natural rights essay ideas

240 Human Rights Essay Topics & Examples

Whether you’re interested in exploring enduring issues, social justice, or democracy, see the ideas below. Along with human rights topics for essays and other papers, our experts have prepared writing tips for you.

• ✅ Tips for Writing Essays on Human Rights

🏆 Best Human Rights Topic Ideas & Essay Examples

🥇 most interesting human rights topics for essays, 🎓 simple & easy human rights essay topics, 💡 great human rights research topics, 🔎 interesting topics to write about human rights, ❓ essay questions on human rights.

If you’re starting a discussion on human rights, essay examples on the subject can really help you with argumentation. And if you’re assigned to come up with a research paper or speech on it, a good idea is a must for an excellent grade. Good thing you’ve found this list of human rights essay topics!

✅ 9 Tips for Writing Essays on Human Rights

The recognition of people’s rights through proper laws preserves human dignity. This broadness means that human rights essay topics range in scope drastically, requiring you to bring together different kinds of ideas in a single paper.

Thus, you may need to keep in mind particular tips, from structural advice to correct terminology, to write an excellent human rights essay.

Do your research before you start working on your outline. Searching for book and journal titles beforehand will not only help you understand your topic better but also help you structure your thoughts, affecting your structure for the better.

Compiling a bibliography early will also save you from the mess, which comes from ordering and standardizing your sources as you go.

After you have your reference page ready, draft a human rights essay outline.

Make it as detailed or as simple as you need, because what is essential is that you divide your topics evenly between your paragraphs or subheadings.

Doing so will ensure that you have a comprehensive essay that helps advance academic knowledge on a particular subject, rather than an overpowered paper aimed at a single problem.

Write your thesis statement as your final prewriting step. Excellent thesis examples should state the theme explicitly and leave your reader with an accurate understanding of what you are trying to achieve in your paper.

Skipping or ignoring this phase may leave your work disoriented and without a definite purpose.

Keep in mind your chosen human rights essay questions when writing. Going off theme will never get you good marks with your instructor.

If you are writing from a cultural relativism point of view, then do you have the word-count to argue about moral relativism? Do not forget that everything you write should advance your central thesis and never undermine it!

Get a good grasp on the relevant terminology. Confusing human nature with the human condition is never a good start to a paper that aspires to shed light on one subject or the other.

You can start writing down the terms that you find useful or intriguing during your research phase to help you gain a better understanding of their meaning.

Understand the correct time and place to qualify or refute certain statements. Arguing against the children’s right to basic needs may never be appropriate in an academic setting. Acknowledge the arguable cases, and subvert these to your benefit, as an essayist.

Interest your audience with essay hooks and exciting facts. Academia is not a dull place, and your readers may find themselves more willing to engage with your work if they find it enjoyable, rather than dry and formalistic. Doing so will also demonstrate your good grasp on the subject!

Remain respectful of your chosen case, and remember that you are writing about a subject that experiences hundreds of daily violations.

Recognizing the dangerous nature of your paper will not only help you separate beneficial facts from superficial ones but may also allow you to hone your academic integrity.

Read sample essays online to gain a better understanding of what essay mechanics will work and which you can leave unused. This extra reading may also give you good human rights essay ideas to begin writing your paper!

However, remember that plagiarism is a punishable offense, unlike the simple act of becoming inspired by others’ work. Want to see some samples? Head over to IvyPanda and jump-start your paper!

