Uniquely human: the basis of human rights

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The increasing emphasis on political liberty was influenced by an antimony of power and liberty. Thomas Hobbes provided a distrust of power, understood as a lust for dominating others. Hobbes’ solution for the danger and destructiveness of power was an authoritarian system, a sovereign power to restrain individuals.196 The British American colonists influenced by Hobbes and by English radicals believed that (political) power is the opposite of liberty. But with help from theories elaborated by Montesquieu, they came up with a solution different from Hobbes’. The British American solution involved interacting powers, and individuals who are educated to use liberty with virtuous restraint.197

Bernard Bailyn traced the history of the eighteenth-century meaning of “faction” as an index of political change.198 At the beginning of the eighteenth century, faction was negative in meaning, a disruption by minorities who had only their own interests at heart. At the end of the eighteenth century, James Madison in the Federalist Papers was still distrustful of faction or party, but his question was not how to eliminate factions but how to put them to use.199 “The concept of a republic turned from one that can find the common good through representative assembly to one in which a shifting sea of interest groups can be constrained to observe the minimal rules of procedural justice.”200

Bailyn identified a shift in “faction” starting in 1733 with the recognition that “a free government cannot but be subject to parties, cabals and intrigues.”201 The widespread involvement of the population was bound to include conflicts of interest. Voting and other political participation in the colonies was limited to white men who owned property. Today that seems a severe restriction, but the availability of land spread the franchise more widely than in Europe.202 On the eve of the revolution, two-thirds of the white males were voters compared to one out of six in England.

In the early eighteenth century the colonists were still convinced that England was the world’s leading example of liberty. The constitutional monarchy established at the end of the seventeenth century guaranteed the rights of Englishmen. During England’s French and Indian War, there was little doubt in the colonies that liberty was on the side of the English. At the same time, however, egalitarianism and the rebelliousness of competing factions in the colonies were growing. Pamphlets and newspapers spread political ideas; the existence of a lively press was itself a sign of rebelliousness in the name of liberty. A pamphlet by Jonathan Mayhew in 1750, A Discourse Concerning Unlimited Submission,” was the opening of a new stage of rebellion.203

The corner was perhaps turned in 1753 when it was suggested that the Crown itself could be “factious.”204 Instead of the king presiding as a paternal presence over political order, politics came to be seen as a search for order out of competing factions that included the king. The colonists had to struggle to separate the king from his paternal role. As late as 1774, they addressed the king as “our dear father.”205 One of the things that Thomas Paine’s 1776 tract, Common Sense, did was to sever the bond of a parent-child relation between king and colonies.206 In the Declaration of Independence Thomas Jefferson would make a list of twenty-eight accusations that were directed at the king.

The year 1763 represented a dramatic change in the colonial perception of who is the enemy of liberty. The war between France and England was over; the colonists had sided with England as the seat of liberty; the forces of liberty had triumphed. The end of the war meant the opening of new lands and the development of new instruments of local government. Uneasy with the colonists going their own way, the British tried to rein in the colonies, starting with the Stamp Act in 1765 and culminating in four laws in 1774 known in the colonies as the Coercive Acts. The policy proved to be a disastrous strategy for controlling the increasing rebelliousness of the colonies. The colonists suddenly saw themselves as Carthage being assaulted by Rome; the king was Nero, the vilest of the Caesars.207 By 1765 civil and religious liberty were joined in the understanding that “the stamping and espiscopizing of our colonies were…only different branches of the same plan of power.”208

By 1770, parliament had become a “foreign jurisdiction” and a “pretended power.” The colonists were not represented in parliament so they claimed that the imposition of taxes was tyrannical. Several British statesmen, most prominently Edmund Burke, warned that repression was the wrong policy for distant colonies that had become accustomed to self-rule and where the literacy rate was higher than in England. In a 1775 speech before parliament, Burke listed six ingredients of American liberty, including the fact that the Americans had emigrated from England. “They are therefore not only devoted to liberty, but to liberty according to English ideas and on English principles.”209

Declaration of Independence

The declaring of independence on July 2, 1776 brought to a close that phase of revolution seeking to restore the rights of English citizens. The political revolution, however, was just beginning. Unlike so many attempted revolutions during the last two centuries, the British American revolution was based on local constitutions and functioning governments. The existence of thirteen self-governing colonies was a blessing but also a challenge to creating any kind of united front.

