Feature 07.27.2023 6 minutes

The Natural Right

Classic statue

It will take an appeal to the good per se to overcome a corrupt regime.

I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.

—James Wilson, Lectures on Law, 1790-91

Many thanks to Glenn Ellmers, Jeremy Carl, Nick Solheim, Josh Hammer, and Timon Cline. They responded to a modified excerpt from a chapter in my lengthy book, so I can hardly be indignant at Hammer’s and Cline’s mischaracterizations of it. Allow me to begin by recognizing that we probably agree on 90% of political issues. And I think we agree on an aggressive conservative return to Christian republican habits and institutions through two inseparable methods: rebuilding local communities and changing national policy. We seek both to strengthen the ties of local associations that are the wellspring of republican habits and to restore our original federalist system. And this requires real political power at the local, state, and national levels.

It is hard to disagree with Ellmers’s response. He urges caution about my revolutionary language. Like John Adams, he reminds us of the right conditions for revolution. There must be “persistent, serious violations of natural rights, along with indifference or even hostility to attempts at reconciliation.” At that point, the bonds of a people de facto have already been dissolved. Moreover, a people must have “a reasonable expectation, and a plan, for a better arrangement.” Ellmers aptly warns that much revolutionary chatter is a psyop by intelligence agencies used as a pretext to expand state power and further destroy our way of life. I would include in this the January 6 “insurrection hoax,” the myth that “white supremacy” is our greatest threat, and the FBI-directed plot to kidnap Governor Gretchen Whitmer.

Hammer incorrectly says that I have given up on national politics. But I do not suggest turning to local politics to avoid national confrontation. I refer Hammer to my paragraph that begins, “Considering the future of the American nation, there are two alternatives.” The first is an attempt to reconcile a divided people. I propose a moratorium on immigration, smashing monopolies, and an America First economic and foreign policy.

But New Right nationalism is justly skeptical about whether we are a common people anymore. I tried to preserve this skepticism. Will we really persuade the Left to embrace Americanism? Thus, barring reconciliation, our alternative is conservative revolt: returning to our founders’ citizenship revolution in ruthless partisanship. The excerpt from my book draws a bold line in the sand to distinguish friend from enemy, clarifying who we are that we may courageously prepare for what may become ugly.

I have proposed that conservatives begin their own “march through the institutions” to take over the federal bureaucracy and education. This includes the “three P’s”: parity, purges, and parallel institutions. And this fight must include executives who stand up to federal court injunctions, even if it means introducing a constitutional crisis.

Cline on Natural Rights

Cline challenges what he calls my “half-baked constitutional theory.” He disagrees with my statement, “The Constitution aimed to protect natural rights; now it is used to subvert them” (for a similar statement, see the quote from James Wilson above). Appeals to natural rights, Cline argues, are removed from historical context, don’t help us in our current political crisis, and thus have been abandoned by the New Right.

Cline gets everything wrong about my views on natural rights. He criticizes me for not saying what I do say in my book. He wrongly says I embrace natural rights removed from “the communal and…historical-cultural conditioning of…the natural and universal inside of time”; yet I treat natural rights in historical context (4-6).

Cline wrongly says that I argue the founders were “crusading for the rights of mankind rather than for the liberties of Englishmen” when “the Constitution was intended for a specific people and place”; yet I show that Americans thought other peoples were incapable of republicanism and so excluded them from citizenship (40-53). He further claims I do not understand natural rights in relation to limiting duties; yet I include natural rights as part of natural law (6, 18-20, 26-27), meaning that those rights are always accompanied by duties. Far from solely making individualist claims against government, I discuss how state police powers were used to support the Christian religion and to regulate sex, business, and health for the common good (18-20, 26-40).

Cline also says that I do not understand the constitution is about a particular “form” of government. But republicanism is the theme of Chapter One (see 21-26) and even in the title: War on the American Republic, i.e., on a form of government. He accuses me of not considering “the people’s constitution or way of being and as a necessary antecedent to government form”; yet I write that “a certain character, or type of soul” is the “constitution in the truest sense” (26, 3). The war on the American Republic is the war by the state against the people and their way of life.

These mischaracterizations stem from a deeper disagreement. Aside from his interest in the “common good” as a legal concept, he saw an opportunity to attack his bête noire, natural rights. He thinks our current problems stem from a focus on rights and not duties, and this from an “Enlightenment” liberal political theory by Hobbes, Locke, and Rousseau shorn from its “classical Christian counterpart” of natural law. The former, he thinks, holds that isolated autonomous individuals possess absolute rights in a fanciful state of nature, from which they make concrete claims against society, such as the right to bear arms. But, Cline says, “There are no pre-political ‘rights’” because “there is no non-or-pre-political human existence.” Classical contractarianism, he argues, recognizes no rights outside of the society one is born into. One consents to create a “governing structure” but not a society or people with inescapable duties.