• Three Generations of Human Rights Development The current legal recognition of human rights attainment originated from various declarations and the most pronounced included the Magna Carta declaration in the thirteenth century that curtailed the royal powers, the American declaration of independence […]
• How Nike Sweatshops in Asia Violate Human Rights Factors that facilitated the emergence and development of Nike sweatshops included the availability of cheap labor, lower costs of production, lower wages, the restriction on the labor movements by the local authorities, and the poor […]
• The Universality of Human Rights In contrast to the other institutions that suggest a single form of the notion existing in the given society, the area of human rights allows to switch the shapes of the very notion of human […]
• Effects of War on Humanity in Terms of Human Rights The effects not only affect the coalition governments in war, but also members of the attacked countries for instance, Iraq people recorded the greatest number of fatalities and casualties during the Iraq war.
• Torture and Human Rights Violation The researcher notes that the government never provided a clear explanation of the events and their position on the possibility of resorting to torture.
• Human Rights in Serial ‘The Handmaid’s Tale’ Freedom of choice comprises one of the constituents of a wider debate going to the society under the umbrella of human rights.
• United States and UAE Human Rights Comparison The nation’s denial of freedom of expression and religion, as well as its discrimination against women and the punishment of same-sex intercourse with the death penalty, are among the most prominent issues.
• The Origin of the Human Rights Concept This point out to the fact that there were rights in the document that are common to different parts of the world and that they were not only obtained from the western nations’ practices of […]
• The Case of Malala: Is Education a Basic Human Right? Additionally, understanding the social and cultural dimensions of gender inequality in education allows one to determine the policy issues that cause the problem and thus establish a mechanism for preventing its reoccurrence in the future.
• Shirin Ebadi’s Perspective on Women’s Human Rights Activism and Islam It is worth noting that Shirin Ebadi’s self-identity as an Iranian woman and a Muslim empowers her experience and perspective in women’s rights activism.
• Prisoners’ Human Rights Denial Human rights watch is required to create a standardized list of rights and guarantees that should affect both domestic and international institutions in order to ensure the application of basic human rights, such as the […]
• The concept of Human Rights Many of the fundamental initiatives, which animated the human rights movement, emerged in the after effects of the World War II and the mayhem of the Holocaust, leading to the legitimation of the Universal Declaration […]
• Social Media: A Force for Political and Human Rights Changes Worldwide In this essay, I will discuss the effectiveness of traditional media and social media, and how social media has a better participation in changing the world in terms of politics and human rights.
• “Women’s Rights Are Human Rights” by Hillary Clinton Hillary Clinton’s speech about women’s rights effectively convinces her audience that women rights are an indispensable part of human rights through the use of logical argument, repetition, historical facts, and emotional stories.
• Human Rights in the Movie Escape From Sobibor As a result of the escape, the Nazi Authorities were made to shutdown the camp and planted trees The Second World War was a period during which a lot of violations of the human rights […]
• Human Rights Violations in Today’s World This paper addresses questions regarding human rights, including the United Nations’ involvement in enforcing those rights violations and the role of non-governmental organizations in addressing the issue.
• How Corruption Violates Fundamental Human Rights of Citizens This essay seeks to establish how corruption leads to breach of fundamental human rights of citizens and determine which rights in particular are mostly risky due to corruption.
• Human Rights History and Approaches Further development of the concept of human rights was reflected in the European Middle Ages, the eras of renaissance and enlightenment, and the idea of empowering all people, based on the concept of “natural law”.
• Human Rights, Education and Awareness But the progress is underway, and while there is still much to be done in terms of securing even the basic human rights, the strategies and the general principles of achieving equality can be outlined.
• The Challenge of Human Rights and Cultural Diversity It is however true that the existence of universal human rights is compromised by cultural relativism. In addition, it is wrong to assume that cultural relativism would interfere with the efficacy of these universal human […]
• History II, Early Human Rights Debates: The Truth About Pirates and the Social Justification The reading by Mark Roth describes the hidden historical truth behind pirates and their deceptive view by the modern society. This historical document depicts one of the earliest accounts of the mistreatment of Native Americans […]
• Human Rights Violations by Police: Accountable in Discharging Their Duties Corey in his study and reflection on two mass exonerations, that is, the Rampart and Tulia exonerations, identified police misconduct, and in particular perjury as the primary cause for wrongful convictions.
• International Human Rights Law The civil and political rights preceded the origins of the economic, social, and cultural rights, and thus they are deemed as second-generation rights.
• Challenges for Universal Human Rights These leaders tend to look at interpretations of human rights in the West as distinct to their economic and social backgrounds. Trying to instate universal human rights would therefore be seen as a method of […]
• Social Media and Human Rights Memorandum Considering a recent scandal with Facebook’s failure to protect people’s data in the Cambridge Analytica breach, it is feasible to dwell on the topic of human rights protection within the Internet.
• Human Rights and Dignity: Non-Western Conceptions It has been accepted that human rights are the notion which was developed in the West, however, some scientists tried to contradict this idea presenting the arguments that many nations battled for human rights many […]
• Basic Human Rights Violation The Human Rights Watch was formed in the year 1978 following the creation of the Helsinki Watch. The issue of terrorism has posed the greatest challenge in the operations of the Human Rights Watch.
• Global Community and Human Rights The development of a global community holds a lot of promise for the improvement of human rights. This is attainable by implementing a common code of human rights across the globe along the lines of […]
• Definition of Human Rights Human rights are freedoms established by custom or international agreement that impose standards of conduct on all nations.
• Theocratic Government’s Census and Human Rights The primary idea of the paper is to disclose moral opacities of the issue, conduct stakeholder impact analysis, and speculate on the collision of values of the theocratic governments and people.
• Thomas Jefferson as a Defender of Human Rights In conclusion, Thomas Jefferson was a steadfast defender of human rights, but most importantly, he fought for the rights of black people.
• Strategic Planning: Human Rights Watch The company’s competitive position represents the largest coverage of countries in various areas: monitoring military conflicts, protecting access to medicine, addressing and the rights of vulnerable segments of the population.
• Human Rights and Justice Sector: Article Review The central problem is the complex of new African American control institutions made up of the carceral system and the ruins of the dark ghetto.
• The Native Human Rights: Intergenerational Trauma Following are some strategies for addressing Indian citizens’ unique status, ways in which the fundamental right of Indians adheres, the practice of civil rights, the right to ownership of water, the right to be allowed […]
• Human Rights Reforms in the Arab World In modern history, the theme of human rights reformations in the Arab World has been influenced by the French and America Revolutions.
• Freedom of Speech as a Basic Human Right Restricting or penalizing freedom of expression is thus a negative issue because it confines the population of truth, as well as rationality, questioning, and the ability of people to think independently and express their thoughts.
• Violation of Human Rights: Tuskegee Syphilis Study The authors of the study and the authorities tried to justify human rights violations by saying that they were analyzing the effects of fully developing syphilis on Black males.
• Human Rights Violation in US Sports Despite the advancement in human rights in the most significant part of society, sports in various parts of the globe continue to cultivate actions of human rights violation.
• The Natural Human Right to Life: A Case Analysis One of such laws is the right to life, which an unknown shooter violated in a train carriage. The principle of justice is also violated since the identity of the murderer has not yet been […]
• Cultural Heritage and Human Rights in France For example, the imagination of the inhabitants of this region manifested itself vividly in many ways during the development and construction of the famous Notre Dame Cathedral.
• Retirement Options: Putting Human Rights to Work The employers consider terminating the old employees for their personal safety and the company’s economic stability. Therefore, public awareness stimulates action against discrimination and allows the employees to support the older people at work.
• Environmental, Social, and Governance Relating to Human Rights It is impossible to ignore the fact that the ESG trend can significantly affect the sphere of human rights in the energy sector.
• Biomedical Research Ethics and Human Rights This paper aims to discuss the impact of the history of research ethics on modern approaches and the protection of the rights of human subjects.
• The Absolute Human Right Not to Be Tortured The case against the prohibition of absoluteness contrary to torment and associated types of cruelty in universal law queries the ethical and legal conventions that form the foundation of the event of terrorism.
• Human Rights Issues: Hurricane Katrina in New Orleans Hurricane Katrina is considered one of the worst calamities in the history of the United States. The law of the United States gives the government the responsibility to protect the lives of its citizens.
• Rhetoric and Reality of Human Rights Protection For example, the prohibition of homosexuality in many countries of Africa and the Middle East, the restriction of China and Russia’s citizen’s freedoms, and the dictatorship of Africa and Latin America.
• Why Do Good? Human Rights Violations in Afghanistan To be more specific, this is because the main essence of Bentham’s philosophical standpoint is that only those actions which bring happiness and pleasure to others are morally right.
• Human Rights and the United Nations Charter The most significant resemblance of the New Laws of The Indies and Human Rights Law of the United Nations is the obligation to consider human rights as the primary basis for establishing the local regulations.
• Understanding Human Rights in Australia Needless to say, the key objective of this Act has been to improve the standards of legislation processes in the region.
• Understanding of Human Rights This provides us with a clue, as to what should account for the line of legal reasoning, regarding the illegality of the ‘burqa ban’, on the part of French Muslims in the European Court of […]
• Standing Rock Sioux Tribe Protest as a Violation of Human Rights Standing Rock claims that the pipeline would damage the sacred sites of their ancestors and is potentially harmful to the local environment and the economic situation of the tribe.
• Bridging the Line Between a Human Right and a Worker’s Choice Workers’ rights, in that sense, constitute one of the most important aspects of the human rights issue because many workers are willing to face peril if the market is able to pay a sufficient price.
• “Universal” Human Rights Agreement: Is It Possible? They can be defined as the freedoms and rights that all people in the world are endowed with from birth to death.
