History and Liberty
Excerpt from “The Declaration of Independence and Natural Rights: Thomas Jefferson’s Alternative Theory of American Rights”
It is has long been conventional wisdom that The Declaration of Independence is the official and most important American endorsement of natural rights theory. According to this view, the Declaration unequivocally endorses both natural rights theory although there is substantial debate about whether it represents a specifically “Lockean view” of rights and government in particular, a point to which we return below. This reading of the Declaration provides support for the argument that natural rights are the foundation of the American tradition and the basis of rights in the Constitution and the Bill of Rights. Interestingly enough, neither of those other two critical founding documents explicitly endorses natural rights or provides a statement outlining a general philosophy of government.
The Declaration of Independence contrasts with these later documents, in articulating an explicit philosophy of rights and government. It also represents the culmination of American thinking for the decade leading up to the American Revolution. For all of these reasons, the Declaration has become the source par excellence justifying the view that American constitutional tradition is founded on natural rights philosophy, even though the Declaration’s primary purpose was to justify American independence from Great Britain rather than to serve as a founding document for the new United States. But against the backdrop of natural rights arguments leading up to the Revolution, this conventional view of the Declaration appears misleading in some critical and potentially troubling ways.
To begin with, it is not often realized that the primary author of the Declaration had a different view of rights than is commonly ascribed to the Declaration. Jefferson did not accept the view of rights that had been authorized by the Continental Congress a year and a half before he drafted the Declaration.
On two previous occasions, Jefferson had tried to get his alternative view of rights accepted by the Continental Congress but on both occasion his views were rejected. When he sat down to draft the Declaration, he still held a different view of rights and Schwartz-“Jefferson’s Alternative Theory” thus had to make a choice-whether to try once again to put forward his own theory of rights or revert to the more traditional theory of natural rights that the Congress had already approved nearly two years earlier. The fact that the primary author of the Declaration disagreed with Congress’ official justification of American rights provides a point of departure for rethinking the Declaration’s understanding of natural rights and its relationship to American rights and independence.
Jefferson was by no means the only thinker with doubts about natural rights theory or the way such theories were used to ground the rights of North American colonies. In the decade leading up to the Revolution, colonists had expressed some profound concerns about natural rights theory in general and their application to American rights in particular. There was in fact no single monolithic tradition of thinking about natural rights in the decade leading up to the Revolution. And even after the First Continental published its official version of rights in September 1774, doubts remained about the strength of natural rights arguments and about the ways those rights should be used to justify American rights.
Against this backdrop, a more tentative and equivocal reading of the Declaration’s statement of rights emerges. Instead of seeing the Declaration as an un-ambivalent embrace of natural rights theory, the Declaration’s position of natural rights theory appears much more ambiguous than is often assumed. Because the Declaration was attempting to state a unified colonial position about independence, its language smooths over and avoids areas of disagreement about natural rights among those favoring independence. On this view, the Declaration’s language hides as much as it reveals. It is as if the Continental Congress through its revision of Jefferson’s draft papered over some of the earlier doubts and disagreements about natural rights theory in an effort to state a unified American view justifying revolution when such a unified theory did not exist. In other words, the Declaration is written in a way that transcends and obfuscates some of the underlying disagreements in American rights theory that had earlier been visible in the writings leading up to the Declaration. That purpose, in fact, may then be one of its effects if not purposes: to try to find common language that could unite Americans across the colonies behind the call for independence.
On this view, the Declaration’s genius is not only the powerful way it stated natural rights theory but also in what it did not say and what opinions it did not take a position on. Its beauty in part is in framing a statement that seemed to justify independence, while avoiding the unresolved question about the origin of American rights. But in its ellipses and language some of that earlier ambivalence is still evident and there are major equivocations about just how natural rights justifies the American right to declare independence.
On this reading of the Declaration, the foundation of American rights was not in fact completely settled and the meaning of natural rights was more contested than is typically understood. Major questions about the source of American rights vis-à-vis Parliament and the British empire were left unresolved. Peek below the general language of rights in the Declaration and an alarming number of potentially thorny issues in American political philosophy rise to the surface. The Declaration suppressed and hid these tensions, though at the same time using language that made evident that some of those issues still lay in the background. As a political document, then, the Declaration’s effect, if not ambition, was to leave aside philosophical differences and achieve a statement whereby all those who embraced some version of American rights – and the versions were in many ways radically different --- could find their voice in the document.
In this way, the Declaration is a document that masks differences and complications, even as it points toward and reveals their presence. This alternative account emerges when the Declaration is set against both the background of natural rights arguments leading up to the Declaration as well as Jefferson’s own particular views of American rights before the Declaration. The interpretation of the Declaration proposed here intersects with but diverges in critical ways from recent debates that has taken place about the meaning of the Declaration and its relationship to Lockean natural rights theory. Two key questions have tended to frame that discussion of the Declaration’s meaning: The first question, which interestingly enough reaches back to the early 1800’s, is whether the Declaration endorses a specific Lockean view of rights? A second and related question is how central is the statement of rights to the Declaration’s overall purpose. A brief look at these issues follows below.
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