Liberty, Prudence, Imperfection, and Law

“What Did the Declaration of Independence Do?” By Bruce P. Frohnen

This essay was authored by Bruce P. Frohnen for Nomocracy and Politics. Professor Frohnen is a Nomocracy in Politics contributor. 

The answer to this question should be obvious: The Declaration of Independence declared and made official the American colonies’ determination to be independent from Great Britain. This recognition of the distinct limits of the purpose of the Declaration can be taken too far, of course. Characterization of the Declaration as “a love letter to the French” is cute, perhaps even funny, but fails to fully capture the document’s importance. Securing funding and military support from the French government was no small or unimportant goal, but the colonists had a tradition of making declarations and resolves as they sought to settle their differences with the British, and such declarations were considered important precisely because they stated goals and reasons.

For example, the Declaration and Resolves of the First Continental Congress in 1774 had stated colonists’ grievances against Great Britain, focusing on violations of traditional due process rights, as well as on statutes that established direct taxation and imposed numerous penalties on Massachusetts in retaliation for unrest there. These Declarations and Resolves not only listed the colonists’ grievances, they also declared the rights which the British were not only violating, but even denying the colonists possessed. These rights included both natural rights to life, liberty and property, and the statutory and common law rights of Englishmen. Only after having presented colonists’ reasons for complaint do these Declarations set forth a plan of action, which condemns British conduct, calls for preparation of a “loyal address” to the king and an address to the people of Great Britain, and sets the terms for a non-importation agreement to block trade between the colonies and the mother country.

This brief summary of a previous set of Declarations and Resolves should make clear that the Declaration of Independence was no unique document, but rather part of a tradition of declarations and actions rooted in a public discourse that was fundamentally legal in character. That is, the Declaration of Independence, like its predecessors, was a “constitutional” document in the sense that it was part of an argument over the nature of public arrangements, in particular between Great Britain and her American colonies. As such, it “spoke” in the language of rights and duties, because it was part of an ongoing argument between parties who disagreed about what each owed to the other. But this means that the general arguments presented, declaring Americans’ natural rights to either “life, liberty, and property” or “life, liberty, and the pursuit of happiness,” are just that, general arguments, intended to frame and buttress the more central arguments concerning particular violations of particular rights. In both declarations, the bulk of the text deals, not with abstract rights, but with concrete violations of customary understandings. Thus, it is to these charges, more than to the general, prefatory statements, that we should look if we are to learn what Americans were seeking at the time of independence, as well as what assumptions, traditions, and institutions formed their expectations and demands.

For those who have read through the Declaration of Independence (a sadly small number, though the document rewards close reading by experts and general readers alike), that document shows an admirable simplicity in its construction. A statement of the Declaration’s purpose (to “declare the causes” impelling the Americans to separation from Great Britain) is followed by a statement of principles intended, not as grand philosophy, but as argument establishing the capacity of Americans to judge their British rulers and to take the step of declaring independence. Here we see the general rights language and, at least as important, its linkage to a more central and concrete political right, that of self-rule. Governments must rest on the consent of the governed, and the governed have a right, at the extreme, to “alter or abolish” their government when it has too frequently and too heavily violated the people’s secure enjoyment of their other rights.

But what are those rights, in actual practice? Are the rights themselves abstract principles based directly and in their details on the declarations of philosophers? Such is not the message of the Declaration of Independence, read in terms of its actual, limited purpose. For that Declaration is not a statement of the purpose of government or the origins and nature of all human rights, either in the abstract or in all its details. It is, rather, a statement of the violations by the British of Americans’ customary rights, rooted to be sure in more general principles—for all rights have their ultimate root in the dignity of each person as created in the image and likeness of God.

Particular human rights are historical constructs; to be made real and effective they must be rooted in practice and in reasonable expectations developed over time. Thus the Declarations and Resolves made a point of defending the applicability of the English common law to the American colonists, arguing, as colonists had done for a century and a half, that they brought with them the rights of loyal English subjects as well as their other customs and traditions. Thus the Declaration of Independence makes clear in its list of charges against the king that the king’s own actions have constituted an abdication of his right to rule his American subjects on account of his, in essence, waging war against them.

By violating traditional rights of due process, even taking those accused of smuggling to be tried in Admiralty courts in England; by refusing to allow long-established colonial legislatures to exercise their long-accustomed powers of self rule; by quartering troops in American homes and subjecting his subjects to martial law; by imposing taxes without colonial consent; and by myriad other acts asserting absolute control over a people accustomed to wide exercise of the powers of self government, the king had put himself outside the role of a rightful governor. And, by refusing to hear the entreaties of his subjects, but instead sending troops to force them into submission, he had rendered himself an illegitimate ruler and his people free to separate from him and maintain governments of their own.

All of our actions have purposes, public actions no less than private. But it is important that we begin with a recognition of the limits of these purposes, and in particular of their proper limits, if we are to understand the nature of public life, particularly in a nation born from a dedication to ordered liberty. For such a nation cannot be “dedicated” to abstract propositions without undermining its real purpose, which is the protection of more fundamental associations—family, church, and local community—in which we become virtuous citizens, who alone are capable of exercising political liberty and self government.

36 Responses to ““What Did the Declaration of Independence Do?” By Bruce P. Frohnen”

  1. gabe

    Dear Bruce:

    And yet, both Madison and Jefferson asserted throughout their lives that the Declaration was something more than just a “bill of particulars.”

    While it is certainly thru that the Declaration was not the first such document written by the American colonists, the argument may certainly be advanced that it differed in a critical respect, i. e., that it asserted for the first time in a clear and unambiguous manner that the rights therein advanced were of a nature different than those typically provided to citizens of the Crown. These were not rights that were granted by the Crown, nor as Blackstone said could be undone by Parliament when he said that “What the Parliament has done, no Power on Earth may undo.”
    No, sir, these rights inhered in man qua man.