• The UN Declaration of Human Rights & The UN Millennium Project Human rights are “international norms that help to protect all people everywhere from severe political, legal, and social abuses”.
• Labor and Monopoly. Human Rights Simultaneously, the laborers do not enjoy any control on design and production over the work, thus, the staff are uncomfortable with their work. However, in the case of flight attendants, the profession is different in […]
• Reaction Paper about Treaty Bodies of Human Rights 2020 Therefore, it is important to evaluate the prospects of budget issues due to COVID-19, communication challenges due to reduced human contacts and pandemic concerns affecting human right defense as well as the general secretary’s rejection […]
• Human Rights in Islam and West Instead, it would stick to drafting standards and stay out of the actual developments and problems of the Stalinist Soviet Union, the United Kingdom and its colonies, and the segregationist United States and other powers […]
• African Human Rights Protection Many human rights activists have come forward to champion the rights of the minorities and in some instances agitate for democratic governance.
• Joseph Kony’s Violations of Human Rights Even so, conflicts in the 21st century are unique in that the warring parties are obliged to follow some rules of engagement and to respect human rights.
• Human Rights: Violated Historical and Ethical Principles The people in most of the research did not have a choice. The people in the experiments did not have the right to beneficence.
• Public International Law of Human Rights The present paper examines three important decisions issued by the International Court of Justice and the European Court of Human Rights in the field of state responsibility, human rights, and rights and duties of international […]
• US & UK Human Rights While Countering Terrorism The threat of terror and the further legal reactions of the nations to the problem were considered as challenging, and it is necessary to examine differences and similarities associated with the promotion of human rights […]
• Dignity: Is It a Basic Human Right and How to Protect of Self-Worth and Self-Determination? The problem has raised the issue of assisted suicide to end a life of suffering and the role of such a patient in deciding when and how they will die rather than waiting for the […]
• International Human Rights Opinion and Removing a Constitutionally Elected Government in Fiji It is believed that the gross overreaction of the military in the internal affairs of the Methodist church in Fiji has paved the way for international focus to be centered in this island, especially in […]
• Human Rights Act 1998 in British Legal System The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved”.[The Business of Judging] Such an approach isolated British constitutional […]
• Human Rights in Russia: A 2020 Report Concentrating on the Last Changes Overall, expert opinion on the outcomes of human rights in Russia in the future shows a lack of certainty the country’s record of infringements is going to improve. It is imperative to support the promotion […]
• Universal Declaration of Human Rights: Daily Briefs UN experts and ambassadors of foreign countries, including the US and the EU, responded to this violation, calling not to use weapons and allow the people to express their will.
• Will the Development of Artificial Intelligence Endanger Global Human Rights? The contradiction between the advantages of AI and the limitation of human rights manifests in the field of personal privacy to a larger extent.
• St. Johns Agency and Human Rights: Universal Policies to Support Human Rights The right to health as an inclusive right is one of the elements which states that the right is not only associated with access to health care facilities and services. The company incorporates various aspects […]
• Universal Human Rights on The Case of MV Tampa On the other hand, the country was enforcing its own right to protect the citizens from the perceived danger a justified precaution in light of numerous cases of illegal immigration and terrorist attacks.
• Human Rights Obligations of Multinational Corporations The argument of whether it is valid to impose obligations on violation of human rights on MNCs calls to reason the minimum caliber MNCs should maintain in their obligations towards human rights.
• Human Rights Issues in Australia: Bullying Among School-Going Age and Young People The focus of the topic of the day is on bullying. It is used to prevent or avoid the occurrence of a bullying experience.
• Tortures as the Form of Human Rights Abuse The law of the country must allow persons tortured in any form to be permitted to make an official complaint and investigation to be started on the credibility of the person.
• Human Rights and Global Democracy by Michael Goodhart Considering that the current human rights bodies focus mostly on rights of individuals, there is needs for translating the rights in a global context.
• Is FGM a Human Rights Issue in the Development of Humanism and Equality? Among the problems faced by developed states that receive migrants from third-world countries, the protection of women’s and girls’ rights in the field of reproductive health stands out.
• Cultural Values vs. the UN Declaration of Human Rights With the rise in diversity and the focus on the cross-cultural dialogue, the importance of acknowledging cultural values has risen.
• United States Role in Support of Universal Human Rights The first thing is to put an end to extrajudicial killings and detentions which will be in a bid to end intrusion to the freedom and the right to truth and justice.
• Universal Jurisdiction for Human Rights One of the most prominent roles in this process was played by the implementation of the Universal Declaration of Human Rights by the UN, by the development of the national and intercultural awareness of various […]
• Human Rights: Humanitarian Intervention Some of these are the right to liberty, the right to life, the right of the freedom to think and express oneself, and finally the right to receive equal handling as regards issues relating to […]
• A “Human Rights” Approach to Imprisonment In Europe human rights in prisons are overseen by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
• Social Factors in the US History: Respect for Human Rights, Racial Equality, and Religious Freedom The very first years of the existence of the country were marked by the initiatives of people to provide as much freedom in all aspects of social life as possible.
• South Africa: Human Rights in the Constitution The Bill of Rights serves as the foundation upon which the democratic character of the Republic of South Africa is built.
• Human Rights in the Disaster Capitalism Context By the word human rights, it is generally meant to be the protection of individual rights against the encroachment by the state and it also means the basic rights and freedom of individuals.
• Human Rights: Development, Commission, Listening, Monitoring The final draft of the Declaration was handed to the Commission being held in Geneva, therefore, the draft declaration that was sent to all UN member states for commentary is known as the Geneva draft.
• Human Rights in China, Tibet and Dafur In spite of the progress, achieved in the process of regulating the situation, and the ongoing process of peaceful settlement, the atmosphere of intensity is preserved in the country, and scale military attacks on innocent […]
• The Universal Declaration of Human Rights The Universal Declaration of Human Rights should be analyzed within the context of the political, cultural, and religious situation, emerging in the middle of the twentieth century.
• Vehicle Impoundment “HOON” Laws Are an Infringement of People’s Human Rights The other dimension presents the argument that the laws are meant for the well being of the pepole articulating that the legislation is in fact designed for the protection of the civil rights of the […]
• Global Human Rights: The European Court of Human Rights The European Convention on Human Rights, or officially called Convention for the Protection of Human Rights and Fundamental Freedoms became one of the most significant documents accepted by the Council of Europe.
• Human Rights and International Business The article deals with the crisis in Burma and the role of India and China in this crisis. Even though it might appear that the major theme of discussion is international politics, from the first […]
• Human Rights Violation in Kosovo The paper has discussed the massive violation of Human Rights in Kosovo, The International Community’s reaction and actions to the Kosovo crisis, and i have given my suggestions to the community on regard to Kosovo […]
• How Has Globalization Impacted on Issues of Human Rights? William Adler closely examines the disrupted lives of the three women who occupy an assembly-line job as the job and its company moves from New Jersey to rural Mississippi and to Matamoros, Mexico, across the […]
• Protecting America: Security and Human Rights 2007) After the 9/11 bombings of the World Trade Center, the US government under President Bush executed and implemented a series of actions that catapulted the country to a period of war.
• Basic Technology and Human Rights If some people are able to enjoy the facilities being introduced as a result of technological improvisations, and it reaches to a chosen few, with no chance in sight of reaching out to large number […]
• Refugee Women and Their Human Rights According to the researches have been made by UNHCR, 1998, found that 80% of the refugees immigrating to the United States and other countries of second asylum are women or children.
• Human Systems. Technology as a Human Right Since most of the world bodies continue to use the basic technology to communicate with the world e.g.about health and safety, access to these amodern’ basic technology should be regarded as a human right and […]
• Human Rights: Fredin v. Sweden Legal Case In this situation, the court considered a case that affected the protection of nature and the human right to own property and sentenced in favor of the state.
• Human Rights and Security in Post-Soviet Russia The collapse of the Soviet Union marked the end of the Cold War and the polarization of the world. On the one hand, the collapse of the Soviet Union led to the rapid acceleration of […]
• Global and Regional Human Rights Institutions Overall, the topic of human rights and their protection through economic sanctions and other strategies requires additional attention from the states and international institutions.
• Prisoners’ Basic Human Rights and Their Violation In the report, McKelvie et al.highlight the important contradictions behind the blanket ban, namely the lack of understanding behind the purpose of the prison, the influence of the media and the public press, as well […]
• Human Rights of Migrants by Francois Crepeau The report by Francois Crepeau addresses the deaths of migrants in the central Mediterranean Sea and evaluates the European Union border control analysis, migration policy, and the application of values and human rights in the […]
• The U.S. and the UAE Human Rights Comparison A detailed analysis of the two nations can reveal significant and noteworthy differences between the overall attitudes of the U.S.and UAE.
• Monsanto: Profits, Laws, and Human Rights Although the majority of multinational giants have affirmed their conviction in upholding the letter of the law and professional ethics, in practice, a good portion of them has issues with either the ethical or the […]
• Malala Yousafzai – Pakistani Human Rights Activist The world learned about the girl after a gunman burst into a school bus and shot the girl in the head, thereby avenging her criticism of the Taliban and neglecting the prohibition to attend school.
• Human Rights and Laws on the International Level Zewei provides a characterization of the Tributary System and the concept of the Celestial Order of China, the impact of international law on China’s Confucianism worldview, and the process of integration of international law into […]
• Human Rights Issues During the Holiday Season Should we stick to the habitual “Merry Christmas” and stay loyal to the traditions of the majority or embrace a more neutral “Happy Holidays” and show respect to the cultural diversity?
• R. Lemkin and E. Roosevelt as Human Rights Activists He devoted all his time and energy to trying to persuade the new delegates of the United Nations of the importance of the fight against genocide.
• Universal Human Rights in Theory and Practice It is essential to highlight the contributions of Ghonim because he was one of the first to leverage the use of social media.
