This essay will show that Locke’s teaching on the law of nature is not based on divine revelation, or a juridical doctrine of individual rights, or self-ownership, or self-preservation, or reasoning from premises that are not rooted in the empirical world. I will argue, on the contrary, that the real ground is found in his understanding of the conditions of human happiness. This conclusion is far from evident on the surface of Locke’s writings. Locke draws his reader into an amazingly complex line of reasoning, scattered up and down in several of his books, leading finally to the real basis of his teaching on the law of nature. Locke engages the reader in a dialogue, in which initially plausible arguments are put forward, then implicitly questioned, leading to new arguments, which again are questioned, and so on. Locke says that “long and sometimes intricate deductions of reason” are necessary to discover the law of nature. Locke writes treatises, not Platonic dialogues. Nevertheless, a dialogical thread will take us from one of Locke’s books to another, until we put together all the relevant passages to show the complete picture of his argument.

When Woodrow Wilson, in the course of his campaign for the Presidency in 1912, attacked Thomas Jefferson and Charles-Louis de Secondat, baron de La Brède et de Montesquieu, he knew what he was about—for the constitutionalism articulated by the latter and embraced, in turn, by the Framers of the American Constitution was a systematic attempt to put into practice something very much like the first principles spelled out in the Declaration of Independence. Montesquieu was not a doctrinaire. He feared that, in his own country and elsewhere, revolution would eventuate in the establishment of a despotism, and so he gently, quietly promoted unobtrusive reform. But the cautious, prudential political science that he outlined in his Spirit of Laws was anything but value-free. If the American framers found his legislative science of use, it was because the hatred of despotism and love for liberty animating its author was grounded in an account of natural right closely akin to the one, espoused in John Locke’s Two Treatises of Government, that had inspired their revolution.

This essay examines the idea of rights advanced by the American colonists in the imperial crisis (1763-1776). It argues that the colonists viewed all English subjects as having the same fundamental rights as individuals everywhere in the empire. These individual rights (to life, liberty, and property) were in turn guaranteed by the right to consent to taxation. In the empire, the colonists insisted, these rights could only be protected by the colonial legislatures as they were not represented in the British Parliament, which in turn meant that the colonies must have the ability to govern themselves in all internal matters, a claim which ultimately led to the idea of each colony as a “free state,” independent of King and Parliament. While the colonists began by defending these rights on the basis of their legal inheritance as Englishmen, they gradually moved towards a more radical claim: that these rights were theirs based on the law of nature, and thus open to all men in principle. This move to natural rights was based in part on the colonial claim that they had migrated to America, a place inhabited by indigenous peoples whom they viewed as “savages” and thus outside of the jurisdiction of the English common law. The radical move to natural rights, however, was in tension with the loose confederation which emerged in the years after 1776 in which each colony was now a quasi-independent republican state and in which the rights of minorities—Native Americans, African Americans, religious dissenters, and Loyalists—could not be effectively protected by the federal government.

This article examines the moral theory of the American Revolutionary and Founding periods by focusing on two key concepts of that doctrine: the moral laws and the moral rights of nature. In particular, the article will examine several important questions from the perspective of America’s Revolutionary generation: What are the moral laws and rights of nature? What is the difference between a law and a right of nature, and how are the laws and rights of nature related to each other? Are nature’s moral laws and rights descriptive, prescriptive, or both? What are the attributes and sanctions of nature’s laws and rights, and how are they promulgated? What is the source of nature’s laws and rights? And finally, how did America’s founding fathers use the laws and rights of nature to establish their political institutions? In order to answer these questions, the article focuses on the core text universally recognized as the symbol of America’s revolutionary mind and moral theory: the Declaration of Independence. The Declaration’s deepest philosophic meaning is herein illuminated by also examining the broader, extant literature of the period.

The main purpose of this essay is to articulate the ideas of the last powerful advocate of natural rights in nineteenth-century America. That last powerful advocate was the Massachusetts-born radical libertarian Lysander Spooner (1808-1887). Besides his powerful antebellum attacks on slavery, Spooner developed forceful arguments on behalf of a strongly individualistic conception of natural law and private property rights and against coercive moralism, coercive paternalism, and state authority and legislation. This essay focuses on the theoretical core of Spooner’s position which is his doctrine of natural rights—a doctrine that is primarily developed in Spooner’s The Law of Intellectual Property (1855), Natural Law (1882), and A Letter to Grover Cleveland (1886). I situate Spooner within the libertarian tradition in political thought by beginning this essay with an examination of two English writers whose radical writings (for the most part) preceded Spooner’s—Thomas Hodgskin (1787-1869) and the early Herbert Spencer (1820-1903). I emphasis the strongly Lockean character of Spooner’s thought and support this contention in part by showing how much more Lockean Spooner was than either Hodgskin or the early Spencer.

This essay treats the Progressives' critique of the Founders' doctrine of natural rights. Natural rights had been attacked before the Progressive era—by proponents of the racial science of ethnology, advocates of philosophy of history, and followers of Charles Darwin—but the Progressives launched the most thoroughgoing and systematic critique in American history. The leading thinker conducting the critique was America's foremost philosopher John Dewey. His critique had five major points: (1) that America had entered an entirely new age of social and economic organization requiring a different political theory; (2) that all theoretical claims of truth, like natural rights, are relative to the age in which they were born and thrived; (3) that theoretical ideas serve the aims of different classes, with natural rights representing the economic and political interests of the emerging bourgeoisie; (4) that natural rights encouraged a diminished goal for human beings, emphasizing the fulfillment of individual self-interest rather a higher idea of human development and of social cooperation; and (5) that any metaphysical claim in politics is undemocratic by virtue of ascribing a standard of right that is prior to and higher than a decision of a democratic majority. The paper concludes by briefly sketching the influence that this critique had on the heirs of the Progressives, the modern liberals.

