“We Think with Other Thoughts”: Changing Conceptualizations of Rights in the Era of the American Revolution

Rory Ewins

This is the sixth in a series of essays I wrote as an undergraduate, honours, and then masters student in political theory. This one is from my masters year at Cambridge, 1991–92, and is presented here almost unchanged, in memory of Mark Kaplanoff, Fellow of Pembroke College.

The first ten amendments of the Constitution of the United States, collectively known as the Bill of Rights, stand as a landmark in the history of the legal protection of human rights. As continuing limits on the actions of government, they play a role which has rarely been as effectively filled in the constitutions of other countries. Yet they also serve to illustrate changes in the conceptualization of rights in the past two hundred years which have led in some to doubts about the utility of the very concept of fundamental rights.¹

Such changing conceptualizations are nothing new. One of the more notable periods of discussion about rights is that which preceded the framing of the Bill itself: the era of the American Revolution. In the space of a single generation, Americans moved from a position of satisfaction with common law protection of “rights” to one of demanding their constitutional protection. That move involved a shift in the conceptualization of those rights themselves, due in no small part to the events of those tumultuous years. America had not only undergone a political revolution, wrote Thomas Paine in 1782; “our style and manner of thinking have undergone a revolution ... we see with other eyes; we hear with other ears; and think with other thoughts, than those we formerly used”.²

From the earliest years of settlement, American colonists had compiled charters enumerating rights to which they believed they were entitled as English subjects; lacking as they did the well-developed legal system of England, some other form of guidance was needed in such matters. Throughout the seventeenth century, groups of settlers drew up charters concerned with the “liberties”, “privileges”, and “rights” of their members. They ranged from “rudimentary bills of rights” such as was contained in the Pilgrims’ code of law of 1636, to William Penn’s “remarkably enlightened document”, his 1677 “Laws, Concessions, and Agreements” for the province of West New Jersey.³ Penn’s document was intended to state

such liberties as were guaranteed by law for the good government of a people, in accord with, as near as conveniently might be, ‘the primitive, ancient, and fundamental laws of the people of England’.⁴

Most of these documents differed from bills of rights as we know them in one crucial respect. Rather than being thought of as limits upon government, or laws above the law, they were seen rather as guides to the rights already provided for under English law. That these rights were not insubstantial was probably considered a reflection of the superiority of the English system of government over those found elsewhere. These documents were important, however, in that they formed a “continuous tradition in American colonial life” of the “official” codification of rights;⁵ a tradition largely absent from English life, and one which helped lead the Revolutionary generation towards similar codifications.

By the middle of the eighteenth century, American conceptions of rights had changed, in response to fifty years of exposure to Lockean natural rights theories.⁶ In seventeenth century England the doctrine of natural rights—inherent rights given to human beings by God and nature—had developed as a radical one. In a 1647 debate, Colonel Rainborough, in an appeal to natural right, said that “every man that is to live under a government ought first by his own consent to put himself under that government”; Henry Ireton objected that “by the same right of nature, he hath the same right in any goods he sees ... to take and use them for his sustenance”, which he saw as an unacceptable attack on the institution of property.⁷ Thus for some years the principle of natural rights was seen as a threat to the very structure of English society. John Locke countered this inferred threat in his Second Treatise of 1690 by postulating that it was for the protection of their property (which included, but importantly was not limited to, their own persons) that people entered into civil society and formed governments in the first place. Furthermore, he “severed the connection between consent and the suffrage” by arguing that people could give their consent to the governments that ruled them in a tacit rather than explicit manner. Thus, Locke promoted the theory of natural rights and social contract through his support for it, and furthermore transformed it into a broadly acceptable doctrine; in this way, the doctrine was now able to

serve as a kind of national platform to which Englishmen could subscribe as a useful instrument to combat and restrain absolute monarchy without opening the way to a radical restructuring of society.⁸

This usefulness similarly came to be recognised by American colonists, who throughout the breakdown in relations with Britain of the 1760s and early 1770s strove not to overthrow the British monarchy but to guarantee their rights under it.