• Human Rights Poster Design and Analysis First, I realised that placing the title or theme of the poster at a strategic point goes a long way to draw the attention of the target audience.
• Human Rights of Poor in Developing Countries Their interactions with those in authority and the decision makers in the society have been marred with many obstacles and denied the rights to freedom of speech and expression that is being enjoyed by the […]
• Communication as a Human Right and Its Violations According to the international laws, every person has a range of rights which should be met in the society completely, and the right to communicate is one of the most significant ways for a person […]
• Human Rights and Relations in Education and Career The information is located on the left and above and is easy to navigate. This is useful to the employees as it makes them aware of the key needs to the job and the benefits.
• China’s Land Grabs and Human Rights Violation What interested you about the article and how is the content of the article related to aspects of global citizenship? Upon reading the news article from Amnesty International’s website about Chinese officials’ land grabbing […]
• The Human Rights and Its Basic Principles There is a perspective that the initiation of the given process can be justified by the need to protect citizens and the state.
• Human Rights in Naturalistic and Political Conceptions Conferring to one venerable explanation, the Naturalistic Conception of Human rights, human rights are the privileges and rights that we enjoy by the mere fact that we are humans.
• Chile’s Human Rights Violations in 1973-90 After the death of the president, the military took office and a state of civil unrest engulfed the country. Human rights violations experienced in Chile have been highlighted and the actions are taken to address […]
• Islamic Culture, Its History and Human Rights The Christian and Jewish cultures gradually reshaped the Arabian Peninsula; people of Arabia became more accustomed to the concept of Abrahamic religion, while paganism was on the decline. Various forms of arts flourished in the […]
• History of the Universal Declaration of Human Rights Things did not look too bright at the time: the condition of Japan after Hiroshima and Nagasaki bombings; the divided Koreas; the beginning of the cold war between the Soviet Union and the U.
• Red Cross and Red Crescent Societies for Human Rights Established in 1919 as the International Federation of the Red Cross and Red Crescent Societies, the organization has been very instrumental in championing the improvement of human rights and the reduction of human suffering.
• Equality, Diversity and Human Rights in Healthcare Equity can be achieved in a health system that acknowledges the diversity of the population respecting the expectations and needs of the patients, the staff and the services as a whole.
• Syrian Crisis and Human Rights Instruments However, the increase in the number of migrants triggers a range of concerns for the states that they choose as the target location.
• Culture and Religion in Human Rights Universality Fagan asserts that a commitment to the universal legitimacy of human rights is not consistent with the dedication to the principle of respecting cultural diversity.
• Consequentialism and Human Rights Ethics is a moral code that governs the behavior or conduct of an activity.”Ethics is thus said to be the science of conduct”.
• The Evolution of Human Rights: France vs. America The Age of Enlightenment made human rights one of the major concerns of the world community, which led to the American and French Revolutions the turning points in the struggle for justice.
• Ethical Reasoning Theories and Human Rights Utilitarianism involves the assessment of the consequences of any action taken by the business since it involves a common good for the majority.
• Human Rights and Resistance of South Asia To get an in-depth understanding of the question and discuss it appropriately, we will refer to the status of women in South Asia where women’s rights are still discriminated in the light of social and […]
• Domestic Legal Traditions and State’ Human Rights It is the obligation of every state to adhere to the human rights standard. One of the greatest similarities is that most of the countries have almost the same laws.
• The Issues of Human Rights The scope of this review starts from the history of Labour Human Rights and examines how various authors have presented their case studies regarding the effectiveness or lack of it of the policies that govern […]
• International Justice for Human Rights Violation In order to understand the status of these amendments, it is important to appreciate the relevance of the definition given in reference to acts and the crime of aggression.
• Human Rights and Climate Change Policy-Making Advocates of the inclusion of human rights feel that there is an important link between climate impacts and human rights and as such, integrating the two would promote the formulation of the best policies. Specifically, […]
• Just War in Human Rights Perspective When a war is about to begin, people, who start the war, have to understand the role of human rights in the process of making decisions and clearly identify the peculiarities of the just war.
• The Human Right to Privacy: Microsoft and the NSA Microsoft had started to collaborate with the NSA to help it to offer services to its customers, but as they progressed, the NSA began to access all the programs of the Microsoft that made private […]
• Child Labor Issue According to the Human Rights The International Labor Organization defines child labor as “work that deprives children of their childhood, their potential, and their dignity, and that is harmful to physical and mental development”1 Being a United Nations agency, ILO […]
• Economics and Human Rights: Areas of Overlap Theories allied to the two disciplines play a critical role in explaining development because human rights theories give economists an opportunity to employ legal and political concepts in the process of drafting policies aimed at […]
• Human Rights Abuses and Death Penalty in the UAE There are many explanations of why a number of Arab people remain to be vulnerable to abuses and violations of human rights. Besides, many people are still challenged by the inability to participate in the […]
• Human Rights and Legal Framework in Poor Countries In this article, Benton traces the origin of international order to the 17th century. Moreover, Benton claims that the two approaches have been utilized to explain effect of imperial administration on trends in international law.
• Women’s Fight for Equal Human Rights According to the readings assigned, the term feminist could be used to refer to people who fought for the rights of women.
• Immigrants’ Human Rights in America: The Issue of Immigration as Old as the Country In order to make the constitution a living document, America should introduce effective measures in ensuring that the rights of all immigrants are fully recognized, secured and protected.
• The Human Right to Water: History, Meaning and Controversy The utilitarianism theory of ethics relates to the welfare rights and the libertarianism theory of ethics relates to the liberty rights.
• The Evolution of Human Rights in Canada In addition, the movements aided the treaties to champion for the acquisition of rights of associations and political developments among the indigenous communities living in Canada.
• Human Rights and Their Role in Public Opinion Making The quest for human rights create a mental picture that draws the audience’s assumed knowledge of the need to end the restrictions of human beings in their endeavor to reach out to greatness in life.
• Human Rights and Intervention in Public Opinion Making According to Bloomer, human rights demonstrate the public ideas that are used in the media and politics to ensure that they reflect the true meaning of the intended actions.
• Gender Studies: Queer Politics and Human Rights As earlier stated, the idea of queer politics came about to confront injustice and to ensure that the rights of the minority groups in the society are respected.
• Human Rights Issues in the Bahrain Members of the Sunni minority are the rulers of the monarchy; the present king is Hamad bin Isa Al Khalifa, and he has held the office since 1999.
• Conflict Over Human Rights The following discussion is a description concerning the conflicts between Iran and the United States in the promotion of human rights some violations of human rights by Iran, such as abuse of the captives.
• Human Rights in Relation to Catholic Theology The church declared the acts of slavery as infamy and conjured to discourage slavery since it was dishonored God and destroyed the lived of many people.
• The Ontario Human Rights Commission Application forms for job seekers and the process of interviewing applicants are usually subjected to all the mentioned elements of prejudice and discrimination.
• Torture and Human Rights However, the full state of affairs in Abu Ghraib prison came to the knowledge of the public when a report by the military into the first pictures leaked to an online magazine.
• Why Migration Cannot Be a Basic Human Right but Always Been a Part of Human Culture The United Nations has acknowledged the individual right of movement with Article 13-2 of the Universal Declaration of Human Rights stating, “Everyone has the right to leave any country, including his own, and to return […]
• Human Rights Violations in Chile In order to confront past abuses and human rights violations, both civilian collaborators and the past military officers who took part in the violations have been taken through the prosecution process owing to the torture […]
• Human Rights in 21st Century: China Although there have been cases of human rights violations in China, recent events and efforts depict the country as working towards promoting individual rights.
• Faith, Justice, War – and Human Rights in the Realm of the Present-Day World Quran: The Most Ancient and Sacred Islamic Book as the Basis for the Laws on Human Rights Considering the Issue from a Different Perspective: The Fifteen Postulates Security of life and property: bi-al haqq and […]
• Ethical Relativism in Human Rights To support this point of view, the nature of human society, the standardization of human rights and the progress of human rights will be analyzed.
• Human Rights and NGOs In the world today, there are numerous international human rights treaties which stipulate the obligations of states, and the rights of the citizens in these states and beyond2.
• Human Rights Issues in Guantanamo Bay It is expressed in the article that although the detainees are international criminals, the move by the US to detain them at the Guantanamo Bay is an abuse of international laws on the human rights.
• The Human Rights Violation in the Republic of Korea The human rights situation under President Kim Jong-Un in the Democratic People’s Republic of Korea has remained dire due to the government’s unwillingness to yield to the recommendations by the United Nations Human Rights Council’s […]
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• The Politics of International Human Rights Law To uphold the reliability of the country’s immigration programs, the policy requires three categories of immigrants to be subjected to compulsory incarceration.
• Universal Declaration of Human Rights UDHR is quite relevant to human service professionals in the field of domestic disputes. The assertions of UDHR’s article 25 are important to domestic dispute professionals.
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• Paul Farmer about the Human Rights As a result, Farmer argued that the current struggle for the essential and most vital human rights was to promote the social, as well as the economic rights of the poor individuals around the globe.
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• What Are the Barriers to Human Rights Being Recognized as Truly Universal in Application?
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• What Are Human Rights and From Where Do They Originate?
• How Were Human Rights Violated During the French Revolution?
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• What Human Rights Dilemmas Do Social Workers Face?
• How Does Political Corruption Violate Human Rights?
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• When Religious Beliefs Overpower Human Rights?
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• Chicago (A-D)
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What Are Natural Rights?