    It strikes me as exceedingly odd that one would argue that if a proposition is advanced and is then followed by various particulars adduced to demonstrate how another party has violated those “inherent rights” that the mere presentment of such particulars can be used to question the validity and intent of the advanced basic proposition, given that each particular supports the notion of a violation of the basic inherent right. Is one then to be prohibited from “submitt(ing) facts to a Candid world.” Again, let us remember that support, or at least reluctant acquiescence, of the other European powers was deemed important to the colonists. And while the “long train of abuses” may have a quite distinct similarity to previous declarations, can it be said, in all fairness, that the prior statements attempted to assert with such force and clarity the notion of “natural” and unalienable rights.” No again, sir. This is what made this Declaration different, never mind the fact that it also asserted the right of a revolution soon thereafter to be undertaken.

    The approach offered in your essay, contrary to your opening cautionary statement regarding the “limiting” of the Declaration, does indeed trivialize what , I suspect even you, would consider a founding document.

    Let us go back one day to the excellent essay by Professor Gamble in which he discusses American evangelism. He recognized that there was a strand of outward looking evangelism in the Founders that would indicate that they, in fact, did perceive the Declaration to be a “world historical” proposition (Oh my god, am i becoming a Hegelian?) and expected that the notion of ordered liberty would spread throughout the world. Fortunately, they were not so “evangelistic” as their successors, but they did see the Declaration as something more than a simple list of grievances and strove via diplomacy and example (not always perfect, mind you) to proselytize the “general” proposition as you would say.

    Unlike some, I do not see the Declaration as some biblical pronouncement, accompanied by burning vegetation; nevertheless, it did offer, and serves as, a touchstone of American republican government. (Well, it used to anyway!)

    take care
    gabe

    Reply
  2. gabe

    Dear Bruce:

    A further thought:

    It occurs to me that the type of analysis employed in the essay in some way reduces study of the Declaration, and consequently much of the Founding, to a social science analysis in much the same way as Weber would have done. That is to say, there appears to be a primary concern with the “is” and “cause”, (in this case, the “long train of abuses”) and not with the “ought” (unalienable rights) which propels the whole undertaking. Absent values (rights), all we look at is causation and may then substitute incidental motivation for the underlying philosophical foundation. But, I believe that there are values and that they should always be considered when assessing any historical or political phenomena. Thus, the “preamble” may be of more substantive value than one may otherwise admit.

    take care
    gabe

    Reply
  3. Bruce Frohnen

    Thank you for your comment, Gabe.

    I must ask, though, what rights, exactly, inhere in “man qua man?” “Life, liberty, and the pursuit of happiness?” Perhaps, but what do those rights actually entail? Do we always have a right to life? Of course not, only to not have our lives taken away except under law. And what shall that law be? Well. . . that depends. The same goes for liberty, of course, and for property, or “the pursuit of happiness.” As I noted, the natural rights listed in the Declaration of Independence are real, and had been recognized as such for decades by the time of its writing. Jefferson sought only to capture generally-held beliefs among Americans in writing the Declaration, and succeeded in that endeavor. The issue was (and is) whether particular acts of the government violated accepted standards–the law of the land, summed up by Coke as “due process”–such that they were illegitimate. Of course, if one follows the various, numerous, and increasingly assertive declarations of this period, one finds them in a sense culminating in the Declaration of Independence. But, then, what would one expect, given that that Declaration put aside previous attempts at negotiation in favor of formal independence?

    This Declaration had a purpose, namely, to declare independence in a manner that would garner sympathy and aid for the American cause. This purpose certainly entailed setting forth an argument rooted in charges of violated rights. But we should be careful not to fall into that evangelism that sees abstract statements of rights as a proper substitute for reasoned argument in light of actual, lived standards and traditions.

    Bruce Frohnen

    Reply
  4. gabe

    Bruce:

    In this sense, we agree. The Declaration did have a specific object or purpose. We did need to gain sympathy / support and as i said the Declaration was not handed down from on high. However, it is difficult to completely ignore the comments of the drafter(s) of that document who consistently asserted a higher purpose to it. could this be an “after-the-fact” self aggrandizement, perhaps and to some extent probably so. I have no illusions about the founders having a complete lack of self interest – on the contrary, they did, and in fact, required such self interest if they were to obtain their object.
    nevertheless, it was not just jefferson, but numerous other contemporaries who viewed the Declaration as something unique in history, and as students of Locke, etc it would not seem unlikely that they would have propounded a natural rights theory of just government AND believed it.
    I do not think that this is necessarily “evangelistic” but rather a dispassionate reading of their stated intent. Heck, i don’t know how one can not give some credence to the professions of rational persons such as they were.
    You certainly are more familiar than I with the”commentaries” of the day, so i will not list any here – but it is apparent to me (in my limited reading of the period) that they believed that the best guarantee for ordered liberty was to be found in the natural rights which they proposed in the Declaration. Was this a “noble lie.” Perhaps, but even if so, it still represented a rather distinct break with previous regime justifications.

    And yes, it is difficult to elucidate “natural rights” – but the inability to do so precisely, nor admit of exceptions, does not necessarily negate the concept. If so, then the same is to be said for positive rights, wouldn’t you agree.

    Anyway, my concerns notwithstanding, I did learn from your essay and thought it was well presented. Look forward to more of them.

    take care
    gabe

    Reply
  5. Marvin Edwards

    There are two phrases regarding rights, one rhetorical and one practical.

    The rhetorical phrase is, “they are endowed by their Creator with certain unalienable Rights”. Referring to a set of rights as “inherent”, “natural”, or “God given” usually means only that they are well known and generally agreed to by most people. These phrases might have just as easily applied to a slave-holder’s “right” to own slaves. They intend to conserve rights as they are currently known.

