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Constitution 101 | Lecture 2 — Transcript

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0:08[Music]
0:34hi I'm dr. Thomas West Hillsdale College
0:38teaching the politics department I'm a
0:40professor of politics and my talk today
0:44is going to be on natural rights in the
0:46American Revolution and the topic is a
0:50good one because it indicates two things
0:53one is a theory a theoretical concept
0:56natural rights and the other is a
0:59historical event rooted in a time and
1:01place the American Revolution so in
1:04order to understand our founding it's
1:06important I think to grasp the
1:08connection between theory and practice
1:11between the ideas that motivated or that
1:16helped the founders to structure their
1:18activities and actions against Britain
1:20at the same time to understand what the
1:23practical fight was all about with the
1:26British that led to American
1:27independence in the period leading up to
1:31the revolution and independence in 1776
1:36people in the colonies had been pretty
1:41much left alone by the British with some
1:43exceptions there was a long period in
1:46which there was a kind of uneasy truce
1:48you might say between the colonial
1:51legislature is elected by the colonists
1:54and the royal governor sent over from
1:57the king and from Britain and there was
1:59there was a rivalry there the colonial
2:02legislatures tended to get their way
2:04much to the chagrin often of the British
2:06officials but and that was an
2:09arrangement that lasted for quite a
2:11while but then there was the French and
2:13Indian War which changed everything that
2:16war concluded in 1763 with Treaty of
2:20peace that then led both sides both the
2:23British and the Americans to think very
2:25differently about their relationship
2:26with each other from the British side
2:29they became increasingly impatient with
2:33the colonists now that there was no
2:35longer the French threat on the northern
2:37border to worry about they needed the
2:40colonists to fight the French which had
2:42been a theme throughout the 18th century
2:44but now
2:45French were defeated they're gone as a
2:47serious power in North America and it's
2:50up to venit became the British the
2:52British Empire but that meant that they
2:56didn't the British government didn't
2:58have to treat the colonists so politely
2:59and they also pointed out you the
3:02colonists we've been defending you all
3:04this time and you haven't been paying
3:05taxes or at least not very many taxes so
3:08we're going to do something about that
3:09I'm going to start taxing you and we're
3:11also gonna start making it clear to you
3:13that you're part of the Empire and you
3:15have to obey us on the colonial side of
3:18course Americans attitude was now that
3:21the French threat is gone we don't need
3:22the British as much so all that time
3:25when the British were saying you know
3:27you need us and I didn't need the
3:29colonists didn't need the British forces
3:31to with respect to the French now it was
3:34what's let's go off on her own and least
3:37or at least let's not be pressed and
3:39pushed around by the British there was
3:41not an immediate desire for independence
3:42in 1763 but the attitude of the
3:46Americans was let's not let the British
3:49push us around anymore let's stick to
3:52our own way of doing things and stand
3:54make the British acknowledge that that
3:57led to the crisis that started in the
3:591760s 70s leading up to the actual
4:03declaration of independence in 1776 what
4:06the colonists were doing throughout this
4:08period is not just reacting in a
4:11visceral way to their desire to be free
4:14but they also had at their pant at hand
4:18ready at hand a doctrine of natural
4:20rights and natural law which had been
4:22around the colonies for quite a while
4:24these ideas had come into the colonies
4:28sometime around 1710 or shortly
4:30thereafter became widely known and
4:34discussed in the colonies throughout
4:36that period between 1710 and the end of
4:39the French and Indian War 50 years later
4:42and the Americans therefore were able to
4:46say look it's not just a matter of our
4:48not deserve our wish to not be dominated
4:51by you people you British it's also we
4:55have a right to be free we have a right
4:57to self-government
4:58and the British of course in response
5:02said no you don't you're part of the
5:04Empire you have to obey the Parliament
5:06and that's the store that's the end of
5:08it we might compromise me I'd let you
5:10have a little freedom but that was the
5:12gist of what happened so what the appeal
5:15to the natural rights doctrine which
