Where Rights Come From, and Why the Declaration Says So First

Walk up to the counter at any government office in America and ask the clerk a simple question: "May I?" May I build a deck on my house, open a lemonade stand, hang a sign, run a daycare, braid hair for money? The clerk will look at a screen, consult a rule, and tell you yes or no. Notice what just happened. You came in as a person who needs permission, and the clerk, whatever his good intentions, behaves like the person who grants it.

Now picture the same office run on the opposite assumption. You walk in, and the question on the counter is not "May he?" but "What is the government's reason for saying he may not?" Same building, same clerk, same forms. Completely different country. That gap, between a permission and a right, is the single biggest idea in the American founding, and it starts in the second paragraph of the Declaration of Independence. Let me show you why it matters more than most of the fights on cable news.

The sentence everybody quotes and nobody parses

Here is the passage, which Congress adopted on July 4, 1776, from the draft Thomas Jefferson wrote: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

Read it slowly, the way a lawyer would. Three things stand out.

First, the rights are endowed. They are given by a source outside the government, and the document calls that source the Creator. Whatever your own beliefs, notice the logical shape: the rights come first.

Second, the rights are unalienable. They cannot be handed over, sold, or voted away, because they were never the government's to hand out.

Third, the purpose of government is to secure the rights. Government is the employee, not the owner. It is "instituted" for a job, and its powers are "just" only if the governed consent. The first paragraph of the Declaration even grounds the whole case in "the Laws of Nature and of Nature's God." The signers were not claiming a new idea. They were claiming an old one that they thought the king had violated.

Where the idea came from

The founders did not make this up in the summer of 1776. They were reading John Locke, whose Second Treatise of Government, published in 1689, argued that human beings in a "state of nature" are governed by a law of nature that binds everyone, and that each person holds natural rights to life, liberty and property. People form governments, Locke said, to protect those rights more securely than they can alone. A government that attacks them breaks its trust and forfeits its claim on obedience.

Jefferson changed Locke's third word from property to the pursuit of happiness, a debated edit, but the architecture is the same. Rights are older than the state. The state is a tool that people build and can replace. That is the argument that justified a revolution, and it is the argument that Abraham Lincoln leaned on in 1863 when he began the Gettysburg Address by saying the nation was conceived in liberty and dedicated to the proposition that all men are created equal.

The numbered argument

Let me lay this out the way I would on a whiteboard, because the conservative case for natural rights is not mystical. It is an argument.

1. Government is made by people, so the people are logically earlier. A legislature, a court, an agency: each is a human creation, formed by human beings who already existed.
2. An institution cannot be the source of the limits that are supposed to bind it. If the government grants your rights, the government can define them, narrow them, or take them back by the same procedure. A right that exists only at the pleasure of the party it restrains is not a restraint.
3. So, if rights are going to mean anything against the government, they must come from somewhere the government did not create. The Declaration names the Creator. A secular person can name human nature or human dignity. The point is that the source is prior to the state.
4. The Constitution is written as though this were true. The First Amendment does not say "Congress shall grant a freedom of speech." It says Congress shall make no law "abridging" it, which assumes the freedom exists. The Second Amendment speaks of "the right of the people to keep and bear Arms" and says it "shall not be infringed," again describing something already there. The Constitution lists what government may do and fences off the rest.
5. The Ninth and Tenth Amendments close the loop. The Ninth, ratified with the Bill of Rights in 1791, says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The word is retained. You do not retain what somebody gave you. You retain what was always yours. The Tenth says the powers not delegated to the United States are reserved to the states or to the people. Powers are delegated; rights are retained. Two different verbs, and the difference is the whole point.
6. Therefore, the burden of proof runs against the government. When the state wants to restrict an ordinary liberty, it must justify the restriction. The citizen does not have to justify the liberty.

Why does the Ninth Amendment exist? Because some founders feared that a list of rights would be read as a complete list, so that anything not on it would be treated as fair game. Writing the list was risky, and the Ninth is the warning label on the box.

The permission-slip view

Now the strongest version of the other side, which is called legal positivism, and it deserves a fair statement. The positivist says: stop talking in clouds. A right is real when someone with power will enforce it, and not otherwise. You can announce that you hold a natural right to something, but if no court will honor it and no police officer will protect it, you hold a sentence, not a right. Rights are what the law says they are. The English philosopher Jeremy Bentham put it famously, calling natural rights "nonsense upon stilts." And a modern skeptic adds a practical point: people disagree about what the natural rights are. One citizen's God-given liberty is another's menace, and the only way to settle the argument is through law and votes.

Those are serious points. Enforcement matters. A promise nobody can keep is no help to anybody. And yes, people disagree about the content of natural rights, which is why the founders did not leave the question to philosophy alone. They wrote a Constitution and a Bill of Rights, with courts, and amendments.

