II. On Declaring the Laws of Nature

By dissolving the political bands that had formerly connected them to Great Britain, American colonists were reclaiming the right of self government to which the “Laws of Nature and of Nature's God” entitled them. But what exactly did Jefferson and the other Founders mean when they spoke of the “Laws of Nature and of Nature's God”? The Revolutionary generation's understanding and use of this concept is one of the most important but least understood principles of the American Founding period, despite the fact that much has been written on the subject. Scholars of the Revolutionary period—both of the skeptical and fileopietistic variety—have for too long treated the Declaration's most interesting philosophic concepts as little more than “glittering generalities”—as either historically contingent or as unquestionably true.Footnote ⁶ The result in either case has been the same: a lack of serious thinking about the Declaration's deepest meaning.

What students of the American Founding most need is an understanding—from the perspective of Revolutionary-era Americans—of what a moral law of nature is (including its attributes and sanctions), how it is promulgated, what its source is, how it differs from a right of nature, and how eighteenth-century American statesmen used it in a political, legal, and constitutional context. We are less concerned here with enumerating different instances of nature's moral laws than we are in understanding how Americans of the Revolutionary period defined and used the concept. The central question is this: What is a moral law of nature?

Throughout much of the eighteenth century, and certainly in the period between 1765 and 1800, American thinkers and statesmen invoked regularly the “law of nature” idea as a guiding principle of their moral and political thought. Indeed, it was the starting point and foundation for their reflections on serious political matters. In reaction to the British Parliament's passage of the Stamp Act in 1765, John Adams encouraged his fellow colonial Americans to “study the law of nature” and to search for the foundation of all just government “in the frame of human nature, in the constitution of the intellectual and moral world.”Footnote ⁷ Such laws are not created by human will, but are rather discovered, defined, formulated, recognized, and enforced by man. The laws of nature transcend the commands made by legislatures, and they operate regardless of whether they are recognized and enforced by any political institution.

Many eighteenth-century Anglo-American statesmen and jurists understood that the purpose of statutory law was to embody and reflect the law of nature. In fact, many Revolutionary statesmen of the Founding era believed that any positive law which violated the laws of nature was necessarily null and void.Footnote ⁸ In 1772, Samuel Adams (1722–1803) writing for the Committee of Correspondence of the Boston Town Meeting declared “All positive and civil laws should conform, as far as possible, to the law of natural reason and equity.” Two years later, James Wilson (1742–1798)—one of the Revolutionary generation's best thinkers, a signer of the Declaration of Independence, a framer of the Constitution, and later a justice of the Supreme Court—announced, quoting the Swiss legal and political theorist, Jean-Jacques Burlamaqui (1694–1748), that “happiness” is the “first law of every government,” which is a rule, he wrote, “founded on the law of nature” and which “must regulate the legislature itself.” That same year, the First Continental Congress in its “Declaration and Resolves” invoked “the immutable laws of nature” against Parliament's recently passed Coercive Acts. A year later, in 1775, Alexander Hamilton followed Wilson's lead and defended the actions of the Continental Congress with a direct appeal to the laws of nature:

Generally speaking, then, the standard Enlightenment view of the “law of nature” doctrine said that nature and man's nature are knowable by reason, and that from nature and man's nature can be induced certain natural moral and political laws that should guide man's individual ethical and social behavior.

Let us turn now to a fuller examination of how eighteenth-century Americans understood and used the moral concept “law of nature.” Following John Locke (1632–1704) and later Enlightenment philosophers, colonial Americans typically defined the law of nature as a dictate of “right reason.” Revolutionary-era pamphlets, sermons, and official declarations and petitions are replete with similar attempts to associate the moral laws of nature with “right reason.” They most often said that the laws of nature were promulgated through a discovery process—that is, by the application of right or proper reasoning to the study of nature and human nature.Footnote ¹⁰ Still, we are left wondering what exactly the Founding generation meant when they declared the laws of nature as synonymous with reason.

Consider the case of John Adams. As early as 1756, a twenty-one-year-old Adams was writing in his Diary that reason is man's only tool for determining what is morally right. Man has been given “reason,” he argued, “to find out the Truth, and the real Design and true End of our Existence.” For Adams and virtually all of the Founding generation, the moral law of nature was synonymous with reason: “Law is human Reason,” he asserted; it governs “all the Inhabitants of the Earth; the political and civil laws of each Nation should be only the particular Cases, in which human Reason is applied.” In fact, “Nature and Truth or rather Truth and right are invariably the same in all Times and in all Places. And Reason, pure unbiassed Reason perceives them alike in all Times and in all Places.”Footnote ¹¹

As a young man, John Adams took seriously the possibility that there are laws of nature and principles of natural justice grounded in an objective moral order that can be known through the use of reason. Reason itself, however, cannot be in the strict sense a law of nature. It is simply a means or a method by which to discover the laws of nature. Put differently, the moral laws of nature denote a relationship between existence broadly speaking and man's consciousness, that is, between nature and human nature. In other words, moral principles are necessary and must be discovered because man, given his particular nature as a volitional and rational being, bears a certain relationship to the world in which he lives, including his relationship to other men. As Adams put it in 1765,

Untutored reason was not, however, enough for Adams and his fellow Americans. “Right” reason was a method—the proper method—for thinking and acquiring knowledge. And it was principally that “method,” Adams mused, that allowed Isaac Newton (1642–1727) to discover and demonstrate “the true system of the World.” Newton rose above other English scientists of the time because he had “employed Experiment and [Geometry?]”—that is, induction and deduction—in scientific inquiry. “It [is] the Method then,” concluded Adams, that discovers nature's secrets and potentially reveals the moral laws of nature.Footnote ¹³

Advocating something like the “historical plain method” advanced by Locke in his Essay Concerning Human Understanding (1690), Adams defined “Natural Phylosophy” as “the Art of deducing the generall laws and properties of material substances, from a series of analogous observations.”

The Lockean method of “right reason” applied as much to the study of man and society as to the study of nature. Adams and the thinking Revolutionaries who joined him assumed that moral and political philosophers must devote themselves to observing and experiencing the world around them, to examining their own ideas and passions introspectively, and to studying the history of mankind. The primary mode of reasoning applied by Revolutionary Americans to discovering the moral laws of nature was therefore inductive. The very same method they would have used to investigate the physical laws of nature—i.e., an empirical-a posteriori-inductive mode of reasoning—was also used to uncover and reveal the moral laws of nature.

