INTRODUCING THE NATURAL RIGHTS CONSTRUCT

As a people, Americans have had a history of entertaining various political ideations.  This can be stated even when America was no more than a string of early settlements up and down the Atlantic seaboard.  Yet, for most of the time Americans have inhabited this continent, the federalist view of governance was prominent.  This is no longer the case, but from the earliest years until the end of World War II, this dominance was in place.

That means that federalist ideas and ideals had more influence in forming the nation’s constitutional principles than any other set of ideas.  This is the case not only in forming our national government, but also in forming all our state governments.  This blog has and will review the development of these principles and how they were challenged by other perspectives, none more so than the natural rights construct. 

A lot of current references to federalism cite how one is either in favor of a power being vested at the state level or at the national level.  This is not incorrect, but it is a bit misleading.  When one thinks of federalism, one should not forget the root of the word.  To federate means to form with another person or group a strong union in which the interests between or among the parties are in a congruent relationship; to advance one’s interests is to advance the other’s or others’ interests.  Or, in other words, to federate is to create a binding partnership.

The tie-in which refers to the vying powers between levels of government is derived from the fact that in creating the national union, the states, along with the people, came together to formulate a national partnership.  This was a natural development from the way settlements, regions, and then the states themselves were formulated.  All of this has been described and explained in previous postings.

So, as the events that led to the nation’s independence and then, some years later, the formulation of the nation’s compact – the US Constitution – the strident issue was which level of government was going to dictate policy in the governance of everyday life.  Therefore, most of the historical accounts of the late eighteenth century emphasize the arguments between those leaders who promoted a stronger central government and those who wanted to keep as much power in the states as was possible. 

While this not only became the main political debate of that time, it also established the language by which to discuss federalism until the present day.  But there was another disagreement taking hold. From England, a newer mental construct gained popularity on American soil.  That construct was the original version of the natural rights perspective.  It had its beginnings during the late 1600s and, about 100 years later, became notable and influential in America. 

It was the years between the writing of the Declaration of Independence and the writing of the US Constitution and its ratifying process (the late 1700s) that this British import took on notoriety among politically involved Americans.  It would pose the first meaningful challenge to the dominance of federalist thought.

The natural rights’ ideas and ideals first took form from the pen of the philosopher, John Locke.  To this day, there is a lack of agreement among historians about how influential this initial form of the construct was on this side of the pond.  This is of concern to this blog because a good deal of its overall presentation is based on the claim that our political culture evolved more from traditional federalism than from the natural rights perspective.

More specifically, not all historians agree with this level of federalist commitment on the part of the founders.[1]  The question revolves around how much influence John Locke had at the time of the Constitutional Convention in 1787.  What is important to remember is that what Locke argued is not what constitutes the natural rights view today.  That perspective has changed significantly from early years.

Back in the late 1600s, the impetus of those who agreed with Locke in Britain was to begin representing the political and cultural aims of the merchant and budding industrial class which was becoming more influential due to its growing successes.  There, Locke’s ideas threatened the interests of the entrenched landed (country) interests of the lingering nobility, which included the inherited positions in Parliament that were granted representatives of that class. 

There is no direct application of Locke’s ideas in America.  In America, Locke’s writings gained popularity in a different environment.  Initially, these ideas were more subdued and they appealed to a different constituent.  The most obvious difference was the lack of a favored nobility in America.  In addition, natural rights’ arguments spread slowly among the populous.

The fight here was one of pitting the interests of country (rural areas) interests of hard-working farmers against those of the towns.  The fear among America’s yeoman farmers was about how large the financial, mercantile, and embryonic industrial businesses should be.  Were they going to run roughshod over yeoman farmers?  It was these farmers who found Locke’s ideas appealing.  It was the country faction in America that first saw value in this more individualistic perspective.

Today, there are some historians who maintain that Locke’s influence was stronger than what is claimed in this blog.  Among those historians who support the stronger influence by Locke and those who took up the natural rights argument is the recognition that with our constitutional development there was the origin of a constitutionalism.

This development provides for a principled, systemic manner by which to stem the power of lawmaking bodies, be they Parliament, Congress, or any state legislature.  The principle is that the individual (and localities) have rights beyond the reach of legislatures.  One can argue that this principle had a meaningful effect during the years when the 1787 constitution was written, proposed, ratified and during the development and ratification of the Bill of Rights. 

This central idea was considered a radicalism that Locke’s writings introduced.  It was a passionate position held by its advocates that promoted a newfound sense of liberty, entitlement, and individual integrity.  While it affected British politics, it took on legal status in the US.  The timing for this development coincided with the new constitution in 1787.  It affected the ensuing arguments of the time.

This was one of the concerns that led to the Constitutional Convention in Philadelphia – of Philadelphia Freedom fame.  In addition, one of the main compromises between the Anti-federalists and Federalists[2] was this constitutional provision by which to address abuses by legislative bodies.  Thereafter, this principle was codified with the ratification of the Bill of Rights – the first ten amendments to the Constitution.  

But was this sense, the notion that individual rights could trump legislative enactments, accepted in either the political culture or in the courts?  It took the courts until the twentieth century to apply this protection of individual rights in any institutional way.  Until then, legislative supremacy, as an expression of republican ideals, was the standard by which courts treated this notion of individual rights.

Often, that established legal approach was used to undermine individual initiatives, such as when courts regularly upheld local ordinances over individual claims.[3]  Even with the upshot of this radicalism, the framers of the constitution were more concerned with how to structurally define the way the people would assume control through representation and majority rule.  

But that is not to say that limiting lawmaking bodies, keeping them from abusing rights and liberties of the individual, was not a concern.  It can best be considered a newer ideal that was amplified in significant ways during those early years.  One way to think of this development is to see it as an ideal:  government has no authority to disregard or trample basic individual rights.  The ideal would now be more firmly established, at least in the writing of these documents if not always in the actions of applied government policy.

[1] Isaac Kramnick, “John Locke and Liberal Constitutionalism I,” in Major Problems in American Constitutional History, Volume I:  The Colonial Era Through Reconstruction, ed. Kermit L. Hall (Lexington, MA:  D. C. Heath and Company, 1992), 97-114. 

[2] To remind the reader, Anti-federalists were for a weak central government and strong state governments and Federalists wanted a strong central government.

[3] Even after the Civil War and the ratification of the Fourteenth Amendment, the Slaughterhouse decisions upheld local ordinances that protected New Orleans’ establishment of slaughterhouse monopoly at the expense of competing butchers.  This case illustrates the bias toward representative, law-making bodies over individual citizens.