5:17began in earnest in the 1760s was was an
5:22appeal to a doctrine that is claim that
5:25claims to be universally true for all
5:27human beings everywhere and that's what
5:29gave the revolution its peculiar flavor
5:31of not just being a local quarrel
5:33between this and that group but a
5:36quarrel that was made in the name of the
5:38universal principles of natural law and
5:41natural rights of something that is true
5:42now and forever and will always be true
5:45about human relationships that teaching
5:48of the of the natural law is stated all
5:52over the place in founding era documents
5:54you could find in the Declaration of
5:56Independence most famously you see it in
6:00state after state each gate states that
6:04put together constitutions most of them
6:06had Bills of Rights had statements of
6:08principle these doctrines were widely
6:12held you hear occasionally some people
6:15will say well that was just Jefferson's
6:17idea and he was influenced by the French
6:19that's ridiculous that these ideas had
6:21been around the colonies for 60 years by
6:25that time and widely accepted and known
6:27and became officially part of the record
6:30in that in the revolution and what you
6:33find in these state constitutions is
6:36various restatements of the same ideas
6:39that are in the Declaration of
6:40Independence and they help to clarify so
6:43in the Declaration you have all men are
6:44created equal and that has led lots of
6:47people to make all kinds of assumptions
6:49about men and women about blacks and
6:53whites about and so on it's about it's
6:56not about human equality in the sense of
6:58we're all the same it's about human
7:01equality in the sense of no one has the
7:03right to dominate anybody else without
7:05their consent the founders had a way of
7:08they different formulations of this
7:12for example Virginia all men are by
7:14nature equally free and independent or
7:17Massachusetts all men are born free and
7:20equal these were different versions of
7:22the same thought that no one has the
7:25right to rule another that there is a
7:26and then that was also put in moral
7:29language in terms of Rights and natural
7:31law so the right the natural right idea
7:34arises from the notion that not only are
7:36we born equal in the sense nobody's
7:38ruling we also have a right a moral
7:40claim that we can make on behalf of that
7:43state of we do bar we do deserve to be
7:46equal in free and equally free and from
7:50that then comes the idea of a natural
7:52right to Liberty from which in the
7:54founders minds all the other rights in
7:57it in one way or another can be derived
7:59once you're if you have a right to be
8:01free not to be ruled by another means
8:03that means a right not to be assaulted
8:05not to be killed by another that's the
8:06right to life if you have the right to
8:09be free to use your own mind and your
8:11own body to acquire property that means
8:14you have a right to quiet to property if
8:16you have a right not to be dominated in
8:19the way you worship God that's a
8:21religious freedom right the basic idea
8:23is all men are born free in the sense
8:26that everybody who is part of a
8:28government ought to have given that
8:31person is here her consent to be part of
8:33that government equality then can be
8:36understood to be a moral claim in two
8:38ways one is it's about the moral rights
8:40and obligations of human beings to each
8:43other and as I said just now their basic
8:47right right to Liberty and all the other
8:48rights that follow from it and the other
8:50is a claim about the rights rule who has
8:53the right to rule born equally free and
8:54independent means not born into a slave
8:58relationship or subordinate relationship
9:01understand of course when they talked
9:04about this they didn't mean children
9:06they always understood children are
9:07under the temporary control or wardship
9:09of their parents but that was always
9:12understood to be a warship that was a
9:14preparation for freedom once the
9:16children grow up there was no idea of
9:19patriarchy throughout life in the
9:21founders conception once you've reached
9:24the age of majority let's say 21
9:25typically in American law at that time
9:27you're free free of your parents and
9:31from then on you are free you are free
9:34of everything unless it's the laws that
9:36you've given your consent to obey and
9:38it's that consent
9:40it's that giving of consent collectively
9:43that is what creates a nation creates a
9:46people that is then to be governed by a
9:49particular form of government founders
9:52use the term social compact to mean the
9:56agreement we all make with each other
