Note: A few months ago someone in my area decided to form a Natural Law Discussion group.  I joined, and I’ve enjoyed some vibrant and informative discussions as we explored the long history of natural law, natural rights, and the key philosophers who, over millennia, have theorized about both.  Each member of the group takes turn researching and then presenting on one of the people who played major roles in expounding upon the subject: Aristotle, Aquinas, Hobbes, Locke, etc.  What follows is my contribution to the effort; it was presented to the group on 28 June 2016.

Natural Law and Natural Rights are enjoying a mild renaissance today, largely as a result of new interest in the Constitution and its Bill of Rights.  That this interest comes in response to blatant violations of constitutional order, including attacks on traditionally understood rights and principles by the Obama administration, particularly the right of conscience, is unfortunate, but proves the need for the renaissance.  Poll after depressing poll shows Americans to be Constitutionally illiterate, ignorant of other Founding documents and American history in general, and disengaged from the vital role all citizens must play in “keeping” the Republic.

The Founders believed wholeheartedly in Natural Law and Natural Rights; that much is easily demonstrated.  Jefferson’s invocation of natural law in the Declaration of Independence (“the laws of nature and nature’s God) as a means of justifying the colonists’ separation from Great Britain is certainly the most famous and widely known reference.  But beyond what we find expressed in the Declaration, what shape did the Founder’s understanding of natural law take?  What were the contours?

To answer that question we will first ask: Where and how did the Founding Fathers learn about natural law in the first place?

In one sense, they needn’t have studied the subject at all.  St. Paul wrote that God’s moral law, part of the natural law, is “written on the heart”[1] of each individual.  We intuitively know that we have the option of right and wrong behavior because God imprinted this information into our consciousness from the start.  But we know from experience and observation that the moral law written on each individual heart is not always perceived or acted upon correctly.  Sin clouds are ability to discern this law with complete accuracy.  A more complete revelation is thus needed and God supplies that, and supplied it as well to those of the Founding Period, through the Bible.  “[T]he Bible… was… found in nearly every home,” writes historian Forrest McDonald; and, we can add: read, studied and internalized.  William Bradford wrote in his famous journal, “On Plimouth Plantation,” that the Pilgrim settlers had no choice but to camp near their landing on the Massachusetts shoreline. They could not, “as it were, go up to the top of Pisgah to view from this wilderness a more goodly country.”  Bradford did not need to elaborate or explain his reference to an obscure mountaintop in the Middle-east where Moses first glimpsed the Promised Land, Bradford’s contemporaries would have instantly understood, and seen the parallel.

But the Founders learned during their classical schooling and in their later study as adults that there was more to Natural Law than what is revealed in the Bible alone.

In 1825, a year before he would die, Thomas Jefferson explained the reasoning behind the Declaration of Independence to old friend and fellow Virginian, Henry Lee.  Jefferson wrote: “All [the] authority [of the Declaration of Independence] rests … on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”[2]

The “elementary books of public right” were also the elementary books of natural law.  The existence of natural law and the foundation it provided for natural rights was clearly one of Jefferson’s “harmonizing sentiments of the day.”  But an examination of the authors Jefferson cites in his letter to Lee confirms that the Founders were exposed to many different and not always “harmonizing” views of natural law.  Aristotle and Locke, for example, took decidedly different views of the subject, as did Cicero and Sidney.  Plus, the authors Jefferson cites were not the only ones the Founders read.  Every Founder of adequate means purchased and read many other books that either focused on or at least touched on the subject.

In his insightful essay: “A Founding Father’s Library,” historian Forrest McDonald lists many books that one could expect to find in nearly every Founder’s library — books such as: “The Rights of War and Peace” by Hugo Grotius, “The Laws of Nature and Nations” by Samuel Pufendorf, and “The Principles of Natural and Political Law” by Jean Jacques Burlamaqui.  Emmerich Vattel’s “Law of Nations” and “the celebrated Montesquieu’s” “Spirit of the Laws” were both favorites.  Sir William Blackstone’s “Commentaries on the Laws of England” and Edward Coke’s “Institutes of the Lawes of England” were digested by everyone undergoing legal training.  According to James Madison, Blackstone’s four volumes were “in every man’s hand.”  Another “elementary book[] of public right,” Algernon Sidney’s Discourses Concerning Government, over which he lost his head, literally, has been called the “textbook of the American Revolution.”[3] All these authors had something to say about natural law and natural rights and the Founders quoted from them all.