No Founding Father before the Revolution thought longer and harder about the philosophic method by which to reveal the moral laws of nature than John Adams. By observing empirically the nature of “terrestrial enjoyments” and sufferings—i.e., the rewards and punishments consonant with the moral law of nature—Adams thought it possible to reason backward from effects to causes and then forward again to the principles that might guide human action. The most important and fruitful field of study for Adams was that of human nature, or what he often referred to as the “Constitution of our Minds and Bodies.”Footnote ¹⁵ From a very early age, he drove himself to understand and give an account of his own mental operations and those of others. “Let me search for the Clue, which Led great Shakespeare into the Labyrinth of mental Nature! Let me examine how men think,” he demanded of himself. Adams always began with himself, turning inward and observing his passions and the operation of his own mental processes: “Here I should moderate my Passions, regulate my Desires, increase my Veneration of Virtue, and Resolution to pursue it, here I should range the whole material and Intellectual World, as far as human Powers can comprehend it, in silent Contemplation.”Footnote ¹⁶

In the years after the Revolution, Ethan Allen (1738–1789) was one of America's leading thinkers in search of the moral laws of nature. In Reason: the Only Oracle of Man (1785), Allen identified the process by which the laws of nature are known. Nature is like a book and the Book of Nature can be read, he reasoned analogously, but it must be opened first before it can be read. And how is the Book of Nature opened? Allen insisted that it must be opened and then read inductively. Nature's laws are discovered through our experience of cause-and-effect relationships. He argued that experience teaches man that all consequences have causes, that the events of the world that we experience are causally dependent on preceding ones. The Book of Nature says that all entities in nature are interconnected and that nature's order and harmony are not the result of “blind chance.” To change the metaphor, the universe—that vast system of cause and effect—is run like a perfectly calibrated watch by God the Watchmaker and its promulgation “is co-extensive and co-existent with, and binding on all intelligent beings in the universe.”Footnote ¹⁷

Not surprisingly, Enlightenment-era Americans saw a direct relationship between the scientific laws of nature and the moral laws of nature as they apply to man. Many Americans would echo Montesquieu's description of the laws of nature in the Persian Letters (1721), wherein he defines them as the relations between things. “Justice” or the moral law, he wrote, “is a relation of suitability, which actually exists between two things.” The laws of nature describe the forces, regular actions and relations between entities of various kinds, both in nature and in society. They describe the way nature and human nature are related, and they prescribe moral rules of behavior. As early as 1725, Benjamin Franklin (1706–1790), one of the editors of the Declaration of Independence and the quintessentially enlightened thinker, identified how eighteenth-century Americans typically saw the relationship between the scientific and moral laws of nature: “How exact and regular is every Thing in the natural world! How wisely in every Part contriv'd! … All the heavenly Bodies, the Stars and Planets, are regulated with the utmost wisdom! And can we suppose less care to be taken in the order of the Moral than in the Natural System.”Footnote ¹⁸

In 1766, in the wake of the Stamp Act crisis, Richard Bland (1710–1776), an American statesman, writer, and planter, mocked the common British viewpoint that the Britannic empire was a vast physical system revolving around the dictates of Whitehall. Bland noted that there were Newtonian “laws of attraction in natural as well as political philosophy,” and “that Bodies in Contact, and cemented by mutual Interests, cohere more strongly than those which are at a Distance, and have no common Interests to preserve.” Bland charged the British with violating this law of nature in order to destroy the colonies “whose real Interests are the same, and therefore ought to be united in the closest Communication, are to be disjoined, and all intercommunication between them prevented.” A generation later, Elihu Palmer (1764–1806), one of America's leading advocates of Deism in the quarter century after the end of the War for Independence, presented the Enlightenment view quite clearly in his treatise on the Principles of Nature (1801), stating that there are laws of nature that define man's “physical relation … to all existence” (i.e., descriptive scientific laws) and there are laws of nature that define man's moral relationship “to his own species and to all other inferior animals” (i.e., prescriptive moral laws).Footnote ¹⁹ Both forms of the law of nature are an instance of, and are necessitated by, the law of causality as they apply to man and his relationship to nature and human nature. The careful, painstaking observation of nature, sometimes enhanced through social experimentation and trial and error, leads man from the facts of nature or human nature to a mechanical law or a moral principle, from change or indeterminacy to a fixed, lawlike pattern in nature or a certain moral principle for man.

We can better understand how the Founding generation understood the idea of a moral law of nature by seeing it in the form of an “if-given-then” conditional imperative. Their reasoning about the moral laws of nature went something like this: If you want to achieve the following outcome ____(x)____, given certain facts of nature and human nature ____(y)____, then you must recognize and respect the following ____(z)____ principles or rules.Footnote ²⁰ These principles or rules are the moral laws of nature. A simple example will illustrate the Founders' moral reasoning. Assume for the moment that you are a liberty-loving American colonist and the year is 1776. If you want to continue living in a free and just society (e.g., one that respects the rights of individuals), given the legislation passed by the British Parliament and supported by the Crown during the preceding eleven years (e.g., the Sugar, Stamp, Declaratory, Townshend, Tea, and Coercive Acts, which not only taxed the colonists without their consent, but also denied them long established common law rights), then you must take the appropriate actions necessary to secure your freedom (e.g., to declare your independence from Great Britain and to defend your freedom with arms if required). The moral laws of nature are those rules that can be induced and deduced from man's metaphysical condition as it applies both to his relationship with nature and to other men.

In 1787, Pastor Elizur Goodrich delivered an election day sermon on “The Principles of Civil Union and Happiness Considered and Recommended” to the governor and general assembly of Connecticut in which he described some of the principal characteristics of the moral laws of nature as understood by the Founding generation:

In other words, reality is the standard from which man must make certain choices and take certain actions that will result in consequences that either diminish or further his life and happiness. The laws of nature provide men with principles of action by which to guide their conduct in the pursuit of certain ends (e.g., their “true happiness”).

The law of nature as it applies to man and his relations with others was understood by the Revolutionary generation to be a code of moral principles defining and regulating man's relationship to nature and/or his relationship to other men. In 1762, during that period when the American mind was in the process of being revolutionized, the Reverend Abraham Williams (1727–1784) described the laws of nature as “those Rules of Behaviour … [describing] the Relation [men] bear to one another.”Footnote ²² The ultimate goal of the moral laws of nature was to expand man's freedom and to protect and promote his well-being and happiness in a social context.

