The Origins of the Bill of Rights


This piece is a companion to the Dean-O-Files podcast #35, to be published 4/4. It can be found on Alternative Internet Radio.


I recently had a conversation with a family member in which this person said some things that made me realize they were unaware of the purpose of the american Bill of Rights and what philosophies inform it. Unaware that the rights described therein are rights they were born with, and not rights given to them by government. That the language of the first ten amendments to the Constitution make it clear that they serve as restrictions on the actions of government (i.e. “congress shall make no law”), rather than allowances made to individuals by government. Unaware that those rights were theirs to begin with, and that the Bill of Rights was designed to restrict government, and only to restrict government.

I subscribe to the idea that words on a paper do little to actually restrict governments or protect the liberties of individuals, but that is neither here nor there. For the purposes of this discussion, I’d like to focus on where, exactly, the notion of human liberty comes from and why those liberties are ours, dear reader, by right of nothing more than our mere existence.

A note to my Egoist friends: You probably will not agree with everything below, but please read ahead anyway, as an academic measure.

The Plainly Wrong:

Thomas Hobbes wrote in “Leviathan” that man’s primary natural right was "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto." Hobbes believed that, in the State of Nature, man would be in a constant state of “war of all against all.” A situation in which people would kill, steal, and enslave to their heart’s content and in service of their survival.

I have noted before that Hobbes was wrong about the State of Nature. His foundational notion, the way he believed humans have lived, has been refuted by modern evolutionary sciences and anthropology. The fact of early human existence is, frankly, antithetical to the fiction on which Hobbes based the whole of his logic.

Human beings most likely evolved in groups. Not as lonesome, solitary individuals, but first as large, extended families and, later, as tribal communities. As these communities grew and evolution continued, things like “morals” developed as social expectations, and the animal instinct to reward prosocial behavior stuck around to reinforce them. These foundational moral expectations serve as a good basis for the natural rights of humans. Ideas that have existed in tribal communities and early civilizations as far back as humans were able to conceive of social behavior in a way that allows for higher-order thinking include moratoriums on things like murder and theft. With exceptions, killing and stealing have always been considered to be bad behavior.

Some of the theories concerning the development of moral expectations in early man include the notion of the development of empathy in humans and the evolutionary necessity of a “disgust” response coinciding to allow individuals to “see themselves” in the victims of such crimes. Others involve the same disgust response interacting with the necessity of cooperation for early man’s survival, thus actions which could harm such social cohesion became taboo. Further, the Social Brain Theory posits that human beings have experienced a high selection for the development of a complex neocortex, which allows for greater social cognition and the development of “theory of mind,” which serves to allow the animal to infer the thoughts or emotions of another in the group (we also call this “empathy”). There are other theories regarding the development of moral expectations in humans, but none of them change these important relevant facts: They developed, and the few that are universal have lead the social animal that is man to punish the acts of theft and murder; first with social consequences and, later, through law.

The More Logical:

John Locke is one of the first popular philosophers to take the basic moral notions that find their origins in our mere humanity (as stated above, that murder and theft are wrong) and organize them in to a system of natural rights, not to be infringed. These rights, to Locke, include rights to Life, Liberty (Freedom), and Estate (Property). The right to Life meaning that, obviously, everyone has the right to live, the right to Liberty meaning that everyone has the right to live as they please, and the right to Estate meaning that every individual has the right to ownership of all that they procure or produce.

Some approach these rights with the following challenge: What happens if the right to Liberty and the rights to Estate and Life find themselves in conflict. Meaning, simply, “what if I want to kill or steal? I have the liberty to, don’t I?”

The simple answer is  “No.” Any action which infringes on the natural rights of another falls outside of that which can be called a “right,” as it strips another person of their right. Such an act is, simply stated, an “illegitimate” action. The illegitimate procurement of property is called “theft.” An illegitimate killing is called a “murder.”

Another way to arrive at the same conclusion is to follow the simple logic of self-ownership. If a human is not to be owned by another human, then a human must own themselves. This is necessary for a human to take action and utilize their freedom, their reason, and their other rights. It follows that, if no one tells a person what to do, then that person must tell themselves, or “choose,” what to do. This establishes self-ownership in principle. If one owns oneself, then one must own one’s body, mind, and that which one’s body produces.

Property, that which is one’s own and no one else’s, is a good way to define one’s life and body, but it also applies to one’s labor as a product of that life and body. If I choose to utilize my labor to weave a blanket, then I trade that blanket for a bushel of apples, I have decided to make some property and trade that property (or convert it) into different property that is, logically, equally mine.

To modernize: If I choose, freely and without coercion, to utilize my labor and sell it to someone for whatever price they are willing to pay, they will then give me currency in return. I can then give currency (a transferable representation of the labor which my body has produced) to a merchant for his or her wares. Does that transaction not then extend my ownership of myself to the items I purchase? Does that transaction not necessitate that I own those items as my property? I have yet to see a convincing argument to the contrary.

The Bill of Rights:

I may be an anarchist, but that does not stop me from understanding the logic behind such a document as the Bill of Rights. The Constitution of the United States of America utilizes the same logic as the Declaration of Independence in the establishment of inalienable rights, following a decidedly Lockean tradition. The Bill of Rights answers specific grievances aired in the Declaration, using Thomas Jefferson’s variation on Locke’s natural rights (Life, Liberty, and the Pursuit of Happiness). Because these rights are inherent to humanity, the Bill of Rights serves only to enumerate those rights which government may not dissolve. As stated above, the very language of the Amendments makes this clear.

So, there it is. The origin of your rights, based on the philosophies that informed the Constitution and the Bill of Rights. I, personally, do not agree with all of the conclusions that people like Locke and Jefferson reached. I do not agree with the methods of legitimation of Government and Law. I prefer the logic of 19th Century lawyer, abolitionist, and scholar Lysander Spooner. I’ll leave you with this excerpt from one of Spooner’s many essays, appropriately titled “Natural Law.”


“What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible, dominion over all other men whom they can subject to their power. It is the assumption by one man, or body of men, to subject all other men to their will and service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed.”