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.
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.