Tag: natural rights

From the Rights of Englishmen to the Inalienable Rights of All Men

Daniel Hannan writes in the Wall Street Journal today about Magna Carta, whose 800th anniversary will also be celebrated at a Cato conference next week. Alas, he persists in an error that I regret to say he’s made before.

Hannan is a great advocate of liberty and particularly of English liberty. His patriotism is admirable in an English representative to the European Parliament. But he fails to grasp the shift in the idea of liberty that took place in America in the 1770s. Hannan, I think correctly, celebrates Magna Carta as the great foundation of ordered liberty, of what I have called the greatest libertarian achievement in history, bringing power under the rule of law:

As Lord Denning, the most celebrated modern British jurist put it, Magna Carta was “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”

It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form. King John accepted that he would no longer get to make the rules up as he went along. From that acceptance flowed, ultimately, all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.

But he goes wrong when he glosses over the change in thinking that occurred around 1776 in the American colonies:

The American Revolutionaries weren’t rejecting their identity as Englishmen; they were asserting it. As they saw it, George III was violating the “ancient constitution” just as King John and the Stuarts had done. It was therefore not just their right but their duty to resist, in the words of the delegates to the first Continental Congress in 1774, “as Englishmen our ancestors in like cases have usually done.”

Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights. On the contrary, they were very clear that they were fighting for the privileges bestowed on them by Magna Carta. The concept of “no taxation without representation” was not an abstract principle. It could be found, rather, in Article 12 of the Great Charter: “No scutage or aid is to be levied in our realm except by the common counsel of our realm.” In 1775, Massachusetts duly adopted as its state seal a patriot with a sword in one hand and a copy of Magna Carta in the other.

I recount these facts to make an important, if unfashionable, point. The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.

When we call them universal rights, we are being polite.

It’s true that the colonists came here with the spirit of English liberty running in their veins. They brought with them the books of Locke and Sydney, the examples of Lilburne and Hampden, the writings of Edward Coke. In the 18th century they read Cato’s Letters and William Blackstone. They petitioned Parliament and the king for their rights as Englishmen. 

But the Declaration of Independence marks a break in that thinking. When Thomas Jefferson sat down to write “an expression of the American mind,” he did not appeal to the rights of Englishmen. Instead, the Americans declared:

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. (emphases added)

They appealed not to the British Parliament nor to King George III, but rather to “the opinions of mankind…a candid world…the Supreme Judge of the world.” Hannan glosses over this when he makes reference to 1774 and writes, “Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights.” True, not in 1774. But by 1776, when Thomas Paine published Common Sense, in which he defended “the natural rights of all mankind” and denounced kings as “ruffians” and “a French bastard landing with an armed banditti,” and the Continental Congress made its case on the basis of the unalienable rights of all men, American thinking had changed. Americans declared their belief in universal rights and their independence from a nation that denied those rights.

As I was researching this post, I found a similar argument from Tim Sandefur a year ago. Alas, Hannan persists in making this error year after year. Besides citing the argument of the Declaration, Sandefur presents in evidence the thoughts of John Quincy Adams on the 50th anniversary of the Constitution:

English liberties had failed [the Patriots]. From the omnipotence of Parliament the colonists appealed to the rights of man and the omnipotence of the God of battles. Union! Union! was the instinctive and simultaneous cry throughout the land. Their Congress, assembled at Philadelphia, once—twice had petitioned the king; had remonstrated to Parliament; had addressed the people of Britain, for the rights of Englishmen—in vain. Fleets and armies, the blood of Lexington, and the fires of Charlestown and Falmouth, had been the answer to petition, remonstrance and address.

Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration…. The omnipotence of the British Parliament was vanquished. The independence of the United States of America, was not granted, but recognized. The nation had “assumed among the powers of the earth, the separate and equal station, to which the laws of nature, and of nature’s God, entitled it.”

Daniel Hannan is a thoughtful, forceful, and eloquent advocate of liberty under law. But he needs to read the Declaration of Independence and respect what it says, that the United States of America, though inspired by the tradition of English liberty, was founded on the self-evident truth that all men are endowed by their Creator with certain unalienable Rights, and that those rights reside in all men and women in every country of the earth.


Justice Scalia’s Devilish Heart

Supreme Court Justice Antonin Scalia’s recent interview with New York magazine has gotten a lot of attention, but for the wrong reasons. Many reactions center on his “shocking” revelation that he believes in the existence of the Devil. (Does it take a secular Jew to point out that this standard Catholic doctrine should be no more shocking than the belief that there’s a hell in addition to a heaven?) Better-informed observers will note with surprise the acerbic jurist’s repudiation of his “fainthearted originalism.” Nowadays, he said, he tries to be a “stouthearted” originalist, one who is willing to “take the bitter with the sweet.”

That approach to interpreting the Constitution would be a refreshing break with Scalia’s past, for his is not the track record of a consistent originalist. Yes, the good justice has been faithful and true to the original understanding of the Constitution’s terms in many cases – standing firm against Obamacare’s audacious expansion of federal power in NFIB v. Sebelius, for instance. Yet his heart was much less stout in the 2010 case of McDonald v. Chicago, which extended the right to keep and bear arms to the states. In that case, Scalia fell back on the Fourteenth Amendment’s Due Process Clause – and the very doctrine of “substantive due process” on which he has himself heaped such scorn – to “incorporate” the Second Amendment against the states.