Generally speaking, the Founding generation considered the moral laws of nature to have the following attributes: they must be necessary (i.e., governed by the law of cause and effect), absolute, fixed, universal, eternal, uniform, orderly, harmonious, rationally demonstrable, and unalienable. James Otis characterized the qualities of the moral laws of nature in this pithy statement: “The laws of nature are uniform and invariable. The same causes will produce the same effects from generation to generation.”Footnote ²³

The Declaration of Independence speaks of the “Laws of Nature and of Nature's God,” a phrase that captures rather nicely the Revolutionary generation's ambiguity or split-mind about the nature, source, and sanctions associated with the laws of nature. In his 1775 pamphlet The Farmer Refuted, Alexander Hamilton summed up what was probably the common sense of the subject amongst Americans (and doing it while quoting, ironically enough, Blackstone). “Good and wise men, in all ages,” according to Hamilton, have

Jefferson's equivocation in the Declaration of Independence, however, leaves open the question whether nature simply, or nature's God, is the source of these laws. Are there, or can there be, moral laws of nature without the existence of a divine creator? This much can be said with confidence: when Jefferson wrote of “Nature's God” he almost certainly meant the impersonal, far removed deist god that set the world in motion according to laws that were meant to govern in his absence. The Declaration's God is not the God of the Old Testament (nor is it even the God of the New Testament) but is Nature's God. And Jefferson's God is posited but not known. Indeed, he need not be known. What can be known, however, and what is immediately relevant to the Declaration, is nature and its laws.Footnote ²⁴ Thus, Jefferson could tell his nephew, Peter Carr, that “those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces.”Footnote ²⁵

The Founding generation almost to a man considered God to be the source or first cause of nature's laws, but it is also true that a few attempted to pick up where John Locke failed—that is, to establish a demonstrative science of ethics that did not necessarily rely on the existence of God to be operational. In this latter category, we might include Thomas Jefferson, John Adams, Ethan Allen, and Elihu Palmer. It is important to note that all four were believers, but they also attempted to ground the laws of nature on what we might call metaphysical law or what Thomas Jefferson variously referred to as the “laws of our being,” the “order of nature,” the “moral law of our nature,” and “universal law.”Footnote ²⁶ In this way, they followed a tradition extending from Grotius, Locke, and Montesquieu down to the Founders, which said that the moral law of nature would still be valid and operational even if, in the words of Grotius, “there is no God, or that he has no Care of human affairs.”Footnote ²⁷

Several Revolutionary-era thinkers came very close to adopting a similar position. Ethan Allen, for instance, echoing Montesquieu in the Persian Letters, wrote that the moral laws of nature are derived not from books of philosophy but from the Book of Nature—that is, from “the fitness of things.”Footnote ²⁸ Moral science, according to Allen, is known by reason and derived from experience. In other words, we can know the laws of nature without proving either the existence of God or the immortality of souls. Likewise, Elihu Palmer, seemingly combining Grotius and Montesquieu, stated the fundamental issue in unmistakable terms:

This is the revolution toward which the American mind was slowly moving—toward a view of natural justice grounded in a potentially godless metaphysical law. The challenge of this law was to discover the naturally proper “moral relation between man and man” that would promote a flourishing human life and serve as the basis for a new legal and political order. Such a law would exist, to repeat Palmer's felicitous expression, whether “a thousand Gods existed, or if nature existed independent of any.”Footnote ²⁹

America's Revolutionary thinkers typically identified the particular content of the laws of nature and their sanctions based on where they located the source of those laws. Not surprisingly, they viewed the substance of the laws of nature in one of two ways: as either God centered and duty based on the one hand, or as man centered and rights based on the other. Those who saw God as the first cause of the laws of nature (e.g., James Wilson, John Witherspoon, and the colonies' religious leaders) typically established two laws as fundamental: first, the law to obey God's commands; and second, the Golden Rule to “Do unto others as you would have them do unto you.” The sanctions associated with God's laws of nature were dependent upon the immortality of souls and the promise of eternal bliss or suffering in the afterlife.Footnote ³⁰ Contrariwise, those who turned to nature and to what John Adams referred to as the “constitution of the human mind” as the first cause of the laws of nature (e.g., John Adams, Thomas Jefferson, Ethan Allen, Elihu Palmer, and various colonial deists) typically established two laws as fundamental: first, the law of self-preservation; and second, the law to respect the rights of others. The punishments associated with violating the secular first law of nature were penury, misery, and death, and the rewards for obeying it were life, health, and happiness. The punishments for violating the secular second law of nature were social neglect and contempt, and the rewards for obeying it were social esteem and admiration.Footnote ³¹

In sum, there was a consensus across a broad spectrum of American opinion in 1776 that the political laws of a free and just society should reflect the fundamental moral laws of nature. When Jefferson wrote in the Declaration of Independence that the Americans were now prepared to break their familial ties with Great Britain and to establish new political societies on the basis of the “Laws of Nature and of Nature's God,” he was expressing what he referred to as the common sentiments of the “American mind.” Virtually all Americans during the Revolutionary period believed that there are moral laws of nature, that such laws must be discovered, that they transcended the laws of men, that they were discovered through reason and by studying the Book of Nature, that they described cause-and-effect relationships between man and nature and between man and man, that they prescribed principles of action and moral rules of behavior, and that such laws are fixed, absolute, universal, and eternal. Not all Americans agreed on the exact content of those laws or whether their ultimate source was to be found in “Nature” or in “Nature's God,” but Jefferson's felicitous ambiguity was also an expression of the “American mind.”

III. On Declaring the Rights of Nature

Let us turn now to an examination of the Revolutionary generation's understanding and use of the concept “unalienable” or “natural” rights. Among the Declaration's self-evident truths is the claim that all men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” The principle of “natural rights” was the moral heart and soul of the American Revolution. In 1809, Jefferson told the Georgetown Republicans that the principles fought for in 1776

American Revolutionaries studied and used the doctrine of “unalienable rights” for two related purposes in the years between 1765 and 1790: first, as the standard by which to measure and judge the actions of king and Parliament during the years of the imperial crisisFootnote ³³ (i.e., 1765–1776), and second, as the moral foundation on which to build their constitutional structures and political institutions (i.e., 1776–1790). In other words, the Declaration of Independence and its natural-rights philosophy were used to mark the end of an old regime and to found a new revolutionary order.Footnote ³⁴

American Revolutionaries did not discover the concept “natural rights,” but they did present to the world the first public proclamation and practical application of that philosophy. They were the first people in history to openly and explicitly ground their political institutions on this relatively new philosophic principle. The Revolution presented the American people, Jefferson noted, with “an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts.”Footnote ³⁵

At the most fundamental level, the American Revolution was about rights—the inalienable and natural rights of the individual. It was the failure of George III to protect their rights from the repeated usurpations of Parliament and then his own acts of violence against the colonists that ultimately justified Revolution. From the passage of the Stamp Act in 1765 to the final battle at Yorktown in 1781, the American colonists conceptualized their conflict with Great Britain in the language of natural rights.Footnote ³⁶ Indeed, it provided the philosophic grammar of the Revolution.Footnote ³⁷ As early as 1764 James Otis in his “The Rights of the British Colonies Asserted and Proved” announced that the American colonists were “entitled to all the natural, essential, inherent and inseparable rights of our fellow subjects in Great-Britain.” Such rights, he claimed, “no man or body of men, not excepting the parliament, justly, equitably and consistently with their own rights and the constitution, can take away.” Two years later, Richard Bland spoke for most Americans in his “An Enquiry into the Rights of the British Colonies” when he proclaimed that his countrymen “must have recourse to the law of nature, and those rights of mankind which flow from it.” Man has rights, Thomas Jefferson claimed in his 1774 “A Summary View of the Rights of British-America,” that “nature has given to all men” and which no man-made law can take away or abridge. Such rights, he continued, are “derived from the laws of nature” and “human nature” and are not the “gift of their chief magistrate.” From the beginning of the imperial crisis to the end, the Revolution was about rights—the natural, unalienable rights of man. Thus, the Declaration of Independence was, as Jefferson put it, the “declaratory charter of our rights, and of the rights of man.”Footnote ³⁸

