The theory of natural rights, on the other hand, is based on the hypothesis that mankind is originally and naturally individual and autonomous. Any associations in which he participates, such as marriage or society, require a cession of some rights and a degree of autonomy, but every power not delegated is retained. Thus community is extraneous to his nature, and is simply arrangement of convenience. Man is defined principally in terms of his rights, and his rights are defined principally in opposition to other men. Its great advocates are the Enlightenment theorists: Locke, Hobbes, and Co.
Now put like this, there is a radical shift from the Christian to the Enlightenment understanding of Nature, and its implications for society. But James McClellan, in Liberty, Justice, and Virtue, observes that at the time of the American founding, the distinction was not fully appreciated, and much of the natural rights jargon used by certain Founding Fathers cannot accurately be read as endorsing a full-blown, radical revision of the Christian understanding.
2) I recently read a great article by Clyde Wilson (written all the way back in 1968).* In it he argued (among other things) that John Adams and other advocates of "checks and balances" in the Constitution were actually being radical and theoretical! But stay: he made some good points. According to Wilson, the thirteen colonies had, in the course of their joint history, evolved a comfortable set of mutual relations (admittedly, in need of adjustment and definition). In the Philadelphia convention, however, the old balance was upset in favor of a new (to America) and abstract system of checks and balances. He goes on to point out a number of very convincing historical proofs for the failure of the system to keep tyranny at bay. For instance, and I quote:
The chief concern of the Federalists within the polity was to check a rash majority by erecting powerful independent offices in the executive and judiciary. Some what short-sightedly, they believed that these centers of power would always be instruments of restraint. They failed to foresee the true course of events, i.e., that there was no natural reason why the executive and judiciary would remain conservative, and if ever once captured (as in the New Deal) by the passions of the mob or the spirit of rash innovation, the presidency and federal courts provided impregnable bastions for radical sorties upon the social order. The Federalists can thus be seen as tinkerers who sought to secure conservatism by means of abstractly conceived governmental machinery. Their tinkering has been largely responsible for the successes of anticonservative movements and the seemingly irreversible institutionalism of New Deal Liberalism in the federal courts and bureaucracy.And more:
The Federalists’ political speculations (as have those of twentieth century liberals to opposite ends) tended to focus too much upon European society and not enough upon particular American conditions. The unrestrained majority which the Federalists feared was not, in America, a desperate, propertyless mob, but a restricted electorate of middle class property holders. The danger to the constitutional and federal republican polity in America has never come from the majority but rather from ambitious tyrants and alienated intellectual coteries for whom the strong presidency and judiciary are tailor-made fortresses.So, according to Wilson, because of the stable and conservative condition of the American populace at large (far cry from the rootless and unpropertied agitators of the old world), the strong executive and judicial powers intended restrain the mob were not only unnecessary, but ended up playing into the hands of the much more present danger: aggressive reformers and disillusioned intellectuals.
This is really hard to argue with. But it's blowing my paradigm all to pieces, in a cool kind of way.
* http://www.imaginativeconservative.org/2011/09/jeffersonian-conservative-tradition.html
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