Cecelia Kenyon has charted the initial resistance which met some aspects of natural rights theory in America. Clergymen were the loudest opponents of its concept of human equality, declaring it contrary to Christian principles: God determined people’s stations in life, be they high or low. These denunciations tapered off, says Kenyon, through the eighteenth century, as did opposition to a second feature of Lockean theory: that “the purpose of government was to secure the natural rights of men as individuals”. This concept indirectly conflicted with a tenet of American thought with roots in Rome and Greece: that the public good was “a corporate entity ... having unquestioned priority over any individual or separate interests which might be in conflict with it”.⁹ Natural rights theory, with its focus on individuals, required a more difficult conception of the “public good”; one that sought a common ground among individuals, and had somehow to reconcile the “priority of individual rights with the demands of public interest”.¹⁰

Kenyon has argued that these difficulties in natural rights theory were not fully recognised by Americans for some time; instead, the older conception of the public good co-existed with a new belief in natural rights, as demonstrated by continuing denunciations of faction and expressions of desire for unanimity well into the eighteenth century. But as Isaac Kramnick has identified, the situation changed in the Revolutionary era: “subtle changes [were] taking place during the founding of the American republic in the notion of virtue”, which until then had been seen as the “privileging of the public over the private”. When in 1787 many began lamenting a “decline in virtue” in the years since the Revolution, the values they perceived as lacking in Americans were “industry”, “economy”, “temperance”, “frugality” and the like; all, says Kramnick, “apolitical and personal” values rather than civic or public ones. Such language, repeated with “formulaic frequency”, was also the language of work-ethic Protestantism, to which the liberal language of Locke proved complementary.¹¹

In the Revolutionary era, “self-interest was no longer automatically denounced”. Americans had “come to recognise the inevitability ... of diverse and conflicting interests in society”. This recognition was reinforced by their experience of colonial protests, the focus of which was Parliament—an institution representative of another group of British subjects (its constituents) rather than the monarch, but nevertheless promoting interests that conflicted with the colonists’ own. By 1776 Americans had learned

to conceive of “the people” not as an abstract or corporate whole but as a collectivity of individuals and groups with both common and conflicting interests and opinions.¹²

One of the tenets of natural rights doctrine was reinforced in American minds by the events that doctrine had helped cause.

When Americans were presented by their representatives with the Declaration of Independence, their conceptualization of rights had progressed to a point where its concepts of “natural equality, ... natural rights and their preservation or security as the end of government ... could hardly have impressed most ... as either alien or novel”.¹³ Early instances of colonial unrest in the mid-1760s, such as the opposition of colonial legislatures to Parliament’s 1765 Stamp Act, were notable for their appeal to the concept of natural rights: the prevailing reason given by Massachusetts legislators for their opposition to the Act was that it was “against Magna Charta and the natural rights of Englishmen”.¹⁴ As conflict grew over the next decade, colonists were quick to state those rights they believed were theirs. A document drawn up in Boston in 1772 is noteworthy as “an indication of the rights considered fundamental by the colonists on the eve of the Revolution”.¹⁵ Those rights included several familiar from colonial charters: freedom of conscience, the right to trial by jury, and the right to “all the natural essential, inherent and inseparable Rights Liberties and Privileges of Subjects born in Great Britain”.¹⁶ New in the document were an assertion of the right against unreasonable searches and seizures, and the right to be free of a particular established Church.¹⁷

Subtle problems can be seen in this association of quite specific rights arising from particular grievances with the concept of “natural rights”. Clearly, some of the details and implications of Lockean theory had not yet been worked through. How, for example, could a right to trial by jury descend from people’s rights in a “state of nature” where by definition a system of written law does not apply? The form in declarations of rights of an initial appeal to natural rights followed by social corollaries of those natural rights gives a sense that a logical basis for the more specific rights was gradually being uncovered; but in the 1760s and early 1770s this logical basis was not made explicit. Rather, the newer concept of rights derived from a social contract was still somewhat obscured by the older concept of rights defined as those already present in the body of British common law. The mid-1770s, however, saw discussions by two men—Jefferson and Paine—that clarify the nature of these changing conceptualizations of rights.

Perhaps the foremost exponent of natural rights doctrine in this period was the primary author of the Declaration of Independence, Thomas Jefferson. Jefferson had been loud in his attacks on the actions of Britain’s King and Parliament as infringements of the colonists’ “natural rights”. Nowhere is this more obvious than in his A Summary View of the Rights of British America of 1774.¹⁸

In A Summary View, Jefferson declares the “right, which nature has given to all men” of “departing from the country in which chance, not choice has placed them” in order to establish new societies under such laws as seem “most likely to promote public happiness”. He also declares the “natural right” of “the exercise of a free trade with all parts of the world”, the “deep wounds” caused by the practice of slavery to the “rights of human nature”, and that “from the nature of things, every society must at all times possess within itself the sovereign powers of legislation”.¹⁹