America's Revolutionary Founders also used the doctrine of natural, unalienable rights in the decade after 1776 as the immovable foundation on which to anchor and permanently fix their constitutional structures. America's constitutions, Jefferson wrote, were defined by and built on “the immovable basis of equal right and reason,” and such rights of nature are “the objects for the protection of which society is formed and municipal laws established.” Man's natural rights, James Wilson declared, are the “great pillars on which chiefly rest the criminal and civil codes of the municipal law.”Footnote ³⁹ Many of the state constitutions adopted during the Revolutionary period began with, included, or were accompanied by a formal declaration of rights, including most importantly man's natural rights.Footnote ⁴⁰ In their attempt to “fix” their constitutions as fundamental law, America's Revolutionary constitution-makers searched for and found in the natural rights philosophy that permanent, granite-like moral foundation on which to build their governments. This was possible, Jefferson insisted, because “Nothing is unchangeable but the inherent and unalienable rights of man.”Footnote ⁴¹

Our task now is to elucidate—from the Founders' perspective—what rights are and the ground on which they stand. As with the concept “law of nature,” the principle of “unalienable rights” (also variously characterized as “natural rights,” the “rights of man” and the “rights of nature”) has been the subject of much scholarly attention over the past few decades that has depicted the concept as either an absurdity or a trite commonplace.Footnote ⁴² What we lack and most need is an understanding of how the Revolutionary generation answered or might have answered the simplest but most important question: What is a natural right or a right of nature? More to the point, what function does it serve, how does it differ from a law of nature, what is its source, and how is it validated? Important corollary questions include: What does it mean to say that men have been “endowed by their Creator” with unalienable rights, and why are such rights said to be “unalienable” as opposed to conventional or historical? What did Jefferson and the other Revolutionaries mean by the rights to life, liberty, and the pursuit of happiness? How do these natural rights stand in relation to each other?

Our greatest challenge in answering these questions is the simple fact that the Founding generation never really addressed them in any meaningful way. The idea of rights was mostly just asserted as a self-evident truth rather than validated philosophically. The truth of the matter, however, is that they are anything but self-evident. Our task then in what follows is to reconstruct the view of rights held by American Revolutionaries from a broad survey of the extant literature from the period.

Eighteenth-century Anglo-Americans were obsessed with their rights. When the Stamp Act was passed in 1765, Britain's American colonists responded immediately with an arsenal of rights-based arguments. The debate was kicked off with a bitter and sometimes abusive polemical exchange between Judge Martin Howard (d. 1781) of Rhode Island and James Otis (1725–1783). Howard staked out the traditional view of rights held by many Anglo-American Tories. In order to determine the rights of the colonies and the mother country, he declared that right-thinking men must “shun the walk of metaphysics.” Instead of beginning with an abstract individual who possesses abstract rights in a hypothetical state of nature, Howard began with natural political communities and man's “true natural relation[s]” as the primary unit of moral and political value. The judge did not think man is an isolated individual but is born and lives his life entwined in a variety of different social relationships. Such relations are ordered, according to Howard, not by man's natural rights but by his natural, “reciprocal duties.” To the extent that man has rights, they are born not of nature but of history, of man's conventional social and political relations that have developed over the course of many centuries. Thus, Howard eschewed the idea of natural rights for what he and most Englishmen spoke of as “the rights of Englishmen.” Howard did recognize what he called “personal” rights”—i.e., “those of life, liberty, and estate”—that are “every subject's birthright,” but such rights are not, he argued, “self-existent.” Instead, they are grounded in and defined by English common law. In the end, however, Howard and most Anglo-American Tories believed that the common law was synonymous with the “sense and virtue of the British parliament,” which meant that the “rights of Englishmen” were ultimately human creations subject to the vicissitudes of parliamentary whim.

James Otis's utter contempt for what he called Howard's “Filmerian” performance demonstrates just how far American Whigs had come by the 1760s in their understanding of rights.Footnote ⁴³ Howard and his Tory friends in England saw no difference, according to Otis, between “power and right,” which means that they did not and could not understand the concept “natural rights.” For colonial Americans, this represented an unbridgeable intellectual and moral gulf and was the deepest source of their conflict with Great Britain. Nature's rights, according to Otis, are “inherent” and “indefeasible,” and they are derived, not from history and the actions of kings and parliaments, but from the “laws of God and nature.” Otis rejected Howard's characterization of the rights to life, liberty, and estate as “personal” rights, which suggested to him that they are derived from the relationship that Englishmen have with their king and with each other through the common law. Furthermore, man's natural rights, Otis claimed, provide the fixed, unchanging foundation of man's civil rights, particularly the civil rights of Englishmen. Indeed, the “natural absolute personal rights of individuals are so far from being opposed to political or civil rights that they are the very basis of all municipal laws.” In other words, Otis and many of his Whig compatriots saw the common law as representing the instantiation and application of man's natural rights to the particular circumstances of life in Old and New England.Footnote ⁴⁴ At the deepest philosophical and jurisprudential level, the imperial crisis was about where to locate the source of man's rights to life, liberty, and property: Anglo-American Tories located the fundamental rights in history, while Anglo-American Whigs located man's rights in nature.

In 1805, forty years after the Howard-Otis exchange, James Otis's sister, Mercy Otis Warren (1728–1814), felt the need to refight the intellectual battles of the 1760s and 1770s as though they were still living issues, particularly those that involved the question of rights. In her History of the Rise, Progress, and Termination of the American Revolution [1805], Warren lashed out at the estimable English jurist and arch-Tory, William Murray, 1st Earl of Mansfield (1705–1793), for what she took to be his corrupt view of the relationship between politics and principle. More to the point, she exploded with righteous indignation when she recalled that Mansfield, a man of “superior talents, profound erudition, law knowledge, and philosophical abilities,” had claimed in the House of Commons in 1775 “‘that the original question of right ought no longer be considered” as Parliament considered what to do with the colonies. Instead, he continued, “the justice of the cause must give way to the present situation.’ ” Warren rejected Mansfield's pragmatic relativism and “sophistical reasoning,” insisting instead that questions of truth and right should only be resolved by the “dictates of justice” and by appeals to “the immutable laws of justice” and to the “principles of rectitude.”Footnote ⁴⁵ The “original question of right” was for Warren and the American Whigs the single most important question.