A real originalist would have taken Justice Clarence Thomas’s tack, resurrecting the long-neglected Privileges or Immunities Clause. That Clause was widely understood at the time of the Fourteenth Amendment’s ratification in 1868 to empower the federal government to stop states from violating the rights of recently freed slaves, and by extension of all Americans. Yet in the Slaughterhouse Cases of 1873, the Supreme Court ruled that the Clause didn’t restrict states’ police powers, but instead implicated only the rights attendant to U.S. (as opposed to state) citizenship.

That ruling, which unfortunately was never overturned, prompted later courts to resort clumsily to the questionable substantive due process doctrine to secure individual rights against the states. (To be sure, there has to be some substance to the Due Process – kangaroo courts don’t satisfy constitutional requirements – but that wasn’t the provision intended to secure natural rights.) By reviving the Privileges and Immunities Clause, the Court could have put those rights on a much sounder textual footing and return federal constitutional law in this area to its original meaning. Instead, Scalia took the easy way out and “acquiesced” in a 140-year-old precedent “as much as I think it’s wrong” (quotes from the McDonald oral argument). The mind boggles.

Justice Scalia has written, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” If his jurisprudence is any indication, however, getting originalism’s loudest champions to adhere to it consistently seems to be no easier. 

H/t Josh Blackman, with whom I’ve previously written about Scalia’s weak heart and the proper way to extend the right to keep and bear arms to the states.

Defending the Right to Public Presence

The essential distinction between “private” and “public” property is the egalitarian nature of the latter. There’s no true equality in private property: its owners are free to set whatever restrictions on its use they wish.

On the other hand, public property, especially public fora such as sidewalks, parks, and roads—which have traditionally been available for public speeches, protests, and rallies—is entirely different. Just as we’re all equal in a court of law, or at the ballot box, we’re all supposed to be equal in our freedom to use and enjoy public spaces.

In 2008, however, Massachusetts turned this understanding on its head, declaring that in certain public spaces, some people are more equal than others. The state passed a law making it a crime to physically come within 35 feet of abortion clinics unless you’re a clinic patient, staff member, or government agent, or are using a public road or sidewalk to travel past the clinic. By the state’s own admission, the law was designed to prevent anti-abortion advocates from engaging in “sidewalk counseling.”

When a group of peaceful anti-abortion advocates challenged the law as a violation of their free speech rights, the district and circuit courts accepted the state’s argument that the law was valid as a content-neutral regulation of the time, place, and manner in which the public may engage in free speech. The Supreme Court has now taken up the case, and the petitioners argue that a law designed to target one type of speech, in one type of location, cannot be considered content- or viewpoint-neutral.

While this is indeed an important test-case for the First Amendment, Cato filed an amicus brief in support of the petitioners to present a separate point. The Fourteenth Amendment’s Due Process Clause protects certain fundamental rights against government infringement: rights that are essential to the enjoyment of the freedoms protected by the Bill of Rights, or that are part of the meaning of “ordered liberty,” or that are part of America’s history and traditions.Regardless of your preferred formulation for these protected rights, we argue that one of them is the right to public presence: the right to peacefully use public property in any manner that doesn’t harm others or unreasonably restrict their freedom to use that same public space.

Cato’s Eternal Vigilance

Today is Constitution Day, when all educational institutions are supposed to teach something about our founding document and when all citizens should think about the liberty that is so precious, but that requires, as Jefferson said, eternal vigilance.  We at Cato celebrate Constitution Day with our annual symposium – this year held yesterday so as to accommodate Yom Kippur, which begins tonight – and by releasing the Cato Supreme Court Review, the nation’s first in-depth review of the Supreme Court term just ended.

We’ve now had nine such conferences – which take place about two and a half months after the previous term concludes and two weeks before the next one begins – and published nine such volumes.  We are proud of the speed with which we publish the Review – authors of articles about the last-decided cases have little more than a month to provide us full drafts – and of the tome’s accessibility, at least insofar as the Court’s opinions allow for that.  Both the book and the conference are intended for everyone from lawyers to educated laymen and interested citizens.

I hope that our Constitution Day event and the Review’s collection of essays will deepen and promote the Madisonian first principles of our Constitution, giving renewed voice to the Framers’ fervent wish that we have a government of laws and not of men.  In so doing, we hope also to do justice to a rich legal tradition in which judges, politicians, and ordinary citizens alike understood that the Constitution reflects and protects the natural rights to life, liberty, and property – including The Right to Earn a Living, to quote the title of a new book by my friend and Cato adjunct scholar Timothy Sandefur (for which we’re having a Hill briefing today and book forum Monday) – and serves as a bulwark against the abuse of government power.

In this uncertain time of individual mandates, endless “stimulus,” financial “reform,” and general overreach, it is more important than ever to remember our Constitution’s roots in the Enlightenment tradition.