9:58fellow citizens make with each other to
10:01form a government and to accept the
10:03rules made by that government and once
10:07you're in the social compact you then
10:09become an exclusive body apart from the
10:11rest of humanity and they the government
10:15you're creating is for you you your
10:17fellow citizens and protection of you
10:20and your rights it's only for the prytt
10:22not for the protection of the rest of
10:23mankind and their rights so what does it
10:29mean to be free and equal in a daily
10:31day-to-day situation I like to use the
10:33example of a job when you apply for a
10:35job you are saying to the employer
10:40I have something valuable to offer you
10:43my labor and if you offer me something
10:47valuable let's say pay a salary we'll
10:51make an agreement and the agreement is
10:53an agreement between equals I agree to
10:55be ruled by you insofar as I'm employed
10:58by you you agree to pay me and it's a
11:02relationship of subordination it's not a
11:06relationship with permanent
11:07subordination that would be slavery
11:09it's an employment contract always has
11:11limits beyond which the employer is not
11:13allowed to go in order to protect the
11:16life liberty and property of the
11:18employee but that's one example a simple
11:21example of how equality works in
11:23practical life and day to day life now
11:26the idea of consent of the governed is
11:30fundamental to the founding and in fact
11:32the Revolution itself was primarily
11:34fought in the name of consent because it
11:38was the the issue was can
11:39British imposed taxes upon our people
11:42without the consent of our own locally
11:45elected legislative bodies the answer
11:47was no they can't and that has to be at
11:52contacts as in any form of government
11:54intrusion on our life liberty or
11:56property has to be with the agreement of
11:58the people who live under that
12:00government and that has to be expressed
12:02through elected legislatures or through
12:06democracy where people get together in
12:08person as saying in New York New England
12:11Township
12:11now that consent what did that actually
12:13mean in practice in terms of structure
12:15and government do we want to have a
12:18legislative body is it a good idea to
12:20have an executive what about judging
12:23what about courts all of that had to be
12:26worked out and thrashed out and that was
12:28an area where a lot of the disagreements
12:30in the founding came forward it was a
12:33general agreement on consent in the form
12:34of elections general agreement that
12:37government needed to have some kind of
12:38an executive for prosecutions for
12:40directing the Armed Forces for dealing
12:44with sudden problems like an uprising
12:46you know organizing the militia but
12:49basically there was agreement the
12:52disagreements in terms of structure of
12:54government I'm not going to go into
12:57today that's going to be the topic of
12:59the next couple of talks in this series
13:02what I'm going to focus on today is the
13:05subject of what government is supposed
13:08to do
13:08once it's conformed the Declaration of
13:11Independence has a nice formulation to
13:14secure these rights governments are
13:17instituted among men to secure these
13:20rights what does that mean what does
13:23security of Rights mean you can also
13:26look at the state constitutions and say
13:29how did they describe the purpose of
13:32government was it the same was it
13:34security of Rights and the answer is
13:36well they used sometimes they often they
13:38use different language one of the terms
13:40that was often used as the to explain
13:42the purpose of government is the word
13:44protection protection is what the
13:50government is supposed to do
13:53meaning protection against harm to your
13:57own life liberty and property and that
13:59protection is to vest two sides it's the
14:05side of the national government against
14:07against the outsiders potential foreign
14:10attack and protection against your
14:13fellow citizens who might harm you in
14:16the in arm your life labor to your
14:18property because of their because
14:20they're misbehaving so protection
14:25there's a let me just give you an
14:27example from the Virginia Declaration of
14:28Rights government ought to be instituted
14:30for the common benefit protection and
14:33security of the people nation or
14:35community so that's what to secure these
14:38rights means protection benefit of
14:41protection and security of the peak of
14:42the people nation or community again the
14:45emphasis is not on is on it's on our
14:47people the government is not protecting
