With all the scandals today – namely, at the IRS, AP, and NSA – many believe our government’s actions are violating our natural rights: mostly, our freedoms of speech, press, due process, and privacy. These “natural rights” are fundamental basic human rights, not based on man-made positive law. Many of these rights were codified by our founders in the Bill of Rights… but not without tumult.
There are those today - even within the liberty movement - willing to compromise on many issues that would infringe on the natural rights of others, in both domestic and foreign policy. I think they are wrong. In this brief history of how our Bill of Rights came about, I encourage you to look for parallels between today’s struggles and our country’s founding.
A Constitution Without Rights
John Locke, regarded as the Father of Classical Liberalism, grounded the premise for his 1690 Second Treatise of Government on the idea of natural rights. This idea, while revolutionary at the time, provided a template for subsequent political theory. Merging Locke’s idea with the British Bill of Rights of 1689, George Mason, a member of the Virginia delegation, penned the Virginia Declaration of Rights in May of 1776 - preceding both the Virginia State Constitution and the Declaration of Independence. In its Article 1, he penned these words:
“All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
Mason’s words obviously influenced Jefferson took when he wrote the famous second sentence of the Declaration of Independence, which continues to inspire liberty movements worldwide:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
At the Second Constitutional Convention in the Summer of 1787 – after it was clear the Articles of Confederation had imploded – the Constitution was introduced without protection for these natural rights.
As a Framer of the U.S. Constitution, George Mason expected a declaration of rights to precede the federal constitution, or at least be included from the outset. When it did not, Mason became a vocal opponent of the Constitution’s ratification and refused to sign it, saying that without a Bill of Rights, its first principles were “highly and dangerously oligarchic” and with a Bill of Rights, the Constitution would be restricted in its “awful squint towards monarchy.”
Although the principle of natural rights was commonly regarded as sacred among our founders, the execution of a federal government for the protection of these rights was hotly debated; it took two whole years to for the First Congress to ratify the Bill of Rights after the signing of the Constitution.
The Battle for Natural Rights
The belief that a decentralized government would govern best solidified a group of patriots known as the Anti-Federalists, opposed to the majority party, deemed (as you might have guessed) the Federalists.
But the minority party did not capitulate on their ideas. Instead of meeting the majority’s demands for a stronger federal government, they stood by their fundamental beliefs that the individual, as the common denominator of any party, organization, or community was sovereign and any authority is a trust endowed by individuals, conceded to the state first, and then to the federal government.
The Anti-Federalists vocal opposition to the proposed Constitution – as it lacked a Bill of Rights – resonated with key members of the majority party, including the influential statesman Thomas Jefferson, and leader of the Federalists, James Madison. Their sponsorship, however, was not achieved without a partisan fight.
Federalist Alexander Hamilton, co-author of the Federalist Papers, argued against the Bill of Rights on justifiable grounds in The Federalist No. 84, stressing that the while he favored a British system of common law, that is, of rights that exist undefined, the U.S Constitution was different than anything seen before, and therefore, a Bill of Rights in America was unnecessary. Hamilton stated:
“Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was ‘Magna Charta,’ obtained by the Barons, swords in hand, from King John.”
To Hamilton, defining particular rights of the citizen would put restraints on the citizen through omission. ”Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
But the limits of state power were not defined, and the individual needed explicit protection from his government.
It became clearer to the founders on both sides of the aisle that a Bill of Rights would be necessary; Jefferson (in particular) realized that Anti-Federalist support for the Constitution depended on a Bill of Rights, but further delay endangered the entire process.
As Ambassador to France, Jefferson, in a letter to James Madison, wrote, “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.” The Federalists response was to finalize the Constitution without a Bill of Rights on September 17, 1787.
George Mason, in turn, refused to sign the Constitution, a great document he found wanting, and it underwent the Ratification process without his approval. George Mason’s opposition cut ties with George Washington, his neighbor and friend, and along with his affiliation with the Anti-Federalists, accounts for why George Mason is lesser known than his Federalist colleagues.