Such statements imply that Jefferson was beginning to equate “natural” rights with a few broad, basic categories of right, rather than the specific, more practical rights (such as trial by jury) associated with colonial charters. Jefferson was to present his definitive statement on the subject in his draft of the 1776 Declaration of Independence:

We hold these truths to be sacred & undeniable; that all men are created equal & independant [sic], that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men ...²⁰

The “Jeffersonian trio” of rights—life, liberty, and the pursuit of happiness—has been discussed many times; particular attention has been paid to the substitution of the phrase “pursuit of happiness” for that more traditionally associated with the corresponding “Lockean trio”, the right to “property”. Garry Wills has presented evidence that Jefferson was actually drawing more on the writings of the eighteenth century philosopher Hutcheson than on Locke, and did not himself see the right to property as an “inalienable” right deriving from nature; hence “his effort to free Virginia of laws that made inherited property unalienable” and his opposition to long-standing patents.²¹ The phrase “the pursuit of happiness” has been traced to the influence of the eighteenth century Swiss professor Burlamaqui, who saw people as “made for happiness”, the pursuit of which was the “key ... of the human system”.²²

If, as Wills argues, Jefferson did not see property as an unalienable right, he did not make a public display of this belief, and it is unlikely that it was widely shared in America in 1776. But neither would such a phrase as “the pursuit of happiness” have sounded unpleasant to American ears. Those ears were waiting to hear a stirring justification of the colonies’ bid for independence spoken in the language of the rights of all humanity, and not merely a list of specific grievances, necessary though the latter may have been. The almost spiritual qualities of the phrase “the pursuit of happiness” reflect the nature of the thinking about natural rights being absorbed at the time: here were certain rules that it was above the power of human beings, let alone governments, to change. Hence the emphasis in the Declaration on the “unalienable” (and in Jefferson’s draft “inherent”) nature of those rights.

The Declaration of Independence of 4 July 1776 was a concise and eloquent statement of a doctrine by then well-established. It was, however, a climacteric rather than a climax: the doctrine’s more practical implications were still being deduced.

At least some of the credit for the existence of the Declaration goes not to an American but to an Englishman: Thomas Paine, who had emigrated to Pennsylvania in 1774. Arriving in the midst of colonial protests against Britain, he saw that it was “time to stir”; and in January 1776 he published the incredibly influential pamphlet Common Sense. A vigorous statement against monarchy and in favour of American independence, Common Sense, according to one contemporary, “struck a string which required but a touch to make it vibrate ... the country was ripe for independence, and only needed someone to tell the people so, with decision, boldness and plausibility”.²³

Historian Edmund Morgan has noted the risk implicit in Paine’s programme for the more conservative members of the colonies:

They had come this far in seeking what they considered their legal and constitutional rights, but to go where Paine was leading was to ... risk all in the untried and unrigged ship of “natural” rights.²⁴

If there was such an implication in Common Sense, though, it was an implication and little more. Paine was later, in a different context, to become famous all over again as the author of The Rights of Man, but in Common Sense he “significantly says nothing ... about rights as a reason for entering into a system of government. His only motives are ‘freedom and security’”.²⁵

The concept was certainly not unknown to Paine, merely not elaborated by him: “natural right” is referred to in a discussion in the pamphlet of the “origin and rise of government”, where Paine describes the first parliament of an imagined small colony in which “every man, by natural right will have a seat”.²⁶ Later, he proposes the framing of a “Continental Charter” for his “United Colonies”²⁷ which, among other things, would have the aim of “securing freedom and property to all men, and above all things the free exercise of religion”.²⁸ Paine probably saw a detailed discussion of individual rights as unnecessary in a work intended to unite the colonies in a bid for independence; rather, in Common Sense he “emphasizes the members of a political organization conceived as a joint entity”.²⁹

As Aldridge has noted, however, “the question of rights concerned Paine profoundly ... he returned to it over and over after the publication of Common Sense”. In so doing he contributed significantly to changing conceptualizations of rights in Revolutionary America. Says Aldridge:

Neither Rousseau nor any of Paine’s other predecessors treated in detail the specific nature of human rights or the distinction between those possessed in the state of nature and those in civil society.³⁰

Paine, in newspaper articles printed in 1777, addressed precisely that distinction. Paine’s argument could hardly be more significant: it explicitly states, in a way that previously had not been heard in America, the different kinds of rights available to people in society:

A natural right is an animal right; and the power to act it, is supposed either fully or in part, to be mechanically contained within ourselves as individuals. Civil rights are derived from the assistance or agency of other persons; they form a sort of common stock, which, by the consent of all, may be occasionally used for the benefit of any. They are substituted in the room of some natural rights, either defective in power or dangerous in practice ...³¹

Thus “a man has a natural right to redress himself whenever injured”, but as that right is not wholly satisfactory, he exchanges part of it for the civil rights of appeal to public justice, pleading by proxy, and trial by jury.