    The practical phrase is, “to secure these rights, Governments are instituted”. All practical rights arise by agreement. We agree to respect and protect certain rights for each other. Governments are constituted as an instrument we use to secure rights, by passing laws, hiring police to enforce them, and providing courts and jails to protect us from the offender.

    The other big reason to constitute a government is to come to an agreement as to how future agreements among us will be reached.

    Reply
  6. gabe

    Marvin:
    Good to see you posting again.
    Could it be that they “are well known and generally agreed to by most people” BECAUSE they are inherent in human beings, That is the crux of the issue. And while, in a certain sense it is correct to say that it is rhetorical to profess those natural rights, it is nevertheless untrue to so dismiss such claims. Ultimately, it is based upon a certain moral sensibility. Perhaps we should call it the polity’s equivalent of the “Golden Rule.”
    And as such, it denies the possibility that “these phrases might just as easily applied to a slave-holder’s right to own slaves.” Under a moral order / interpretation of natural rights, no such right is possessed by any man to enslave another.
    Rather, it is with a positivist notion of rights, which says that rights derive only from civic association (the state) that permits such a distortion of rights. If the state says, “it is Ok to have slaves”, then, it must be so. After all, the state gives rights and may also take them away. So give to slaveholder and deny to slave. Perfectly consistent with a purely positivist approach.

    You are correct that governments are organized to protect certain rights.
    However, natural rights theory is intended to protect those same rights and / or other rights from the state. Slavery was a perfect example of that.

    take care
    gabe

    Reply
    • Marvin Edwards

      Gabe:
      The problem is that EVERYTHING is “inherent” in human beings, from the basest demonic torture to the highest saintly self-sacrifice. Therefore the quality of “inherency” provides no guidance to moral behavior or rights.

      The moral sensibility you speak of has certainly evolved, and is evolving still, for example in the evolving perception of gay couples and their rights.

      The objective criteria for judging rights, and the rules that protect them, is the harms and/or benefits for everyone that will result from granting each other this right versus that right.

      You say that “Under a moral order / interpretation of natural rights, no such right is possessed by any man to enslave another.” But I believe you are incorrect. Using “natural” as the criteria again simply says that rights as they are now are the most natural. Like Colbert likes to kid about, he “feels it is right in his gut”, therefore it must be so.

      If you put yourself in the shoes of the slaveholder back in 1776, he would say that it is perfectly natural that he should own slaves. Owning slaves was commonly recognized as an ethical and legal right from Biblical times to his present. The black man in Africa was viewed as something less than human, living as a heathen in the jungle. The slaveholder would have no problem claiming an “inherent”, “natural”, or “God given” right to own black African slaves. His claim would be rhetorical, of course. He could not prove these claims. But, being rhetorical, no one could disprove them either.

      No. The only objective moral criteria is the harms or benefits to everyone arising from the ownership of slaves. It is because the harms were severe and the benefits merely economic that led us to conclude that slavery must end. The “right” to own slaves was abolished, and it was abolished by mutual agreement among the majority of the people of the United States.

      Unfortunately, the southern states took the illegal action of attempting to secede from the Union, and fired upon federal forces, starting the Civil War. All that they needed to do was conform to law, as they had previously agreed when they ratified the Constitution.

      Reply
      • gabe

        Marvin:

        By natural i mean something different than that which is currently recognized as “rights.”

        Let me begin by saying that yes, one can show that mankind may display some rather unsavory behaviors. But to assert that the mere fact of human frailty or error is sufficient in itself to deny that there are fundamental rights that inhere is man is incorrect.

        Look at everyday life. A young lad is confronted by a bully who takes his lunch money. The lad does not like this and knows intuitively that this is wrong. Does he think, My goodness, this is wrong because some positive law so decrees – or does he think or know that it is wrong because he took what is mine AND that I have a right to that.

        Or again, victims of a street robbery. Is their first and lasting impression that this is wrong because a law says it is wrong or because it is morally wrong and a violation of my fundamental right to property? Only an ideologically blinded Progressive / Democrat could conceivably think that way. (No, I am not ascribing this to you!)
        Yes, in both cases, there is recourse to the courts and the execution of the sanctions provided by positive law. However, this may only show that the law is there to protect not just enumerated positive rights (such as trial by jury,, etc) but also those more fundamental rights such as the right to property, the right to property in ONESELF, ETC.

        And it is this right to property in oneself that militates against the action of the slaveholder in denying the right of property in oneself to the slave. This is what i mean by “inherent” and natural rights and it is dependent upon a willingness to accept a moral order to human life.

        You seem to be asserting a form of utilitarianism that examines right or wrong based upon the notion of equivalent harm or benefit. doubtless, there is value in this, perhaps, when considering whether the latest B.S. from the EPA is propagated. However, as much as that may be true for certain civic rights, I contend that there are some rights (natural and inherent) that are, and ought to be, beyond the power of any regime to disparage or deny. This was Lincoln’s position as well as that of the founders.
        Now on this site, there are many who take a more favorable view of secession, but in a certain sense they too must have recourse to natural rights, amongst which is the right to be governed only with your own rational consent.
        If you posit rights emanating only from the state, then, as you make clear, these are changing. When your right to have my savings is mandated by the state, where are heading? When your right to “reproductive freedom” trumps my right of conscience, where are heading? You can add other examples to this and I am sure the Black robes of the court will continue to do so.
        Without a clear line of demarcation, our positive rights may go by the wayside.
        This the founders knew and professed as the surest means of maintaining ordered liberty. Unfortunately, they did not figure on “rock-star” Supreme court judges.

        take care
        gabe

      • Marvin Edwards

        useI think someone once said, “intelligence is the ability to deal with uncertainty”.