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When the authors of the U.S. Declaration of Independence spoke of all people being endowed with “unalienable Rights,” such as “Life, Liberty and the pursuit of Happiness,” they were confirming their belief in the existence of “natural rights.”

In modern society, every individual has two types of rights: natural rights and legal rights.

• Natural rights are rights granted to all people by nature or God that cannot be denied or restricted by any government or individual. Natural rights are often said to be granted to people by “ natural law .”
• Legal rights are rights granted by governments or legal systems. As such, they can also be modified, restricted or repealed. In the United States, legal rights are granted by the legislative bodies of the federal, state and local governments.

The concept of a natural law establishing the existence of specific natural rights first appeared in ancient Greek philosophy and was referred to by Roman philosopher Cicero . It was later referred to in the Bible and further developed during the Middle Ages. Natural rights were cited during the Age of Enlightenment to oppose Absolutism — the divine right of kings.

Today, some philosophers and political scientists contend that human rights are synonymous with natural rights. Others prefer to keep the terms separate in order to avoid the mistaken association of the aspects of human rights not typically applied to natural rights. For example, natural rights are considered to be beyond the powers of human governments to deny or protect.

Jefferson, Locke, Natural Rights, and Independence.

In drafting the Declaration of Independence, Thomas Jefferson justified demanding independence by citing several examples of ways in which England’s King George III had refused to recognize the natural rights of American colonists. Even with fighting between colonists and British troops already taking place on American soil, most members of Congress still hoped for a peaceful agreement with their motherland.

In the first two paragraphs of that fateful document adopted by the Second Continental Congress on July 4, 1776, Jefferson revealed his idea of natural rights in the often-quoted phrases, “all men are created equal,” “inalienable rights,” and “life, liberty, and the pursuit of happiness.”

Educated during the Age of Enlightenment of the 17th and 18th centuries, Jefferson adopted the beliefs of philosophers who used reason and science to explain human behavior. Like those thinkers, Jefferson believed universal adherence to the “laws of nature” to be the key to advancing humanity.

Many historians agree that Jefferson drew most of his beliefs in the importance of natural rights he expressed in the Declaration of Independence from the Second Treatise of Government, written by renowned English philosopher John Locke in 1689, as England’s own Glorious Revolution was overthrowing the reign of King James II.

The assertion is hard to deny because, in his paper, Locke wrote that all people are born with certain, God-given “inalienable” natural rights that governments can neither grant nor revoke, including “life, liberty, and property.”

Locke also argued that along with land and belongings, “property” included the individual’s “self,” which included well being or happiness.

Locke also believed that it was the single most important duty of governments to protect the God-given natural rights of their citizens. In return, Locke expected those citizens to follow the legal laws enacted by the government. Should the government break this “contract” with its citizens by enacting “a long train of abuses,” the citizens had the right to abolish and replace that government.

By listing the “long train of abuses” committed by King George III against American colonists in the Declaration of Independence , Jefferson used Locke’s theory to justify the American Revolution.

“We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.” – The Declaration of Independence.

Natural Rights in a Time of Enslavement?

“All Men Are Created Equal”

As by far the best-known phrase in the Declaration of Independence, “All Men Are Created Equal,” is often said to summarize both the reason for revolution, as well as the theory of natural rights. But with the practice of enslavement common throughout the American Colonies in 1776, did Jefferson – a life-long enslaver himself – really believe the immortal words he had written?

Some of Jefferson’s fellow enslaver separatists justified the obvious contradiction by explaining that only “civilized” people had natural rights, thus excluding enslaved people from eligibility.

As for Jefferson, history shows that he had long believed the slave trade was morally wrong and attempted to denounce it in the Declaration of Independence.

“He (King George) has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither,” he wrote in a draft of the document.

However, Jefferson’s anti-enslavement statement was removed from the final draft of the Declaration of Independence. Jefferson later blamed the removal of his statement on influential delegates who represented merchants who were at the time dependent on the Transatlantic slave trade for their livelihoods. Other delegates may have feared the possible loss of their financial support for the expected Revolutionary War.