This formulation is close to that of Rousseau, who supposed a social compact whereby each person gives up all natural rights when entering civil society, and is given back the best of those rights and others besides. For Rousseau, all rights held by people under a government are civil rights; for Paine, some are civil rights, but others are natural rights which were never surrendered.

Paine may actually have been, indirectly, one of the main conduits in revolutionary America for such Rousseauian notions as the distinction between natural and civil rights. Aldridge has found some evidence in Common Sense that Paine was familiar with Rousseau’s Social Contract at that early stage in his writings; in addition, one authority has opined that in a direct sense, Rousseau’s Social Contract “exerted no palpable influence on political thought in the United States in the eighteenth century”.³² If this is so, the thought of Paine gains even greater significance in this context.

Paine certainly appears to have influenced Jefferson on this point. Jefferson, noted Adrienne Koch, “rarely speaks directly of the social contract”; not until 1789 did he introduce the idea that constitutions and laws are contracts between living citizens and should cease to be binding when the contracting generation no longer exists, which Koch considered “an attempt to give concrete value to the ideal of ‘inalienable rights’”.³³ In 1790 Jefferson refined his concept of rights, writing that:

the purposes of society do not require a surrender of all our rights of our ordinary governors ... there are certain portions of right not necessary to enable them to carry on an effective government ... there are also certain fences which experience has proved peculiarly effecacious against wrong.³⁴

In the first category Jefferson included freedom of religion, and in the second, freedom of the press, trial by jury and habeas corpus. Koch found in this passage evidence that Jefferson now saw “natural rights” as “human potentialities for freedom and happiness, some of which are freely given over to society to ensure ‘effective government’”.³⁵ But is this completely correct? Jefferson’s avoidance of the specific term “natural rights” in these later writings suggests that he was attempting to draw some distinction between rights held under a government and those “inalienable” rights to which he referred in the Declaration of Independence. In this he was likely influenced by Paine, who in 1788, as Aldridge describes, had written to Jefferson restating his theories of 1777:

In the course of transition into civil society [said Paine], ... rights ... “of personal competency” are retained by the individual, but [a] second class, “those of defective power”, are exchanged for “a right to the whole power produced by a condensation of all the parts”.

That is, the “perfect” natural rights are retained and the “imperfect” ones exchanged for civil rights held “under the guarantee of society”.³⁶

This distinction between natural and civil rights was of critical importance, and indicated the direction in which the struggle for rights was to proceed in America. Declarations of “self-evident truths” and the natural rights retained by individuals made fine statements but not particularly effective legal guarantees. When drawing up plans for a new central form of government in the 1780s, the task to which Americans set themselves was to ensure the guarantee of civil rights.

The Bill of Rights, however, was not the result of a wide-ranging public discussion about “civil versus natural rights”. The distinction drawn by Paine was subconsciously rather than consciously absorbed at the time. Nevertheless this changed conceptualization is evident. The Bill of Rights may appear to be a direct descendent of the colonial charters, but its rationale was completely different. Prescriptive rather than descriptive, it was intended to set in place specific limits upon government at the moment of that government’s birth.

That this new conception of “rights as limits” was well established by the late 1780s is evidenced by the various state bills of rights adopted in the early years of the Revolution, first of which was the Virginia Declaration of Rights of 12 June 1776. Drafted largely by George Mason, it combined with a declaration of “inherent natural Rights” a list of more specific rights, so that, a contemporary explained, “the legislature should not in their acts violate any of those canons”.³⁷ The Virginia Declaration gave the first constitutional guarantees of the right to a jury trial under criminal law, freedom of religion and freedom of the press, among others. Other states followed suit as they drew up constitutions and declarations in the late 1770s.³⁸

Many of these declarations, including as they do both lists of civil rights and declarations of natural rights, illustrate the still-transitional nature at the time of American thinking about rights. Paine, however, rejected the claim that bills of rights “should contain the great principles of natural and civil liberty ... [rather,] a Bill of Rights should be a plain positive declaration of the [civil] rights themselves”.³⁹ In Paine’s mind the distinction was clear, and his position, says Bernard Schwartz, “was that upon which Americans acted in drafting the bills of rights of the Revolutionary period”.⁴⁰ But how consciously (and conscientiously) was Paine’s position followed? As Herbert Storing says:

One of the confusions to the modern ear ... in the language of the old state bills of rights is the jumbling together of natural rights, civil rights, basic principles of justice, maxims of government, and specific legal protections. The state bills of rights were full of “oughts” and general principles.⁴¹

This confusion reappeared in the debate about a federal bill of rights which followed the 1787 Constitutional Convention.

