Liberty, the Tea Party, and the Founders' Views of Rights

The Tea Party has an overly simplistic view of rights and of history (as their very name attests). I haven't blogged on this topic a while because I was finishing a book about this topic and getting it into print. It is now out. It is a book that takes on the simplified view of rights in the founding period.

Liberty in America's Founding Moment: Doubts About Natural Rights in Jefferson's Declaration of Independence.

If you follow the rhetoric of the Tea Party and the others that share their "liberty-first" philosophy, they often appeal to a concept of natural rights or individual rights that they say is endorsed by the American founders and is evident in the Declaration of Independence. If the founders endorsed natural rights and the Declaration of Independence does the same, then we must do so also.

The fact is that the notion of natural rights is extremely problematic. Anyone with a philosophy background knows that most modern philosophers since the end of the seventeenth century have had significant doubts about natural rights as a concept, even though it was pretty smart and interesting in its time. That story is worth telling in another context.

But what is often misunderstood is that the American founders themselves had doubts about the concept of natural rights. They were reading some of the philosophers like Hume who expressed doubt about John Locke's philosophy of natural right for example. Even Jefferson, the author of the Declaration, may have had significant doubts about natural rights when writing the Declaration.

It is clear, moreover, that there was no single unified view of rights among the founders. Jefferson did not agree with James Wilson or John Adams for example on what the foundation of American rights should be. The Declaration far from declaring a unified view of rights actually is covering up a series of disagreements among the founders on the foundation of American rights.

What does all this mean? It means that the Tea Party and other libertarians and "liberty-first" advocates oversimplify history in attempts to shore up their own philosophy of rights by appealing to the American founding. It is this part of their argument that I demolish in my book Liberty in America's Founding Moment.

Right to Life, Liberty and Healthcare Too

It is amazing that people who say they care so much about liberty don't want to support a healthcare reform bill. Those right wing conservatives and libertarians who are against it, of course, say it because Obama's plan infringes on their rights. They portray the public plan as "socialism" and as an example of "big government" stepping in inappropriately. A public government plan in an infringement of individual rights, they say.

This is an example of how "liberty" is used indiscriminately to actually infringe on rights. For it is not only possible, but probable, to argue that "health" is a natural right.

I am by no means the first to make such a claim. Cass Sunstein, as one example, has written a good book on the subject (The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever). But I want to approach this same topic from another angle. The very notion of what is and is not included in our natural rights is a construction. For the question of why health should not be a natural right that is protected by government, just like my other rights, shows just how flimsy and problematic is the Right Wing's view of natural rights. Indeed, we shall see that it is arguable that "health" should be considered a basic natural right alongside others such as "life, liberty and property."

Without going into the whole history of natural rights, it is fair to say that seventeenth century philosopher John Locke at least represents one of the most credible and influential writers on natural rights. In fact, those who want to see natural rights as a foundation of American society, , often argue that Thomas Jefferson and the American founders endorsed natural rights in general and a Lockean view in particular. I have documented and challenged these contentions in a series of essays (see http://www.freedomandcapitalism.com/) and in a forthcoming book, Jefferson, Natural Rights and the Declaration of Independence.

Lets assume for a moment these writers are right, and that John Locke's understanding of natural rights is a foundation of the American vision. If so, then what are we to make of the fact that Locke includes health as a natural right.

In the Second Treatise on Government, Locke writes in one of his central statements on natural rights:

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipoent, and infinitely wise maker; all the servants of one soverign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during hs, not another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of createures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another.

Now it is surely interesting that Locke here mentions "health" along with the other basic natural rights in one of his classic definitions of natural rights. Indeed, this is one of Locke's classic justifications for the fact that people have natural rights. We have such rights because we are God's workmanship and as God's property we don't have a right to harm one another. In this passage at least, Locke assumes our natural rights derive from the fact that God made us and we are his property. I can't touch you because you are someone else's property.

Furthermore, we also see here Locke's assumption that my right to life is primary and the other rights like property are secondary and derivative from my right to life. In Locke's own words, one "may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another." Property is not a right by itself, but a right that derives from my right to life. As Locke says elsewhere, if someone can take my property they can take my life. So my right to property is a fence around my more basic right to life.

We often here the summary of natural rights as "life, liberty and property" (or Jefferson's "happiness"). But note that Locke includes "health" in his list too. Health is on the same level as property in the list of natural rights. My right to health is as primary as my right to property. Noone has the right to impair my health in the same way they have no right to my property. Both are a fence around my more basic right to life.