        Although we would all like to have the final answer on what all the rights are and how they are properly defined and how they are correctly applied in detail, we simply do not have that knowledge.

        What we have is a working set of rules that are constantly evolving as our moral sense evolves.

        The state is not a source of rights. We, the people, are the source of rights. The state is merely a tool we use to help us secure the rights that we agree to grant to each other. The right to property is secured by a law against theft. The right to life by a law against murder. The right to liberty by laws against segregation, discrimination, and constraints upon the law itself.

        We have granted no right to each other’s savings account. Nor is there any law that takes money from my account and puts it in anyone else’s account.

        But we do have a national defense. And it is fairly expensive. So we use an income tax to distribute the cost such that those with a higher income pay a larger share.

        And we do have several forms of social insurance, like Social Security, Medicaid, and Medicare. And these too are paid for by income based taxes.

        But we have absolutely no government program that takes money from one person and gives it to another.

        Now, one may argue that the national defense benefits everyone equally, but is paid for based on income, such that someone might imagine that the national defense is actually a scheme to redistribute income. But that would be pretty farfetched, don’t you agree?

        The exact same model is used to provide social insurance. Is it not?

        But back to “natural” rights. If you can give me an objective criteria that can be used to declare this right natural and this other right not natural, then the terminology may prove useful. Lacking such criteria, the term “natural” is useless, and should be reserved to describing food supplements.

  7. gabe

    Melvin:

    So you are a relativist and a living constitutionalist. At least that is what you appear to be saying. We can add or eliminate rights as we see our moral sensibilities evolve. I guess that is what the EPA has been practicing, You have no right to property, only insofar as we (state) grant it to you.
    Now there is a natural right – to dispose of my property as I see fit, because it is mine! I also have a property right in my own body. Here is another one for you; conscience.

    You make the mistake of arguing that because the early rights proponents did not elucidate all rights (that you and others may wish to currently proclaim) that therefore a) there are no natural rights and that b) this is proof that rights emanate from positive law because the state now says that you have a right to abort human babies or have the state pay for transgender operations.
    Putting aside for the moment whether those “new rights” are wise or not, they emanate from positive law and can just as easily be reversed in the future – and that is precisely my point. There need be a defense against the diminishment of liberty – and it will not, nor has it ever been, the STATE.

    Also, Melvin – food supplements are clearly not natural – they are additives – Oops, just like positive law!

    Reply
    • Marvin Edwards

      Placing your hope in rhetorical claims offers no safe haven for rights. Remember that Hitler was a master of rhetoric.

      Either you have objective criteria for saying “this right is natural” and “that right is not natural” or you don’t. Without objective criteria, you are left with rhetorical claims. There is no claim you can make for a “natural” right which cannot be countered with a “natural” argument for its opposite.

      For example, you say, “Now there is a natural right – to dispose of my property as I see fit, because it is mine!” And yet the land that you homesteaded never did belong to you at all, but to the animals and forests, who actually owned it in its natural state. Therefore you have no claim to it by “nature” unless you can show me where you made a voluntary exchange with the exigent species. Your claim to a “natural” right to the land is merely rhetorical, since you clearly stole it.

      And another example, “I also have a property right in my own body”. Oh? But did your body not come out of your mother’s body, giving her all property rights to your body? Do you have the deed from her? Your claim to a “natural” right to your body is merely rhetorical.

      But gassing human beings at Auschwitz and burning their bodies in furnaces is objective evidence of moral harm. And the scars on the backs of black African slaves is objective evidence of moral harm.

      As to conscience, it is the seat of moral judgment within the individual. It is not a piece of property to be owned by yourself or others. It is simply a piece of your personality that is always a part of you.

      Reply
  8. gabe

    Let me begin by saying that both you and Professor Frohnen are, (to paraphrase Perry Mason) are arguing assertions not in evidence.

    You by arguing that a theory of natural rights requires “certainty” in human behavior; he, by confusing inherent with absolute.

    Frohnen claims that there is not inherent right to life because the state may execute a criminal and concludes that there can be no natural right to life. This is spurious, at best. One could argue that the mere fact that the authorities, be it a modern state or a tribal council, in ordering the execution of a criminal is doing so PRECISELY because they place such a high value upon human life and that the unsanctioned taking of such life is so reprehensible as to warrant the ultimate exclusion from that society, i. e., death.
    Simply because the realm of possible human action does not reduce itself to a fan absolute formula, to be adhered to without exception, does not negate the essential premise – that a human being does have a natural right to life.

    Let me give an example from the physical world. The Sun may be said to “inherently” produce nuclear fusion and generate heat. This is the nature of the physics. However, it will, in approximately 4 billion years run out of fuel. does this mean that the sun does, by its physical nature, generate nuclear fusion and heat? Of course not.

    By the same token, simply because some men kill other men does not negate the “natural right” that I have to my own life simply because someone more powerful than an old pensioneer such as myself can not fully defend it.

    As to your claim that intelligence can be defined as learning how to deal with uncertainty, while a nice little turn of phrase, it nevertheless has an implicit assumption contained therein that natural rights requires or mandates certainty in human behavior. To my knowledge, you would be the first to ever make such an assertion.

    On the contrary, the founders well understood the unpredicatability and potential baseness of human motives and actions and thus so structured a government as to “secure” those natural rights. Notice, they did not employ the phrase “grant, assert, or posit” those rights – but rather “to secure” these rights. Is this not a recognition on their part that there is uncertainty in the human condition and that we will so structure a government as to “counter” this uncertainty. In point of fact, intelligence is also the ability to “fore-see”
    potential uncertainty and to guard against it. “if men were angel….) is a perfect example of this insight and illumines the nature and purpose of the American regime and constitutional government.