The Anti-Federalists united in opposition against a Constitution without a Bill of Rights, and stood their ground. Patrick Henry, the articulate, well-known leader of the Anti-Federalists, even refused to accept offers to be this nation’s first Secretary of State or a Supreme Court Justice. In June of 1788, he argued against the Ratification in his famous “Liberty or Death” speech:
“Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take every thing else!”
The vehement opposition of the minority had a subsequent effect on the process. James Madison, the other co-author of the Federalist Papers, tried to reassure a concerned, fledgling nation of colonies, in the process of becoming states, in The Federalist No. 39, in 1788:
“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”
State by state, the Constitution was ratified, with the exception of Rhode Island, who opposed it on similar grounds as George Mason; they felt the Constitution, without explicitly enumerating rights, had the power to reinstitute a monarchy. When Rhode Island finally ratified the Constitution, it sent a message back to Congress, with demands for a Bill of Rights. Acts such as these from other colonies – North Carolina, South Carolina, and New York were also visibly upset - as they became states lent credence to the Anti-Federalist movement.
Eventually, the Constitution was adopted, and went into effect on March 4, 1789. The First Congress met in September of that year, two years after George Mason’s dissent; almost immediately, delegates began to argue for a Bill of Rights. James Madison had proposed a Bill of Rights to Congress earlier that June, in an attempt to avoid a Second Constitutional Convention, which he knew had the potential to destroy the budding nation.
Madison’s proposal was based mostly on the work of his friend and fellow Virginian, George Mason. It then took two more years for the colonies to ratify the Bill of Rights, which went into effect December 1791, more than four years after the signing of the Constitution, and more than fifteen years after George Mason first wrote Virginia’s Declaration of Rights.
George Mason feared a powerful federal government would eventually usurp the privileges granted to it under the Constitution, as he felt the federal government would see powers not prohibited explicitly as permitted implicitly. In a major speech detailing the reasons for his objection to the Constitution, George Mason argued, “The laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights in the separate states are no security.”
Mason also feared the powers granted to the Executive Branch, and made these salient points about the dangers of an unrestrained governing body:
“The President of the United States has no constitutional council (a thing unknown in any safe and regular government). He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate; or a council of state will grow out of the principal offers of the great departments – the worst and most dangerous of all ingredients for such council, in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office.”
George Mason’s objections drew a proverbial line in the sand with the majority party, and his dissent did not come without consequence. Although Mason found a critical sponsor for his Declaration of Rights in James Madison, the leader of the Virginia Federalists, he relinquished his spot in American history with his opposition. Instead, George Mason shares the title of “Father of the Bill of Rights” with James Madison.
In his closing remarks before the Constitutional Convention, Mason made this prediction about the burgeoning governing body for the newly formed United States of America, without explicit protections for natural rights:
“This government will commence in a moderate aristocracy: it is at present impossible to see whether it will, in its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in one or the other.”
I wonder what the founders would think of our arguments today. Patriots today still stand athwart history, and in doing so, have become targets. To quote French philosopher Voltaire, “It is lamentable, that to be a good patriot one must become the enemy of the rest of mankind.”
I believe ”natural rights” and “natural law” move opposite each other and constantly battle one another. As society tends to slide downward to Hobbes’ natural state - where the worst rise to the top, democracy crowds out liberty, and natural rights of the minority are violated - it takes diligence and courage to push back against corruption and dictatorial powers as they take root. We should not disparage each other, but lift each other up in that pursuit.
While it is true that many battles for natural rights may depend upon coalitions between left, right, and center, we should never concede to a “half-loaf” with regards natural rights. Our natural rights – namely freedom of speech and privacy – depend on the respect for personal property and person; remember, that door swings both ways.
Natural rights are most respected when we keep in mind the Golden Rule of interpersonal ethics; that is what John Stuart Mill stated in the premise of his Harm Principle:
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others… Over himself, over his own body and mind, the individual is sovereign.”