Interestingly, Coke and Blackstone, the two great jurists, both harmonized natural law with God’s law.  Blackstone explaining the “the laws of nature” this way: “This will of [our] maker is called the law of nature.  For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws….Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due..” Blackstone explained the “laws of Nature’s God” by writing: “[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”

Constitution signer James Wilson summarized it this way: “The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other.”

“By the 17th century, natural law philosophy had developed into a multifarious body of thought with distinct conservative and radical strains.  The conservative natural law school exemplified by such thinkers as Hugo Grotius, Thomas Hobbes, and Samuel Pufendorf drew decidedly authoritarian political implications from the natural law principle of natural liberty and equality.  They tended to emphasize a strong, and even absolute, version of political sovereignty and generally rejected popular self-government and the right of revolution.  For their part, radical natural law theorists such as John Locke, Benedict Spinoza, and Algernon Sidney built an argument for popular sovereignty on the bedrock principles of individual rights, especially the right to property and the right of conscience, as well as a natural right of revolution.”[4]

In addition to this philosophical divide, Aristotle and Cicero wrote of a purely natural law, not sourced in God, while Locke, Sidney, Blackstone and Coke all pointed to God as the origin of this law.  Hobbes and Aquinas took equally opposing views. How did the Founders distill these many conflicting viewpoints?

Despite this splintering of natural law theory, or perhaps because of it, by 1776, the British legal system had already begun to abandon natural law theory in favor of the supremacy of Parliament.  The Founders saw this sea change taking place and became more vehement in their insistence on natural law as the foundation for their rights.

Since the majority of the dominant Founders were lawyers, we can conclude that the view of Cooke and Blackstone prevailed over that of Cicero and Aristotle.  That is not to say that Cicero and Aristotle did not contribute to the Founders’ view of political philosophy in other significant ways.  While some Founders may have held to a purely naturalistic view of natural rights; the theistic view clearly predominated.  Carl Becker, scholar of the Declaration, concluded that “the natural rights philosophy was essentially at one with the Christian faith.”[5]

The Founders, some of them at least, also modified their views over time.  Early on, Thomas Jefferson was heavily influenced by both Coke and Locke. He constantly recommended Locke to his friends, provided Locke a prominent place in the curriculum of the University of Virginia, and even remarked that “Locke’s little book on government is perfect as far as it goes.”  Of Coke, Jefferson wrote: “Coke Lyttleton was the universal elementary book of law students and a sounder Whig never wrote nor of profounder learning in the orthodox doctrines of . . . British liberties.”

In 1770, young lawyer Thomas Jefferson defended a black slave of mixed-race heritage in an attempt to gain his freedom.  Jefferson argued (unsuccessfully) that “everyone comes into the world with a right to his own person and using it at his own will … This is what is called personal liberty, and is given him by the author of nature, because it is necessary for his own sustenance.”  In A Summary View of the Rights of British America (1774), Jefferson asserted that Parliament had no power to encroach “upon those rights which God and the laws have given equally and independently to all.”  Later, in his Notes on Virginia (1781), Jefferson warned: “… can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?”  In 1823, Jefferson toned down the theism of his previous writings: “We believed, with them, that man was a rational animal, endowed by nature with rights, and with an innate sense of justice…”[6] (emphasis added)

We should also note that of the three references to God in the Declaration of Independence, only the first was in Jefferson’s original draft, the other two[7] were added by the full Congress.

In his 1776 essay entitled: On the Right to Rebel Against Governors, The Reverend Samuel West says: “The most perfect freedom consists in obeying the dictates of right reason, and submitting to natural law. When a man goes beyond or contrary to the law of nature and reason, he becomes the slave of base passions and vile lusts; he introduces confusion and disorder into society, and brings misery and destruction upon himself. This, therefore, cannot be called a state of freedom, but a state of the vilest slavery and the most dreadful bondage. The servants of sin and corruption are subjected to the worst kind of tyranny in the universe. Hence we conclude that where licentiousness begins, liberty ends.”

This minister’s reference to “right reason” is pure Aristotelian, while his warning about “servants of sin” could have equally been said by Aquinas.

Samuel Adams, “The Last Puritan,” also mixed his references.  In The Rights of the Colonists, published in November 1772, he wrote: “If men, through fear, fraud, or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of man to alienage this gift, and voluntarily become a slave.”  Adams suggests we use our faculty of reason to conclude that our natural rights should not be alienated, because they are the gift of God.  The Founders say no conflict between reason and revelation; the two were not mutually exclusive, both had a role to play.