Despite the fact that he continued to keep most of his enslaved workers for years after the Revolution, many historians agree that Jefferson sided with Scottish philosopher Francis Hutcheson who had written, “Nature makes none masters, none slaves,” in expressing his belief that all people are born as moral equals. On the other hand, Jefferson had expressed his fear that suddenly freeing all of the enslaved people might result in a bitter race war ending in their virtual extermination.

While the practice of enslavement would persist in the United States until the end of the Civil War 89 years after issuance of the Declaration of Independence, many of the human equality and rights promised in the document continued to be denied to Black people, other people of color, and women for years.

Even today, for many Americans, the true meaning of equality and its related application of natural rights in areas such as racial profiling, gay rights, and gender-based discrimination remain an issue.

First Amendment and Natural Rights

While it was third on the list of original proposals in the Bill of Rights that Congress submitted to the states for approval, the First Amendment was the first amendment to deal with natural individual rights. Almost without exception, the rights in the First Amendment are thought to be natural rights because they deal with matters of conscience, thought, and expression.

The two clauses on religion—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are designed to allow individuals to follow their conscience in matters of faith and worship.

Clauses relating to speech, press, peaceable assembly, and petition are designed to promote discussion and debate concerning the kind of governmental policies that suit a representative form of government, and arguably to promote the development of the individual’s personality.

It is doubtful that the authors of the First Amendment would have claimed to have originated the rights inherent in the amendment. Indeed, the Federalists’ initial opposition to the Bill of Rights stemmed in part from the belief that such rights were naturally inherent liberties that did not need to be specifically listed. By contrast, some provisions—such as the Fifth Amendment’s prohibition against double jeopardy or the Sixth Amendment’s requirement of trial by jury—are clearly man-made mechanisms for enforcing fundamental principles of fairness, not morally mandated rights.

Embodying such rights within a popularly adopted written text like the First Amendment is intended to preclude the necessity for resorting to unlawful means for securing their protection. However, such rights would arguably be legitimate moral claims even if they were not embodied in the Constitution. For example, the Supreme Court has on occasion made decisions based on un-enumerated general moral principles, or natural rights, rather than based on a specific constitutional provision. Some legal scholars, for example, believe the modern assumed right to privacy is such a judicially created right.

• Natural Law: Definition and Application
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• What Rights and Liberties Are Guaranteed by the U.S. Constitution?
• James Madison and the First Amendment
• The First 10 Amendments to the Constitution
• What Is a Tricolon?
• About the Civil Rights Cases of 1883

ARTICLE CONTENTS

Natural rights and the first amendment.

abstract . The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

author. Assistant Professor, University of Richmond School of Law. The author thanks Randy Barnett, Will Baude, Nathan Chapman, Saul Cornell, Jonathan Gienapp, Masha Hansford, Pam Karlan, Larry Kramer, Corinna Lain, Kurt Lash, Maeva Marcus, Michael McConnell, Bernie Meyler, Zach Price, Jack Rakove, Richard Re, Fred Schauer, Sid Shapiro, Larry Solum, Andrew Verstein, Kevin Walsh, the editors of the Yale Law Journal , and participants in the Federalist Society Junior Scholars Colloquium, the Georgetown Constitutional Law Colloquium, the Institute for Constitutional History Junior Scholars Seminar, the Loyola University Chicago Constitutional Law Colloquium, the Stanford Law School faculty workshop, the University of Richmond School of Law faculty workshop, the University of San Diego Originalism Works-in-Progress Conference, and the Wake Forest University School of Law faculty workshop.

Introduction

Governments need to restrict expression . Whether someone is falsely yelling “fire” in a crowded theater, lying on the witness stand, or conspiring to commit crimes, speech can be tremendously harmful . Yet communication is essential to human flourishing, and history has shown time and again that governments are prone to censorial abuse. An enduring challenge for any legal system is balancing these concerns .

In its role as constitutional mythologist, the Supreme Court often says that the First Amendment answers this challenge. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs,” the Court recently declared, concluding that neither politicians nor judges may “attempt to revise that judgment simply on the basis that some speech is not worth it.” 1

After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy . “One can keep going round and round on the original meaning of the First Amendment,” Rodney Smolla writes, “but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.” 2 Conventional wisdom holds that the freedom of speech and the freedom of the press were equivalent concepts, together comprising what we would now call a freedom of expression. 3 But another prominent view is that the freedom of speech, unlike the freedom of the press, emerged from the legislative privilege of speech and debate, 4 thus providing robust protection for political speech. 5 Still more scholars conclude that “freedom of speech, unlike freedom of the press, had little history as an independent concept when the first amendment was framed.” 6 And while some scholars espouse “little doubt that the First Amendment was meant . . . to forbid punishment for seditious libel,” 7 debates among the Founders on that topic would seem to belie any broadly shared original understanding of speech and press freedoms. 8 No wonder so many commentators have given up the search for original meaning, with some concluding that the First Amendment was simply “an aspiration, to be given meaning over time.” 9

But perhaps this indeterminacy stems from our own interpretive approach. “[T] he first key to understanding the American Founding ,” historian Jonathan Gienapp cautions, “ is appreciating that it is a foreign world , ” filled with many concepts that bear only a deceptive resemblance to modern ideas. 10 Perhaps , then, we have been looking for original meaning in the wrong way, instinctively trying to fit the historical evidence to our own conception of constitutional rights.

Modern lawyers tend to view constitutional phrases like “the freedom of speech” as terms of art, sparking searches for those terms in eighteenth-century legal sources. In the context of speech freedom, that effort produces sparse and inconsistent results. Americans, it turns out, rarely ever used the term “freedom of speech.” Meanwhile, the Founders frequently mentioned press freedom, but they did so in seemingly conflicting ways. The liberty of the press, William Blackstone famously insisted, “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 11 Founding Era commentaries about press freedom, however, routinely ventured beyond the topic of press licensing. 12

Proposing a paradigm shift, this Article argues that Founding Era elites shared certain understandings of speech and press freedoms at a more abstract, conceptual level even though they disagreed about how to apply those concepts to particular constitutional controversies. The contested implications of speech and press freedoms at the Founding, in other words, have obscured their more widely shared meanings . To comprehend these meanings, however, we must step back from the nitty-gritty details of legal doctrine and grapple with the conceptual foundations of the First Amendment, starting with the largely forgotten language of Founding Era rights discourse. 13

For American elites, rights were divided between natural rights , which were liberties that people could exercise without governmental intervention, and positive rights , which were legal privileges or immunities defined in terms of governmental action or inaction, like the rights of due process, habeas corpus, and confrontation. 14 Consequently, distinguishing natural rights from positive rights was simple. “A natural right is an animal right,” Thomas Paine succinctly explained, “and the power to act it, is supposed, either fully or in part, to be mechanically contained within ourselves as individuals.” 15 Natural rights, in other words, were those that did not depend on the existence of a government. Speaking, writing, and publishing were thus readily identifiable as natural rights.

Though easy to identify, natural rights at the Founding scarcely resembled our modern notion of rights as determinate legal constraints on governmental authority. Rather, Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. 16 And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement. 17 Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal “trumps” in the way that we often talk about rights today.

