In the last public letter of his life, Thomas Jefferson expressed his hope that America would serve as a signal to all mankind “to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.” For well over two hundred years, Jefferson’s hope has been fulfilled, as the United States has come to serve as the world’s leading beacon of freedom. Since the inception, the greatness of America has rested on its foundation in natural rights, and the constitution has served as a bulwark to protect those rights. However, in this past century, the expression of natural rights has been increasingly set aside in favor of human rights by well-meaning, yet sadly mistaken political reformers. This transformation poses a serious threat in the eternal fight for free and limited government.
The American founders famously disagreed on several important policies yet found common ground in their firm belief that natural rights were the proper aim of any just government. Natural rights, as the founders understood them, rested upon the twin principles of freedom and equality. They argued that all men were born with an equal right to govern themselves and not to be treated tyrannically by political authority and that it was only through securing natural rights, that a free government could be constituted. As Jefferson puts it, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”
The difficulty in crafting a regime predicated on natural rights lies in their fragility. They are continuously under threat of tyranny, whether it be in its elite or popular form. Because of this, they require political and social safeguards. The constitution was framed for this specific purpose. The protection of natural rights demands that no faction or portion of the citizenry attain a disproportionate amount of power in the regime. It is for this reason, that the constitution carefully calibrates the power of each branch of government so that no entity can gain power over the other. It is also for this reason, that the constitution is designed to check the ultimate source of governing authority, the people, who in turn are charged with checking those in the government. This delicate balance has been famously summarized by James Madison in Federalist 51: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next oblige it to control itself.”
The founding vision of politics, grounded in natural rights, and protected by adherence to the Anglo-American tradition in which included them, has created enemies since the beginning. Southern slaveholders in the antebellum period criticized the idea of natural rights grounded in equality and liberty as an outdated concept, not in step with recent advances in what was a pseudo-racialized science. Such disparate dispositions culminated in the bloodiest war in American history, and it is only through the exemplary statesmanship of Lincoln, and the sacrifice of thousands of Americans, that a proper view of natural rights in line with the Anglo-American tradition was preserved.
Despite its bloodiness, the American Civil War did not settle the question of natural rights. Faced with the political difficulties caused by industrialization, progressive reformers’ solution was to launch an assault upon the natural rights foundation of American constitutionalism. They argued that the political restraints implied by natural rights constitutionalism were no longer suited for the modern age. They instead advocated for a constitution that was “adaptable” to whatever changes were required to improve society. Part of creating this adaptability politics was rejecting the idea of the regime having a foundational principle of any kind, much less one based upon natural rights. For them, the government should be based solely upon practice, abstractions such as natural rights were impediments at best, and useless at worse. As Woodrow Wilson summarized in his work Constitutional Government in the United States: “Only that is ‘law’ which can be executed, and the abstract rights of man are singularly difficult of execution.”
In the decades that have followed Wilson’s critique, the attack on natural rights constitutionalism has become wilier and more dangerous. No longer does it frame itself as an outright anti-foundational assault upon the rights of man, but rather as an expansion of those rights. This strategy was initiated by President Franklin D. Roosevelt in his proposed Second Bill of Rights and has become the commonplace view of rights both in America and on the international stage. This change in the popular understanding of rights is obvious even on a superficial level. Rarely now do politicians, journalists, or citizens refer to natural rights – the rights are given by God that stands above all other needs – rather, they refer to human rights. The content of these rights has also changed. For the founder’s natural rights represented the highest needs, the objects without which man could not live a truly fulfilled existence. In contradistinction to this, human rights have increasingly come to contain anything that one could wish from good healthcare to the freedom to select the bathroom of one’s choice.
This change, from natural rights to human rights, and all the political implications it entails, is one of the great threats to the American tradition. Unlike natural rights, which limited the authority of government, human rights necessitate the expansion of the state’s power. They demand that the national government step forward and take a positive interest in the sociopolitical sphere. This has led to an alarmingly large bureaucracy, dangerous levels of unfettered populism, the spread of activist legalism, and an increasingly impotent legislature. The Constitution of the United States, designed to preserve and protect the ancient tradition of natural rights, has been replaced with living constitutionalism designed to thrust the latest conception of human rights upon the world. In effect, the constitution is no longer an unchanging document designed to protect the fundamental aspects of the American political order, it has instead developed into whatever it needs to be to achieve the ends of policymakers and interest groups.
Subjecting a constitution to the whims of human rights becomes even more dangerous when one considers the bottomless nature of these modern political inventions. Human rights have no source except society’s ever-evolving conception of justice and therefore could theoretically include almost anything. But we must stand up firm and decry this as conservatives. For if there is a right to everything, then nothing is sacred, and rights lose all meaning. If nothing else – human rights still steer the government to look after the people, even if it is done through a soft despotism. But for how much longer? The vapid nature of human rights and the statute juggernaut needed to protect them means that they could easily be blown away by an aspiring tyrant, whether a person or mob.
The state of natural rights in America looks bleak. The constitution has largely been divorced from its foundation in natural rights and has been forced to embrace dangerously hollow and continuously shifting human rights. However, there is still hope. This is hardly the first time that the liberal principle of natural rights, and the illiberal safeguards of tradition necessary to protect it, have come under attack. Each time great statesmen, supported by a brave populace, have been able to turn back the tide. It is in hope of men like Lincoln and Churchill, who show us the fight for ordered liberty is a duty, not merely a choice.