From the Revolutionary War’s end until 1787, the national government of the United States had been a confederal one. It had no power to impinge upon individual rights (except through its intermediaries, the states, which provided their own protections of rights), because it had no power “to tax, to raise troops, to regulate commerce, or to execute and enforce its own laws or treaties”. The Constitutional Convention of 1787 sought to address the latter defects. In doing so, however, it focussed almost exclusively on “giving the new federal government the powers it would need to govern effectively”; the issue of rights, though certainly a familiar one for those involved, was not high on the agenda.⁴²

This oversight drew criticism from an old rights campaigner, George Mason, who in the last days of the Convention remarked that he “wished the plan had been prefaced by a Bill of Rights ... [a Bill] would give great quiet to the people”.⁴³ Other delegates, keen to see the Constitution implemented, which taking on such a major new task could only delay, were less convinced of this need. Mason, however, refused to drop the issue. He refrained from signing the Constitution as it stood, and wrote a list of objections to it which began “There is no Declaration of Rights” and which soon found its way into print.⁴⁴

Mason’s objections were quickly echoed by those groups opposed to the Constitution as it stood (the “Anti-Federalists”). The lack of a bill of rights became their chief weapon against the ratification of a Constitution they saw first and foremost as handing far too much power to a central government: “their prime loyalty belonged to states’ rights, not civil rights”.⁴⁵ As they hoped, the popular support that the bill of rights issue attracted soon became the “major roadblock to ratification”.⁴⁶

In late 1787 and early 1788 the Constitution’s supporters (the “Federalists”) brought forward various reasons against a bill of rights. Foremost among these was that the new Government had no power to infringe rights in any case. Any power not delegated to the federal government was reserved; hence, said Alexander Hamilton in The Federalist, “why declare that things shall not be done which there is no power to do?” Worse, by containing “various exceptions to powers not granted”, such a bill “would afford a colorable pretext to claim more than were granted”. Furthermore, “the Constitution is itself, in every rational sense ... A BILL OF RIGHTS”.⁴⁷ Hamilton meant this in a general way,⁴⁸ but other Federalists pointed to specific protections contained within the Constitution as it stood: the right to trial by jury in criminal cases, for example. In so doing they were hoist on their own petard. Federalists had also argued that a bill of rights, which inevitably could not list every right, would imply that unlisted rights were not protected; Anti-Federalists replied that this same argument could be applied to a Constitution which protected some rights and not others.⁴⁹

For many, the state bills of rights had not provided a happy example; although the decade of their existence had seen “the first assertions by state courts of judicial review power”⁵⁰ to enforce rights,

the states had very imperfect bills of rights, which proved to be ineffective when confronted by “public necessity”, and the state governments did in fact abridge rights that had not been explicitly reserved.⁵¹

Still, Hamilton’s implication in The Federalist, that as particular states had no separate bill of rights (and many lacked several key protections) one was equally unnecessary for the federal government, would have won few converts—particularly when this undermined Madison’s claim that “the State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient”.⁵²

The contradictions in the Federalists’ arguments were easily countered by the Anti-Federalists. But why did the Federalists oppose a bill at all, when they were as committed to the protection of rights as anyone?

Most importantly, the Federalists wanted to see the Constitution ratified, and stable government implemented, as quickly as possible. Madison, says Robert Rutland, “did not take the declamation over a bill of rights seriously, for he was preoccupied with what he thought was the central issue involved: preservation of the Union”.⁵³ Furthermore, in The Federalist Madison envisioned that the representatives of the new republic would possess “enlightened views and virtuous sentiments”.⁵⁴ Kramnick has deduced from this that Madision considered that “being men of cool and deliberative judgment, [these representatives] would not pass unjust laws that interfered with private rights”.⁵⁵

Popular support for a bill could not be denied, however, and only by promising that the new government would make a bill of rights a matter of priority did Madison head off the Anti-Federalist push for a second Constitutional Convention (to consider a bill of rights and, they hoped, to quash the Constitution as it stood). By late 1788 the requisite number of states had ratified on this understanding, most offering at the same time a list of “recommended amendments” for protecting various rights.

