [The Founding era notion of natural rights is a derivative of natural law.]

http://americancreation.blogspot.com/2009/04/primer-on-natural-law.html

However, it does appear the Locke speaks of a "Lawgiver" that give natural law force, and of course Jefferson also grounds natural rights in the Creator.

James Wilson separates the American notion of rights from the British Blackstone and Burke explicitly, where the Brits see rights as given back to the individual by the state, Wilson holds that rights are inherent, as you put it, Daniel, "The idea of natural rights is that the pre-exist anyone's power to grant them."

Wilson:

Upon the whole, therefore, man�s natural liberty, instead of being abridged, may be increased and secured in a government, which is good and wise. As it is with regard to his natural liberty, so it is with regard to his other natural rights.

But even if a part was to be given up, does it follow that all must be surrendered? �Man,� says Mr. Burke,5 �cannot enjoy the rights of an uncivil and of a civil state together.� By an �uncivil� contradistinguished from a �civil� state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone.

Daniel said...

Pinky,

If the 'right of the unborn' is an invented right, it is not a natural right. It may be a recently discovered natural right, but if it is natural, then it is part of nature.

It's an interesting case because many pro-lifers base their assertion on the past century of scientific advances in biology and genetics. If so, then there was a natural right, but only now do we know enough to recogniz that fact. In the same way, we were descended from lower primates before we recognized that and we are created in the image of God whether we recognize it or not.

Similarly, the Scottish Realists based their assertions on recently developed Newtonian physics and experimental and empirical methods.

The topic of this post demonstrates a key weakness of the natural rights view. If we cannot agree on the content of those rights, then how can we assert that they exist at all? The Scottish Realists claimed a "common sense" shared by any with an uncorrupted moral sense, by which Reid meant we can all perceive these rights similary to the way we perceive our physical sense impressions. Of course, as Calvinists, they should not have been basing anything on an uncorrupted moral sense (if they really accepted the Total Depravity of TULIP.

Pinky said...

.
Daniel brings up one of the issues I struggle with in his questions about Natural Rights.
.
Are we going to allow ourselves to be stuck with what the Scottish Realists thought or any other dead philosophers or politicians?
.
Or do we allow new definitions of rights such as Invented Rights that Leif Wener and Stephen Macedo employ in their work?
.
Or will we push these authorities off the table for some idea that they're progressives, liberals, or paleo-conservatives?
.

Tom Van Dyke said...

What's clear, Pinky, is that many today reject the principles and philosophy of those "dead philosopheres and politicians" without the slightest understanding of what they're rejecting.
________________


If the 'right of the unborn' is an invented right, it is not a natural right. It may be a recently discovered natural right, but if it is natural, then it is part of nature.


Daniel, I'd say the "right to privacy" is a much more recently "discovered right, and is a civil right more than a natural right.

As for the "right to life," it echoes the D of I, of course. The Foundeing era, in this case, James Wilson, seems pretty clear and aware of the problem:

“With consistency, beautiful and undeviating, human life from its commencement to its close is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”

Daniel said...

TVD: Daniel, I'd say the "right to privacy" is a much more recently "discovered right, and is a civil right more than a natural right.

The right of privacy is interesting. Before resorting the penumbras and emmanations, Justice Douglas pointed out that the Constitution does recognize a right to privacy, in the warrant requirement, in the right to keep your bedroom free of quarters troops, and a few other things. Were it not a hot button issue, I think there would be broad agreement that there is a natural right of privacy. Of course, we would lack broad agreement on its meaning.

TVD: As for the "right to life," it echoes the D of I, of course. The Foundeing era, in this case, James Wilson, seems pretty clear and aware of the problem

The modern analysis gets interesting because it specifies a right to life from conception. This differs from the traditional view (as the Wilson quote illustrates). But the 'from conception' view cites science unknown prior to the 20th century, thus justifying a recent discovery (or reassessment). To be clear, I am not saying tradition permitted abortion prior to 'quickening' but that that rule was not based on a right to life or personhood of the fetus until movement in the womb. The recent 'discovery' of a right to life of a recently conceived fetus does not change the traditional rule, but it does change the scope of a natural right.

Tom Van Dyke said...

I agree that "quickening" was the standard. I think the polls show the American public opinion consolidates right around that point, too.

As for "privacy," it's the application of it to abortion that becomes a stretch. Yes, the state has no right to quarter troops in a womb, on that we all agree, too.

bpabbott said...

Regarding the right to privacy, I'll ignore the tie to abortion, and comment that there are many who assert that right applies to public places. Meaning some assert Google street-side, or public cameras, violate a right to privacy.

In my opinion, such a assertion qualifies as an invented right.

I'll also agree with Justice Douglas that Constitution does recognize a right to privacy, in the warrant requirement. However, I also think the right to conscience bolsters that right as well.

Of course, what is a natural sentiment to me , may not have been natural for individuals 200+ yrs ago. Although, I doubt it.

Pinky said...

.
Generally, Tom, when a person refers to "dead philosophers", what they mean to connote is that thinking is truncated with the last conclusions of those philosophers before they died. So, if you are stuck with Burke, you are stuck with his last conclusions no matter who or what comes along.
.
BTW, I have no truck with any person operating from their personal bias. My truck is about the bias of supposed teachers who claim they are objective. Don't try to come off as an expert once you are influenced by some bias.
.