    Now as for your assertion that the land belonged to the animals first, well I guess you got me there old buddy. You leave me speechless. I suppose we should track down all the little critters and give them statutory warranty deeds to their land. Of course, one could argue that since what separates us from the beasts is, as you so ably point out, “intelligence” or more appropriately reason, then i would suspect that the beasts do not get a vote here, nor do they even care.

    lastly, as you are the one who employed the reduction ad hitleriam, then you should consider that everything that Hitler did had the sanction of positive law. Recall the Nuremburg Laws and a host of other monstrosities perpetrated by that foulsome regime. But even more, in attempting to castigate the Nazis for their action, you had to, and indeed, must, resort to the level of “moral harm.” Where does this concern with morality come from. There was nothing immoral in the Nazi worldview of this execrable practice. Indeed, as I have pointed out it was sanctioned by positive law – thus, it must have been good! At least that is where your argument leads.
    It is inescapable that one must consider a higher moral purpose / law when contemplating human action. it is from this moral law that one can posit and affirm the notion of “natural rights.” As you can see, without a firm delimiting boundary on state action, all rights are transient. Without a moral basis for state action, tyranny can, and often has, resulted.

    Or to modify that nutty old German, Frederich Nietzsche, ” Without God, anything is possible;” however NOTHING (as in Sartre) is the more probable outcome.

    take care
    gabe

    BTW: Have you recommended this site to anyone. I do and wish more would visit it. I enjoy the discussions and the essays.

    Reply
    • Marvin Edwards

      I could not stop laughing at the “reduction ad hitleriam” comment. Well said!

      My only argument against a theory based upon “natural” rights is that the word “natural” itself is so undefined in the context of rights that it’s use becomes meaningless. Thus a theory based upon “natural rights” becomes meaningless in a practical sense, though it may be meaningful emotionally and rhetorically.

      The same would be true, I think, with the word “inherent”. I believe it is correctly used regarding the Sun’s qualities, but it would be difficult to determine the Sun’s “rights” from it’s inherent qualities.

      The one thing that is inherent in Life is need. It is inherent to the definition of life that the flower twists to face the Sun, the amoeba extends its pseudo-pod to locate food, the tree extends roots into the ground for nourishment, and the baby cries out in hunger to be fed.

      We call something “good” if it meets a real need we have as an individual, as a society, or as a species.

      The moral man seeks good, not just for himself, but for others as well.
      The ethical man seeks to follow the rules that he believes in.

      The connection between ethics and morality is expressed in the “Great Commandment” (see Matthew 22:35-40)

      A humanist translation of the “Great Commandment” might go like this: “Love good. And love good for others as you love it for yourself. All other rules derive from these two.”

      The point is that ethics serve moral good. We seek the best set of rights/rules that will accomplish the best possible good for everyone.

      Because all institutions, private and public, are peopled by people, and people are imperfect, we will have problems. But democracy includes the means of its own correction, and our rules will evolve toward a more perfect good as we ourselves do.

      Reply
      • gabe

        Marvin:

        The difference between plant / animal life and human life is not that need is not present in all of those forms of life, but that human life is characterized by reason and not simple need. You obviously recognize this in your fine treatment of morals , good etc. WE alone among living things can both “apprehend and comprehend” the good.

        My contention is that as humans we are uniquely, in fact are necessitated to, comprehend the good. We are, regrettably, also capable of the most monstrous incivilities and obscenities. The fact of our frailty, however, negates neither the concept of good nor of our inherent ability or predisposition to comprehend the good. In so doing, reason impels us to recognize that there are some fundamental rights or values attendant upon our human existence -“chief among these are life, liberty and the pursuit of happiness” – and that they are predicated upon an apprehended notion of human equality. I might add this is an egalitarian (equal opportunity) rather than an equalitarian (condition) proposition.

        Now we can all argue as to what happiness means – (shoot, like you I would suspect that it differs for different folks) – however, that does not mean that there are not certain spheres of individual human experience / action that must not be touched. Thus, there is a need for some positivist law both to “secure” the unalienable” rights of the equal human individuals as well as to enhance certain other “unenumerated” rights (such as alluded to in the 9th Amendment) as the polity may from time to time consider appropriate.

        so the whole point of ordered liberty is to strike a balance between what must be permitted and what may be permitted. It is not a question of “natural rights” such as some 21st century abusers of this notion advance, but rather the ordered liberty of both “rights and responsibilities” that the Founders recognized and sought to instill in the people.

        anyway, now back to something even less comprehensible – offensive schemes in college football.

        take care
        gabe

      • Marvin Edwards

        The scheme of morality based on real needs can be applied to any species. Our veterinarian can tell us what is objectively good for our cat and the 4-H club can tell us what’s objectively good for our corn. A monkey can probably figure out what is good for himself and other monkeys, even if he can’t express it in words (and some apes can use sign language). However, when it comes to the needs of the species itself, each species would be looking out for itself.

        But my point is that moral good and moral harm can be objectively determined in most cases, so it presents a realistic criteria for judging what should and what should not be a right. Therefore, moral judgment is the “reasoning” behind any right.

        The “equal treatment” principle would be one of the “rules for rules”, in that any rule you wish to apply to others you must be willing to apply to yourself. I think Kant said that.

        An “ordered liberty” sounds good to me. But I disagree that the founders were in any position to pass on the final set of principles. They still had slaves, and treated women as property, and what fun it would be to see them deal with “Will and Grace”.

        What our founders, our parents, our schools, and our churches instilled in us was a moral consciousness. And that informs our conscience as we each make moral judgments.

  9. gabe

    Oops! Left out a word. This should read
    However, it will, in approximately 4 billion years run out of fuel. does this mean that the sun does NOT, by its physical nature, generate nuclear fusion and heat? Of course not.