By the late eighteenth century, however, expressive freedom also connoted a variety of more determinate legal protections. The liberty of the press, for instance, often referred specifically to the rule against press licensing ; by prohibiting prior restraints on the press, this rule put juries in charge of administering governmental restrictions of expression through criminal trials. Meanwhile, the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from regulation. In this limited way, expressive freedom entailed legal “trumps.” Much of our modern confusion about the history of speech and press freedoms stems from the way that the Founders—immersed in their own constitutional language—silently shifted between these two dimensions of expressive freedom .

Indeed, Founding Era rights discourse featured a symbiotic relationship between natural rights and legal rules. 18 In part, the common law indicated the scope of natural rights both because of a presumed harmony between the common law and natural law and because common-law rules were presumptively based on popular consent and consistent with the public good. At the same time, the Founders sometimes used natural law—the law of reason—to help shape their understandings of positive law. To recognize a natural right, in other words, implied recognition of its customary legal protections, and vice versa. 19

The Founders, however, often disagreed about the precise relationship between natural rights and the common law, leading to a confusing array of statements about expressive freedom. In general, Federalists based their views about natural rights on legal authority, not practical experience or abstract reasoning, making judicial accounts of the common law decisive. But an opposing interpretive tradition championed “popular” understandings of constitutional and legal commands. 20 Advocates of this view, Saul Cornell explains, were “deeply suspicious of ceding so much authority to lawyers and judges,” sometimes even going so far as to compare “the chicanery of lawyers with the practices of ‘Romish priests in matters of religion.’” 21 For these “popular” interpreters, who were often themselves erudite elites, practical experience and common sense were paramount.

Because of these methodological disagreements, Americans who shared an understanding of speech and press freedoms as natural rights often profoundly disagreed about the legal implications of the First Amendment. Federalists in the late 1790s, for instance, typically invoked the English common law to defend the constitutionality of sedition prosecutions, while many Republicans appealed to practical experience and common sense to reach the opposite conclusion. Yet this virulent disagreement among contending elites began with a shared recognition of expressive freedom as a natural right. This Article’s reframing thus illustrates that identifying methodological differences among the Founders can help clarify, and not merely complicate, 22 the historical meanings of constitutional concepts.

Debates about expressive freedom also were wide ranging because the Founders often vehemently disagreed about which regulations of speech promoted the public good. Many viewed narrowly drawn sedition laws as enhancing public debate by combating efforts to mislead the public. 23 Others thought that sedition laws created more harm than good by chilling too much useful speech. 24 But properly understood, this conflict did not reflect profound divisions about the concept of expressive freedom. Rather, the Founders disagreed about how to apply that concept to sedition laws. 25

To set the stage for this historical argument, Part I discusses the Article’s historical contribution and previews its potential modern implications. It begins by offering a brief overview of related scholarship. This overview sets in relief the Article’s focus on the interplay between natural rights and the common law. The Part then explores the ways that this revisionist account could influence modern understandings of the First Amendment. In particular, it emphasizes that the Speech and Press Clauses were originally rooted in a broader Founding Era discourse about natural rights—not, as modern scholarship generally posits, a particular theory about why expression warrants constitutional protection.

Part II then turns to the history, drawing out three different meanings of speech and press freedoms at the Founding. First, speech and press freedoms were natural rights that were regulable in promotion of the public good, meaning the good of the society as a whole. 26 Second, the Founders widely thought that the freedom to make well-intentioned statements of one’s views belonged to a subset of natural rights, known as “unalienable” natural rights, that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail. 27 Third , Americans recognized a variety of common-law rules that offered more determinate legal protection for expressive freedom. 28 A concluding Section then explores the contested interrelationship between these concepts. 29

Part II, it bears emphasis, aims to recover the principles that Founding Era elites had in mind when designing and applying the Speech and Press Clauses, but it is not directly concerned with the original meanings of those provisions. Postponing that discussion until Part III is deliberate. Indeed, this Article defends the view that we cannot understand the meaning of the First Amendment until we first understand the forgotten language in which it was written.

With this conceptual framework in mind, Part III offers a novel interpretation of the original meanings of the Speech and Press Clauses. The argument proceeds by connecting the text and early interpretations of the First Amendment to the framework developed in Part II. Throughout the ratification debates and into the First Congress, supporters of a bill of rights pushed for constitutional recognition of existing concepts. Therefore, to the extent that Founding Era elites originally understood the First Amendment as imposing determinate limits on congressional power, these limits were delineated by accepted common-law rules and by the inalienable natural right to make well-intentioned statements of one’s thoughts. Beyond these principles, however, the First Amendment left unresolved whether certain restrictions of expression promoted the public good. In laying out this argument, this Part also rebuts competing scholarly accounts of the original meanings of the Speech and Press Clauses and emphasizes the ways in which these Clauses had distinct meanings.

The Article then concludes by returning to the modern implications of First Amendment history. A point of emphasis is the historical distance that separates us from our constitutional past. If the Supreme Court wanted to apply only those legal rules that the Founders recognized (or likely would have recognized), a huge swath of modern case law would have to go. There is no evidence, for instance, that the Founders denied legislative authority to regulate expressive conduct in promotion of the public good—a principle that runs contrary to countless modern decisions.

But beyond case-specific implications is a more fundamental point: the early history of speech and press freedoms undercuts the mythological view that foundational principles of modern doctrine inhere in the original Speech Clause. The Justices, for instance, have repeatedly asserted that the First Amendment itself strictly disfavors content-based regulations of speech. 30 And when the Court recently derided the government’s suggestion that some speech might be deemed “low value” and thus subject to less rigorous scrutiny, it acted as if the Speech Clause contains a full set of doctrinal rules. 31 Lowering judicial scrutiny for less valuable forms of speech, the Court explained, would “revise th[e] judgment” that “[t]he First Amendment itself reflects.” 32 Doubling down on this idea, the Court later insisted that “[t]he whole point of the First Amendment” was to prevent speech restrictions based on “a generalized conception of the public good.” 33

Simply put, however, the First Amendment did not enshrine a judgment that the costs of restricting expression outweigh the benefits. At most, it recognized only a few established rules, leaving broad latitude for the people and their representatives to determine which regulations of expression would promote the public good. Whether modern doctrine serves those original principles is then a judgment that we must make. The original meanings of the Speech and Press Clauses do not provide the answer.

I. stakes and implications

Before turning to the eighteenth century, it is worth making some preliminary remarks about this Article’s contribution to historical scholarship and its implications for modern doctrine.