By then, Madison was discussing the arguments for and against a bill in an exchange of letters with Jefferson (then in Paris), whose main initial objection to the Constitution as proposed had been that it omitted “a bill of rights providing clearly and without the aid of sophisms” for essential freedoms.⁵⁶ Jefferson’s influence was critical in “converting Madison’s original lukewarm attitude to one of warm support”;⁵⁷ the publicity given to some of their letters in turn influenced the public debate over the bill. Madison thought the real danger to rights came from “the majority of the Community ... not from the acts of Government contrary to the sense of its constituents”.⁵⁸ But seeing that a bill could have value in “counteract[ing] the impulses of interest and passion” by incorporating a “solemn declaration” of political truths with the national sentiment, and in providing “a good ground for an appeal to the sense of the community”, Madison put his weight behind the proposal. After a close election campaign in which Madison’s “promise to work for a bill of rights seems to have made the difference”, ensuring its adoption now became for him “a person matter”.⁵⁹ Madison became the “father” of the Bill of Rights, drawing upon past declarations and recommendations to frame the various amendments himself.

Madison’s struggle to get his proposals adopted by Congress paralleled the initial struggle by the Anti-Federalists to get a bill placed on the agenda, but eventually was similarly successful.⁶⁰ The result was the ratification of the first ten amendments to the Constitution, effective 15 December 1791. The Bill of Rights was a summary of all those civil rights considered important at the time.⁶¹

Almost more significant than the particular rights included in the final Bill is what it did not contain. To the dismay of some Anti-Federalists, who once they had lost the initiative to Madison were in little position to effect any changes in the proposed Bill for fear of seeing the concept defeated altogether, the Bill contained no wide-ranging statement of natural rights.⁶² Madison had completed the change in conceptualization from natural to civil rights; the “great object” of the Bill, as he saw it, was to “limit and qualify the powers of Government”.⁶³

How effectively it would come to do just that in future years Madison, it seems, did not fully realize; in Congress, he had argued only that a bill of rights “may have, to a certain degree, a salutary effect against the abuse of power”.⁶⁴ His correspondent Jefferson had shown more prescience in a letter of March 1789:

In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the Judiciary.⁶⁵

Madison and Jefferson were aware that the Bill of Rights was more than merely a summation of those rights Americans had come to enjoy and expect under British, and then self, rule. Rather, the Bill of Rights was the first written contract made by a free and self-governing people at the moment of forming a government, to protect those individual rights which in eighteenth century liberal theory formed the ends of government.

In a turbulent era which provided the opportunities to put into effect their continuously evolving conceptualizations of rights, Americans moved from colonial charters listing rights held under British law, to declarations of natural rights, to bills of civil rights designed to limit government.

Today, the ability of Americans to put into effect the changes now occurring in thinking about civil rights is limited by that two hundred-year-old contract. Those who chafe at those limits are faced with a new question, one which remained in the background in this eighteenth-century debate: are civil rights as “fundamental” as natural rights? Are they to the same extent, as Madison believed, the “great rights of mankind”?⁶⁶ Or do they require periodic redefinition, occasional tailoring to new circumstances, perhaps even as often as implied by Jefferson’s theory that constitutions should lapse with the passing of the contracting generation? These are questions that call for the wisdom of a latter-day Paine; one who may find that today, as in the American Revolutionary Era, people continue to “think with other thoughts, than those we formerly used”.

November 1991, posted December 2012

Notes

1. An obvious example is the present-day criticism drawn by the second amendment, the right to bear arms, a right claimed by many to be anachronistic and one not often included in twentieth century bills of rights.

2. Thomas Paine, ‘Letter to the Abbé Raynal’, in The Thomas Paine Reader, edited by Michael Foot and Isaac Kramnick (London, 1987), pp. 147-66 (p. 163).

3. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Massachusetts, 1967), pp. 194-95.

4. Quoted in ibid., p. 196.

5. Bailyn, Ideological Origins, p. 197.

6. Cecelia M. Kenyon, ‘The Declaration of Independence’, in Fundamental Testaments of the American Revolution, papers presented at the second Library of Congress Symposium on the American Revolution, May 10 and 11, 1973 (Washington, 1973), pp. 25-46 (p. 30). Kenyon points out that Locke’s Second Treatise was “not the only ... means by which these concepts reached America,” but that in the colonial context there were fewer variations among widely-disseminated natural rights theories than were seen in Europe.