The document declaring independence was signed by representatives of twelve colonies on July 4, 1776 (New York came in a week later). There are innumerable points of debate concerning the sources and the interpretation of the text. The standard reading for many years was Carl Becker’s 1932 book, The Declaration of Independence. In 1978, Garry Wills’ interpretation in Inventing America drew immediate praise but also considerable criticism.210 Critics complained that Wills had imposed his own liberal ideology on the text, although most critics seemed to bring their own ideology.

Wills played down the influence of John Locke’s political philosophy on Jefferson and emphasized Scottish thinkers. The change of interpretation was from an individualism in which government is primarily for the protection of private property to a communal orientation in which moral “sentiments” are the ground of reason. Wills introduced many helpful concerns but perhaps overplayed his hand. There are many interesting points of interpretation that I will not pursue. For my purposes, there is one overriding concern that the Declaration raised which is the relation between liberty and freedom.

The Continental Congress was intent on achieving cooperative action by the thirteen separate colonies. The Declaration’s heading reads: “The Unanimous Declaration of the thirteen united States of America.” In the text itself, the last paragraph says: “We therefore, the Representatives of the united States of America, in General Congress assembled…do in the name of these colonies (Jefferson’s draft had used “states”), solemnly publish and declare, that these united colonies are and of right ought to be free and independent states.” They speak as colonies but declare themselves to be states. In the Declaration both uses of “united” are in the lower case.

There was a near contradiction between declaring that there are thirteen free and independent states and implying that there is a single entity named the “united States of America.” The authors did not innocently or carelessly use “state.” They precisely list the powers of a state as “to levy war, conclude peace, contract alliances, establish commerce and do all other acts and things which independent states may of right do.” If each state could do these things, how can there be one state made up of thirteen states? When the Articles of Confederation were approved, they included in article II that “each state retains its sovereignty, freedom and independence.” A United States of America, it seems, existed in name only.211

These independent states immediately began setting up constitutions for governing the people of their respective states. A federation of these states was feasible for the purpose of a war defending the independence of the states. But the Declaration of Independence did not establish a government of the United States. Even when the British abandoned the fight and recognized the independence of the states, the future was not promising for a United States.

It seems clear that the Declaration of Independence’s immediate purpose was to do what its title stated: a declaring of independence or separation from England and the British Empire. Its main concern was political liberty rather than human freedom. The heart of the document is the series of accusations leveled against King George III that made “necessary” a separation. That is the way the document was received domestically. Consequent upon this claim to “separate and equal status” among the other powers of the earth, this group of states could negotiate for help with other international players.

The move was most successful in gaining military aid from France. Such a realignment of former enemies in a mere two decades was astounding. France entered the war on the colonists’ side out of rivalry with England not from philosophical agreement about universal rights. As Pauline Maier points out, a declaration of universal rights would not have received enthusiastic embrace from King Louis XVI.212

Jefferson’s preamble on self-evident truths, starting with the claim that “all men are created equal,” did have a later influence on French political thinking.213 And after the War of 1812, the Declaration shifted from a document that asserted liberty from England to being understood as a theory of human freedom. Jefferson himself at the end of his life encouraged this interpretation of the document.214

Thomas Jefferson, while influenced by John Locke on many points, differed on what Jefferson had originally called “sacred and undeniable rights.” As noted above, in Locke’s trio of life, liberty and property, Locke’s meaning of “property” was that “every man has ‘property’ in his own ‘person’. This nobody has a right to but himself.”215 Jefferson substituted for a right to property a right to “the pursuit of happiness.” Jefferson probably sensed that Locke’s meaning of “property,” – life, liberty, estate – although having some historical justification, would quickly be obscured by the powerful and wealthy. For the tradition that Jefferson was relying upon, property could be called “natural,” in one of the several meanings of natural; it deserves the protection of civil law but it is not on the same plane as life and liberty.216 Unlike the French Declaration, the Declaration of Independence has no right to property but it does support a right to revolution. Although a right to property is implied in the Declaration, a right to “the pursuit of happiness” for everyone implies restriction on the acquisition of wealth by a few.217

In the United States of today, especially among people called conservative, the Declaration of Independence is referred to as if it provides the legal structure of the United States and a model of government for the world. People often think they are quoting the Constitution when they are actually citing the Declaration. John Boehner, Speaker of the House of Representatives, while holding up a copy of the Constitution, declared he was standing with the Founding Fathers who wrote: “We hold these truths to be self-evident….”218

