Natural Rights: An Evolving Concept

1. Natural Rights: An Evolving Concept Artemus Ward Department of Political Science Northern Illinois University http://polisci.niu.edu/polisci/faculty/ward aeward@niu.edu David Roberts (British, 1796–1864). The Houses of Parliament from Millbank, 1861. Bill of Rights Institute Milwaukee, WI August 23, 2010

2. Introduction • We will look at a number of important documents and thinkers that were central to the formation of the American Republic, the Constitution, and the Bill of Rights. • Specifically, we will discuss the Magna Carta (1215), the English Bill of Rights (1689), John Locke’s Two Treatises of Government (1690), and the Declaration of Independence (1776), among other writings. • Along the way, we will see how the Constitution and the Bill of Rights were built on a rich historical and intellectual foundation.

3. Thesis: “Rights” as an Evolving Concept • In the American context, the notion of “rights” is rooted in the English experience. Hence we must understand the political and legal history of England in order to understand how the American conception of “rights” came to be. • The medieval king had a right to govern, and the English had their feudal rights, but over the course of the 17th century, rights came to be understood as something to be held against the monarch while Parliamentary sovereignty was understood to be the protector of the people’s rights. • The American experience grew out of a tradition of rights claims against a monarch, but after the experiment with state sovereignty under the Articles of Confederation, Americans developed a recognition that legislatures and executives, though agents of the people, might also threaten the rights of the people as monarchs once had. • Hence, today American understand individual rights as protections against their own representatives in the form of the government.

4. Origins • The Bill of Rights contain twenty-six specific rights in its ten provisions. • At most, seven of these rights can be traced to Magna Carta, the English Petition of Right (1628), or the English Bill of Rights (1689). • Seven others can be traced in their origin to the Massachusetts Body of Liberties (1641), which also included the seven English-originated rights and four more rights that were first codified in Massachusetts prior to 1641. • All but three of the remaining rights in the U.S. Bill of Rights would originate in other colonial documents.

5. Magna Carta (1215) • Magna Carta required King John of England to proclaim certain rights (pertaining to lords: nobles and barons), respect certain legal procedures, and accept that his will could be bound by the law. It was the first document forced onto an English King by a group of his subjects (the lords) in an attempt to limit his powers by law and protect their rights. • It explicitly protected certain rights of the King's subjects—most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment. Indeed, the U.S. Constitution does not grant this right, it merely limits the government’s ability to suspend it: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it (Article I, §9). • King John agreed to: • preserve the freedom of the Church and to hear petitions from the barons (1st Amendment); • remove foreign armies from England (3rd Amendment); • not seize land to pay for debts (4th Amendment); • not take life or liberty without due process or repayment (5th Amendment); • not delay court proceedings or punish without hearing from witnesses (6th Amendment); • repay unjust fines and not issue excessive punishments (8th Amendment).

6. The Petition of Right (1628) • Not long after he became King, Charles I sought to raise funds on his own for an unpopular war with Spain. He unilaterally imposed taxes and forced loans. He housed soldiers in civilian homes to save funds and punish political opponents. When five knights refused to pay the force loan, Charles arrested and imprisoned them without charge. • In response, Parliament passed a Petition of Right, establishing the principle that the King was not above the law. • The Petition relied heavily on the Magna Carta (1215) and was essentially a restatement of ancient rights, rather than an establishment of new ones. • It is most notable for its confirmation of the principles that taxes can be levied only by Parliament, that martial law may not be imposed in time of peace, and that prisoners must be able to challenge the legitimacy of their detentions through the writ of habeas corpus. Additionally, the Petition's ban on billeting (quartering) soldiers in private residences is reflected in the 3rd Amendment to the U.S. Constitution. • Ultimately, Charles I gave royal assent to the petition in order to gain the funds he needed for his military conflicts. However, he had no intention of abiding by it. He refused to convene parliament and undertook a period of “Personal Rule” which included religious oppression, a war with Scotland, and an ongoing struggle to raise funds. He finally had no choice but to convene a new parliament but it immediately turned on him and their battles led to the English Civil War (1642-1651), his trial for treason, and beheading in 1649. Charles I by Anthony Van Dyck, 1636

