Today, we’re gonna talk about the idea of rights, specifically the rights America was founded on. The founding philosophy of America is that governments exist not to give you rights, but to protect your natural rights, God given, inherent ones. The story of America cannot be told without mention of her foundation in the revolution. And given how often rights and the founding fathers are brought up in modern American political discourse, I thought we’d do our first episode on one of our founding documents, the Declaration of Independence, and the philosophy, more specifically the philosopher, it is based on: John Locke.
For a little context, John Locke wrote his Second Treatise on government in 1689 in response to the political theory at the time called paternalism, which was used to justify the divine right of Kings as far back as the middle ages. Paternalism argued that as a descendant of Adam, the king was deputized by God to rule absolutely and his subjects obliged to obey. As we will see, Locke rebukes this notion and argues that a government is legitimate due to the consent of the governed. What does this have to do with American politics? It’s important to note the unprecedented nature of the founding of America. It is a nation founded on an ideology, not by conquest. And, the ideas of Locke circulated heavily throughout the colonies, and found many ardent supporters amongst the founders- including the primary author of the declaration of independence, Thomas Jefferson- who was so heavily influenced that he actually took some lines verbatim from Locke. So, let’s get into it.
The preamble to the Declaration of Independence begins: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
“We hold these truths to be self-evident, 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.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”
The opening of the preamble lays down the foundation of the argument for American independence from Britain by defining what they believe government is for, setting them up to later show that Britain has not lived up to its obligation. The important takeaways from this that we’ll examine are: the law of nature, natural rights, why government is instituted, and consent of the governed. These are all rooted in Locke’s writings and beliefs about the nature of rights and purpose of government. So, to get a better understanding of the founders’ argument, let’s start first at the beginning of Locke’s argument.
Mankind started in what Locke calls the state of nature, which is what life looked like before societies. It is perfectly free and it is peaceful. We are all born equal, which was a hot take during an era that believed Kings were given absolute authority to rule from God. How do we know we’re all born equal? Locke would tell you to look to nature, look to other animals. They are all born that way, so we must be too. So, in the state of nature, we are all equally, perfectly free to order our actions in line with the law of nature.
What is the law of nature? It is reason. And reason dictates that, as Locke says, “no one ought to harm another in his life, liberty, or possessions.” These three things- life, liberty, and possessions- are your property, and you have a God given, inherent right to them. Property as we know it Locke calls possessions, which is what happens when you mix your labor with something in nature. For example, if you pick an apple off of a tree (i.e. use your labor to acquire that which exists in nature), it’s now your apple, and you have an inviolable right to it. The law of nature then “binds each person to preserve self and, as much as he can, the rest of mankind.” It also says that if someone violates the law of nature, it is the right of people to punish the violator and seek reparations.
So, to recap, the state of nature is absolutely free and peaceful and the law of nature is reason, which tells us to not harm anybody’s life, liberty, or possessions. Doesn’t sound so bad, right? You’re perfectly free, after all. So why would you want to leave it and form government? The answer is what Locke calls the state of war. This is a state defined by “enmity and destruction” and exists when someone exercises their dominion over you. The problem with the state of nature is that there is no just remedy to this hostility or destruction because there are no unbiased parties to appeal to for arbitration. Because of self love, we can’t rely on each other to act justly in this situation. If you steal my apple and I demand reparations for your transgression by paying me back, but instead of the one apple you originally took I decide to demand 30 apples, we’re at a stalemate and things will probably get violent. So this creates two great problems in the state of nature: the lack of formal protection of your property, and the lack of third party arbitration to settle disputes justly. According to Locke, because it is inconvenient to live alone and because in the state of nature it’s impossible for justice to be arbitrated in an unbiased manner, we seek communion and fellowship in the form of civil government, which remedies both of those problems.
When you join society, though, you don’t get to stay in the perfect freedom of the State of Nature. Rather, to receive protection of and third party arbitration for your property- which again means your life, liberty, and possessions- you have to give up your right to enforce the laws of nature to the community. Meaning that you forfeit the right to settle your own disputes and transfer that authority to the community that you have joined in order to secure protection of your property. It’s important to note that you are not making this surrender to the king, but the community and agreeing to the principle of majority rule.
This is where the idea of consent of the governed comes into play. We are all born free and equal, after all, so to Locke “The only way anyone divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties.” This is what self government means. I give up my perfect freedom to be governed by the community, which I am a part of. Relinquishing some of my authority to a community might seem counterintuitive to self-governance, but because the legitimacy of the community depends upon my consent and participation, I ultimately retain jurisdiction over myself and my property.
In short, I am entitled to my life, liberty, and possessions. And to keep them protected, I get together with a bunch of people who want the same thing and we agree to form a government. In exchange for me giving up my rights to enforce the laws of nature, I get protection and third party arbitration. I am giving the government authority to carry out the laws of nature in exchange for these things. Meaning I am consenting to it, and for that reason and that reason alone, the government has legitimate authority. The government has no natural rule over me, but rules only because I agree to it. So the only legitimate government is one that operates under the consent of the governed. As we will see in part two of the preamble of the declaration, when the government no longer holds up its end of the bargain, it is no longer legitimate and I am under no obligation to follow it.
