This volume of twelve essays by distinguished historians and historically minded philosophers and political scientists will appeal to some readers for its parts. For example, it may serve as a handy source for up-to-date and relatively concise restatements from longer works by writers such as Gordon Wood, John Phillip Reid, and Akhil Amar. Yet editor Barry Shain evidently hopes the volume will be approached as a whole as well. The synoptic ambition is evident in the scope of the subject matter, which roughly tracks the three terms of the book's title, encompassing 1) philosophical discourses on “the nature of rights”; 2) historical work trained on rights “at the American founding”; and 3) more high-flying perspectives taking the history of American rights from “beyond” the founding of the United States up to the present.

In an introductory essay, Shain and Rogers Smith set forth some traditionally empiricist goals: “[g]etting right the historical story of American rights,” and making founding history “accessible” to non-specialists while at the same time teaching respect for the distance between the founding world and our own. To an extent, they have achieved this narrative of distance, in which rights have traveled from their more corporate, local, religious-inflected, and popular origins to the more individualist, national, secular and judge-centered rights of today, suggesting that, if rights have a “nature,” it is their very mutability. However, Shain and Smith proceed quickly to a more general viewpoint, periodizing the history of American rights rather neatly into three to four stages, and proposing some apparently universal propositions about the nature and logic of rights over time. These larger ambitions are both a strength and a weakness.

Shain and Smith emphasize the volume's unity, finding “mostly agreement” among the contributors in their “overarching accounts” of American rights. Yet if they had been less eager to synthesize the authors’ historical findings into bigger explanatory theory, they might have spotted more points of disagreement. For example, contributors Wood and Jack Rakove suggest that late-eighteenth-century Americans were radically transforming the notion of a constitution or fundamental law into a higher-law constraint on legislatures previously accustomed to a tradition of legislative sovereignty. Reid paints a contrasting picture in which the “Cokean constitution” had long been viewed as a constraint on Parliament and colonial legislatures (not just on the crown). For Reid, it was the Americans rather than the British who were, through the imperial conflict, conserving (albeit institutionally reshaping) the fundamental-law tradition of entrenched rights. Readers would have benefited from an editorial overview of these sorts of disagreements because they reflect recurring divides in the larger literature (with, for example, Bernard Bailyn on the side of Wood/Rakove and Daniel Hulsebosch closer to Reid on the nature of fundamental law before the founding).

Where Shain and Smith do spy disagreement among the essays, they can be quick to arbitrate. In particular, they (and Smith in a separate essay) conclude that Reid has unduly minimized the role of natural rights (as opposed to English rights) in the American Revolution. Their evidence against Reid, however, is more indeterminate than they suggest. Shain and Smith lean heavily on the fact that, by 1775–1776, official state papers were employing a language of natural rights “free from any historical moorings in British constitutionalism.” For the first time, natural rights could be “definitive of or capable of overriding civil rights,” “[giving] birth…to a new, unparalleled future for abstract individual rights” to “escape from the closets of philosophers to the world stage.” Shain and Smith recognize that natural rights already had a conceptual history within Anglo-American constitutionalism, but claim that natural rights had been previously “relegated to four extra-conventional legal conditions” of rupture (intergenerational, individual emigration, pre-social, and interstate relations). Curiously, they do not consider a fifth category long recognized in English constitutionalism: the dissolution of political society. This is a key omission because bold Americans were in fact claiming that they now stood in a “state of nature” vis-à-vis England and its people (something that Shain apparently recognizes in a thoughtful, more nuanced separate essay). In other words, within the context of political dissolution (such as the revolutionaries’ breach with England), abstract natural-rights philosophers and traditional British constitutionalists could sound indistinguishable (a fact of which Locke was already well-aware a century before). That Americans emphasized natural rights in declaring their independence may then tell us little about whether they thought natural rights ought to have more authority to override civil rights within the routine functioning of a polity. Shain and Smith are on stronger ground if they only really mean to say that revolutionary Americans awarded natural rights a degree of practical salience that was unprecedented, with profound consequences for the future development of rights.

It is this new salience that Shain and Smith use to mark the turning point from their first stage of pre-revolutionary rights to the second nineteenth-century stage in which free blacks, abolitionists, workers, and women could leverage “hard-to-control natural rights” against “more readily controlled and socially constrained civil [rights].” For Smith, natural rights make for more attractive “ethically-constitutive stories.” Here is an example of the universalizing bent: the implication that natural rights, by their nature, have more subversive potential than other rights. (The philosophically oriented contributors Richard Primus, Lief Wenar, and Stephen Macedo more consistently present rights as plastic and heterogeneous.) Not discussed is the possibility that conventional rights might, under some circumstances, provide more critical force for excluded or subordinated peoples (e.g., settings in which natural rights are wedded to ideologies of racial supremacy based on physical difference or to property rights in persons, and times when abolitionists and suffragists favored appeals to the Constitution). This is not to say Shain and Smith are wrong. Even if natural rights are not always more radical than conventional rights, they might typically be so, and for reasons that are common to many times and places. But more work is needed before we can conclude this.

Many of the contributors provide other insights and concrete detail about the ways disenfranchised groups have been able to creatively adapt the rights tradition in the post-founding United States (e.g., Daniel Rodgers on workingmen's associations). However, none of these men specifically focuses his essay on the relationship between rights and subordinated persons at the founding (although Shain and Smith do a good job posing questions about the gap between founding-era natural-rights talk and the lived experience of inequality). It would have been ideal to have some recent scholarship on slaves, servants, Native Americans, or women at the founding brought into conversation with the excellent work that is represented in this book. But then this sounds like a request that an ambitious book be yet more so.