In the end, however, it may very well have been the Loyalist Chief Justice, Thomas Hutchinson (1711–1780) of Massachusetts, who best captured the importance of rights to colonial Americans when he told the 1769 session of the Suffolk County (Boston) grand jury “The bare Mention of the Word Rights always strikes an Englishman in a peculiar Manner.” Hutchinson went on to define what would become the central theoretical and practical problem of the American Revolution: “[I]n Order to support and defend the Rights, of which we are so fond,” he continued, “we ought to have a just Apprehension of what they are, and whereon they stand.”Footnote ⁴⁶ Just so. Hutchinson's question is still ours.

Let us turn now more directly to examining how Jefferson and his fellow Revolutionaries understood what a natural right is. Their view of rights began with several basic assumptions. First, America's Revolutionaries assumed that there is an intimate relationship between what man is and how he ought to act. They were serious students of man's natural constitution, and they viewed man's metaphysical nature as defined by two primary qualities: rationality and free will. Their view of human nature was probably best summed up in the pre-Revolutionary period by the Reverend Elisha Williams (1694–1755), who wrote in 1744 that man's nature is such that he has been given “an understanding to direct his actions” and a “freedom of will and liberty” in acting. Man's freedom and “liberty of acting according to his will (without being subject to the will of another) is,” Williams continued, “grounded on his having reason, which is able to instruct him in that law he is to govern himself by, and make him know how far he is left to the freedom of his own will. So that we are born free as we are born rational.”Footnote ⁴⁷ Virtually every leading member of America's Revolutionary generation would have agreed with the Reverend Daniel Shute of Hingham, Massachusetts (1722–1802), when he explained to his congregation in 1768 that man is a “rational moral agent.” They believed that freedom—the freedom to think, choose, and act—is a metaphysical requirement and a necessary condition of human flourishing. They assumed that reason is man's only means for living and living well, and so he must be free to think. According to John Perkins (1698–1781) of Boston, “moral freedom” is the “exclusive property of the rational nature.” That man is endowed “with reason and understanding, instead of more instinctive powers,” Perkins wrote in 1771, “shows that we were ordain'd for self-direction.”Footnote ⁴⁸ Freedom is that state or condition in which men have the power and authority to act on their own judgment without the coercion of other men or of government. More particularly, freedom is that state or condition in which an individual has the liberty to choose from an array of alternative actions. In other words, individuals must be free to pursue their own rational self-interest unhindered by the force or coercion of others. This is precisely why “[n]o one,” Jefferson opined, “has a right to obstruct another exercising his faculties innocently for the relief of sensibilities made a part of his nature.” Thus, the great achievement of the American Revolution, Jefferson noted, was to issue “finally in that inestimable state of freedom which alone can ensure to man the enjoyment of his equal rights.”Footnote ⁴⁹

Second, American Revolutionaries assumed that the individual is the primary unit of moral and political value. Given their view of man as a rational and volitional being and given their view of human equality, they assumed that each man is a morally autonomous and sovereign entity, which means that each man is an end in himself and not the means to someone else's end. Hence, as Connecticut minister, Moses Mather (1719–1806) argued in 1775, “man hath an absolute property in, and right of dominion over himself, his powers and faculties; with self-love to stimulate, and reason to guide him, in the free use and exercise of them, independent of, and uncontrollable by any.” Every man is, by nature, according to Mather, “his own legislator, judge, and avenger, and absolute lord of his property.”Footnote ⁵⁰ Because individual men are naturally equal and free, because they are not by nature subordinate to others, because they are naturally autonomous and independent from others, they must—as a metaphysical necessity—take those actions necessary to preserve and promote their own lives. They must, in other words, be self-sustaining. The Founding generation assumed that individuals are morally self-owning and self-governing, which means that they must be the beneficiaries of their own ideas and actions.Footnote ⁵¹ “Every man, and every body of men on earth,” Jefferson wrote, “possesses the right of self-government. They receive it with their being from the hand of nature.” In fact, he thought it would be “ridiculous to suppose that a man has less rights in himself than one of his neighbors, or all of them put together.” That, he continued, “would be slavery.”Footnote ⁵² This is why no person is legitimately the master or the slave of another; this is why Jefferson would not grant even Sir Isaac Newton the authority to declare himself “lord of the person or property of others.”Footnote ⁵³

Third, the Revolutionary generation also assumed (at least by implication) that the only thing that can restrain or destroy a man's freedom is the initiation (or the threat) of physical force against him, either by other individuals or by governments. Force is that state or condition where physical coercion is used or threatened against individuals to prevent them from thinking and acting on their judgment. “No man has a natural right to commit aggression on the equal rights of another,” Jefferson asserted, “and this is all from which the laws ought to restrain him.“Footnote ⁵⁴ Ultimately, force represents the denial of judgment and choice. Such was the meaning of the Stamp, Townshend, Tea and Coercive Acts for the Americans. Even worse, the Declaratory Act (1766) hung over the Americans like the “Sword of Damocles.”Footnote ⁵⁵ It represented the ever-impending threat of force. At the deepest philosophical level, then, the ultimate goal of the Revolution was, as Jefferson put it, to banish “all arbitrary and unnecessary restraint on individual action,” thereby leaving men “free to do whatever does not violate the equal rights of another.”Footnote ⁵⁶

Based on the foregoing three assumptions, we can now reconstruct the way in which American Revolutionaries defined the nature of nature's rights. To that end, we must understand why the Founders thought rights necessary, the context in which they thought such rights arose, and what they saw as the purpose of rights. Eighteenth-century Americans took for granted that men—all men everywhere—have natural rights that are inalienable, indefeasible, inherent, universal, eternal, and absolute and that such rights are not the creation of human will. Colonial Whigs rejected the view that kings and legislatures create man's natural rights. Such rights were not and could never be, according to James Otis, matters of “favor and grace.” Man's rights, John Adams wrote in his “A Dissertation on the Canon and Feudal Law,” are “undoubtedly, antecedent to all earthly government,” and they “cannot be repealed or restrained by human laws.” Certainly the rights claimed by the colonists, Adams insisted, were “not the grants of princes or parliaments.” Indeed, they are “original rights,” “inherent and essential,” and “established as preliminaries, even before a parliament existed.” Man's rights were therefore understood by America's Founders to be pre-political and synonymous in some way with nature and human nature.Footnote ⁵⁷

From the middle of the eighteenth century through to the early decades of the nineteenth century, American statesmen and political writers thoroughly embraced the doctrine of natural rights. Just as the Stamp Act crisis was beginning in 1765, for instance, John Dickinson (1732–1808), one of most respected lawyers and writers in the American colonies, claimed that the liberties of men are “founded on the acknowledged rights of human nature.” The following year, John Adams located the source of man's natural rights “in the frame of human nature,” and “in the constitution of the intellectual and moral world.” Likewise, Thomas Jefferson identified man's rights with the “hand of nature,” and elsewhere he said they were “founded in our natural wants” and “sanctioned by the laws of our being.” James Wilson, a signer of the Declaration of Independence and a principal architect of the federal Constitution, delivered a series of lectures starting in 1790 attended by George Washington, John Adams, Thomas Jefferson, and Alexander Hamilton in which he sought to demonstrate how the rights of man are “laid deeply in the human frame” and on the “immovable basis of nature.”Footnote ⁵⁸

But how exactly are the rights of nature natural? In other words, what makes a natural right natural?

