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The Relationship Between the Constitution & Natural Rights: Founding Era Debates

What are natural rights and does our Constitution require citizens to surrender some of them? Professor Hadley Arkes discusses this debate among the founding fathers and why it was important. Professor Arkes explains that the Federalists and later, Abraham Lincoln, believed that men never had the right to do wrong. A Constitution that restrains injustice does not deprive anyone of a right they never had, even in a state of nature. https://youtube.com/watch?v=Za4_-C2Ib04


One of the premier minds among the American founders, James Wilson of Pennsylvania, said that we were not seeking with this new Constitution to invent new rights, but to secure and enlarge those rights we already had by nature. William Blackstone, the great commentator of the English laws, said that when we enter civil society we give up those unrestricted rights we have in the state of nature, including the liberty to do mischief. And James Wilson said, when did we ever have a liberty to do mischief? Or as Lincoln would later put it, when did we ever have a right to do a wrong? Even the state of nature, he said, you did not have the right to murder and rape. And the laws that barred you from murdering and raping do not bar you from anything you ever had a rightful freedom to do. And so when the question arose, what rights did we give up when we entered under this new constitution? The answer, tended by the Federalists was, none. Alexander Hamilton put it in Federalist 84. Here, the people surrendered nothing. It was not a part of this project that we give up the bulk of our natural rights for the sake of entering into the scheme. Well, in that case, the question arose, what was the rationale for attaching this codicil called a Bill of Rights, listing all those things we hadn't given up, in that case, unless we are implying that we had indeed given up the bulk of our rights in entering the Constitution. In the Declaration of Independence it was said that human beings were endowed by their Creator with certain inalienable natural rights. And as the line went, governments were formed foremost for the purpose, as Wilson said, of securing those natural rights. They were rights supposedly grounded in nature, in the very nature of human beings, they promised to endure in all places that nature remain the same. That's what Abraham Lincoln was referring to when he looked back on the Declaration. And so Thomas Jefferson and his craftsmanship there had articulated an abstract truth applicable to all men and all times. All men are created equal. That the only rightful government over human beings depended on the consent of the governed. It was a moral truth about the things that were right or wrong, just or unjust, fitting or unfitting, for the ways human beings deserved to live. And the right springing from those truths would hold in all periods, in all countries and cultures, as long as that nature held the same.

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