John Locke's state of nature is often said to a "hypothetical" or "fictional" concept with no historical reality. And yet Locke is clear in identifying the state of nature as part of the "history of mankind" that originated among the hunting-gathering ancestors of human beings. "In the beginning, all the world was America," and that's why Locke carefully studied the first European reports about the life of native Americans living in foraging bands.
This is important because the historical reality of the state of nature is the first and most fundamental of the five arguments for Locke's theory of natural rights. That first argument is that natural rights are identified as part of the natural liberty that human beings have in the state of nature in the absence of any formal institutions of government.
The second argument is that natural rights are constrained by natural law, because natural law will be enforced by natural punishment--the "executive power of the law of nature"--the natural propensity of human beings to resist and retaliate against those who threaten their liberty.
The third argument is that because this natural punishment in the state of nature can often lead to unremitting conflict, human beings will consent to establish governments to secure their natural rights through formal laws and institutions for making, enforcing, and adjudicating those natural laws.
The fourth argument is that the civil law of government must approximate the natural law, because if the civil law does not secure natural rights, the people have the natural right to overthrow the government, return to the state of nature without government, and establish a new government that they judge will better secure their natural rights.
The fifth argument is that since civil law must approximate natural law, civil law (such as the constitutional law of the United States) can be judged by the standard of natural law as to how well it secures natural rights.
If the first argument for the historical reality of the state of nature were judged to be false, then the other four arguments would also fail. It is crucial, therefore, for the Lockean political philosopher to see that human nature was originally formed in the state of nature of the prehistoric human ancestors living in hunting-gathering bands, whose life was similar to those American Indians who still lived in foraging bands without formal governmental institutions during Locke's lifetime.
Locke relied on the best anthropological evidence available to him, including the hundreds of books in his library that would today be identified as anthropological ethnographies, to determine what that original state of nature was like.
But now we can turn to the evolutionary anthropology that has developed over the past 150 years to see if it confirms Locke's account of the state of nature. We can see that what Locke called the state of nature coincides with what evolutionary psychologists like Leda Cosmides and John Tooby call the "environment of evolutionary adaptedness" or EEA.
This term "environment of evolutionary adaptedness" was originated by John Bowlby in his book Attachment (second edition, 1982), which became a classic work of "attachment theory" to explain the patterns of attachment between mothers and their children. For Bowlby, this was a Darwinian or biological theory of how the human instincts for attachment of parents and children evolved in the evolutionary ancestors of human beings, along with all of the other evolved human instincts that constitute universal human nature.
Bowlby explained:
". . . What matters here is that, if man's behavioural equipment is indeed adapted to the primeval environment in which man once lived, it is only by reference to that environment that its structure can be understood. Just as Darwin found it impossible to understand the structure of an orchid flower until he knew what insects flourished and visited in its environment of adaptedness, so, it is held, it is impossible to understand man's instinctive behaviour until we know something of the environment in which it evolved. For a picture of this we need to turn to anthropological studies of human communities living in the least modified of human environments, to archaeological studies of early man, and to field studies of the higher primates."
"Few peoples on earth today still obtain their food solely by hunting and gathering, and even fewer good accounts of their social life exist. The evidence available shows, nevertheless, that without exception all live in small social groups comprising individuals of both sexes and all ages. Where some social groups are reasonably stable, others change in size and composition. But whether the larger group is stable or not, the tie between a mother and her children is always present and virtually unchanging" (60-61).
Among mammalian animals, young offspring cannot survive without extensive parental care, and particularly care by their mothers or maternal surrogates. This parental care is intensive and prolonged among human beings and other primates because of the slow development of offspring to maturity. We can expect, therefore, that natural selection has favored the evolution of the instincts for parental care and parent-child attachment as adaptations for survival and reproduction. The evolution of these and other human instincts in the primeval environment of evolutionary adaptedness constituted the universal human nature that we see today.
Although Locke did not have a Darwinian evolutionary theory, he did understand much of the logic of this theory as applied to parental instincts. He understood that human beings had developed a natural desire for self-preservation because this secured their survival, and natural desires for sexual mating and propagation of offspring that would secure their reproductive success. "For Children being by the course of Nature, born weak, and unable to provide for themselves, they have by the appointment of God himself, who hath thus ordered the course of nature, a Right to be nourished and maintained by their Parents" (FT, 86-89). Consequently, human beings are naturally social animals, because the "first society" was the social bond between husbands and wives and between parents and children (ST, 77). And notice that while Locke invokes God as Creator, he indicates that God works through "the course of nature," so we can see this as the law of "God or Nature." Notice also that these natural inclinations or desires for familial bonding create natural rights. Parents have a right and a duty to care for their children. And we can judge civil law by how well it secures this natural law of parental care.
In this way, Bowlby's natural instincts become the natural grounds for Locke's natural rights.
We can see this illustrated in some of the decisions of the U.S. Supreme Court concerning parental rights. In Troxel v. Granville (2000), the Supreme Court struck down as unconstitutional a Washington state law authorizing courts to give visitation rights to any person who could argue that this was in the best interests of the children, even when this was contrary to the wishes of the parents. The Court declared that this law violated the fundamental right of parents to rear their children. (I have mentioned this case in a previous post about how the Lockean political philosophy of the Declaration of Independence enters the Constitution.)