7. Rainborough and Ireton quoted in ibid., p. 28.

8. Kenyon, ‘Declaration of Independence’, p. 30.

9. Ibid., p. 31.

10. Ibid., pp. 31-32.

11. Isaac Kramnick, ‘The “Great National Discussion”: The Discourse of Politics in 1787’, William and Mary Quarterly, 45 (1988), 3-32 (pp. 16-18).

12. Kenyon, ‘Declaration of Independence’, pp. 32-35.

13. Ibid., p. 25.

14. According to then-lieutenant governor Hutchinson; quoted in Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (New York, 1977), p. 59.

15. Schwartz, p. 61.

16. Quoted in ibid.

17. Schwartz, p. 61.

18. Thomas Jefferson, A Summary View of the Rights of British America, in The Papers of Thomas Jefferson, edited by Julian Boyd, (Princeton, New Jersey, 1950-), I (1950), 121-37. This pamphlet was intended to guide Virginian delegates in preparing an address to the King.

19. Ibid., pp. 121-32.

20. Thomas Jefferson, ‘The Declaration of Independence’, in The Papers of Thomas Jefferson, I, 413-33 (p. 423). The Declaration as adopted by Congress introduced various changes in wording, such that the corresponding passage (p. 429) read:

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 ...

21. Garry Wills, Inventing America: Jefferson’s Declaration of Independence (Garden City, New York, 1978), pp. 233-34.

22. Quoted in Saul K. Padover, Thomas Jefferson and the Foundations of American Freedom (Princeton, New Jersey, 1965), p. 49.

23. Unidentified contemporary quoted in editors’ introduction to The Thomas Paine Reader, pp. 7-36 (pp. 9-10).

24. Edmund S. Morgan, The Birth of the Republic 1763-89, Chicago History of American Civilisation, revised edition (Chicago and London, 1977), p. 72.

25. A. Owen Aldridge, Thomas Paine’s American Ideology (London and Toronto, 1984), p. 50.

26. Thomas Paine, Common Sense, in The Thomas Paine Reader, pp. 65-115 (p. 68).

27. Paine was apparently the first to use the term “United States” (in one of his ‘American Crisis’ papers). [A. J. Ayer, Thomas Paine (London, 1988), p. 42.]

28. Paine, Common Sense, in Paine Reader, p. 91.

29. Aldridge, Paine’s American Ideology, p. 123.

30. Ibid., p. 126.

31. Quoted in ibid., p. 127.

32. Paul M. Spurlin, quoted in ibid., p. 138.

33. Adrienne Koch, The Philosophy of Thomas Jefferson (New York, 1943), pp. 40-41.

34. Quoted in ibid., p. 141.

35. Koch, Philosophy of Jefferson, p. 142.

36. Aldridge, Paine’s American Ideology, p. 126.

37. Mason’s fellow committee-member Edmund Randolph; quoted in Brent Tarter, ‘Virginians and the Bill of Rights’, in The Bill of Rights: A Lively Heritage, edited by Jon Kukla (Richmond, Virginia, 1987), pp. 3-17 (p. 5).

38. Schwartz, Great Rights, pp. 87-88.

39. Quoted in ibid., p. 85. This quote comes from his previously-mentioned 1777 newspaper article.

40. Schwartz, Great Rights, p. 85.

41. Herbert J. Storing, ‘The Constitution and the Bill of Rights’, in Essays on the Constitution of the United States, edited by M. Judd Harmon (Port Washington, New York, and London, 1978), pp. 32-48 (p. 44).

42. Schwartz, Great Rights, pp. 103-4. A further indication of the thinking of the Convention comes from the committee charged with the framing of the Constitution, who decided that

the preamble did not seem a proper place for a philosophical statement of the ends of government because “we are not working on the natural rights of men not yet gathered into society” but upon the rights “modified by society and interwoven with what we call ... the rights of states”. ... The adoption of the state constitutions having ended the state of nature, there was no need to enumerate the rights reserved to the people.

[Leonard W. Levy, Constitutional Opinions: Aspects of the Bill of Rights (New York and Oxford, 1986), p. 107.]

43. Quoted in Levy, Constitutional Opinions, p. 105; and in Robert A. Rutland, ‘Framing and Ratifying the First Ten Amendments’, in The Framing and Ratification of the Constitution, edited by Leonard W. Levy and Dennis J. Mahoney (New York and London, 1987), pp. 305-16 (p. 305).