The rights of nature were understood by America's Revolutionary generation to be a necessary, that is, an objective requirement of human life. That's why they were willing to fight and die for them. The rights of nature recognize what man is (i.e., a rational and a volitional being who must act on his judgment), and they define his moral requirements (i.e., freedom) in the context of living in society with other men. “Man,” Jefferson wrote, “[is] a rational animal,” which is why he is and must be “endowed by nature with rights.”Footnote ⁵⁹ In other words, by virtue of the fact that the free exercise of his rational faculty is man's fundamental mode of survival, he must therefore discover and recognize certain moral principles that sanction and protect the use of his rational faculty in the context of civil association. In his lecture “Of the Natural Rights of Individuals” delivered in 1791, James Wilson captured the essence of what a right is: “that life, and whatever is necessary for the safety of life, are the natural rights of man.”Footnote ⁶⁰ To wit: Because man is a being with a certain nature, the concept “rights” recognizes that it is both necessary and right that he be free to choose and pursue those actions that are required to support his life; that it is necessary and right that he freely exercise his rational faculty in order to gain knowledge, choose values, and act in accordance with his own judgment; that it is necessary and right that he act in order to acquire, keep, use, and dispose of the property he has created to support his life; and that it is necessary and right that he live for, benefit from, and enjoy the achievement of his highest values. In his Lectures on Moral Philosophy developed and delivered many times at Princeton in the years between 1768 and 1794 and almost certainly attended by his most famous student, James Madison, John Witherspoon professed that the rights of nature “are essential to man.” A man has a “natural right,” Dickinson continued, “to act for his own preservation, and to defend himself from injury.” Rights are a moral requirement of human well-being.Footnote ⁶¹ It is in this sense that it is proper to speak of man's rights as “natural.”

A right of nature was understood by the Revolutionary generation to be a rationally discovered moral principle used to establish, preserve, and protect the conditions necessary for human flourishing within the context of civil association. In this sense, rights are morally unalienable precisely because they are necessary. Put differently, a man's life, liberty, and property are his by natural right. They are his as a selfish possession. Rights as such, the Founders held, are owned by each and every individual as a form of moral property, i.e., as a title, which means that their violation by individuals, groups, or governments should be treated as a crime. As James Madison wrote in a 1792 essay on “Property”: “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”Footnote ⁶² To have property in one's rights is to say that each and every individual has sovereignty over and controls his freedom to act in civil society.

Strictly speaking, a right, as understood by the Revolutionary generation, is necessarily associated with or complementary to freedom—the freedom to think and act—a freedom that is necessary to preserve and promote one's own life. Rights define spheres of freedom and human action in a social setting. The Founders treated rights and freedom as one, as necessarily and logically connected, as a unity. In other words, without freedom there can be no rights, and vice versa. Man's right (i.e., that which is the right course of action necessary to sustain his life and achieve his values) necessitates freedom (i.e., the power to act free from the physical compulsion of other men). At the core of Jefferson's philosophy was the belief that there is a “right independent of force,” and that “right” is connected to freedom of action.Footnote ⁶³ This is what the Founding generation called justice, which “consists in giving or permitting others to enjoy whatever they have a perfect right to—and making such a use of our own rights as not to encroach upon the rights of others.”Footnote ⁶⁴

The Founders' use of the concept “rights” can be viewed as having a dual character: it served as both a license and a fence. As a license, rights provide a moral and legal sanction recognizing the freedom of individuals to act in a social context in the pursuit of life-enhancing values. As Jefferson put it: “Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance.” As a fence, rights define and erect for each and every individual defensive boundaries against the initiation of physical force by others. They are, as Jefferson once said, “fences which experience has proved peculiarly efficacious against wrong.” Rights recognized and protected shield men, according to James Wilson, from “different degrees of aggression,” including “threatening, assault, battery, wounding, mayhem, homicide.”Footnote ⁶⁵ In this sense, rights establish barriers of human action between individuals in their relations with each other and between individuals in their relations with the State.Footnote ⁶⁶ In sum, the concept “rights” means a morally and legally recognized license to act freely in order to produce, acquire, possess, use, and trade property for the purpose of attaining happiness, and it means a morally and legally recognized barrier against the arbitrary initiation of physical force against oneself or anyone else.

In order for a rights-based society to be operative and to function according to its basic moral rules, the rights of nature must be recognized universally as reciprocal. A truly civilized society, Jefferson claimed in his Notes on the State of Virginia, is one that respects “those rights in others which we value in ourselves.” Rights provide the moral boundary lines by which society marks out and prevents one man from “violating the similar rights of other sensible beings.” Witherspoon professed in his Lectures on Moral Philosophy that “as our own happiness is a lawful object or end, we are supposed to have each a right to prosecute this; but as our prosecutions may interfere, we limit each other's rights, and a man is said to have a right or power to promote his own happiness only by those means which are not in themselves criminal or injurious to others.”Footnote ⁶⁷ Indeed, the discovery, recognition, and protection of man's natural rights is the necessary precondition for a civilized society. The rights of nature provide men with an absolute standard of justice, right, and political action, which in turn permits and encourages men to pursue the values (e.g., trade, voluntary associations, wealth) necessary for their well-being. The concept “natural rights” therefore provides the fundamental principle by which individuals in civil society can be simultaneously set free and ordered morally.