In an essay published in the Boston Gazette in August 1765 (two months before the Stamp Act Congress convened), John Adams insisted that: “[You have] rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.”

Adams later wrote that the principles of the American Revolution were “the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole government over us now stands.”[8]

The following Founders (at least) acknowledged natural rights and natural law in their writings: George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Jay, James Wilson, James Iredell, Oliver Ellsworth, Benjamin Rush, Gouverneur Morris, Roger Sherman, John Quincy Adams, John Dickinson, George Nicholas, James Monroe, Edmund Randolph, George Mason, Patrick henry, Richard Henry Lee, George Clinton, Elbridge Gerry, Sam Adams, John Hancock, and James Otis.  Samuel Bryan (“Centinel”), Richard Henry Lee ( “The Federal Farmer”?) , and Robert Yates “(Brutus”) all expressed their views during the ratification debates.

While perhaps not every single one of the Founders would agree that God was the source of natural law, they all agreed that natural rights sprang from that law, and they took every opportunity to document those rights.  Here is a partial list of key “rights” documents composed during the Founding Period:

• 1639 – Fundamental Orders (Connecticut)
• 1641 – Body of Liberties (Massachusetts)
• 1677 – Declaration of the People (Virginia)
• 1765 – Declaration of Rights and Grievances (Congress)
• 1766 – An Inquiry Into the Rights of the British Colonies. (Richard Bland)
• 1772 – The Rights of the Colonists (Samuel Adams)
• 1774 – A Summary View of the Rights of British America (Thomas Jefferson)
• 1774 – Declaration and Resolves (Congress)
• 1775 – Declaration on the Causes of Taking Up Arms(Congress)
• 1776 – Declaration of Rights (Virginia)
• 1776 – Declaration of Independence (Congress)

 

Based on various writings and speeches of the Founders, following is a sampling of some of the rights attributed directly to natural law:

“all men are created equal” (Jefferson, Declaration, 1776)

“there is a parity of privileges,” (Alexander Hamilton, The Farmer Refuted, 1775)

there is a “right to remain in a State of Nature as long as they please” (Samuel Adams, 1772)

there is a “right to life, liberty [and] property,” (numerous writers)

there is a “right to support and defend (life, liberty and property)” (Samuel Adams, 1772)

“every natural Right not expressly given up or from the nature of a Social Compact necessarily ceded, remains” Samuel Adams, 1772)

there is a “right of self defense,” (St. George Tucker, View of the Constitution of the United States, 1805)

there is a right of the people to alter their government (James Otis, The Rights of the British Colonies Asserted and Proved, 1764)

there is a “a right …to nullify … all assumptions of power by others” (Thomas Jefferson, Kentucky Resolutions, 1798)

there is a right to “pursu[e]and obtain[] happiness and safety.” (Virginia Declaration of Rights, 1776)

there is a right to “conviction and conscience [over religious beliefs]” (James Madison, “Memorial and Remonstrance Against Religious Assessments,” 1785)

there is a right of “speaking, writing and publishing their Sentiments with decency and freedom; of peaceably Assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances.” (Roger Sherman, Proposal to House Committee of Eleven, 1789)

there is a right to “trial by jury” (Declaration of Rights and Grievances, 1765)

“Additionally, some Virginians included in their natural rights such concepts as … freedom from ex post facto laws, the right to an impartial judge, and a right to defend their liberties by force…”[9]

This may seem to some a meager list.  James Iredell of North Carolina envisioned one much larger.  At the North Carolina Ratifying Convention on July 29, 1788, speaking of the need for a Bill of Rights, he said:  “Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”

 

While the Founders may have struggled to identify and articulate all their natural rights, an impossible task really, they entertained no confusion over the relationship between natural law and civil law, the former must take precedence over the later.

“All positive and civil laws, should conform as far as possible, to the Law of natural reason and equity.” Samuel Adams, The Rights of the Colonists.

“Human law must rest its authority ultimately upon the authority of that law which is Divine.”  James Wilson, Of the General Principles of Law and Obligation.

“When human laws contradict or discountenance the means which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws and so become null and void.”  Alexander Hamilton, The Farmer Refuted.

