Natural Rights and the Constitution

• Author: Walter Berns
• Pages: 1785-1787

Page 1785

The Constitution as it came from the Philadelphia convention contained no bill of rights. Indeed, the word right (or rights) appears only once in it, and there only in the context of Congress's power to promote the progress of science and useful arts "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article 1, section 8). In the view of the Anti-Federalists, the Constitution should have begun with a statement of general principles, or of "admirable maxims," as PATRICK HENRY said in the Virginia ratifying debates, such as the statement in the VIRGINIA DECLARATION OF RIGHTS OF 1976: "That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter a state of society, they cannot by any compact deprive or divest their posterity;

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namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." In short, a bill of rights ought to be affixed to the Constitution containing a statement of natural rights.

The Federalists disagreed. They conceded that the Constitution might properly contain a statement of civil rights, and they were instrumental in the adoption of the first ten amendments which we know as the BILL OF RIGHTS, but they were opposed to a general statement of first principles in the text of the Constitution. However true, such a statement, by reminding citizens of the right to abolish government, might serve to undermine government, even a government established on those principles. And, as Publius insisted, the Constitution was based on those principles: "the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS" (THE FEDERALIST #84). It is a bill of natural rights, not because it contains a compendium of those rights but because it is an expression of the natural right of everyone to govern himself and to specify the terms according to which he agrees to give up his natural freedom by submitting to the rules of civil government. The Constitution emanates from us, "THE PEOPLE of the United States," and here in its first sentence, said Publius, "is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in...