14:50people in Mexico or Canada or elsewhere
14:53in the world that's a subject that is
14:55often misunderstood today there's an
14:57assumption today that if there's human
14:58rights are universal it's the job of
15:00every government in the world to protect
15:01got rights all over the world the
15:03founders rejected that idea completely
15:05and totally another example from the New
15:10Jersey Constitution preamble the King of
15:13Great Britain has refused protection to
15:16the good people of these colonies
15:17therefore we have a right to revolution
15:20refused protection that was the one word
15:23you're not protecting us against injury
15:26and in fact as New Jersey went on to say
15:27is you're attacking us you're harming us
15:30you're harming our people you're putting
15:32soldiers here and shooting at us so then
15:36the question becomes alright what
15:38policies the government have to adopt in
15:40order to do this protecting of the
15:42people so the OP first point of course
15:48is protecting the fur outs ejectment
15:50projection against outsiders my means of
15:52armed forces by means of what we call
15:56foreign policy diplomacy statecraft
16:01negotiation perhaps making alliances but
16:03in the end it comes down to do you have
16:06sold
16:06in the field who can physically defeat a
16:09potential or an actual threat to the
16:13life liberty and property of American
16:14citizens so this first part of
16:18governments protection protection or
16:20protective duty is about armed forces
16:24and that of course does include border
16:27enforcement one of the points of having
16:30a nation of your own is it's for the
16:32people who live here anyone who wants to
16:34come here has to ask permission and
16:36permission is not automatic it's given
16:38again by consent of the governed by the
16:40consent of the people who live here the
16:44idea of a universal right to immigrate
16:46to a nation that says I don't want you
16:48here
16:48founders would have said no that's
16:50that's immoral that's a violation of the
16:53moral principle that all men are created
16:55equal and that we therefore who have
16:57created our own government have a moral
16:59right to say who will be our future
17:02fellow citizens that's our duty and our
17:05right not someone elses the second part
17:09of protection and what government has to
17:11do to protect is is to create laws
17:16against crimes that's the most urgent
17:19part of the of the domestic politics
17:21side of the founders argument and so one
17:25of the topics that came up early on in
17:27America in during the Revolution and in
17:31its aftermath was to create
17:34constitutions and laws to protect
17:37citizens criminal laws for example
17:41Jefferson had a great quote on that in
17:43his he put together a proposed revision
17:46of the laws of the state of Virginia in
17:501778 in which he states that it's
17:56precisely because vicious and immoral
17:59men who try to take away the rights of
18:02other people that we have criminal law
18:04and without criminal law he said the
18:06purpose of society would not be achieved
18:09by which he meant protection and
18:11security of life liberty and property so
18:13if you ask people today sometimes I'll
18:15ask my students how does the government
18:16secure our rights
18:18they'll often give you a statement like
18:20well that's what the Supreme Court is
18:22for and they have rules against
18:24discrimination and so on well the
18:27founders would say no government
18:30protects your rights not just through
18:32the judiciary but through all three
18:33branches of government you have to have
18:37a legislature to make laws you have to
18:40have an executive to carry out arrests
18:42and prosecutions and punishments and a
18:46judiciary to decide is this person who's
18:49accused by the government
18:51truly guilty or not guilty you need all
18:54three branches that's what makes
18:56government protection possible through
18:59criminal law and and that's what we see
19:03you know occasionally their TV shows
19:04based on this idea of you know trials
19:06people prosecute that's how it's
19:09supposed to work one of the
19:11characteristic features of government
19:13today in America is the D prioritization
19:17of criminal law enforcement not
19:22everywhere but especially in major
19:23cities of America today the ability of
19:28police and prosecutors to to find
19:33criminals prosecute them successfully
19:35and have them punished is minimal there
19:38are some cities in which the police if
19:42they're called out on a theft if you
19:44call the police inside somebody stole
19:45something out of my house they'll go