7. The English Bill of Rights (1689) • Following the Glorious Revolution of 1688, William and Mary became joint sovereigns of England. As a condition of their rule, they agreed to abide by the provisions of the Bill of Rights (also known as the Declaration of Rights) which was passed by Parliament in December 1689. • The Bill of Rights (1689) requires the Crown to seek the consent of the people (parliament) for its actions. This is similar to the lawmaking power of the U.S. Constitution where both congress and the president are part of the legislative process. It also prohibited royal interference with the law in terms of unilaterally establishing courts or acting as a judge. This is similar to the U.S. Constitution’s delegation to court-creation to congress and judicial appointments to both congress and the president. • The Bill of Rights also enumerates certain rights to which citizens, permanent residents, and members of Parliament in a constitutional monarchy were entitled to. Many of these provisions are similar to provisions in the American Bill of Rights: • freedom of parliamentary speech (1st Amendment)’ • right to petition the monarch (1st Amendment); • right to keep and bear arms (2nd Amendment); • protections of property and liberty, such as fines and forfeiture without trial (4th and 5th Amendments); • rights of the accused (6th Amendment) • rights of criminals such as cruel and unusual punishment and excessive bail (8th Amendment)

8. The Act of Toleration (1689) • William and Mary also agreed to the Toleration Act of 1689 which expanded freedom of religion. • It’s formal title was “An Act for Exempting their Majesties Protestant Subjects dissenting from the Church of England from the Penalties of certain Laws.” • Though it did not protect Catholics or Quakers, It granted Protestants who did not attend the Church of England the right to freely exercise their faith. • The principle of religious freedom guaranteed in this Act became an important protection in the American 1st Amendment.

9. John Locke • During the English Civil War Thomas Hobbes published Leviathan (1651) which postulated a war-like state of nature where men pursue selfish desire and life is “solitary, poor, nasty, brutish, and short.” Hence, Hobbes explained the importance of men engaging in a social contract, necessarily giving up their rights in the state of nature, and being governed under a single sovereign authority. Many immediately saw Hobbes as an advocate of absolute monarchy. • In the Two Treatises of Government (1690) John Locke argued against the divine right of kings and instead said that in the state of nature all men were created equal by God with rights to life, liberty, and property. In order to protect these rights, men enter into a social contract with each other in the form of a government with separation of powers. Should government no longer protect individual rights, the people have the right to “revolution” – to dissolve the government. • Though some saw Locke’s ideas as little more than a rationalization of the Glorious Revolution, Locke ultimately proved influential on early American revolutionaries. For example, Thomas Jefferson and the drafters of the Declaration of Independence included verbatim passages from the Two Treatises. Samuel Adams cited Locke’s ideas in his attempts to gain support for the revolution. And in the end, the U.S. adopted a separation of powers system where “life, liberty, and property” were constitutionally protected.

10. Conclusion • The American conception of rights was firmly rooted in the English experience. • Americans looked to the English tradition of enumerated (written) rights beginning with the Magna Carta and were influenced by the natural rights arguments of philosophers like John Locke. • The English notion of rights against the monarch evolved in the American context to the idea of rights against the government, even though government officials were supposed to be agents of the people. • As a result, the American Bill of Rights constitute individual protections against potential government abuse of authority.

11. Further Reading • Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven: Yale University Press, 1998. • Brant, Irving. 1965. The Bill of Rights: Its Origin and Meaning. Indianapolis, IN: Bobbs-Merrill, 1965. • Rakove, Jack. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Knopf, 1996. • Shain, Barry Alan, ed. The Nature of Rights at the American Founding. Charlottesville: University of Virginia Press, 1997. • Wood, Gordon S. The Creation of the American Republic. Chapel Hill: University of North Carolina Press, 1969.