The Declaration of the first republic in America was linked to revolutions in other parts of America. Herbert Bolton refers to the American Revolution as “lasting half a century – from 1776 to 1826 – and it witnessed the political separation of most of America from Europe.”219 The second American republic was Haiti in 1804. The United States, with Thomas Jefferson as president, scandalously refused to recognize Haiti because it emerged from a rebellion of slaves against France. The United States feared it would encourage rebellion of its own slaves. Even the French recognized Haiti in 1825 but the United States did not do so until 1862 when Abraham Lincoln was president.220 The Haitian revolution which was in response to the French Declaration of Rights did not get much notice at least in U.S. and European textbooks. As a protest of slaves in the name of humanity, its importance as a forerunner of the claim to human rights deserves recognition.

The glaring failure of the first American republic’s attempt to be a lesson to the world was its retention of slavery. An objection to slavery was frequently made in the years leading up to the Revolution but the usual referent for slavery was the colonies’ relation to England. Some authors did acknowledge that their slaveholding contradicted their apotheosis of liberty but the practice nonetheless continued.

The Declaration of Independence in its final form made no effort to address this contradiction of liberty. Jefferson in his draft of the Declaration did take on the question of slavery with breathtaking arrogance. Among Jefferson’s accusations against the king was the statement that “he has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the person of a distant people.” And Jefferson expressed disdain at this “warfare of the Christian king of Great Britain, determined to keep open a market where men should be bought and sold.”221 The delegates, showing a modicum of discretion, excised the whole paragraph (Jefferson’s notes say it was done “in complaisance to South Carolina and Georgia”). They replaced the paragraph with an accusation that the king has “excited domestic insurrections.”

The Declaration was thus spared even greater mockery by British critics who focused on the contradiction between the right to liberty and the actual practice of slave- holding by Jefferson and other signers of the Declaration. As Thomas Day, an English abolitionist expressed it, “they signed the resolution of independence with one hand, the whip over slaves with the other.”222 Jeremy Bentham, in his “Short Review of the Declaration (1776),” provided the most extensive criticism of what the Declaration says about universal rights.223 In that context, Bentham notes “rather surprising it must certainly appear that they should advance maxims so incompatible with their own present conduct.”224

This painful disparity was not just a topic for philosophical debate. The slaves had the most accurate and long-suffering view of the hypocrisy in the Declaration’s philosophical claims. Frederick Douglass reminded the white majority of the slave’s view in his oration “What to the Slave is the Fourth of July?” Douglass’ responds to that question: “I answer, a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim.”225 Slavery in the United States was not just a failure to extend rights far enough; it is the evidence that “human” rights were not yet the question. It is perhaps not an accident that in 1850 Douglass makes one of the earliest uses of the term human rights in protesting slavery’s “outrageous violations of human rights.”226

Slavery was a key issue as to whether united States constituted a United States after the Declaration and even after the compromises of the U.S. Constitution. Economic considerations pushed together a group of southern states to defend slavery. The cry of “states’ rights” would have surfaced without slavery but slavery became the leading edge in controversies over the rights of states and the power of the federal government. States’ rights were often a cover story for the defense of slavery.

A first problem with the Declaration of Independence was that “united states” seemed impossible. The logical alternatives were either “united provinces” or “separate states.” A second related problem was what followed “united States” in the Declaration. The words “of America” were inaccurate. The former colonies were a part of the continent of America which suggests that the country should have had the name United States of something or United States in America. The name “America” was already taken; it was the name of a continent that contained French, Spanish and Portuguese colonies.

“America” from its origin in the sixteenth century also had a religious or quasi-religious meaning; it referred to the endtime when the original paradise will be reestablished. “America” became the idea, ideal or dream that held the states together; it was also a way to avoid the issue of whether there was a United States of New York, Virginia, South Carolina, Massachusetts and the rest. The United States Constitution did not resolve this problem.

Constitution of Freedom

The term declaration has a double meaning: the act of declaring and the document that records the declaring. The first declaration of independence was on July 2, 1776; the second declaration was on July 4, 1776. Aside from raising a question of whether the holiday in celebration of liberty should perhaps be on July 2, the ambiguity does not create serious problems.