19:47okay well fill out a report for you you
19:49can take it to the insurance company but
19:51no we're not gonna look into it
19:53founding fathers would say you guys
19:55don't get what government is for it's
19:57for protection and protection means you
19:59have to deter crime by making it clear
20:02to people who commit crimes they're
20:04gonna pay a penalty so you know figure
20:08out why you know what what's wrong what
20:10happened why why do our priorities
20:12somehow go somewhere else and if you ask
20:14Police Department's today or prosecuting
20:16RIT they'll say well we don't have a
20:18budget for it
20:19which means something has gone wrong at
20:21the level of the state legislature or at
20:23the level of city government that we're
20:25got money is being spent on something
20:28less than there's a lower priority
20:31than actual protection of the lives and
20:35properties of citizens that's a problem
20:37from the point of view of the founders
20:38but it is the way we do government today
20:42one could sum up the founders conception
20:46of law enforcement that was developed
20:48during the revolution in in to fray in
20:51two phrases equal protection of the laws
20:53and due process of law equal protection
20:58meaning and the founders view equal
20:59protection meant when there's there's
21:02going to be a rule a general rule that
21:04applies to everybody it will define what
21:07crimes are and will say what the
21:08penalties are going to be and
21:09government's duty is to provide equal
21:12protection so no matter how wealthy the
21:15perpetrator might be what race he might
21:17be or the sex of the person committing
21:19the crime government has the same
21:22obligation to prosecute and punish in
21:24the same way anyone who does that who
21:26commits the crime that's a that's
21:31fundamental but precisely because
21:34government is so strong and powerful
21:36when it's engaging in this activity of
21:38protecting it also needs to follow
21:41procedures called due process of law
21:43meaning you don't just take somebody and
21:47punish them without giving them a chance
21:49to defend themselves so government has
21:51to prove its case in theory at least in
21:53court for any significant punishment to
21:56take place for person to be deprived of
21:59liberty or property or money trial a
22:04right to defend the right to call
22:06witnesses a right to speak to about to a
22:09cross examine to deal with whatever you
22:14need to do bring forward whatever you
22:16need to bring forward in order to show
22:18if you can I didn't do that I wasn't I'm
22:21not guilty
22:23those two concepts equal protection of
22:26the law and due process of law
22:27were later embodied in Fourteenth
22:29Amendment which was meant to take the
22:32basic founders political theory of what
22:34government supposed to do that was
22:36developed during the American Revolution
22:37and then apply it to the States each
22:41state was from then on obliged by the
22:43federal cost
22:44tuition to provide the same protection
22:48of the laws and of the new process of
22:52law that that was already required and
22:56expected at the federal level in its own
22:58law enforcement jurisdiction one of the
23:00early debates in America was over do we
23:03need a federal government and if so what
23:06should be its scope and its powers the
23:10founders came up with a very simple way
23:12of dividing up that labor the federal
23:15government was going to be primarily
23:16responsible for foreign policy the state
23:19governments for domestic policy with
23:22some exceptions but basically the
23:25federal government didn't really have a
23:27whole lot to do in early American
23:28history other than foreign policy now
23:32there were some exceptions to that the
23:34state's government federal government
23:36was given some powers to regulate
23:37commerce to basically to maintain a
23:41national free market and so on but that
23:44those were general exceptions generally
23:46the states handled things having to do
23:47with property law commerce and contracts
23:53things of that kind and I'll be talking
23:56about that and a talk I give later on in
23:58the series today when we teach American
24:05government in college we often tend to
24:09focus on the national government that's
24:12of course the exciting part the big you
24:14know the one that everyone notices and
24:16of course today the feds have become so
24:19important we tend to forget the role of
24:21the states which still remains quite
24:23powerful even today I believe I believe
24:27the percentage of court cases that are
24:30handled at the federal and versus the
24:32state level is about that's over ninety