And how are such rights known and promulgated? The rights of nature are not created by kings or parliaments but are, rather, discovered—discovered as rational principles the purpose of which is to promote human flourishing. According to John Dickinson, American colonists through their various charters prior to 1776 considered their rights to be “declarations but not gifts of liberties.” In his “Address to the Committee of Correspondence in Barbados,” Dickinson summed up the American Revolutionary position on rights, what and where their source is, and how they are promulgated. Kings and parliaments, he announced, could never “give the rights essential to happiness.” Instead, the Americans

In other words, men do not legislate natural rights. They are not a subjective creation. And if man's natural rights were not given to him as the favors or gifts of kings and parliaments, there was then just one way in which they could be made real or brought to life: they must be first discovered through reason and then publicly recognized, which means defined, declared, and protected. Thus, the “Business of Legislation,” Abraham Williams announced in 1762, is to “investigate,” “discover,” and “publish the Rules of Equity … and to annex such Sanctions as Reason directs, to secure the Rights and Properties of the Society, and of every Individual.” Similarly, the primary purpose of a bill of rights, according to William Whiting (1730–1792) of Berkshire County in Massachusetts, was to “ascertain and clearly describe the rights of nature, including the rights of conscience, and that security of person and property.” Even the best-written laws—including Magna Carta, the English Bill of Rights and the Declaration of Independence—authored by the wisest and most virtuous men do not create rights. Instead, such laws “must be considered as only declaratory of our rights,” announced Silas Downer (1729–1785) of Providence, Rhode Island in 1768, “and in affirmance of them.” Thomas Jefferson, discussing the “rightful limits” of legislators' power in 1816, pronounced “their true office is to declare and enforce only natural rights and duties, and to take none of them from us.”Footnote ⁶⁸ Rights discovered and declared are rights that exist in nature independent of human will.

The actual content of man's natural rights was familiar to all of the Founding generation. “Among” those rights listed as “unalienable” in the Declaration of Independence are “Life, Liberty, and the Pursuit of Happiness.” These are the most fundamental of man's natural rights (we shall include property as well), although the American Revolutionaries did think there were subsidiary natural rights as well (e.g., the rights to free emigration, free trade, free exercise of religion, freedom of conscience, speech, press and assembly, to bear arms, and to one's reputation).Footnote ⁶⁹ The Declaration and the Founding generation viewed the rights of nature as fulfilling certain functions: the right to life is the standard; the rights to liberty and property are the means; and the right of the pursuit of happiness is the motive and the end.

The Founders' theory of individual rights said that man, given his nature, has a right to life (the fundamental right from which all others derive), which means that each individual is fully sovereign over his own life, that his life is sacrosanct and cannot be harmed or taken away by another, and that he has the moral right to pursue life-promoting values. The Declaration of Independence, every state bill or declaration of rights, and every discussion of natural rights in Revolutionary America understood the right to life to be the standard, the mother right from which all other rights are born. “Self-preservation” is “a great and primary law of nature,” Jonathan Mayhew declared in 1766, “and to be considered as antecedent to all civil laws and institutions, which are subordinate and subservient to the other.” And in 1793, in his “Opinion on the French Treaties,” Jefferson made clear that the “moral law” of man's nature dictated that if and when performance of an obligation “becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation in others.”Footnote ⁷⁰ Self-preservation is the first law of nature because life is the standard of that which is right by nature.

The Founders' theory of individual rights said that man, given his nature, has a right to liberty, which means the unobstructed freedom to think, choose, act, produce, and acquire values material and spiritual. Liberty is the first and necessary corollary of the right to life. In fact, life and liberty are inseparable. The Founding generation used the concept “liberty” in two different but necessarily related senses. They understood liberty as both an existential fact of human nature (i.e., man is a volitional being by nature), but also as a moral requirement of human flourishing (i.e., man must have and must use his liberty in order to flourish). As an existential fact, liberty is, as John Adams defined it, “a self-determining power in an intellectual agent. It implies thought and choice and power; it can elect between objects, indifferent in point of morality, neither morally good nor morally evil.”Footnote ⁷¹ In other words, man has the ability, the free will, the liberty to choose good or evil. Such liberty or free will is not, however, automatic. It must be consciously activated. Thus, liberty is also a moral requirement of human flourishing. The “is” of liberty implies the “ought” of liberty. Not only does man have liberty as a fact of his nature, but he must also have liberty as a moral requirement of his life. He must be free in order to think and take those actions necessary to promote his life, which means that he must be free from the coercion of others. Thus, liberty is opposed, as Simeon Howard of Boston put it in 1773, “to external force and constraint, and to such force and constraint only, as we may suffer from men.”Footnote ⁷² Ironically, if man is to live in a free society he must choose to do so and he must act to keep and preserve his freedom. Political liberty is a choice. Given that man is a rational and a volitional being, to deny him the freedom to think, choose, and act is to deny him his nature and his means of survival. Thus, liberty is to moral action what oxygen is to breathing.

Liberty does not mean, however, simply doing what one wants or desires. Liberty for Adams, Jefferson, and the rest of the Founding generation did not mean the Hobbesean liberty to do as one lists. The natural right to liberty means the freedom of choice and action in a social setting. Ironically enough, the natural right to liberty means limits and boundaries. Thomas Jefferson captured the twofold nature of liberty: “Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant's will, and always so when it violates the right of an individual.”Footnote ⁷³ Liberty is a right, which means that it is defined by boundaries.

The Founders' theory of individual rights also said that man, given his nature, has a right to property, which means the freedom to keep, use, and dispose of the product of one's physical and mental labor. The absence of an explicit right to private property in the Declaration should in no way lead us to conclude, however, as do some historians, that Jefferson and the rest of the Revolutionary generation did not support such a right. Nothing could be further from the truth.Footnote ⁷⁴ A brief digression is necessarily in order. The natural right to property, Jefferson wrote in 1816, is founded in human nature, “in our natural wants, in the means by which we are endowed to satisfy those wants, and the right to what we acquire by those means without violating the similar rights” of others. Discovering, recognizing, and protecting the right to property is a necessary condition of human flourishing. The American people above all others, Jefferson noted, have a “due sense of our equal right to … the acquisitions of our own industry.”Footnote ⁷⁵ Arthur Lee (1740–1792), an American diplomat and statesman during the War for Independence, summed up in 1775 the importance the Revolutionary generation placed on property as a natural right when he declared, “The Right of property is the guardian of every other Right, and to deprive the people of this, is in fact to deprive them of their Liberty.” Twelve years later, James Madison reinforced Lee's claim in Federalist No. Ten by suggesting that the “first object of government” is to protect the “diversity in the faculties of men, from which the rights of property originate.”Footnote ⁷⁶ Madison understood man's natural right to property as an extension of his need to think and to think rationally.

Justice and the very idea of republican government were, according to John Adams, synonymous with the protection of private property and the liberty to pursue it. In his A Defence of the Constitutions of Government of the United State of America (1787–1788), Adams argued forcefully that constitutions, the rule of law, and properly constructed republican governments exist primarily to protect man's natural right to property:

No nation, Adams wrote, could be considered civilized or free until it had institutionalized and made inviolable the “precepts” “‘Thou Shalt Not Covet,’ and ‘Thou Shalt Not Steal.’ ”Footnote ⁷⁷ Adams, Jefferson, and the rest of the Founders could not and would not have recognized an intrinsic and positive rights-claim to some thing, to the means of existence—to food, shelter, daycare, health care, a job, an education, and so on. In other words, they would not have recognized the right to life to mean that one man has a rights-claim on the liberty and property of another.Footnote ⁷⁸ Jefferson argued, for instance, that extra taxes on the wealthy would violate natural right:

The Founding generation universally considered property to be a fundamental, natural right. They would spend the next eighty years, however, debating the nature and content of property—a debate that ended with Abraham Lincoln's Emancipation Proclamation (1863).