The next part of the Declaration reads,
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Why is it the right of the people to alter or to abolish a government destructive of the preservation of life, liberty, and possessions? Because, according to Locke and the founders, the King is a kind of an employee. He’s essentially hired by the people to protect their property, as we discussed, and when he doesn’t do that, the people who hired him- can fire him. Again, his authority only comes from the consent of the people. Moreover, Locke argues that when a government fails to do its duty, it effectively “dissolves itself” because it no longer holds legitimacy. Think of the phrase we all learned in school, “no taxation without representation.” The core of that saying is that no taxation is just without representation of the people being taxed, because it constitutes the government breaking the deal the individuals being taxed made when they joined.
As Jefferson points out and Locke himself notes, people don’t revolt over little matters. They do so after a repeated pattern of injustice at the hands of the government. Why? Because in order for a group of people to make this decision, they must conclude that going back into the state of war is preferable to their current situation. Think about it- How much injustice would you be willing to endure in order to maintain a position in civil society and avoid a state of perpetual war? Certainly it isn’t a decision that one makes lightly.
So what exactly did the King do to make himself illegitimate and get himself fired? The revolution has a lot of levels to it, and we’ll do future episodes on it. But for now we’ll focus on a couple of things that Jefferson lists in his grievances, which is the rest of the declaration.
First, Jefferson points out that “He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.” Why is this a problem? Because, according to Locke, “it is in their legislative that the members of a commonwealth are united, and combined together into one coherent living body.” It is in the legislature that the will of the people is discussed and made known, and it is because of this that the legislature is the supreme authority of the government. It is the job of the executive, the King, to carry out this will because his authority is only legitimate through the consent of the people. So, by preventing the legislature to meet, King George has essentially forfeited his power. And, according to Locke, people are not therefore bound to obey such laws because they put them under subjugation, and are allowed to then form their own, new government.
Second, let’s go back to the hallmark phrase of protection and third party arbitration for property. Did Britain provide this to the American colonies? If you ask Jefferson and the other founders the answer is resoundingly no. Let’s start with protection. There are a few obvious examples of British troops killing American colonists. But let’s get a little more nuanced. In what is now deemed illegal in the third amendment of the US constitution, the British forced the colonists to house British troops and diplomats in their own homes and feed them accordingly. This is a no brainer violation of the liberty and possessions of the colonies. It is not just the government failing to protect the colonists’ possessions, but actually stealing it. And, if you ask Locke, if a government is willing to steal your liberty and possessions from you, you can conclude they’ll steal your life as well, and you have every right to revolt.
In terms of third party arbitration, Britain, after the Boston Massacre, deemed that any capital crime committed by a troop or government official would not be adjudicated in the colonies, but back in Britain. So, if a British soldier committed a crime against you, he would be shipped back to Britain for trial, and an assuredly unfair one- that you could not appeal. Moreover, according to the stamp and Townsend acts, if you violated either of those acts you would receive trial in a Vice Admiralty court, which meant a trial without a jury, which was guaranteed under British and colonial law. All of this leaving you without the arbitration you traded in perfect freedom for.
I hope you see now that the argument for American Independence is rooted in Britain being an illegitimate government. And that the United States was established to achieve the ends of a just government that England failed to do. So, according to the founding principles of the United States, in exchange for the security of your life, liberty, and possessions, you consent to follow majority rule and the laws of the United States as long as it remains a legitimate government, as defined earlier.
Now that you know what inherent rights really are and what the stated purpose of American government is, think about some of today’s issues surrounding rights. Abortion, for example. If your body is your property, and the government exists to protect your property, how can the government tell a woman what to do with it? How is that not breaking the deal between a citizen and government? Or if a fetus has a heartbeat of its own, is it actually its own property?
Another recent argument surrounding rights is healthcare. We hear a lot from the far left that healthcare is a human right. Ask yourself, given the stated ends of American government, is unequal access to health care a violation of a person’s right to life?
And, finally, in the midst of the COVID-19 pandemic, there has been a lot of talk about if mask mandates violate people’s individual rights. Whereas I have left the other two questions open ended, I’m gonna answer this one. No. No it’s not a violation of your rights. In fact, I believe Locke and Jefferson would argue that you not wearing a mask is a violation of my right to life. And, that it is in fact the government’s obligation to enforce such a mandate lest it breaks its agreement with me to protect my life. Remember the law of nature, that “no one ought to harm another in his life, liberty, or possessions” and that you should preserve the rest of mankind to the extent you are capable. Accordingly the law of nature obliges you to wear a mask, and, since I joined government to secure my rights, obliges the government to take measures to save me from a deadly pandemic.
Moreover, there are times, according to Locke and other political theorists, that the government is allowed to break the rules in cases of emergency. That’s called prerogative and emergency powers and we’ll cover that and Thomas Hobbes in next week’s episode.