Why did rights matter to the American founding? An interview with Thomas West

By Lael Weinberger, JD/PhD candidate at the University of Chicago's law school and history department. Follow him on Twitter @LaelWeinberger.


Today, we’re interviewing Thomas West about his recent book on natural rights in the political theory of the American founding. You can read an introduction to this interview here.


LW: Thanks for being willing to talk with us! Let’s start off with the question of how much rights talk mattered at the founding. Is there anything special about "rights" in the founding-era political theory? To what extent does it matter that the founders used the language of rights?

Some might see rights-talk as one of the distinctly modern aspects of the founders' political philosophy, as for example do some scholars who say that the founders were focused on rights and not duties. You disagree with these scholars in your book, and instead argue (persuasively, to my reading) that the founders had a much more integrated and holistic understanding of government philosophy as consisting of obligations, responsibilities, duties, and immunities on the part of the government and the citizen. On your account, did the founders really need to use the language of rights to articulate their political philosophy? Was this just a historical accident? Or is the rights language really bringing something important, something conceptually distinctive, to the founders' political theory?


Thomas West: Undoubtedly historical accident partly explains why the founders adopted their political theory. They frankly admitted which European political writers they most admired. But they really believed it matters a great deal whether we accept or deny that all human beings are by nature free and equal who are endowed with the same inalienable rights to life, liberty, and to the acquisition and possession of property.

The state of nature is the basis of the founders' understanding of politics. If human beings are born free and equal in a natural state, subject only to the laws of nature, then government is a product of human making to secure the equal natural rights of the citizens.

Thomas Paine explains: "as nature knows … not [kings], they know not her, and although they [kings] are beings of our own creating, they know not us, and are become the gods of their creators."  Nature knows nothing of kings because political rule comes not from nature but rather from a human source -- "our own creating." Even Socrates' philosopher-kings cannot acquire political power without men who install or keep them there.

Kings "know not" nature because by being elevated above the people, they fall into the delusion of being gods. Once equality in the state of nature is understood, no one can be expected to submit blindly to any merely human claim of authority. John Adams complains that in the Middle Ages, it was "stipulated between them, that the temporal grandees [kings and aristocrats] should contribute everything in their power to maintain the ascendency of the priesthood, and that the spiritual grandees, in their turn, should employ their ascendency over the consciences of the people, in impressing on their minds a blind, implicit obedience to civil magistracy."

We hear the same kinds of claims today from our own "priesthood" in the universities and the media, in alliance with the government. We are told that in order to fight racism, sexism, xenophobia, and homophobia, we must eliminate from political power those who "cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment." Such people must learn to submit quietly to the moral authority of their betters and to the government that embodies that moral authority. In this approach, republican government is sometimes demonized as "majoritarianism." The unenlightened majority is to be kept in check by the credentialed and the "well-graduated" who populate the courts, the bureaucracy, and the educational institutions, in alliance with the media, purveyors of popular culture, NGOs, and the big corporations. That kind of politics is impossible under the natural rights doctrine.

In other words, the human tendency to "blind, implicit obedience" decried by Adams is not limited to medieval times. Leo Strauss observes that Martin Heidegger "welcome[d], as a dispensation of fate," the rise of Hitler to power. Heidegger's example teaches us, Strauss concludes, "that man cannot abandon the question of the good society, and that he cannot free himself from the responsibility for answering it by deferring to History or to any other power different from his own reason."  Everyone must use his or her own judgment in the face of any human claim to authority. That means no one is obliged to submit blindly to anyone who claims to rule him rightfully without his consent.

The founders would maintain that the natural rights doctrine will be politically relevant -- as long as there are people who claim the right to rule not by consent but because they belong to a class anointed by God, by History, by moral credentials earned by serving the disadvantaged, or by degrees from Harvard and Yale. In other words, they would regard it as relevant at all times.


LW: To what extent is it possible to attribute a single political philosophy to the founders? The old line about scholars falling into either the category of "lumpers" or the category of "splitters" seems relevant here. Lumpers provide new insights by recognizing commonalities across areas where they weren't previously recognized. Splitters contribute by pointing out differences and discontinuities. If I was going to risk a generalization about my own field of American history, I think it would be fair to say that splitting is the dominant mood. Your book, however, is firmly in the "lumper" mode. You're interested in recovering a shared political theory, common to all - or most - of the founders. Are you comfortable with being put in the "lumper" category? Can you talk about how much variation you're comfortable with having within the big category of shared worldviews? What do you see as the outer limits of the lumper approach? 

Thomas West:

Both methods are valid, depending on the topic. If you want to know the variety of opinions in the founding, you have to be a splitter. If you want to understand the consensus of the founding, being a lumper is the only choice.

Why is this even controversial?

