Early in the book, Kirk points out that our “Constitution had been designed by its Framers, in 1787, to conserve the order and the justice and the freedom to which Americans had grown accustomed.” Thus Kirk takes issue with ideologues who seek to convince us that America was created ex nihilo through the drafting of an abstractly philosophical Declaration of Independence. The Declaration, and the War for Independence, must be seen as our Founders saw them: as defensive measures intended to protect Americans’ traditional and chartered rights from an overreaching English Parliament.That's just a taste of Frohnen's review -- read it all, and better yet, get a copy of Kirk's book and read it closely. There is much wisdom there. I first read Kirk's book on the Constitution when I was a law student, and it was the first book by Kirk that I ever read. I was immediately impressed by his wisdom and insight, and quickly devoured everything he had written that I could get my hands on. I would have loved to have met him and studied with him, but alas that was not to be. But he lives on in his writings, and thanks to them we can all be Kirk's students. And he is a fantastic teacher! Of history and literature and on the roots of our country's polity and order.
Wednesday, May 13, 2015
Russell Kirk's Rights and Duties
The University Bookman reprints a very fine review by Bruce Frohnen of Russell Kirk's book on the American Constitution, Rights and Duties: The Character of Our Constitution. As Frohnen notes,
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Early in the book, Kirk points out that our “Constitution had been designed by its Framers, in 1787, to conserve the order and the justice and the freedom to which Americans had grown accustomed.”
That's one argument, and certainly one made at the dawn of the revolution that the colonists were protecting their historic rights "as Englishmen."
But there was a metaphysical basis of natural rights appearing in the American mind, such as the brilliant James ["No Taxation Without Representation"] Otis in 1764:
"Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God."
Founder James Wilson [signer of the Declaration, Framer of the Constitution, and Supreme Court justice] further disputes the limited English conception of rights as merely political:
"What was the primary and the principal object in the institution of government? Was it ... to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?
...
Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. [Edmund] Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone."
And of course
"endowed by their creator with certain unalienable rights."
The American scheme of natural rights is far more expansive [and cosmic!] than the mere rights of Englishmen.
I believe if you read Kirk further that he thought that the rights of Englishmen, while of course textured by the political and legal history of the English nation, were in fact at their core expressions of natural justice as perceived thru the customary institutions and processes of the Anglo-Saxon peoples. There is no need to set the rights of Englishmen against the principles of natural justice.
In the Magna Carta I find it significant that
TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs
the crown "grants" certain rights.
All these customs and liberties that we have granted shall be observed in our kingdom in so far as concerns our own relations with our subjects
&c.
certainly natural rights theory develops in England, but as we see here with Burke, they're more contingent than unalienable.
http://www.kirkcenter.org/index.php/detail/burke-natural-rights-1951
That the historical and legal manifestations of rights in he English system began as grants from the crown does not by itself deny that there is a natural law component to those rights. It is merely to say that the initial mantifestation of the natural law in that particular society was effectuated by a grant from the government. Between Magna Carta and the American Revolution there were a number of intervening moments of legal & political crisis that established that the people themselves could assert rights against the crown, including a right of disobedience to crown demands that were seen as a violation of the existing English constitution (see, e.g., the Glorious Revoution). The rights of Englishmen and the principles of natural justice were perfectly in sync for the most part in the minds of the Founders (read, for example, Jefferson's Rights of British North America).
You disagree with James Otis, then, that in the English conception government is founded
on compact, as was the theory of Locke and of the revolution of 1688"
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