What's interesting about this is that the U.S. Constitution never specifically mentions a right of parents to rear their children. So the Court had to identify this as one of the unenumerated rights protected by the Constitution. Justice Thomas said that this was one of the unalienable rights recognized by the Declaration of Independence and the Ninth Amendment. But in his dissenting opinion in Troxel, Justice Scalia denied that Supreme Court judges had the authority to secure this right.
The Declaration of Independence affirms as self-evident that all human beings are naturally endowed with "certain unalienable rights," and "that among these are life, liberty, and the pursuit of happiness." The phrase "among these" suggests that there are other natural rights that are not being enumerated here, and that "life, liberty, and the pursuit of happiness" are prominent illustrations. Similarly, after enumerating certain rights, including "life, liberty, and property" in the first eight amendments, the Constitution in the Ninth Amendment declares: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
In Troxel v. Granville, Justice Scalia argued:
"In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all men . . . are endowed by their Creator.' And in my view that right is also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage.' The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children. I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right" (530 U.S. 57, 91-92 [2000]).
It is hard to see the logic of Scalia's claim that in refusing to affirm "unalienable rights" that are protected by the Constitution, he is not thereby denying or disparaging them. He asserts that the Constitution confers upon judges the authority to secure those unalienable rights specifically enumerated in the Constitution but not those unalienable rights that are protected by the Constitution but not enumerated. He does not support this assertion with any citation of the constitutional text or any evidence that this was the original meaning of the text.
Scalia asserts that the protection of the unalienable rights affirmed in the Declaration of Independence and the Ninth Amendment must depend upon debates "in legislative chambers or in election campaigns," without any interference by judges. This ignores the argument by the Framers of the Constitution that the greatest threat to the rights of the people is the legislative power and the power of the majority to infringe on the rights of the minority.
In James Madison's speech to the House of Representatives in the First Congress, on June 8, 1789, in which he proposed a bill of rights as amendments to the Constitution, he stated that the purpose was to protect these rights "sometimes against the abuse of the executive power, sometimes against the legislative, and in some cases, against the community itself; or, in other words, against the majority in favor of the minority." A declaration of rights would be "one means to control the majority from those acts to which they might be otherwise inclined."
To explain the need for what become the Ninth Amendment, Madison observed:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into his system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."
The effectiveness of such a bill of rights would depend upon the judiciary: "If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."
Scalia might assert that "rights expressly stipulated" indicates that judges can be guardians of those rights that have been enumerated in the Bill of Rights but not the unenumerated rights of the Ninth Amendment. But Madison did not say that "expressly stipulated" meant "enumerated," because this would have nullified the whole point of the Ninth Amendment. The constitutional protection of "those rights which were not singled out" was "expressly stipulated" by the Ninth Amendment.
Moreover, as Madison indicated in his speech, the rights to be protected by the Bill of Rights were not just the rights of Englishmen or the rights of Americans but "the great rights of mankind," which echoes the language of the Declaration of Independence in affirming the natural rights of all human beings.
These "great rights of mankind" are grounded in the evolved instincts of human nature as originally formed by natural selection in the primeval human environment of evolutionary adaptedness.
3 comments:
"Everybody's property," it is said, "is nobody's property." Nobody gets to exclude or to sell. Everyone gets to use but if two people want to use in conflicting ways, there is no way to determine whose desire will prevail.
So it is with unenumerated rights. It is possible to state anything as a right. Every parent has a right to determine their child's education. Every child has a right to an appropriate education (with "appropriate" determined by education experts). What you choose to define as a right will depend on your politics. All women have a right to an abortion. All unborn children have a right to live. All women have a right to an abortion paid by other people. Round and round it goes and where it stops nobody knows. Hey, there are positive rights and negative rights.
Without an agreement on what the structure of rights is, the Ninth Amendment cannot be operationalized.
Roger,
What are you suggesting? Are you saying that the Ninth Amendment was a big mistake, and therefore that the Supreme Court should effectively strike it out of the Constitution?
Would this mean, for example, that neither the Supreme Court nor the Congress can strike down state laws that establish racially segregated public schools or state laws that prohibit interracial marriages because the rights to desegregated public schooling and interracial marriage are not enumerated in the Constitution?
I wouldn't say "big mistake." Perhaps it was necessary to get the whole package passed. Perhaps, like so many things in politics, it sounded good and wasn't really thought through. Or perhaps at the time, everyone had a pretty good idea what those rights "retained by the people" might be--and what they could not be. Today, there is no such common framework. So today, the Amendment can mean anything or nothing, depending on what your version of Constitutional interpretation is. Today, some would say everyone has a right to health care, "adequate" housing, a "living wage", etc.
Of course, today the laws you speak of are easily struck down as violations of the Equal Protection clause of the Fourteenth Amendment.
But what if that didn't exist? No doubt John C. Calhoun would argue that there is a "right" to establish a segregated school system (a right that some in higher education seem to be tiptoeing toward with events, housing, and programs that are limited to one ethnic group).
Before the New Deal revolution in Constitutional Law, a number of laws were struck down as violations of the due process clause, as being "contrary to the concept of ordered liberty". To the extent that these cases could be considered economic, they were mostly overturned, on the grounds that the judges were reading their own politics into the Constitution, that it actually said nothing to limit legislatures' powers in the economic realm. To the extent that they could be considered as concerning "civil liberties", they were mostly kept. Ken I. Kersch tells the fascinating story in Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge U.P. 2004).
Is an "anti-miscegenation" law a violation of the concept of ordered liberty? Is it a denial of a "right ... retained by the people"? In the famous words of Ernest J. Brown, "That's not law, that's politics."
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