We see then that my right to health should be protected and this right is as strong as my right to property. But so what? What has this to do with the healthcare debate? Doesn't Locke mean to say only that noone may do something to harm my health? And if so, Locke is merely saying that I can't do something that will harm your health?

In fact, we shall see that Locke is saying something even stronger than this. But lets assume for a moment he is not. Lets assume he is merely saying that noone may do something to harm me or my health. Still this is a very significnat addition to natural rights. For it means that there should be as many laws protecting my health from harm as we recognize for protecting my property. If government has to create many laws to protect my property, it should have the responsibility to create as many laws to protect my health. My property should not be more precious to society than my rights regarding health. One could see here the foundation for government regulating what others do that may infringe on my health. One can see here a justification for anti-smoking laws, for example, or for environmental laws against pollution. Actions of others can harm my health directly and indirectly and that is a violation of my right to health. In other words, if I have a natural right to health, then my health should be protected from the detrimental actions of others. That is a pretty strong endorsement for government getting involved in protecting me from the behavior of others that they may not intend to harm my health but that actually may harm my health.

But there is a reading of Locke that suggests an even stronger obligation to protect the health of the individual. For Locke indicates that if our own preservation is not at risk, that we have a duty to protect the life and health of others. In his words,

"Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another."

What Locke is saying here is that the same Reason that leads me to conclude that I may protect and preserve myself leads me to understand that I have a positive duty to preserve the rest of mankind. This duty to preserve the rest of mankind can be construed as a positive duty of "care" . As long as my own preservation is not at risk, I have an obligation to help others, not only to protect their lives, but "what tends to the life, the liberty, health, limb or goods of another."

In this reading, Locke is arguing that we have not only a right to be protected but a duty to care and that duty is part of the natural rights obligation. This duty moreover is as self-evident to reason as the protection of our life. What this duty to care suggests is that each person has a duty to do "whatever he can" to preserve the rest of mankind.

Now this language certainly opens up the possibility that individuals have a responsibility to contribute to the health of others. And it opens up the possibility that individuals can transfer this duty to society and execute it through government institutions. After all, Locke sees the beginning of government in the social contract in which individuals turn over to society some of their rights in exchange for some of societies benefits. If an individual has a responsibility to preserve humankind, it stands to reason that government can act as an agent for those responsibilities.

In this way, we can see how it is appropirate for government to see itself as executing the natural right obligation to protect the health of its members. A health care plan that puts some of the onus on government certainly can be aligned with a view of natural rights. To call a health care plan that has government involvement "socialism" indicates a complete lack of understanding of the natural rights tradition.

For those who want to argue that America is founded on natural rights and liberty, they have to contend with the fact that the father of liberty, John Locke, thought health was a central right. And they have to deal with the fact that many that right wingers think Jefferson adopted the Lockean view of rights. If they think American is founded on natural rights, then they have to at least concede that the father of the natural rights tradition included the protection of health in the category of a natural rights.

Natural Rights and the Image of God.

We have the righ to life, liberty and property, according to the theory of natural rights. But why? Locke offers two theory about the origin of these rights. The first is his "workmanship" theory that says we are the creation of God and therefore God's property. As God's property, we have no right to be harmed (actually this would seem to be a right of God, rather than that of us who are property-but that's for another time). The other theory is that we have ownership in ourselves. In my last blog, I discussed whether these two different claims for natural rights origins are incompatible. Here I want to ask a different question.



What about being made in the image of God? In a religious perspective that reaches back to the Hebrew Bible (Old Testament for some of you), it would certainly make sense to say that we have rights because we are made in God's image. Genesis, at least in chapter 1 (there is a different account in chapter 2) says that "



And God said, "Let us make Adam (man? humankind?) in our image, after our likeness. They shall rule the fish of the sea, the birds of the sky, the cattle, the whole earth, and all the creeping things that creep on earth. And God crated man is His image, in the image of God He created him; male and female He created them. God blessed them and God said to them, "Be fertile and increase, fill the earth and master it; and rule the fish of hte sea, the birds of the sky, and all the living things that creep on." Gen. 1:26-28.



There are some notoriously interesting interpretive issues here for students of bilitical interpretation about the plural and singular switching and about what the image of God means. All sorts of interesting interpretations have beeen given in the religious traditions. God was talking to the angels. God was speaking in the royal we. Be that as it may, Genesis 1 sees Adam (Humankind) as being like God. And indeed the story of Genesis can be read as humans attempting to become even more like God by eating from the Tree of Life and becoming immortal. And it is reasonable to interpret the prohibition on murder in the hebrew bible as associated with the idea that humans are made in God's image. From a biblical perspective then it might make sense to base rights on the likeness of humans to God.