Pinky said...

.
So, the idea of rights, when one person's come into conflict with an other's, are decided in courts of law.
.
The pregnant woman's rights come into conflict with the invented rights of the embryo. And the embryo isn't even the one that invents the right. It needs an advocate even to invent the right let alone to be a champion.
.
Or does the right of the embryo exist in some statute?
.

Pinky said...

.
If a right cannot be claimed, how is it a right?
.

Tom Van Dyke said...

Actually, Pinky, Daniel & I came to a level of agreement about the historical understanding between an "embryo" and a "quickened" fetus.

Therefore, your use of the word "embryo" here instead of "fetus" does not follow the discussion it seemed we were having together.

As for

Generally, Tom, when a person refers to "dead philosophers", what they mean to connote is that thinking is truncated with the last conclusions of those philosophers before they died. So, if you are stuck with Burke, you are stuck with his last conclusions no matter who or what comes along.

...it seems you didn't read James Wilson's American disagreement with the British Burke and Blackstone about the nature of rights, that the latter saw them as "granted" by government via social contract, but Wilson claiming them as natural rights, inherent to "all men are created equal," etc.

Jeez, Phil, it was a direct response to you in the thread, and somewhat based on the writing you do here. It seems proper to expect responses that follow the discussion, especially if you're taking part in it. Can you give this another shot?

James Hanley said...

I've noted my position on natural rights over at Positive Liberty, but I'll do a quickie explanation here. I personally "feel" that we have natural rights. At the very least, I can't see how anyone has a natural right to interfere with any of my actions that don't interfere with them. But logically, that lack of a right to interfere with me does not actually translate into me having a right to not be interfered with. So my "feeling" is not logically supported. And ultimately, I don't see any way of logically demonstrating, much less empirically evidencing, the existence of natural rights. I take issue with Jefferson's claim that it is "self-evident," which I see as a dodge for, "I can't demonstrate it, but I really really believe it."

As much as I find natural rights desirable, I recognize that my desires don't create reality. And even if natural rights are real (and the inability to demonstrate something is not conclusive evidence that it doesn't exist), they are not self-enforcing, so that they don't become pragmatically meaningful until they become positive rights. At best, then, it seems natural rights are valuable only for rhetorical purposes, as we try to persuade others to agree to create certain positive rights.

On a side note, it's fascinating to see how a brief comment from one blog can lead to such an interesting and extended discussion on another blog. Hayekian spontaneous order at work.

Pinky said...

.
I'll give your post some serious thoughts, Tom.
.
And, hopefully, I'll find the time to get back with a reasonable answer.
.
I'm really busy with work now.
.
Later.

Daniel said...

JH: I take issue with Jefferson's claim that it is "self-evident," which I see as a dodge for, "I can't demonstrate it, but I really really believe it."

"Natural Rights" is a communal notion. It is not so much that "I believe it" as "We believe it" with the implication that "Either you believe it or your moral sense is corrupted." It is worth considering that the Scottish Realists were developing a framework for natural right at the same time they were developing a framework for the reality of our sense impressions, and the evidence they cited for each was very similar.

Tom Van Dyke said...

And of course, the theological notion of equality was the foundation for liberty, a notion that had been building for hundreds of years in Christianity. Some quotes I clipped from the internet:

American Protestant preacher Elisha Williams [1744 CE]:

"Reason teaches us that all men are naturally equal in respect of jurisdiction or dominion one over another."

The Catholic cardinal [St.] Robert Bellarmine [c. 1600 CE]:

“All men are equal, not in wisdom or grace, but in the essence and nature of mankind” (“De Laicis,” c.7)

“There is no reason why among equals one should rule rather than another” (ibid.).

[St.] Thomas Aquinas [c. 1250 CE]:

“Nature made all men equal in liberty, though not in their natural perfections” (II Sent., d. xliv, q. 1, a. 3. ad 1).

Pinky said...

.
The reason I substituted embryo for fetus was that (for some reason) it was stuck in my mind that fetus was spelled, foetus or feotus. And, both of those words kept getting a red underline beneath them; so, now you know why embro showed up. Hoo Hah! Pinky couldn't figure that out.
.
As far as lionizing the dead as though their descriptions are what counts, I haven't read the paper you refer to; but, I have read what some pretty good scholars have had to say about them.
.
Maybe you would like to give a thumbnail on what the British Burke and Blackstone had to say about rights?
.
We don't have a cult going here, do we?
.
I think my understandings of rights are much better than either of their explanations. Could be I'm wrong. I've been wrong before.
.
Sorry if I rubbed your fur the wrong way.
.

Pinky said...

.
Why don't you, Daniel, prepare a post regarding what you mean to connote here in your references to the Scottish Realists. We are here to share information more than we are to have arguments, are we not?
.
I'd be interested in learning something of what you have learned in this area.
.

Daniel said...

Pinky,
Could be fun. Much more difficult that throwing out some thoughts dug out of distant memory, but also much more interesting.