Here is my answer, in three parts.

One: enforcement and existence are different questions. Whether a right can be enforced today is a question about the state's power. Whether it exists is a question about justice. If the only standard for a right is whether the current government will honor it, then you have no way to say that a government is wrong for failing to. The positivist cannot call a law unjust. He can only call it a law.

Two: the hard cases prove it. Slavery was legal in America for generations. By the positivist test, the slaveholder had a legal right and the enslaved person had none, and there is nothing more to say. Frederick Douglass, who did not accept that, argued that the Constitution rightly read was a liberty document, a case we cover in Douglass Called the Constitution a Glorious Liberty Document and Meant It. Lincoln argued that the Declaration's promise was a standard the country had to live up to. In 1963 Martin Luther King Jr. wrote from the Birmingham jail that an unjust law is no law at all, and he cited Augustine and Aquinas for the point. And at Nuremberg, the Allied tribunal rejected the defense that a defendant had merely obeyed the laws of his own state. Every one of those arguments requires a standard above the statute book. Strip out natural rights, and you strip out the ground on which reformers stood.

Three: the Declaration is not a rival to the legal system. It is the justification for it. The framers did not say, "rights exist, so no laws are needed." They said rights exist, so we need a government limited to securing them, and a written Constitution to keep it that way.

What it changes for an ordinary citizen

Abstract? Not at all. Take three hypothetical citizens and watch how the two theories treat each one. These are examples I made up to show the logic.

• A pastor wants to preach a sermon on a hot-button question. Under the permission view, the question is whether the law currently allows it, and a future law can change that. Under the rights view, his freedom to speak and worship precedes the law, and any restriction has to meet a heavy burden. This is why religious liberty is a conservative cause: the Free Exercise Clause protects something the state did not invent. See our look at Baptists, Madison and the Virginia fight that put religious liberty first for how that conviction was won.
• A homeowner wants to use her land in a way her neighbors find odd. Under the permission view, the zoning board is the source of what she can do with her property. Under the rights view, her ownership comes first and the board must justify each limit. Locke's property right is not a footnote to the Declaration. It is the reason the Fifth Amendment says private property shall not be taken for public use without just compensation.
• A young entrepreneur wants to cut hair, drive a car for hire, or sell homemade food. Under the permission view, she needs a license, and the state decides who qualifies. Under the rights view, the right to earn an honest living is presumed, and the state has to show a real reason to interfere.

Same facts, same clerk, opposite default. The first citizen is a petitioner. The second is a free person with a grievance. Over a lifetime, an entire culture shaped by the first default becomes timid, and one shaped by the second becomes bold.

The honest cost

There is a cost to the rights view, and I want to name it because conservatives lose credibility when they pretend their ideas are free. If rights are older than the Constitution, then judges can be tempted to find new ones that the text does not mention. The Ninth Amendment has been invoked that way, and Judge Robert Bork, at his Supreme Court confirmation hearings in 1987, compared the Ninth Amendment to an inkblot, meaning that a judge should not use an amendment he cannot read to rewrite the law. That is a legitimate worry about judicial power, and the answer is not to deny natural rights. The answer is to say who should secure them. In our system the people's elected representatives, the amendment process, and judges applying the text as written all have roles. Our explainer on Originalism Explained for People Who Skipped Law School sorts out which role belongs to whom.

It also means the debate over what counts as a right is never over. It is supposed to be hard. A free people argues about it in public, in courts, and at the ballot box. That is the price of a system that treats citizens as owners instead of tenants, and I think it is a bargain.

The Declaration and the 250th

As the country approaches the 250th anniversary of 1776, there will be plenty of ceremonies and plenty of fireworks. The best way to honor the document is to read its second paragraph again and ask the question it asks of every official: what is your authority to do this, and where did it come from? That is a question a clerk can answer, a mayor can answer, and a Congress can answer, if they know it will be asked. For more on how the nation's ideas build on each other, The Founding Ideas in Order, From Magna Carta to the Bill of Rights traces the line, and Russell Kirk's Ten Principles Are the Best Short Course in Conservatism shows how a conservative thinker folded the idea into a wider philosophy. You can also test yourself against Seven Things Americans Get Wrong About the First Amendment.

The bottom line

• A right is something you have; a permission is something you are given. The Declaration says our rights are endowed by the Creator and that government exists to secure them.
• The Constitution is written in that spirit. It describes rights as retained by the people and powers as delegated to the government.
• The practical test is simple: when a rule restricts you, ask who has to justify it. In a free country the burden is on the government.
• Natural rights are not a license for judges to invent whatever they like. The remedy for that is a disciplined reading of the text, not a lower view of liberty.
• Teach your kids the second paragraph of the Declaration by heart, and teach them to ask "by what authority?" politely, and often.