In any case, it is interesting that John Locke bases his argument of natural rights on the "workmanship" theory that we are God's property. Why does Locke not appeal to the idea humans are made in the image of God? I don't have the complete answer to this question today. But it does seem interesting that he doesn't appeal to that concept in his Second Treatise. In part, perhaps, his theory about the origin of natural rights in his Second Treatise is principally based on "reason" and he differentiates between insights from reason versus revelation, as he indicated in various places in his writing. His focus on Scripture's meaning is given in his First Treatise where he takes on Filmer's theory of absolute power of monarchy. There Locke engages in much more detail with Scripture and even may have written the attack on Filmer to really provide an engagement with Scripture, as Michael Zuckert has suggested in Launching Liberalism, 137.



A detailed analysis of Locke's Scriptural exegesis there is beyond the scope of the current reflection. But it is surely of interest that Locke, one of the foremost champions of natural rights, did not argue from the fact that we are made in the image of God. This is particularly interesting given the fact that he does place such a strong stress on reason as a differentiator between humans and lower creatures and as a sign of maturity when a child becomes responsible to join the social compact and no longer subject to the parent's authority. It would seem that Locke could have made an argument from reason that humans have natural rights because they are like God in having reason. But he did not. Instead he implies that the equality and independence of humans derives from their being the workmanship of God.



There are some other puzzles in Locke's workmanship argument. If we are the property of God, why does this give us any rights in things at all? Wouldn't it make more sense to say that God has rights in us as property than to say that we have rights not to be hurt or killed by others. There is something curious here about talking about two types of property causing damage to each other. If a branch falls off a tree and lands on my flower pot and breaks it, it seems unusual to claim that the tree is responsible for violating the rights of my vase. Rights tend to inhere in the property owners not in the property itself. Except the difference of course is that living creatures are property with consciousness and free will. Thus on Locke's theory it might make sense to say that humans are property with wills. And because we have wills and understanding, we have obligations not to damage God's other property (ie other people). In this sense, humans are a special kind of property of God, like slaves can be human property.



There is another puzzle in Locke's workmanship theory. He implies that the idea that we are all workmanship of God makes humans all equal. But he noowhere argues for that in the Second Treatise. He simply states it. And this seems to be an interesting gap in his theory given the importance that the equality and independence of individuals in the state of nature has to his argument.



What this means for a theory of natural rights in general is of course relevant to a much broader discussion. But what this suggests is that there are some interesting gaps in Locke's foundation of natural right theory. And if proponents of natural rights want to base it on Locke they have to at least grapple with these interesting questions in Locke's theory.

Are We the Workmanship of God or Do We Own Our Own Bodies and Selves? An Inconsistency in Locke and a Question of Natural Rights and Abortion

Our ownership of our bodies is a widely held right that most people talk about and assume is included in the right to life, liberty and property, the triple play of natural rights. The right to our bodies is assumed to be included in property itself (our bodies are our property), in the right to liberty too, and certainly a fence around the right to life. No one can harm me because that is a derivative protection against the right to life. This right to our bodies and ourselves is often assumed to underlie the woman's right to choose and to thus hold off the right to life of the fetus. It can also be used to justify a right to die, a la Kevorkian. Our selves, bodies and lives belong to us.

But few who are not deeply into the scholarship on John Locke know that this right to ourselves and our bodies is not self-evidently the basis of rights in the philosopher who is so often credited with the most important statement on natural rights and the foundation of American rights. I've talked elsewhere on this blog about how the Declaration of Independence is thought by some to be a Lockean document of rights and how natural rights thus provide the framework for interpreting the American Constitution, a position I find problematic.


But now I want to probe an ambiguity in the source of rights for those who look to natural rights and thus back to Locke. If Locke or natural rights is to provide the basis of "our rights" and a framework for interpreting the Constitution, then it would seem to matter what Locke meant. The only other alternative would be to ignore Locke altogether but then some other foundation of natural rights would have to be developed in which case there were be conflicting arguments about what natural rights actually mean and where they come from.

Locke in fact seems to make two sorts of claims with respect to our bodies and our lives that on the surface at least do not look compatible. This raises an interesting problem for interpreting Locke but it also raises an even more interesting problem about rights and the problem of abortion. Interestingly enough and not so surprisingly really a very detailed problem of interpretation in Locke is tied to a much broader issue of social policy -at least for those who want to build their case on Locke or natural rights of a Lockean sort. So what is this niggling problem of interpretation?