“Now all acts of legislation apparently contrary to natural rights and justice … must be in the nature of things, considered as void.  The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict His laws we are in conscience bound to disobey.  Such have been the adjudication of our courts.”  George Mason, as argued in Robin v. Hardaway, Virginia General Court, 1772.

Finally, what about abridgement of their natural rights?  The Founders accepted the notion that natural rights were subject to limitations imposed by the natural law.  “All natural rights,” said Jefferson, “may be abridged or modified…by the [natural] law.”  But “only as we have submitted to them.  The rights of conscience we never submitted, we could not submit.  We are answerable for them to our God.”  On another occasion Jefferson claimed “our liberty depends on the freedom of the press, and that cannot be limited without being lost.”[10]  “This abridgement could take the form of (1) consideration for the common good, (2) respect for the equal rights of others, and (3) realization that when the basis of the right is absent, the exercise of the claimed right can properly be denied.”[11]

In summary, America’s Founders believed in natural law and most believed it was a gift of their Creator.  The thinking of some Founders on the subject appears to have also been influenced somewhat by enlightenment thinking.  Regardless of the source of natural law, such law was discoverable and actionable as a means of invoking natural rights.  It was their natural rights that the colonists felt were being abused and usurped, and a new nation resulted.

So, what’s the point?  Why is it important to understand the Founder’s views of Natural Law and Rights?  First, as I tell all my classes, you must understand the Founders’ worldview, which includes their view of law and rights, to correctly understand any documents from the Founding Period.  Second,  As secular society attempts to push the Christian community further and further into the corners of the public square, the idea that our natural rights are a gift of God is being replaced with a secular equivalent: that all rights are purely and simply a gift of Government.  To the extent that American society accepts this counterfeit theory, true liberty is lost and is replaced by subservience to an almighty, omniscient, and omnipresent civil government.  That’s where we are headed as a nation, and the secularists are determined to win this battle at all costs; many Americans, however, refuse to believe there is even a war afoot.  True freedom rests then on conservatives and other patriotic, freedom-loving Americans to keep the torch of natural rights burning brightly and not let it be extinguished.

My involvement in this Natural Rights discussion group has been quite rewarding and intellectually stimulating.  Why don’t you consider starting one in your area?

Suggested reading:

Natural Law, Natural Rights: www.nlnrac.org/classical/

https://www.nccs.net/natural-law-the-ultimate-source-of-constitutional-law.php

http://www.shestokas.com/uncategorized/natural-law-and-the-legitimate-authority-of-the-united-states/

Phillip Hamburger, “Natural Rights, Natural Law and the American Constitutions” Yale Law Journal, Vol 102, pp. 907-960.

Diarmuid F. O’Scannlain, “The Natural Law in the American Tradition” Fordham Law Review, Vol 79, Issue 4, p. 1513.

Clarence Manion, “The Natural Law Philosophy of the Founders,” Natural Law Institute Proceedings.

Clarence Manion, “The Founding Fathers and the Natural Law: A Study of the Source of Our Legal Institutions,” American Bar Association Journal, Vol 35, No. 6 June 1949, pp. 461-464, 529-530.

Chester James Antieau, “Natural Rights and The Founding Fathers-The Virginians,” 17 Wash. & Lee L.Rev. 43 (1960), http://scholarlycommons.law.wlu.edu/wlulr/vol17/iss1/4.

Brutus on “Rights” http://press-pubs.uchicago.edu/founders/documents/v1ch14s26.html.

 

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[1] Romans 2:15.

[2] Thomas Jefferson, letter to Henry Lee, May 8, 1825

[3] Caroline Robbins, “Algernon Sidney’s Discourses Concerning Government:Textbook of Revolution,” William and Mary Quarterly, 1947, 3rd Series, 4:266-296

[4] Lee Ward, Natural Law and the Colonial Roots of American Constitutionalism, accessed at: http://www.nlnrac.org/american/colonial-roots.

[5] Becker, What is Still Living in the Political Philosophy of Thomas Jefferson?, 48 Am. Hist. Rev. 691, 695 (1943)

[6] Letter to Judge William Johnson, June 12, 1823.

[7] “the Supreme Judge of the world,” “the protection of divine Providence,”

[8] http://www.nlnrac.org/classical/aristotle#_edn3

[9] Manion, p. 46.

[10] Letter to Dr. James Currie, Jan. 18, 1786.

[11] Antieau, p. 52.