After summarizing the ways in which Progressive intellectuals attacked individualist understandings of rights and mechanistic understandings of constitutional government, a series of second thoughts on this argument are pursued. The first centers on the ways in which progressivism differed from New Deal liberalism, especially regarding “big government.” Progressive understandings of politics rest on a distinction between “government(s)” and “state,” derived from Tocqueville and Lincoln’s understandings of popular sovereignty. Secondly, this distinction is reinforced by their stress on an articulate and coherent public opinion that would provide democratic legitimacy to all forms of governing institutions, both “public” and “private,” that serve the common good. The Civil War experience was their model, one which they first thought would be reincarnated in the preparation for World War I. Given both private and public assaults on free speech, Progressives in the 1920s often led the movement for protections of civil liberties and for a new respect paid to the First Amendment. The conclusion examines the continuities and discontinuities of Progressive political thought in contemporary political discourse.

Scholarly discussions of the turn of the 20th century progressive movement frequently ignore or give but glancing attention to the progressives’ racial views and policies. Those who do pay greater attention to them nonetheless tend to dismiss them as being somehow “paradoxical” or inconsistent with what they regard as the movement’s core, “democratic” principles. The purpose of this paper, accordingly, is to explain the origin and nature of the movement’s core principles, and to show how the reformers’ racial views and policies, far from being inconsistent with these principles, were in fact their natural outgrowth. The progressives’ support for the colonial subjugation of the Filipinos, as well as the disfranchisement and segregation of American blacks, reflects, in other words, the transformation in the character or content of public policy necessitated by the reformers’ rejection of the “individualism” of the American founding in favor of a new conception of “individualism” chiefly inspired by early 19th century German idealism.

This essay examines the far-reaching attack on individualism and property rights which characterized the Progressive Era of the early twentieth century. Scholars and political figures associated with Progressivism criticized the individualist values of classical liberalism and rejected the traditional notion of limited government espoused by the framers of the Constitution. They expressed great confidence in regulatory agencies, staffed by experts, to effectuate policy. Progressives paved the way for the later triumph of statist ideology with the New Deal in the 1930s.

The essay traces the sources of the Progressive antipathy to individual rights to the influence of Bismarck’s program in Imperial Germany and the Social Gospel theology. It gives attention to the views of leading Progressive intellectuals who stressed the perceived need for increased governmental power and governance by an educated elite. The essay also explores the impact of Progressivism on constitutional law, arguing that the rise of “sociological jurisprudence,” with its skepticism about courts and stress on judicial deference to legislative judgments, served to advance the Progressive political agenda. Progressives looked with disfavor on any constitutional doctrine which curtailed governmental authority. The Progressive movement left a lasting legacy of diminished regard for individualism and a jurisprudence which stripped property of muscular constitutional protection.

The labor theory of value is fundamental to John Locke’s justification for property rights, but Edwin Hettinger argues in a famous article, “Justifying Intellectual Property,” that it fails to justify intellectual property rights. Hettinger believes that the labor theory of value cannot justify a right to the full economic value in an invention or book, because the creator’s physical labor contributes only proportionally to this socially-created market value. Robert Nozick, G. A. Cohen, and other philosophers similarly dismiss the labor theory of value as illogical or incoherent. But these philosophers redefine Locke’s concepts of labor and value into physical and economic terms, which is more akin to Karl Marx’s labor theory of economic value. The principle of interpretative charity demands reconsideration of Locke’s labor theory of value in its own terms and within the full context of his natural law ethical theory, especially in considering how Locke himself justifies intellectual property rights. This article thus analyzes oft-neglected portions of the text of the Second Treatise and integrates Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In this context, Locke’s concept of labor means production, which has intellectual as well as physical characteristics, and his concept of value means that which is useful in the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. This not only disabuses modern scholars of the absurdities they impose on Locke, it also explains why Locke says that inventions exemplify his labor-based property theory and why he argues for property rights in writings (copyrights), arguments that seem to have been lost on his critics in intellectual property theory and beyond.

The American Progressive Movement argued for both a democratization of the political process and deference to expert administrators. Relying on the work of Theodore Roosevelt and Woodrow Wilson, the article endeavors to explore this tension and make some preliminary suggestions as to how it might be reconciled—at least in the eyes of its adherents—into a single democratic theory. Both Roosevelt and Wilson criticize the principles of the original Constitution for being insufficiently democratic and overly suspicious of the popular will, and they want to make public opinion a more direct force in national politics. Yet both are also suspicious of politics and its potential for corruption by “special interests,” and thus look for ways of empowering expert administrative agencies and insulating them from political influence. Wilson seems to understand the potential conflict between these two aims more than Roosevelt does, although both look to a popularized presidency as a means of reconciling consent and expertise.

One of the main targets of Progressive constitutional critique was the system of separation of powers. Woodrow Wilson was especially critical of that feature of American constitutionalism. As has been noted by others, Wilson wanted to replace the separation of powers with the conceptual and institutional distinction between politics and administration. Wilson, however, had an extremely truncated and on the whole inaccurate view of the point and intended operation of separation of powers, as an examination of the doctrine in the philosophy of John Locke demonstrates.