    Reply
  10. gabe

    Marvin:
    You say:
    “The scheme of morality based on real needs can be applied to any species. Our veterinarian can tell us what is objectively good for our cat and the 4-H club can tell us what’s objectively good for our corn. A monkey can probably figure out what is good for himself and other monkeys, even if he can’t express it in words (and some apes can use sign language). However, when it comes to the needs of the species itself, each species would be looking out for itself.”

    But it is the veterinarian telling us what is good the cat, in much the same way as Calhoun and others arrogated to themselves the right to determine what was good for the slave. In the former case, you have the benefit of veterniary medicine and in the latter, positive law as it existed in the south. Recall, that in a number of southern states, there were laws dealing with the treatment of slaves, limiting how many lashes may be inflicted. This was seen as humane!!!
    Yet, as in the case of the cat, it is someone other than the recipient of this largess and “humane treatment” who has not been consulted. And this had the force of positive law. Thus, it is not clear that morality, absent a higher “natural rights theory, or higher moral code (Golden rule, perhaps) is readily discernible; more importantly, it is not clear that every society will see justice / morality in the same fashion. This is essentially the teaching of Max Weber and his silly social science nonsense. It is relativism – pure and simple.

    Now, you are quite right in regards to “rules for rules”, but that only serves to illustrate that in order to effectively secure those rights that we possess, as creatures that can determine (generally speaking) what is best for us, we must establish the rule of law. (something which to my mind is quite lacking today).
    In so far as Kant (and later, Hegel, etc) humans were not conscious actors in this effort. Rather, it was a “historical process” culminating in the categorical imperative (majoritarian rule) that determined morals. Thus, man is reduced to a Darwinian non-actor, a simple responder to various stimuli, blindly stumbling through the cosmos, here hitting the 5000 point button on the pinball machine only to later get sucked into the gaping mouth of the clown sitting at the base of the machine and helpless to do anything about it.
    Without a higher moral order (Revelation, if you will) we are destined to the vagaries of history and its manifestation in ever changing positive law.

    That is not to say, that there is no need for improvements in positivist expression of rights. While the founders, in fact, compromised on slavery, and as was common for men of their times, did not afford full rights to women (or for your satisfaction cats, dogs and monkeys), they did also take steps to propel slavery on its way to ultimate extinction. Again, the fact that I fail to live up to what i know to be proper conduct does not impute “proper conduct” – only an old knucklehead like me!!!

    And yes, our parents but not so much our schools these days inculcate in us a certain moral sense. However, (and i hate ever having to quote the “social sciences”), there is a growing body of work that indicates that there is an innate, if rudimentary, sense of morals in human infants. Of course, even if this were not so in infants, the point is that, as you admit, we are capable through human reason of apprehending morality and thus can comprehend those rights that naturally inhere in us.

    No, I think the difference between you and I is this:
    We both see a value in positive law and its ability to enhance human liberty (ordered, of course, by prudence).
    However, i see that there is a sphere of human liberty that can not, should not and ought not, ever be subject to the vagaries of historical imperatives and changing fancy. In a nutshell, that is what natural rights are intended to protect.

    take care
    gabe

    Reply
    • Marvin Edwards

      Gabe,

      The fact all the representatives signed the Declaration of Independence while slavery was widely practiced in the southern states should be proof enough that slavery was not considered inconsistent with natural rights.

      There is no salvation in “natural rights”. Our salvation resides in our morality, our desire to achieve good and reduce harm for everyone. It is moral judgment that ended slavery, not natural rights.

      What disturbs you is that it was moral judgment that also allowed slavery in the first place. And that is correct. But so did “natural rights” theory. The difference here is that moral judgment evolves and changes over time. It can be slowly, but steadily perfected.

      But a theory of rights based upon “inherent”, “natural”, or “God given” rhetoric is only useful to conserve the existing status quo. I’m sure all three phrases were used by plantation owners wishing to preserve their “right” to capture, train, and work black African slaves.

      And eventually, your “permanent”, “fixed”, “eternal” principles did change over time. Now you use “natural rights” to rhetorically prevent slavery rather than rhetorically maintaining it.

      But all practical rights arise by agreement. And the agreement that ended slavery forever in America was the Thirteenth Amendment. And we were convinced to come to that agreement by the harm that was done to us by the institution of slavery.

      And, by the way, we humans are always conscious actors in every historical event.

      The morals innate in human infants are the instinct to survive, to meet the needs of the empty stomach, the full bladder, and the security of the warm embrace. Having experienced the delay, frustration, and eventual satisfaction of these needs, and having attained a consciousness of self and other, the child may very well empathize with another child in similar situations and make an elementary moral call in simple scenarios.

      But that is still moral judgment at play, and certainly not a theory of “natural rights”.

      Reply
      • gabe

        Marvin:

        Again, you are rejecting the good because some folks (founders) were not perfect.
        Plus your assertion that slavery’s tolerance denies the validity of natural rights is clearly and the founders recognized this. Perhaps, you should read Jefferson’s comments on this. It was clear that he did not want to tolerate it – and in fact his original draft of the Declaration denounced slavery and the King for imposing it upon the colonies.

        Also, you seem to think that it is possible to separate “morality” and natural rights.
        As our ESPN college Game Day buddy, Lee Corso, says, “Not so fast, my friend”
        Natural rights theory and morality are inseparable and indeed may be said to represent both Revelation (morals / bible) and Reason (natural rights). The one presupposes the other.
        Oh and you are quite simply wrong about the “morals of an infant” There is more to a human infant than that especially as it develops. That being said, it is with the onset of reason that we should be concerned and not with the Darwinian conception of human beings as nothing more than insatiable appetites. That may be true for your cat friends but if that is all we were then we would never apprehend morals.
        Also, you just simply refuse to recognize that i am not asserting that all rights are “permanent” – only that there are some, that people like you who believe that the state has greater discretion over my liberty than do I and thus may disparage them, that are permanent. No, my point if you give it a fair reading is that there are some areas of human action that ought not to be messed with by the state.

        take care
        gabe

      • Marvin Edwards

        Let me be clear. The validity of “natural rights” is discounted by the inability of any of its advocates to provide any objective criteria to distinguish a “natural” right from an “unnatural” right. For example, by tradition, you call “life, liberty, and property” rights “natural”.

