It is a sad state of affairs that the same people who brought individual rights and liberty to this world no longer study them, but that is the case with modern America. Luckily, our founders were not so ignorant about the concept of rights. Unfortunately, in all my reading of their work, I have noticed they do not distinguish between the types of rights as often as I wish they would have. However, in their defense, I suspect this was more because they shared a common understanding of the issue, so it never occurred to them that this was or ever would be necessary. It would be akin to us discussing Hollywood’s award ceremonies and not bothering to mention there are several types. But the notion of rights is easier to understand once we understand the primary difference between them.
Natural rights are those rights we can claim and exercise while we are alone on a deserted island. Everything else is a civil right. At this point, I want to make it clear that I – personally – dismiss the notion of “human rights” as a secular attempt to redesign natural rights and natural law as they encompass both natural and civil rights, and make no distinction between the two or their proper relationship to each other. Therefore, I see the notion of “human rights” as a concept designed to enslave people rather than protect them. Now, let me explain why I distinguish between natural and civil rights.
As I previously stated, a natural right is imparted to you by our Creator and is an inherent part of who you are. It is part of your identity. Therefore, a natural right must be something you can claim and exercise by yourself. If you need the assistance of another person, it cannot be a natural right. Natural rights start with your right to conscience and free will, then to your life, your body, your labor and the portable property you acquire through the use of that labor. However, you do not have a natural right to own land. This requires social construction which requires the cooperation of society; therefore, it is a civil right. And this is where the distinction is often lost on many of us.
We have a natural right to willingly contract with other people. This is the basis for the social contract: a willing agreement we enter into to help us defend the rest of our rights. As part of this contract, every member of society willingly agrees to limit the exercise of their rights to greater preserve those rights. As part of this agreement, we have designed a legal system that extends certain guarantees to every member of the social contract. When used according to natural law, these legal guarantees insure that the natural rights of every individual are protected as much as possible. Because it is a construction of society, this makes the right to due process a civil right. The same would apply to the right to own land, or a corporation. Those things do not exist in nature. They require the cooperation of society; therefore, they are civil rights.
There’s one more important thing we need to understand about civil rights. Because society creates them, society retains a just claim to modify or eliminate them. Whether or not a society is a just society is largely determined by how well it keeps its civil rights in line with natural rights and natural law.
I am not trying to put words in the founders’ mouths. For the most part, this is how they understood the concept of natural rights, natural law and the social contract. It is also why that first generation had far fewer problems using our constitution: because they properly understood it. Here are a couple quotes from our founders that might help you see that my argument is in line with their thinking.
“All the property that is necessary to a Man, for the Conservation of the Individual and the Propagation of the Species, is his natural Right, which none can justly deprive him of: But all Property superfluous to such purposes is the Property of the Publick, who, by their Laws, have created it, and who may therefore by other laws dispose of it, whenever the Welfare of the Publick shall demand such Disposition. He that does not like civil Society on these Terms, let him retire and live among Savages. He can have no right to the benefits of Society, who will not pay his Club towards the Support of it.”
–Benjamin Franklin, letter to Robert Morris, 25 December 1783, Ref: Franklin Collected Works, Lemay, ed., 1
“A right of property in moveable things is admitted before the establishment of government. A separate property in lands, not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then, the property is in the body of the nation, and they, or their chief as trustee, must grant them to individuals, and determine the conditions of the grant.”
–Thomas Jefferson: Batture at New Orleans, 1812. ME 18:45