n 1787, a convention of demigods congregated in Philadelphia. The end result was the document that lays the foundation for one of the first nations conceived in Liberty. Within the Constitution’s preamble, the Founding Fathers ensured that securing “the blessings of Liberty” would be a primary focus of these United States. The framework of these blessings had been laid out in The Declaration of Independence, largely influenced by John Locke’s Second Treatise On Government, in 1776. The Declaration states 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.” In 1791, the Founding Fathers attempted to further iterate these Rights in the Bill of Rights, the first ten amendments to the US Constitution.
One question not entirely answered in these documents is the origin of these rights. The Declaration states that these rights are endowed to the people “by their Creator.” Whether one considers this to be a positive or a negative, society has become more and more secular, making the idea of divine endowment of rights less acceptable in modern dialogue. Many consider the ideas of natural rights to be a mystical or archaic ideal. Natural Law (and therefore Natural Rights) can be derived through human reason, nevertheless. Using the texts from The Constitution (mostly the Bill of Rights), The Declaration of Independence, and Part I of The Ethics of Liberty by Murray N. Rothbard, it is the purpose of this paper to analyze the notion of Natural Law and Natural Rights. Then, this paper will discuss the influence Natural Rights and Natural Law had on the Founding Fathers as they drafted the Declaration of Independence and The Constitution, while defending the ideals of Natural Rights as the Founding Fathers saw them.
In Part I of The Ethics of Liberty by Murray N. Rothbard, Rothbard dispels the myth that Natural Law can only exist through a theological argument. Primarily driven by the scholasticists, the followers of St. Thomas Aquinas, Rothbard shows that Natural Law is merely the rules which man’s reason can discover. This demonstrates the fact that there is nothing inherently religious about Natural Law. Although I come from the idea that Natural Law is created by God, it is still undeniable that man’s nature is discovered through man’s reason. The notion of Thomist Natural Law is an acceptable notion in secular discourse, and ought to be seen as such. Although I personally adhere to the theological argument for natural law, the secular argument is just as effective, and even exists within the theological argument. Whether or not one believes in God, natural law is undeniable.
Rothbard goes on to explain that Natural Law is not only acceptable in secular discourse, it is also acceptable in scientific discourse. Rothbard identifies the logical inconsistency of finding the idea of man’s nature as mystical all the while completely accepting the idea that – say – apples have their own nature. Since the world is made of many different things, Rothbard concludes that since these things “have different attributes, it follows immediately that they have different natures” (Rothbard 2.1). Through the scientific lens, it becomes necessary to conclude that the question as to who will solve man’s nature is not necessary, but what? Rothbard that man’s reason would deduce man’s nature, whereas “reason is objective.” By concluding that it is not a specific individual, but a specific, and objective perspective (being man’s reason), through which man’s nature is discerned, it becomes fully rational to claim an objective nature to human beings which can be discovered.
Having proven the secular and scientific qualifications of Natural Law, Rothbard explains the logical conclusion of Natural Law: individualist Natural Rights. The ancients (namely Plato and Aristotle) had utilized Natural Law to conclude that virtuous action comes from the State. Rothbard contradicts the classicists by pointing to John Locke’s theory that Natural Law deduces individual Natural Rights. In Locke’s Second Treatise on Government, Locke makes the claim that “every man has a property in his own person.” This statement is the foundation of individual Natural Rights theory, and the central axiom of libertarianism. With this statement, Locke has introduced the notion of Self Ownership. Locke makes the logical jump that in owning oneself, a human being naturally owns his/her labor, and that he/she is entitled to the products of that labor. From this, one can conclude that in mixing one’s labor with a natural resource, the finished result becomes the “property” of the laborer. So through self-ownership, one can deduce that one has the right to live, one has the right to act in accordance with one’s nature, and that one has the right to property.
This expression of one’s rights ultimately makes mankind better off. Since Liberty is in man’s nature, the lack of restraint on one’s rights and self ownership will lead to a greater expression of man’s nature, allowing man to achieve excellence. Excellence, in this regard, is the practice of that which is in one’s nature. By not impeding on the exercise of one’s rights, an individual is partaking in moral excellence and heightening the human condition.
One question is what a right is. Rothbard uses the definition of a right that Professor James Sadowsky lays out: “When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof. We do not mean that any use a man makes of his property within the limits set forth is necessarily a moral use” (Rothbard 4.15). This distinction is extremely important in establishing a theory of individual rights. A moral question must be separate from a political question. What is considered acceptable through the lens of Natural Law may not be acceptable through the lens of morality. The problem of mixing morals and politics is that morality is a “question of personal ethics.” It is very difficult to establish a concrete objective morality in such an interconnected world with so many people in it. But it is quite simple to deduce a system of Natural Law by means of man’s nature with a degree of consensus. This is why it is absolutely essential to separate moral questions from political questions.