        But suppose the thief claims that his right to steal is also “natural”. How do you prove him wrong? He says he has labored to develop his skills over many years. He says he has never hurt anyone, but deftly picks their pocket to acquire his property. He is a principled thief and concedes that anything you can take from him through stealth can be yours (honor among thieves and mutual respect for their trade). So how do you prove that his claimed right is not a “natural” right?

        So that’s why rights cannot validly be called “natural”. You may as well call them “pudding rights”. The term either carries meaning or it doesn’t. The actual rhetorical meaning is “rights as we all know them to be now” and that included the right to own slaves despite Jefferson’s personal misgivings.

        I believe I’ve already clarified the relationship between moral Good and ethical Rules. The only point of having any rules at all is to improve good and/or reduce harm for everyone. That is the only objective criteria for judging rules and the rights they secure.

        This is called Reason. And Reason requires empirical evidence of benefits and harms to estimate the moral effects of a rule or right, which is called making moral judgments.

        “Oh and you are quite simply wrong about …”

        Consider the odds. 🙂

        “… there are some areas of human action that ought not to be messed with by the state. ”

        Sure. In fact, because liberty is considered a good thing by pretty much everybody, we generally tend to minimize laws. To limit your freedom by law I must also limit my own. So we have a shared goal of optimizing liberty while still securing rights.

        But we know that some liberty must be curtailed every time we secure a right. For example, I lose the freedom to steal in order to secure your right to your property. It would be difficult to have both.

  11. gabe

    Marvin:

    You are incorrigible – but not irascible!

    There is a difference between the freedom to steal and the right to steal.
    You may possess the former but certainly not the latter.
    And why is this?

    Because if the essential premise is that all men are created equal (and leave out the silliness about women, etc) than each has a equal right to keep that which he has produced and it can not be justly taken by either force, fraud or deception by anyone else. This is known both intuitively and by reason.
    And yes, taxes, fees, etc. are legitimate – but only because we have consented to be governed and the cost of securing our safety is taxation.

    So once again, stop conflating the freedom or power to do evil with a right to do evil. It simply does not exist and you, as a self professed moralist ought to know this.

    And while every statement made under the sun can be deemed “rhetorical,” it is disingenuous to do so, if in so doing one attempts to deny the “meaning” contained within the statement. This is far too “clever” of an argument that you and others advance. Heck, let’s just say everything is rhetorical, including your own assertions.

    The issue is not that liberty can not be curtailed, except of course for your animal friends previously mentioned, but that it must be done with the reasoned consent of those to be governed. Stop setting up strawmen and then trying to knock them down. Only libertarians take such a silly position against any curtailment of liberty, not I.

    It comes down to this. You believe that the state via positive law promotes good and grants rights. It does not. Its’ sole purpose is to “secure” the rights of the consenting citizenry. Plain and simple. Everytime it seeks to promote “good” as you say, we get such things as Obamacare, EPA claims to the puddles in my backyard, Obamaphones, paid sex-change operations for felons or indigent citizens.

    That is where your notion of government takes us. You must be a big fan of Woody Wilson!

    Enough of this, you win, I am going out to frolic with the squirrels, chickadees and robins in the backyard. After all, they obviously own it. I will check and see if they want their statutory warranty deeds or if they will settle for some birdseed and cooked rice.

    take care
    gabe

    Reply
    • Marvin Edwards

      “each has a equal right to keep that which he has produced and it can not be justly taken by either force, fraud or deception by anyone else. ”

      Why? The thief has offered us an alternate ethic. He suggests that we might also acquire things through skill and stealth. Why shouldn’t we all have the equal right to steal through non-violent means? What makes your right “natural” and his right “unnatural”?

      “It simply does not exist and you, as a self professed moralist ought to know this.”

      Yes. And, as a moralist, I can actually explain the reason that giving everyone a right to steal is a morally bad thing and not a morally good thing.

      The question is whether you, with your theory of “natural” rights can do the same or whether you are stuck with “intuition” and some “reason” that you cannot provide.

      Reply
  12. gabe

    Actually, I already have explained it. The fact that one has the pwoer to do something, such as you allege, (although you do not seem to recognize that you are alleging this) is not a right.
    So if you wish to reamin willfully non-cognizant of this, you are free to do so.

    In attempting to show that stealing is morally bad, you must have recourse to a higher morality. But this does not pop out of the skies, wrapped in pretty ribbons. It comes from a recognition that “all humans as humans are equal” as part of their human nature (and no not equal in talent or skills, etc). There is no denying this and all morals are actually predicated upon this. To some it comes from Revelation (Bible) and to others Reason (human intelligence, logic, philosophy, etc). They are in eternal tension but are nevertheless inextricably bound to each other and it is a mistake on your part to attribute it to intuition.
    Moreover, your approach ultimately leads to conditions where positive law, as it evolves, can disparage and deny, basic rights that are in fact supported by even your notions of morality.

    But as I said before, enough of this “cleverness”.

    BTW: Have you ever visited Liberty law Blog or Postmodern Conservative (at the First Things Blog). You might like it. Also, it would be nice if we could get others to comment on this site, so may be you could link it to others as I tryto do.

    take care of yourself, you old rascal!
    gabe

    final comment on this post – been fun – but the critters in the backyard are demanding more food in lieu of the statutory warranty deed to THEIR land!!