If the point of the splitters is to deny any common threads in the founders' political theory, my answer is let's look at the important elements of what was said on those occasions when they were compelled to come up with compromises that a majority could agree on. At moments like that, the founders themselves were compelled to be lumpers.

In his last letter on the Declaration of Independence, Jefferson explained why he had to be a lumper when he wrote it:

[W]ith respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American whigs thought alike on these subjects.

When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.

All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.


LWA follow-up about the analysis of consensus: To what extent could we say that the founding era political theory you describe was widely shared in American society at the time? Your book argues that the theory was applicable to people generally, which is another important (and of course, controversial!) question. But I'm curious about how much we can generalize the claim to consensus beyond the relatively elite group of individuals who penned documents (like the Declaration of Independence and the state constitutions). The writers were people who held elected positions in revolutionary America and the new republic; to what extend did the broader public share their understanding of political theory? One level of generalization would be to say that these views were shared by voters more generally; another even broader circle would be to include nonvoters (e.g., slaves, women in most states, or men who didn't own property).  

Thomas West:

Those who authored the important consensus documents were of course far better informed about the full meaning of the natural law and natural rights theory than the average citizen. But even in small towns one can see examples of competent statements by local notables. 

In 1775, residents of Darien, Georgia went against the grain of the rest of their state by declaring slavery an "unnatural practice . . . founded in injustice and cruelty, and highly dangerous to our liberty (as well as our lives), debasing part of our fellow creatures below men, and corrupting the virtue and morals of the rest, and is laying the basis of the liberty we contend for . . . upon a very wrong foundation." 

Dozens of Massachusetts towns wrote thoughtful "returns" during the debate over that state's proposed constitution of 1778. These often included sophisticated discussions of consent, natural rights, voting rights, and so on. They are collected in Oscar and Mary Handlin's Popular Sources of Political Authority.

As for slaves and women: We know that there were a few slaves who appealed to the natural rights idea in the founding. And there were plenty of women who enthusiastically supported their men in the war effort. Some were acquainted with the basics of the founders' political theory. A 1775 letter from a Philadelphia woman: "I know this, that as free I can die but once, but as a slave I shall not be worthy of life. I have the pleasure to assure you that these are the sentiments of all my sister Americans…. If these are the sentiments of females, what must glow in the breasts of our husbands, brothers, and sons? They are as with one heart determined to die or be free" (p. 287 of my book).

LW: A final question about the origins of the book: When did you start thinking about writing this book? Did it grow out of your engagement with the literature on the political theory of the American founding era (which you cite and engage with extensively in your book!)? Did it grow out of your teaching? Some combination of these inputs? 

Thomas West:

My serious engagement with the founding really did not begin until a decade after I got my Ph.D. As a grad student, I was mostly interested in "great books." My original specialties were classical and late modern political philosophy. My first book was Plato's Apology of Socrates. In the 1980s, I got interested in the relation between the classics and the founders. I was invited to a dozen or more Liberty Fund seminars on the founding in those years. The format was always the same: fifteen scholars, many of them eminent in the field, spent two days around a table discussing the assigned reading, which included extensive original and secondary sources. For me it was like getting a second Ph.D.

My most important intellectual breakthrough in understanding the unity of the founders' political theory came when I finally saw the deep connections between the founders' theory and the actual policies, institutions, and laws that they adopted. In this respect, not only my Straussian teachers in grad school, but also the mainstream historians who write on the founding, had led me astray. At least that is what I now believe.

My deepest intellectual debt is to Leo Strauss and Harry Jaffa for their important work in reviving serious intellectual interest in the founders' political theory and its European antecedents. Their writings sparked my initial and continuing interest -- although my conclusions often differ from theirs. Many Straussians regard the political theory of the founding as "liberal" in the sense of being based predominantly on Lockean natural rights, in which there is supposedly no significant place for moral duties, for the classical virtues, for religion, or for viewing sex and ethnic differences as politically relevant.  As a graduate student, I had absorbed that opinion from Jaffa, Martin Diamond, and others. Jaffa later changed his mind, arguing that the founding "was dominated by an Aristotelian Locke -- or a Lockean Aristotle."  I accepted Jaffa's modified view -- which still assumed that there is something "wrong" with the unvarnished Locke - in some of my earlier writings.  No longer. 

In the 2000s I revised my view of Locke and other modern philosophers. I came to see that thinkers such as Locke, Burlamaqui, Vattel, Paley, and Hutcheson were much more in agreement on natural law and natural rights, and much more friendly to civic virtue, than I had been led to believe.  

However, as to the European origins of the founders' political theory, I now believe it is safer to avoid distracting entanglements in that debate -- at least until we understand better the founders' views on their own terms. That is my concern in The Political Theory of the American Founding.

LWThanks again for taking the time to talk about the book.

Thomas West: 

Thanks for the opportunity.