Lastly, the Founders' theory of individual rights said that man, given his nature, has a right to the pursuit of happiness, which means the freedom to choose and pursue those values that lead to one's own personal happiness. It is a law of man's nature, Jefferson wrote, for each and every man “to pursue his own happiness.” Individuals, rather than governments or seminaries of wise men, are the best judges of their own road to happiness. Man has been left free, Jefferson opined, “in the choice of place as well as mode, and we may safely call on the whole body of English jurists to produce the map on which nature has traced for each individual the geographical line which she forbids him to cross in pursuit of happiness.” This means that each person has the right to live his life and to pursue values in any way he chooses so long as he respects the reciprocal rights of others. The individual right to the pursuit of happiness did not, however, imply subjectivism for Jefferson. Each and every man could and should pursue happiness as he defined it, but Jefferson did not think that various pursuits and forms of happiness were equal. True happiness, Jefferson insisted, was connected to virtue: “The order of nature” is “that individual happiness shall be inseparable from the practice of virtue.” Happiness was not possible to man, he told a preceptor at Fryeburg Academy in Maine, “without virtue.” Exactly how or what Jefferson defined as virtue is not entirely known, but this much we can say with confidence: he believed that the “first elements of morality” combined with wisdom were the necessary preconditions for individuals to “work out their own greatest happiness.” Indeed, he equated the “wise” man with the “happy man.” Virtue and the “greatest happiness,” Jefferson believed, were attainable by all men rich or poor independent of the “condition of life in which chance has placed them, but is always the result of a good conscience, good health, occupation, and freedom in all just pursuits.”Footnote ⁸⁰

Having thus far examined how the Revolutionary generation understood the nature and content of man's rights, let us now briefly examine how they viewed the relationship between the different rights of nature. America's Revolutionary Founders viewed nature's rights as a logically ordered and unified whole that serves the fundamental right, i.e., the right to life. Man's natural rights are, as Samuel Adams put it in 1772, “evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.”Footnote ⁸¹ In other words, the right to life cannot be separated from the right to liberty, property, or the pursuit of happiness and vice versa. The right to life requires liberty—the right to liberty—the liberty necessary to think and act on one's own judgment in order to promote one's life. The right to liberty necessitates property—the right to keep and/or to trade the fruits of one's labor—the property necessary to sustain one's life and liberty. The right to property culminates in the right to the pursuit of one's happiness—the right to pursue one's own material and spiritual values—the happiness necessary to live a satisfying, self-fulfilling life. Or, as John Dickinson put it in the context of the imperial crisis:

We come now to our final two questions: Where did the Revolutionary generation think man's “unalienable rights” come from, and how did they distinguish between the laws and rights of nature?

What did Jefferson and the Revolutionary generation think was the source of man's rights? Here, as with their understanding and use of the concept “laws of nature,” the Founders were somewhat ambiguous. This much we know with certainty: they did not think that man's natural rights come from history, culture, parliaments, or the Bible. We also know with certainty that most of America's Revolutionary Founders assumed that God or the Creator was the ultimate source of man's rights just as he was the source of nature's laws. The first obvious thing to note is that man's rights are said in the Declaration of Independence to be endowed or given to man by his “Creator”—by God, even though we do not find them listed anywhere in scripture.Footnote ⁸³ Jefferson's “Creator” is the source of man's rights but his “Creator” is also “Nature's God” and “Nature's God” is, as we have already seen, virtually synonymous for Jefferson with nature pure and simple.Footnote ⁸⁴ Jefferson's God is obviously not the stern, omnipresent and vengeful God of the Old Testament. Rather, his Creator is “Nature's God” and Nature's god is the Deist's God of the Enlightenment. In other words, Jefferson's God acts through and is known to man by the scientific laws of nature and man's rights are a gift of nature or nature's God. The metaphysical law to which the Declaration appeals and on which it grounds its moral principles is thus nature. Whereas English Whigs deduced their view of rights from an “Anglo-Saxon source” and English Tories deduced their view of rights from a “Norman” source, American Revolutionaries grounded their rights by appealing to “nature,” or what Jefferson referred to as the “laws of our being,” the “order of nature,” the “moral law of our nature,” and “universal law.” The rights of nature are validated in and by “reality,” according to Jefferson, by appealing “to the true fountains of evidence,” the head and heart of every rational and honest man. It is there nature has written her moral laws, and where every man may read them for himself.”Footnote ⁸⁵ Notice that in this last iteration of man's rights, Jefferson has cut God out of the picture entirely. The rights of nature can be known without God's intervention or assistance.

Lastly, how did the Founders understand the differences and the relationship between a “law of nature” and a “right of nature”? This is a complicated subject and a difficult question to answer because none of the Founding Fathers addressed it directly or in any meaningful way. To the degree that even a few mentioned the relationship in passing, they did seem to suggest that the rights of nature issue from the laws of nature. In his “Summary View,” Thomas Jefferson claimed that the rights of nature are “derived from the laws of nature,” and the Continental Congress in its “Declaration and Resolves” asserted that the colonists' rights were grounded in the “immutable laws of nature.” The Founders' view on this matter is, however, open to a decisive criticism. Natural rights or the rights of nature represent, as we have seen, a recognition of certain facts of human nature. They are moral principles, grounded in man's metaphysical nature, that sanction and protect his freedom of action. The laws of nature are, by contrast, moral-legal principles the purpose of which is to recognize and protect man's rights. In other words, the laws of nature are a consequence of, or follow from, the rights of nature. The laws of nature are deductions from the rights of nature.

To sum up: The Founders' use of the concept “rights” consisted of four interconnected, constituent elements: first, they served as principles grounded in a recognition of what man is—i.e., of his metaphysical nature (e.g., what he requires and must use for his survival and well-being); second, they defined the conditions necessary for man to act in association with other individuals; third, they sanctioned his freedom to act so that he might pursue those values necessary to live and live well; and fourth, they established boundaries around each and every individual that defined action in a social context. Thus, when the Americans declared their independence from Great Britain, they were creating a sphere of freedom not only relative to king and parliament, but also in which each man could declare his independence from his fellow citizens. Even more radically, the long-term consequence and meaning of the Revolution was to liberate men from unchosen obligations to each other as they were freed from the arbitrary commands of government. This revolution in thought and practice would have enormous implications for the development of a new American society in the nineteenth century.Footnote ⁸⁶