44. Rutland, ‘Framing and Ratifying’, pp. 305-6.

45. Levy, Constitutional Opinions, p. 106.

46. Rutland, ‘Framing and Ratifying’, p. 306.

47. Alexander Hamilton, ‘The Federalist Number 84: The Lack of a Bill of Rights’, in Alexander Hamilton, James Madison and John Jay, The Federalist, edited by Benjamin Fletcher Wright (Cambridge, Massachusetts, 1961), pp. 531-41 (pp. 535-36). The Federalist essays first appeared between 27 October 1787 and 28 May 1788.

48. In ibid., p. 534, he writes:

The people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America”. Here is a better recognition of popular rights, than volumes of ... aphorisms.

49. Levy, Constitutional Opinions, p. 115.

50. Schwartz, Great Rights, p. 103.

51. Levy, Constitutional Opinions, p. 111.

52. Quoted in editor’s introduction to The Federalist, pp. 1-86 (p. 24).

53. Rutland, ‘Framing and Ratifying’, p. 307.

54. James Madison, ‘The Federalist Number 10: The Size and Variety of the Union as a Check on Faction’, in The Federalist, pp. 129-36 (p. 135).

55. Kramnick, ‘“Great National Discussion”’, p. 31.

56. Quoted in Schwartz, Great Rights, p. 116.

57. Schwartz, Great Rights, p. 115.

58. Madison to Jefferson, 17 October 1788, quoted in Rutland, ‘Framing and Ratifying’, p. 308.

59. Rutland, ‘Framing and Ratifying’, p. 308.

60. A discussion of the Congress debate would be too long and detailed to provide here. For such a survey, see any of the previously cited works by Rutland, Schwartz, Levy, or Storing.

61. The rights protected included freedom of religion, of speech, and of the press; the right to assembly, to petition government, to bear arms, to trial by jury, and to legal counsel; and rights against unwarranted searches, excessive bail, and “cruel and unusual punishment”.

62. See Storing’s ‘Constitution and the Bill of Rights’ for a thorough discussion of the Anti-Federalists’ position in the Bill of Rights debate.

63. Quoted in Levy, Constitutional Opinions, p. 131.

64. Quoted in Rutland, ‘Framing and Ratifying’, p. 310.

65. Jefferson to Madison, 15 March 1987, quoted in Alpheus T. Mason, ‘America’s Political Heritage’, in Essays on the Constitution, pp. 11-31 (footnote 67, p. 164).

66. Quoted in Schwartz, Great Rights, p. vii.

References

Aldridge, A. Owen, Thomas Paine’s American Ideology (London and Toronto, 1984).

Ayer, A. J., Thomas Paine (London, 1988).

Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, Massachusetts, 1967).

The Bill of Rights: A Lively Heritage, edited by Jon Kukla (Richmond, Virginia, 1987).

Essays on the Constitution of the United States, edited by M. Judd Harmon (Port Washington, New York, and London, 1978).

The Framing and Ratification of the Constitution, edited by Leonard W. Levy and Dennis J. Mahoney (New York and London, 1987).

Fundamental Testaments of the American Revolution, papers presented at the second Library of Congress Symposium on the American Revolution, May 10 and 11, 1973 (Washington, 1973).

Hamilton, Alexander, James Madison and John Jay, The Federalist, edited by Benjamin Fletcher Wright (Cambridge, Massachusetts, 1961).

Koch, Adrienne, The Philosophy of Thomas Jefferson (New York, 1943).

Kramnick, Isaac, ‘The “Great National Discussion”: The Discourse of Politics in 1787’, William and Mary Quarterly, 45 (1988), 3-32.

Levy, Leonard W., Constitutional Opinions: Aspects of the Bill of Rights (New York and Oxford, 1986).

Morgan, Edmund S., The Birth of the Republic 1763-89, Chicago History of American Civilisation, revised edition (Chicago and London, 1977).

Padover, Saul K., Thomas Jefferson and the Foundations of American Freedom (Princeton, New Jersey, 1965).

The Papers of Thomas Jefferson, edited by Julian P. Boyd (Princeton, New Jersey, 1950-), I (1950).

Saving the Revolution: ‘The Federalist Papers’ and the American Founding, edited by Charles R. Kesler (New York and London, 1987).

Schwartz, Bernard, The Great Rights of Mankind: A History of the American Bill of Rights (New York, 1977).

Storing, Herbert J., What the Anti-Federalists were For, with the editorial assistance of Murray Dry (Chicago and London, 1981).

The Thomas Paine Reader, edited by Michael Foot and Isaac Kramnick (London, 1987).

Wills, Garry, Inventing America: Jefferson’s Declaration of Independence (Garden City, New York, 1978).