Today, political discourse continues to talk about “our rights” as if they are self-evident and obvious. Everything is about our rights. But rights are anything but self-evident, as smart people before me have realized. Why isn’t anyone talking about that fact?
Part of the reason, of course, is that the Declaration of Independence asserts their self-evidence. However, even the Declaration, in Jefferson’s words, “holds” these truths to be self-evident, as if to say the basis of that assertion is a conviction rather than a certainty. It is a working position or starting point, a hypothesis, but nothing more. And the Declaration also declares”life, liberty and pursuit of happiness” to be “among these” self-evident rights. There are others that are not enumerated. Why were they not enumerated in the Declaration? Who gets to say what is included in them? Is the Bill of Rights their entire enumeration?
In fact, the concept of rights being “self-evident” was anchored in a natural rights political philosophy that reached back to the seventeenth century and earlier. Doubts that rights were natural and self-evident had already been articulated by David Hume, whom Jefferson had read, by the time Jefferson wrote the Declaration. And there is evidence that Jefferson may have harbored his own doubts about natural rights. (For a difference of opinion on this point, contrast, for example, Michael Zuckert’s Natural Rights and New Republicanism* with my own Schwartz, Liberty in America’s Founding Moment).
Many interpreters of Jefferson think his philosophy of rights was anchored in the ideas of seventeenth century philosopher John Locke, as put forward in Locke’s The Second Treatise of Government. But even Locke’s commitment to the self-evidence of natural rights is less than self-evident. More on that topic to come later.
Even if Locke and Jefferson did not doubt the self-evidence of rights, it is clear from our own politics that rights are anything but self-evident. Indeed, one could argue that our politics are precisely an argument over what are rights are and are not.
Isn’t it time to talk about a politics that starts from the premise that we are in a process of always defining rights in light of our values and commitments? What those values and commitments are is what is at stake, not some self-evident set of rights that is transparent in nature. And if we recognize that rights are made, and not found, then we can reexamine those rights that have been codified in our Constitution and Bill of Rights but no longer acceptable. The second amendment would be a good place to start.