Ideas have consequences. A large part of the success of the American enterprise is the philosophical ideas on which it is based.
A nominee to the Department of State’s bureau of human rights recently stated he believed in the “powerful principle that all men are created equal, because our rights come from God our Creator – not from our laws, not from our governments.”
In response, Senator Tim Kaine said, “The notion that rights don’t come from laws and don’t come from the government, but come from the Creator – that’s what the Iranian government believes. It’s a theocratic regime that bases its rule on Sharia law and targets Sunnis, Bahá’ís, Jews, Christians, and other religious minorities. And they do it because they believe that they understand what natural rights are from their Creator. So the statement that our rights do not come from our laws or our government is extremely troubling.”
These comments show the need for a firm understanding of the philosophical principles underlying American society, as our nation’s founding documents demonstrate that the concept of natural law and natural rights was fundamental to our structure of government.
Natural law theory is a centuries-old philosophical and jurisprudential tradition which holds that there are certain fundamental moral principles inherent in human nature, discoverable by reason, and independent of any particular government, legal system, or culture. In this view, the criteria for the validity of human-made laws is whether they conform to the natural law.
Natural law theory has a tremendous pedigree of thinkers, beginning with ancient Greek and Roman philosophers like Plato, Aristotle, and Cicero.
One of the most influential natural law theorists was the medieval Catholic philosopher Thomas Aquinas, who believed that God created an ordered universe in which there are certain basic human goods, such as life, family, and knowledge, that can be discovered by human beings through reason, which means that moral principles can be known regardless of a particular person’s religious beliefs or absence thereof. For Aquinas, the natural law provides the foundation for all human laws.
These ideas were passed down to Enlightenment thinkers like John Locke, Hugo Grotius, and Montesquieu, who had a profound influence on the American Founding Fathers. Locke, for example, wrote that, “The law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must, as well as their own and other men’s actions, be conformable to the law of Nature, i.e., to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction be good or valid against it.”
These ideas were directly embedded in the Declaration of Independence, which pronounces it a “self-evident truth” that “all men are created equal,” and “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
The Declaration explains that “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” and “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”
“Secure” means to protect that which already exists, not to create anew. Thus, the purpose of government and law is to protect the rights individuals already have by virtue of their humanity, not to create rights.
The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” which means that human beings do not possess rights simply because they happen to be written in law, nor does the fact that some rights are written in law mean that those are the only rights that exist.
As the constitutional law theorist Randy Barnett has summarized: “The political theory announced by the Declaration of Independence can be summed up by the proposition: First come rights and then comes government.”
If the government is what creates rights, that would mean the government could also take them away. The philosopher Thomas Hobbes came to exactly that conclusion. According to Hobbes, since the government creates the laws that give individuals their rights, “Nothing the sovereign representative can do to a subject can properly be called injustice or injury.” Unlike natural law theorists, who believed that the government was bound to act within the moral confines of the natural law, Hobbes believed that there were almost no limits to what the government can do.
One does not have to hold any particular religious beliefs in order to recognize natural law and natural rights. Indeed, it is referred to as “natural” law precisely because it can be appreciated by all human beings regardless of their religious beliefs. Ordinary experience shows that human beings, like all other living things, have a natural inclination to self-preservation. It therefore follows that individuals have the right to life, and also to the means of what is necessary to sustain their lives, such as property.
Whatever view one takes of the source of natural rights, for government officials, who hold power over individuals’ lives, liberty, and property, the idea that there are certain inalienable rights that cannot be infringed is a powerful moral limitation on the exercise of that power.