More on the Natural Law and the Founding

To continue our series on the American theory of rights, from The Claremont Review of Books [Fall 2011]:

A Natural Law Manifesto

by Hadley Arkes

In launching the Claremont Institute's new Center for Natural Law Jurisprudence we want to proclaim again the case for natural law, and offer a kind of Natural Law Manifesto. We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights.

The object of the Constitution, he said, was "to acquire a new security for the possession or the recovery of those rights" we already possess by nature. The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of Nature, including the liberty of "doing mischief." To which James Wilson asked, in a Talmudic question, "Is it part of natural liberty to do mischief to anyone?" In other words, as Abraham Lincoln and Thomas Aquinas had it, we never had a "right to do a wrong." Even in the state of nature we did not have a right to murder or rape, and therefore as we entered civil society, the laws that barred people from murdering and raping never barred them from anything they ever had a rightful liberty to do. And so, what rights did we give up on entering civil society? The answer given by Wilson and Alexander Hamilton was: none. As Hamilton said in Federalist 84, "Here, in strictness, the people surrender nothing." 

Hence there was something not quite right in the notion of a Bill of Rights reserving to people rights they hadn't surrendered to the state, for that implied that they had indeed surrendered the body of their rights to the state and that they were holding back now a few they hadn't surrendered. The very purpose of the Constitution—the purpose that directed all branches of the government, not merely the courts—was the securing of those "natural rights." One could deny that point, as Hamilton said, only by slipping into the teaching of Thomas Hobbes and supposing that there were no rights before the advent of a government, no morality antecedent to civil society. As Hamilton pointed out, in Hobbes's view morality was all conventional. We could not expect anyone to accept any moral restraints on his conduct, for until there were laws, he could have no assurance that there were moral truths out there that anyone would respect.

Hamilton may be taken as a telling voice here, for indeed the American Founding would not make any sense unless those doctrines of Hobbes were decisively rejected. But that is to say, again, that the founding, and the second Constitution it brought forth, found its telos, its central purpose, in the securing of natural rights, the rights that had to be there even before a government came into place.

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As they say, read the whole thing.