Cline oddly thinks that man’s sociality refutes the ideas of a state of nature and natural rights. But his description of them is itself a caricature. The state of nature is hardly an abstraction. Nations remain in this state today, as do those living without standing, promulgated law, an impartial judge, and a common executive (17-18). Cline’s view that rights cannot exist outside of social relations is unremarkable since man (says Locke himself) is a social animal with pre-political duties, such as those accompanying parenthood.

Conversely, Cline’s emphasis on historical social and political authorities tends to smother the question of nature, and thus to ignore the tension in claims to right and the fundamental questions of natural law in all social contractarianism: what is the good, and why obey authority? According to Thomas Aquinas, one may know the precepts of the natural law by unaided reason. They follow from the natural inclinations to preservation, to procreation and education of offspring, and “to know the truth about God, and to live in society.” The end of these precepts is the human good, and they apply generally to all human societies, though expressed differently in particulars. And by these precepts one may assess both folkways and positive laws, which may be reformed, broken away from, or overthrown. The radical potential of natural law explains why Francisco Suárez’s books were burned in London and Paris.

An Appeal to Nature

It seems to me that Cline responds to the dangers of all natural law theories by purging what he calls natural rights. To return wayward reason safely back to its fold, he falls back onto legal expressions of the common good, equating reason with the decisions of an educated class of judges and experts in the common law—the Americans fought for the “liberties of Englishmen”: they prevented a revolution instead of making one. By turning the stream of history into a vast ocean of all ideas within time, he can seek to tame revolutionary acts: radical means return to the roots.

But for one hundred years the Crown and Parliament denied the colonists’ claims to the “rights of Englishmen.” In a bloody war the Americans overthrew the British order to create a different form of government. They became sovereign equal citizens and no longer subjects accorded unequal privileges based on assigned group identities. To decide which tradition is authoritative—after all, why one tradition over another, or tradition at all—Cline must ultimately absolutize one, the American republican order, that will both inform positive law and serve as an authoritative compass to future generations. And ultimately the founders’ defense of republicanism was an appeal to nature—that it was the best form of government to achieve the human good, both individual and collective.

Where I defend natural rights by connecting them to this form, Cline’s critique of natural rights is itself an ahistorical abstraction. I challenge Cline to tell how Enlightenment liberalism led to “late-stage modernity” without resorting to Patrick Deneen’s platitudes about “liberalism.” The main purpose of my book, after all, was not (like Thomas G. West) to treat the founders’ views, but to show how the republican form was overthrown. It was not because of “natural rights.” The progressives who erected the administrative state rejected both natural rights and social contract theory. So did the midcentury liberals. So did the critical theorists of the Frankfurt School. And each of these, rather than simply liberating the self (in some naïve dichotomy between rights and duties), supplied its own understanding of privileges and duties. Our current sexual freedoms mean limiting the freedoms of Christians and parents to teach against them.

As Cline is aware, “common good,” like natural right, may also be misinterpreted, and so must also be rooted in some transhistorical principle lest it be abused to mean anything. Substituting the word goods for rights is just a word game: John Rawls invoked “basic goods.” Another case is Adrian Vermeule, conservatism’s number one fedposter, who, with co-author Cass Sunstein, fathered the idea of federal “cognitive infiltration of extremist groups” before he converted to Catholicism and started promoting integralism. The FBI’s infiltration of “Radical Traditionalist Catholics” comes from his playbook. Vermeule’s “common good” means administrative rule, forcing citizens to get the COVID-19 vaccine, and what amounts to open borders: all destroy republicanism.

Looking at the above company, Cline is wrong to say that natural rights are “outdated—by New Right standards.” Young conservatives I know have largely traded their interest in academic arguments for testing a theory by its effects. Cline’s own contempt for “anti-vaxxers” and (in my opinion incorrect) legal argument that states may force citizens to receive COVID-19 vaccines (even if he questions its prudence) is unwelcome on the New Right. My students were not radicalized by natural rights theory, but by Donald Trump, the George Floyd Riots, and the COVID-19 lockdowns. They watched professors they once revered use seemingly sound theories to endorse quietism and even defend the minions of the state. Call it “natural rights” or “common good”: a way of life was being destroyed.

And so they looked to see who obeyed authority without question; who opposed Trump to preen and virtue signal; who defended vaccine and mask mandates; and who cravenly called George Floyd a “good man,” blaming his broken life on “four hundred years” of “systemic racism.” Those who did so lost all moral credibility; honor rested with those who endorsed a muscular Christianity that defied the corrupt police. In sum, seeing that what passes for law is often a farce to promote the good of a few and to punish political dissidents, the New Right challenges claims to authority by way of appeals to Nature: healthy instincts and bodies, strong character, erotic allure, and vibrant communities.

“The important political question,” I write in my book, is “the common good of all American citizens” (368). Where I see unity between the common good and natural rights, between Aquinas and Locke, Cline sees destructive seeds. But even if we disagree on theoretical means, I do think we arrive at the same end, the American republican form. If Cline’s juridical theory helps us return to that order (for we have abandoned it), all the better. Perhaps if I can agree with him on this republican “common good,” then he can be more charitable to natural rights.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

Also in this feature

to the newsletter