Early in his Second Treatise on Government Locke justifies the right to life, liberty and property as deriving from the fact that human beings are the workmanship of God. Because we are the workmanship of God, we are therefore God's property. Thus one person has no right to take the life of another or to harm that person. Since we each belong to God, taking the life of another person is to damage God's property.

Locke writes in one of his most famous passages on the state of liberty in nature(II, 6):

But though this be a state of liberty, yet it is not a state of license: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself ... The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his not another's pleasure: and being furnished with like faculities, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of life, the liberty, health, limb or goods of another.

It is important to note that this argument-that we are the workmanship of God- is arguably a Lockean interpretation of Scripture and thus fits in with Locke's assumption that God can be shown to exist through reason and that natural law depends on the assumption of God's existence. And for Locke there is a complex interplay throughout his work between his reading of Scripture (Revelation) and his assumptions about what can be known through Reason.

The workmanship argument that humans are God's handiwork thus alludes back to Scriptures account of creation but does not exactly argue from the fact that man is made in God's image, which would be a different argument. Killing a person would be like defacing God, a plausible interpretation of what Scripture (at least Genesis 1) actually meant and a plausible understanding of the murder prohibition in Scripture. And Locke does talk about the "image of God" justification in his response to Filmer in the First Treatise on Government. But this is not exactly what Locke says here in the Second Treatise. He does not quote the "made in God's image" statement and instead says we are the workmanship of God.

Thus one source for the right to life according to Locke is the fact that we are God's property. No one can take our lives for that reason because they are harming God's property. What about harming us or enslaving us? Locke argues that those rights are derivative: because we can't be sure that a person who tries to harm us or who tries to enslave us won't take our lives, we are protected from harm and slavery too. These are fences around the right to life. This workmanship argument is thus one of Locke's arguments in the Second Treatise grounding the right to life, liberty and property. He presents it as both known by reason (an understanding of what creation means) but leaves the impression that it can provide an interpretation of Scripture too.

But there is another argument in Locke that on the surface that seems to be contradictory. Locke also argues that we have property in ourselves. This language seems to contradict the workmanship hypothesis. Locke writes in the beginning of chapter 5: "every Man has a Property in his own Person. This no Body has a Right to but himself." Now this statement sounds very much like the widely held assumption that the average person has about his or her own rights. I have a right to myself and my body. This right to myself is what grounds the right to choose (A woman has a right to her body over the claim of her unborn baby). This right also would ground the right to die-its my self and my body and I have a right to do with it what I please.


On the surface this later statement of Locke seems to conflict with the workmanship argument. As Michael Zuckert, a profound interpreter of Locke, puts it "This claim conflicts with the transcenent natural law in a particular manifest manner for that argument had held that huamn beings belong to God and not to themselves. Here Locke said the opposite." (Launching Liberalism, p. 193). Zuckert continues " We stand now at the most interesting and also the most elusive point in all of Locke's political philosophy. It is the most interesting, for its represents the core of his philosophy--the notion of human beigns as rights bearers by nature because they are self-owners. It is the most elusive, for Locke was not clear in presenting his reason or making this assertion."

The fact that Locke seems inconsistent on this point is troubling and raises complicated issues in Lockean interpretation. As I noted, these could be simply obscure problems in the history of political science or philosophy were it not for the fact that Locke had such an influence on the conception of natural rights in the modern world and in America and for the fact that most people routinely assume that we own ourselves, which is not in fact the only basis for rights in the natural rights tradition.

It is beyond the scope here to investigate completely the possible solution to the inconsistency in Locke. At issue in fact is not only this particularl inconsistency here but the very question of whether Locke was a consistent thinker and whether consistency should be assumed for him. Michael Zuckert has done a superb job in Launching Liberalism of reviewing the debate between those who think that Locke may have used inconsistencies intentionally to point to a deeper esoteric meaning that he felt he could not say explicitly. Others think that he was not a consistent thinker and that the Second Treatise was in fact a different kind of book perhaps that didn't have the rigors of his philosophy. This issue of consistency incidentally is not just a problem in Locke. It is arguably a critical question in all interpretation. Anthropologists for a long time have argued in a debate over "rationality" (see Bryan Wilson's edited volume, for example) whether to assume "natives" used the same type of consistency and logic that "we do." The question about Locke here is the same sort of problem. How do interpreters know when to attribute consistency to others and thus resolve the inconsistency or when to simply leave the inconsistency in place.