    Reply
    • Marvin Edwards

      “In attempting to show that stealing is morally bad, you must have recourse to a higher morality”

      So I take it you want me to provide the answer at this point. Here it is:

      If stealing is allowed, then the overall production of goods and services is decreased. If the thief is required instead to produce something to exchange with someone else, then the overall benefit is increased.

      The right to property is considered legitimately moral because it leads to a better good for everyone.

      The “right” to steal is judged immoral because it leads to less good for everyone.

      This is reasoning based on empirical evidence. That is what moral judgment requires.

      Questions?

      Reply
  13. gabe

    Yes, but not in a society of pirates!
    Indeed, it proved quite satisfactory to the Muslims as they plundered their way across northern Africa and southern europe. In fact, their moral code / law, Sharia, encourages one to engage in such conduct.
    Witness, also the vikings and other marauders of the good old days!
    Thus, your utilitarian (not empirical) argument is false.

    so goodbye!
    These are more sensible things to do like watch football – a high moral enterprise if you ask me!!!!!!!

    take care
    gabe

    Reply
  14. Marvin Edwards

    “Witness, also the vikings and other marauders of the good old days!”

    Which brings us to the moral value of the state. If the thieves and invaders are well organized, and we are in a state of anarchy, then we present ourselves as helpless victims.

    For good to triumph over evil, especially organized evil, it is necessary for good men to organize. Jefferson said, “to secure these rights, governments are instituted”. At this point Jefferson was no longer speaking rhetorically.

    All practical rights exist by agreement. We, the good people, agree to respect and protect a right to property for each other. We constitute a state, not to tell us what our rights are, but rather as a tool we can use to cooperate more effectively to protect the rights we have agreed upon.

    Through the state, we establish police, courts, and jails to deal with the local thief. Through the state, we establish and secure our borders with a national defense against the Vikings and other well-organized thieves, like King George III.

    And that is the difference between a “rhetorical right” and a “practical right”. Rhetorical rights are backed up by rhetoric. Practical rights are backed up by law enforcement and a national defense.

    Reply
  15. gabe

    You miss the entire point. You seem unable to recognize when we are in agreement and insist on asserting that I see no practical value in a state or in positive rights.
    The point still is that your so-called empirical approach leads to a state where maruading and all kinds of mischief are not only permissible but applauded.
    Enough already.
    That is all!

    Reply
    • Marvin Edwards

      Perhaps, but as I pointed out earlier, a blind faith in “natural rights” does no better. Natural rights were posited in the Declaration and the signers clearly did not believe that it in any way outlawed slavery.

      One can easily make a “natural rights” case for slavery and I’m pretty sure that is exactly what the slave traders did.

      And, as you suggest, there were probably some who made a moral case for slavery as well.

      The people have a tendency to do a lot of rationalization.

      The benefit of the empirical approach is that anyone who claims it supports their viewpoint must offer actual, real-world evidence. And it is hard to morally justify the chains and whiplash scars on that black man’s back as beneficial to him. Eventually moral judgment, not natural rights, ended slavery.

      Reply
  16. bobcheeks

    Mr. Edwards,

    I shouldn’t think you’re a “Wikipedia’ man?

    Of course secession is legal and traditional, I might add. Our founding, slave holding generation, was also our brightest and best, regardless of the comments of modern twits (Mr. Brokaw) and were the first to apply the secessionist concept.

    It’s an American tradition, grounded on our founding principles, to engage in ‘exodus’ from an oppressor.

    Reply
    • Marvin Edwards

      History suggests secession is neither traditional nor legal. The colonies joined together to successfully throw off British rule by force. And then they contracted to form a permanent union with no provision for secession.

      And Wikipedia has lots of useful information. Like this entry about the decision written by Chief Justice Salmon P. Chase in the Texas V. White case:

      “Chase wrote that the original Union of the colonies had been made in reaction to some very real problems faced by the colonists. The first result of these circumstances was the creation of the Articles of Confederation which created a perpetual union between these states. The Constitution, when it was implemented, only strengthened and perfected this perpetual relationship.[16] Chase wrote: ‘ The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to ‘be perpetual.’ And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ‘to form a more perfect Union.’ It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?[7] “

      Reply
  17. bobcheeks

    Chase was a consolidating bootlick and a Story statist. I wouldn’t place too much treasure in his edicts that constantly served his master’s, the ‘Eastern monied interests.’

    You might prefer Jefferson and comments on the Va. and Kentuk resolutions. Our pro-secessionist, slave holding, founders were smart enough to know that corruption would follow consolidation like spring follows winter. That’s why they tried to reign in the central gummint and that’s why they left the door open for secession. So that their would always be hope to establish another, then another, then another republic. Sadly, all of that was grounded on a virtuous people and the Democrats have pretty much made prostitutes out of the unwashed.

    Reply
    • Marvin Edwards

      I understand that a lot of chatter went on in different places by different people during ratification. But all of that is as moot as a politicians promises when the evidence is in the document itself.

      For example, we know that the discussion of individual liberties resulted in the first 10 Amendments. And we know that the right to amend the constitution was part of the contract.

      So, if secession was expected then it could have easily been explicitly added to the contract.

      It wasn’t. Case closed.

      Reply
    • Marvin Edwards

      Sorry dude, but classical liberalism, as you embrace it, is not a moral framework for determining rights. “Self-ownership” is meaningless, and therefore nothing meaning can be deduced from it. The assertion that you can own property by homesteading is only true when it is respected by your neighbors, and it is only respected by your neighbors in the context of a state which has eminent domain and has opened that territory to homesteading. Etc.

      Start with faulty premises and you reach faulty conclusions. (That’s not a rule, of course, because “even a broken clock is right twice a day”).

      Reply

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