24:34percent still our state court cases so
24:36most law most law enforcement most legal
24:39issues come up not at the federal level
24:42at all and that is how they designed it
24:46and to that extent it still there's to
24:48some extent that same division of labor
24:50still prevails
24:52one of the things that John Quincy Adams
24:55pointed out in a famous speech he gave
24:58on July fourth eighteen eighteen twenty
25:01one was that they you know that the
25:05Revolution the American Revolution had
25:07its heroes and of course what everyone
25:10tends to think of things like George
25:12Washington the others great generals of
25:14that period the the soldiers the people
25:19who sacrifice their lives to create an
25:21independent nation and that's truth Adam
25:24says that was true but what he adds to
25:27that is he says you know there are other
25:30people who were also heroes of the
25:32American Revolution and we don't tend to
25:34acknowledge that those are the people he
25:36said who figured out how to write the
25:38constitutions and the laws state and
25:41federal that have given us our Liberty
25:44and enable us to sustain that Liberty
25:46they said they're heroes too because
25:48that's not easy to do I want to conclude
25:51this talk by asking the question what
25:53then was America meant to be its time of
25:56the founding and I want to emphasize
25:59again ideas are not people the ideas of
26:03the American Revolution were indeed
26:04unique to the American Revolution but
26:06those ideas are meant to be universal
26:08for all mankind but it was a particular
26:12people it was these people over in
26:14America the British settlers other
26:17Europeans were here predominantly
26:19Europeans who made the nation what it
26:22was and they were not randomly assembled
26:26from all around the world one of the
26:29things the founders were very conscious
26:30of is how difficult it is to establish
26:33and sustain a political regime there's a
26:36it's going to be a free regime a free a
26:38freedom regime of freedom John J in
26:43Federalist to points out that a that
26:46Americans really do belong together
26:49not just because they held the same
26:51political principles and he does mention
26:52that but also because they are quote a
26:55people descended from the same ancestors
26:58speaking the same language professing
27:01the same religion attached to the same
27:03principles of government very similar
27:06in their manners and customs and Jays
27:11point partly was if it hadn't been for
27:13all those things we already had in
27:15common prior to forming the Union we
27:18might not have been able to do it
27:21liberty is only possible to be
27:23established in the founders minds if the
27:26people are capable of supporting Liberty
27:28and living according to the requirements
27:31of Liberty
27:32there are many cultures in the world
27:34today and there were then to where the
27:37people who live in these places don't
27:39like freedom and to have no experience
27:41of freedom the founders in fact doubted
27:44openly whether places like Latin America
27:47or even some places in Europe could ever
27:49maintain a regime of political freedom
27:52natural rights belong to everyone in the
27:55founders view but it you have the right
28:00obviously the right to create a free
28:03country but you don't always have the
28:04ability to it depends on who lives there
28:06and what their attitudes are and how
28:08good their leadership is in some cases
28:15the founders pointed out you can't have
28:18consent of the governed if you're going
28:20to have any kind of protection of the
28:21rights of the individual there was a
28:24revolution in Haiti that took place
28:26during the 1790s and people the founding
28:29was saying they're not going to be able
28:31to have a free government there they're
28:32not gonna have election you can't have
28:34an elective government in Haiti probably
28:35a military despotisms the best they're
28:37going to do that was the quote from
28:40Hamilton and Jefferson held the same
28:43view when in get asked about Latin
28:45America in the eighteen 1820s he said
28:47look this is place it's gonna be really
28:49difficult to form any kind of solid
28:54lasting free government there I hope
28:57they can do it he said they ought to
28:58they deserve it but it's going to be
29:00tough the founders had answers as to how
29:04to keep the population morally capable
29:07of being free they didn't think it would
29:10work everywhere but they did think it
29:12would work here
29:13I'll talk about that later in the series
29:17thank you
29:22you

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