The same is not true of the double meaning of “constitution.” In the 1780s, the people’s agreement was the constitution of a government; the constitution as a legal code was then set up by the government. “The people should endow the government with a constitution not vice versa.”227 As the case of Great Britain shows, the second constitution is not necessary for the existence of the first. The constitution of the United States government by the people was to establish freedom; the power over that constitution was to remain with the people. The written constitution was the product of a particular time that distributed the powers of government for the protection of freedom.

The fact that the U.S. Constitution was the work of one group of gentlemen meeting in Philadelphia in 1787 does not imply that it should be discarded for something more up to date. William Gladstone referred to the U. S. Constitution as “the most wonderful work ever struck off at a given time from the brain and purposes of man.”228 Nevertheless, a constitution written in the eighteenth century cannot by itself give answers to twenty-first century questions that were unimaginable in the 1780s. The effort to discover the minds of the founders as expressed by the text is a valuable exercise for understanding what they wrote. But a claim that even a perfect reconstruction of their intentions can resolve contemporary debates is a strange assumption.

The strength of the federal constitution was that it emerged from and built upon the local constitutions of villages, townships, and states. The Declaration of Independence had not thrown the colonists into “the state of nature” because they had previously developed self-governing bodies that had their own constitutions.229 However, out of a distrust of executive power, most of the state constitutions made the government practically equivalent to capricious popular assemblies. At least that is the way many of the leaders of government thought.230

The task of the Constitutional Convention, therefore, was not to invent a constitution but to draw upon local constitutions and at same time recognize sovereignty not in the government but with the people. The federal government would establish a unity of interests among the several states while being itself regulated by a complicated set of interactions. The result was a “harmonious system of mutual frustration.”231

The writers of the Constitution did not base their hopes for government on virtue. They did not have an exalted notion of human nature; they produced a government for ordinary people. However, the idea of a republic, in contrast to a democracy, had some strict conditions: “The well-being of the Republic required promotion of learning and intellect, infused with a spirit of public service in order to develop an expanding class of responsible social leaders.”232 A class of hereditary privilege was to be excluded; a class of disinterested gentlemen was to be cultivated.

For some people the Constitution is opposed to the Declaration, a pulling back from equality, universal rights, and the sacred cause of liberty. That negative attitude was already present in the anti-Federalist rhetoric of the 1790s and is very much alive today. According to Hannah Arendt, “the basic misunderstanding lies in the failure to distinguish between liberation and freedom; there is nothing more futile than rebellion and liberation unless they are followed by the constitution of the newly won freedom.”233 True, the Constitution makes no reference to universal rights; it is written in sober legal prose. But the Constitution was intended to protect freedom not only from the oppression of rulers but against the tyranny of majorities. It was Madison’s insight that one part of society can oppress another. The Constitution was to save “the rights of the individuals or of the minority…from interested combinations of the majority.”234

Within a few decades, the country had moved toward a more democratic form of government: “one man, one vote.” It retained, however, many of the checks and balances to prevent one branch of government from acquiring dictatorial powers, and to protect the rights of unpopular minorities. Whether some of those mechanisms, such as the Electoral College, should now be jettisoned is an issue worthy of debate. The Electoral College is at the root of the crazy pattern of presidential campaigns that are never-ending. Whether a country of fifty states and three hundred million people is governable as a democracy remains an open question.

The Constitution would probably not have been ratified except for a “bill of rights” that was immediately attached to it. Most of those ten amendments to the Constitution were in the tradition of the liberties in English law. For many people, these rights are more important than anything in the Constitution itself. Practically everyone in the country cherishes some of these rights, such as that government agents cannot enter someone’s home without due cause or that a person accused of a crime has a right to face his or her accusers. Some of the guaranteed rights are subject to conflicting interpretations, such as the second amendment’s right to bear arms because “a well regulated militia” is necessary for the security of a free state.

The first amendment, with its five basic freedoms, is the most often invoked amendment and it keeps an army of lawyers employed in the interpretation of the text and the defense of its stated freedoms. A freedom of speech is probably the most cherished of all the liberties. The United States takes great pride in the lack of restrictions on the right to express one’s opinion, even extending such a right to corporations contributing unrestricted amounts of money to political campaigns. Many other countries consider the United States to be unrealistic in thinking that speech can go unregulated. Speech that is important might be overwhelmed simply by the amount of trivial speech. The United States trusts that truth will win out in the “free market of ideas” which some people fear means that money is the final arbiter.

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