Now that the foundation of Natural Law and Natural Rights has been explained, one can see the connection between this theory and the ideals of the Founding Fathers. In the Declaration of Independence, Thomas Jefferson expresses that Life, Liberty, and the pursuit of Happiness are three of the rights which are unalienable from human beings. Through Rothbard’s theory, it is completely logical to concur with the Founding Fathers in this respect. To end a human’s life is to negate that individual’s right to self-ownership. In order to remove one from Liberty, one must violate their self-ownership, whereas the acting individual is the sole owner of his/her actions and that it would be morally wrong, even contrary to the nature of human life, to impede on that person’s acting in concurrence with Liberty. The pursuit of Happiness is an interesting notion. The original three fundamental rights that Locke iterated were “life liberty and property.” Jefferson, however, included “the pursuit of Happiness” instead of property. in many respects, the right to property is a natural precondition from the right to pursue happiness. Pursuing happiness, in the sense of John Locke and individuals following his philosophy (especially those that follow the tradition of the Austrian School of Economics that all individuals act deliberately), is merely pursuing a more satisfactory condition.
Some may argue that the pursuit of Happiness can contradict the right to Life and Liberty. One objection is the idea that one can own slaves or kill other individuals to pursue happiness. The flaw in this idea is that if one’s pursuit of happiness impedes on the right of another individual, the action is not in concordance with what a right is. Rights cannot violate other rights, lest the notion of a right be unsound according to man’s reason. In this respect, the right to pursue happiness is a tolerable notion. In addition, it is in man’s nature to pursue a better condition. Some do this through acquiring property, some through philanthropy, others through a combination of things. By pursuing happiness, man becomes a more content version of himself.
One right that is specifically controversial in the Declaration is the right to alter, and even abolish, the government if it violates the rights of its citizens. Though this right may seem detestable in the mainstream, one must consider how the United States was founded. The US was created by a group of insurrectionists that rose against the State which King George III had imposed upon them. Had the Founding Fathers lost, they would likely be the moral equivalent to Jefferson Davis, Stonewall Jackson, and Robert E. Lee in the history books. The Founding Fathers overthrew an oppressive State to implement a new society that was dedicated to the ideals of Liberty; and to do so, the tree of Liberty had to be watered “by the blood of tyrants and patriots.” It is a natural right of mankind to resist an entity, even their own government, that violates their natural rights. The classical natural law theorist would not see this as such. They would see the State as inherently virtuous, thus resisting the State would be completely vicious. But it is not the State that thinks chooses and acts. It is the individual. From this Lockean perspective, It is only logical that the State is evil and must be restricted if it is to exist.
The United States Constitution was originally intended to restrict the government from impeding upon the rights of the individuals within the United States. The anti-federalists feared, however, that the Constitution would one day be used to oppress the people. A Bill of Rights, therefore, was guaranteed to be included if the Constitution were passed. The Bill of Rights, ratified December 15, 1791, expressly grants the rights to speech, to religion or lack thereof, to press, to peaceful assembly, to petition, to bear arms, to not be forced to quarter troops, to not be searched without a warrant, to due process of law, to the right of a trial by jury, and to not be burdened with excessive bail or cruel or unusual punishment. In addition, the Ninth Amendment states that the rights expressed are not the only rights which the people have. Also, the Tenth Amendment regulated the Federal Government to actions which are only expressly permitted in the Constitution.
If one is not careful, one will miss the importance of the Bill of Rights. One can believe that the government gave these rights to individuals. But whether it’s “Congress shall make no law… abridging the freedom of speech,” or “the right to bear arms shall not be infringed,” or “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” or “the right to trial by jury shall be preserved,” the most important word in all of these amendments is “the.” This is due to the fact that the Congress is not creating these rights. They are admitting the fact that these rights exist, and that they have no right to impede upon them. It is arguable, however, that “their persons” is a more important phrase in the Fourth Amendment as that is a direct concession of the right to self-ownership. Either way, though, the most important thing about the wording of these amendments is the fact that the State is recognizing these unalienable natural rights. A law abridging these rights, therefore, is a law perverted.
The Ninth Amendment absolutely closes the case as to whether these rights come from the State or from man’s nature. The Ninth Amendment expresses that the prior eight amendments are not to be construed as the only rights that exist. Whereas it is man’s nature, not the State, from which rights come, it is impossible for the State to know every individual right. By including the Ninth Amendment, the State has conceded that any action that can be derived from the principle of Self Ownership must be a right, and must not be infringed upon by the State in any way.
In other words, the notion of Natural Law and Natural Rights is a logical notion which can be proven through either theological or secular means. It is nearly impossible to read the Constitution, the Declaration of Independence, or other writings by the Founding Fathers, without noticing ties to the notion of Natural Law and Natural Rights. Through this connection, one can see that importance rests within the individual, and not the State, in the American Republic. The notion that rights are natural and absolute, nonetheless, opens the window for discussion of so much more, even the legitimacy of a state entirely. Regardless of this question, one can see that individuals own themselves and therefore has a right to the products of their actions (property), that they can act in any way so long as it does not impede upon the rights of other individuals, and that any action interfering with any right is illegitimate and immoral.