Zuckert offers a way of reading Locke that sees significant meaning in this apparent inconsistency. He argues that Locke essentially recognized that self-ownership was the foundation of rights. But he based this notion of self-ownership on the discovery of the "self." Locke realized that the human self was a different kind of self than other animate selves because it realizes that the "I" persists over time and is the basis for the "temporality" of the human being: "the human self is a temporal entity as no other is." (Launching Liberalism p. 195). In linking rights to this self, Locke breaks from prior tradition in not linking natural rights to natural law. "With the discovery of the 'I' self, Locke thus founded ego psychology as the study of the constitution of the 'I.'" I cannot do justice to the complexity of Zuckert's argument in this short context. Zuckert is one of the most interesting interpreters of Locke, paying attention to the complexity of Locke's thought and anyone interested in natural rights and Locke should treat Zuckert's works as a must read.

There is another interpretation of Locke possible, however, besides Zuckert's. It is possible that the contradiction between the workmanship hypothesis and the "self-ownership" argument in Locke is only apparent and not real. When Locke writes that "every Man has a Property in his own Person. This no Body has a Right to but himself" The question is what does such a right mean to Locke. Does Locke mean a person has a property in his body and life the way he has a property in creatures? Perhaps. But another possibility is that Locke means a person has a right in his own person to his own labor. In other words, a person's property is not over the body and life but in the output or labor over which a person does have control. Indeed, immediately after Locke says that a person has a right in his person he gives his famous labor justification for property. He writes:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.

Here Locke explicitly says that "his labour" is "his own. An alternative reading of Locke, then, is that Locke never thought that a person had self-ownership over his or her own body or self. Instead, what Locke thinks is that people have a right only to their own labour. Their bodies belong to God but their labor which is the output of their own selves belongs to themselves. Because their labor belongs to themselves, they can alienate it and "mix it" to make something their own. This labor theory of property of course raises all sorts of interesting questions that have been debated in their own right. But for the present purposes this gives an account of Locke that resolves the apparent contradiction. It also creates a kind of parallel between Locke's claim about God's rights in people (we are the workmanship of God, the result of God's labor and hence his property) and a Person's right to the output of their labor. Labor is what gives property rights, both of God in humans and of humans in the output of their labor. This interpretation would also make sense of the fact that though people are God's slaves (property) their output and effort belong to themselves. This would differ from a human slave whose output would be owned by the human owner. But in the case of humans, Locke says that they were created with the expectation that they would procreate and multiple and expend their labor to sustain themselves. So though humans are God's property, God gave them a purpose and entitled them to own the output of their labor.

The pluses and minuses of these various interpretations could be debated in much more detail than is possible here and I hope to come back to the question in more detail in another context. For at issue, as we see, is not not a thorny problem in Locke. That interpretive problem in Locke goes to the heart of a central claim in natural rights theory and assumptions of everyday holders of American rights: do we have rights to our bodies and ourselves? On my reading, Locke never intended to attribute self-ownership to individuals, the way Zuckert reads him. On Zucker's reading, that was Locke's innovation over Acquinas and Hobbes and represent a significant innovation. But though I disagree with Zuckert, that does not mean that I therefore adopt the view that we belong to God. If I am right that that is what Locke meant, that does not mean that that should be the foundation of rights in America. But of course that question starts another whole discussion of whether natural rights should be the foundation of American rights that I have begun to address elsewhere in my discussion of Scott Gerber's To Secure These Rights.

Kevorkian, Natural Rights and Right to Death

Jack Kevorkian has been arguing that the right to end suffering is one of our natural rights and wrote a book called "Amendment IX, Our Cornucopia of Rights," which spells out his theory on natural rights.
http://www.freep.com/apps/pbcs.dll/article?AID=/20070606/NEWS03/706060368/1001

There are good reasons in my view to allow people to end their lives when suffering. But arguing that it is a natural right is the wrong way to approach the issue. Natural rights are problematic for several reasons. Not only is the conception of natural rights problematic in general, but the original theory of natural rights would not have endorsed the right to end one's life. In John Locke, who is the most prominent exponent of natural right theory, one does not have a right to commit suicide or sell oneself into slavery. This is because Locke argues that we are all the workmanship of God and as the product of God's labor, we have no right to take our lives. Indeed, we don't even own our bodies. This by the way is the same reason that Locke gives for the rights to life. Since everyone is the workmanship of God, one person can't take another person's life. The classical natural rights tradition therefore would disagree that there is a natural right to end one's own life. There are good reasons to allow people who are undergoing terrible suffering to end their lives. But basing it on an argument from natural rights is not the right way to justify the argument.

I have talked about Locke's view of of Suicide and human's being the workmanship of God in my essay on Suicide @ http://www.freedomandcapitalism.com/