A. Scholarly Contribution

This Article charts a new historical path by concentrating on the conceptual meanings , and not merely the legal dimensions, of speech and press freedoms. For much of the twentieth century, scholarship about expressive freedom at the Founding overwhelmingly focused on the compatibility of sedition prosecutions with the First Amendment. 34 While historically enlightening, much of this scholarship offered little clarity about the First Amendment’s original meaning beyond the topic of sedition. Some historians and legal academics have pursued that effort more directly, but the literature falls far short of consensus. Scholars typically treat speech and press freedoms as common-law rules, leading many to emphasize the ban on prior restraints. 35 Others, relying both on Federalist claims during the ratification debates and on Republican arguments against the Sedition Act, insist that the Speech and Press Clauses categorically withdrew all federal authority over expression. 36 Still more assert that the Speech Clause was linguistically and substantively derived from the legislative privilege of speech and debate. 37 Finally, many have simply thrown up their hands and declared the enterprise to be hopeless or misguided. 38

A few scholars have identified a connection between the First Amendment and natural rights, but none has accounted for the multifaceted way that the Founders referred to speech and press freedoms. Philip Hamburger, for instance, classifies both freedoms as natural rights, emphasizing governmental authority to prevent encroachment on the rights of others. 39 Yet Hamburger never grapples with the complex relationship between natural rights and customary legal rules—an issue that profoundly shaped Founding Era disputes about expressive freedom. 40 Meanwhile, others who describe speech and press freedoms as natural rights typically view the First Amendment as a categorical ban on any federal restrictions of expression. 41

This Article, by contrast, presents an understanding of Founding Era expressive freedom grounded on the interrelationship between common-law traditions and natural-rights principles. As a general matter, natural rights did not impose fixed limitations on governmental authority. Rather, Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good—generally defined as the good of the society as a whole. 42 Recognition of natural rights, in other words, simply set the terms of political debate, not the outcomes. In this sense, speech and press freedoms were expansive in scope—applying to all forms of expression—but weak in their legal effect. And no evidence indicates that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare. 43 (Although perhaps strange to modern readers, this interpretation of the First Amendment—generally permitting the government to restrict speech in the public interest—survived into the early twentieth century. 44 )

Nonetheless, the Founders also accepted that speech and press freedoms denied the government narrower slices of regulatory power. Everyone agreed, for instance, that the liberty of the press encompassed at least the common-law rule against press licensing. Americans also prized the right to a general verdict in sedition trials—enabling juries to decide questions of law and fact—and the right to present truth as a defense. Based largely on natural-rights principles, the Founders further rejected governmental authority to punish well-intentioned statements of one’s thoughts absent direct injury to others. 45 But this principle did not extend to speech designed to mislead or harm others, nor is there evidence that it offered protection for what we now call “expressive conduct.” 46 In these limited ways, speech and press freedoms were narrow in scope but strong in their legal implications. And the legal dimensions of expressive freedom reveal how the Founders sometimes treated speech and press freedoms as distinct, with press freedom encompassing only the legal rights of printing-press operators.

The claims made in the previous two paragraphs—developed further in Part II—simply describe a historical system of thought that Founding Era elites widely embraced. This Article does not attempt the impossible task of uncovering how every American actually thought about expressive freedom. Consequently, the discussion of “original meaning” in Part III aims to recover how Founding Era elites understood (where we have direct evidence), or would likely have understood (where we lack direct evidence), the Speech and Press Clauses of the First Amendment. 47 But this Article has little to say about the views of Americans who were unfamiliar with the underlying principles of social-contract theory. 48

The interpretive relevance of my historical claims is therefore contingent. Scholars using some other methodology might propose an alternative understanding of the First Amendment as the correct meaning at the time of the Founding. 49 This Article cannot contest that claim because, as historical scholarship, it does not take any position on what made a constitutional interpretation “correct . ” 50 Rather, it argues that Founding Era elites widely embraced a particular system of thought and that this system of thought undergirded how those elites wrote and originally understood the First Amendment.

B. Implications for Modern Doctrine

Shifting from the perspective of a historian to that of a modern constitutional interpreter, however, it might be reasonable to assume that elite views suffice to show what now counts as an “original meaning.” After all, the historical evidence that scholars and judges routinely use in modern constitutional interpretation consistently reflects the perspectives of elites. 51

So what relevance does this history have today? Most judges and constitutional scholars think that Founding Era evidence does and should matter when interpreting the Constitution . 52 On this assumption, accounting for the original meanings of speech and press freedoms would have profound consequences for First Amendment theory and doctrine.

In terms of its consequences for theory, history undermines the notion that the First Amendment itself embraces a particular rationale for protecting expression. Such theories dominate modern debates. 53 The meaning and scope of the First Amendment, scholars usually posit, depend on why the Constitution singles out speech and press freedoms. 54 Some theories emphasize republican government, 55 others the marketplace of ideas, 56 and still more the autonomy of individuals. 57

Viewed historically, however, the First Amendment did not enshrine a particular rationale for expressive freedom. To be sure, the men who drafted and ratified the First Amendment had various reasons for why they valued expression. 58 And when it came time to apply the Speech and Press Clauses, various theories of expressive freedom could inform an assessment of the public good. But these theories were not themselves baked into the First Amendment.

Recovering the history of expressive freedom also has potentially dramatic consequences for legal doctrine. Worth highlighting, yet again, is the “utter differentness and discontinuity of the past.” 59 Indeed, modern speech doctrine, which emerged in the twentieth century, bears almost no resemblance to eighteenth-century judicial decisions. 60 And the Founders certainly did not envision courts crafting legal rules to prohibit speech-suppressing legislation that judges viewed as contrary to the public good. 61 In that sense, modern doctrine is fundamentally inconsistent with Founding Era law.

For originalists with a narrow conception of the judicial role, 62 this variance either calls for a radical dismantling of speech doctrine, or it requires a concession that precedent has displaced original meaning. 63 A huge swath of modern case law, after all, falls outside of the First Amendment’s original legal ambit, including its ban on prior restraints and its protection for well-intentioned statements of one’s thoughts. If an originalist wanted First Amendment doctrine to track Founding Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson , 64 Boy Scouts of America v. Dale , 65 Citizens United v. FEC , 66 and Snyder v. Phelps , 67 among many, many others, would likely have to go. 68

But other originalists argue that judges are empowered, or even duty-bound, to give concrete meaning to underdeterminate constitutional provisions. 69 If one accepts this view, then modern law might still comport with original meaning. For instance, a natural-rights reading of the First Amendment would require the government to act for reasons that promote the public good, and modern doctrine can perhaps be understood, or justified, as prophylactic rules that help ferret out illicit motives. 70 To be sure, these judicial efforts bear little resemblance to anything that the Founders themselves would have endorsed. But they can still be seen as a way of implementing the original concepts of speech and press freedoms using modern doctrinal tools. 71 And it is to those historical concepts that we now turn.

II. natural rights at the founding

When James Madison proposed constitutional amendments in 1789, he noted that his draft included “ natural rights , retained—as Speech, Con[science] . ” 72 Indeed, eighteenth-century writers often identified speech as “a natural Right, which must have been reserved, when Men gave up their natural Rights for the Benefit of Society.” 73 But what were natural rights?

Section II.A explores the general eighteenth-century meaning of natural rights. In short, natural rights shaped how the Founders thought about the structure and purposes of government—ensuring that the government could restrain natural liberty only to promote the public good and only with the consent of the people. But these “rights” (including the natural right of speaking, writing, and publishing) generally were not determinate legal privileges or immunities.

Since natural rights were subject to governmental regulation, we might wonder why the Founders bothered amending the Constitution to include any of them. 74 Indeed, some Federalists made exactly this argument when opposing an enumeration of rights. The purpose of declaring rights, John Jay explained, was to establish that “certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative.” 75 Under a republican government, however, all legislative power was exercised by elected representatives , thus obviating any need to enumerate natural rights. 76 Though puzzling today, Jay’s argument had considerable merit. Moreover, even among those who advocated for enumerating rights, many thought that declarations were hortatory, serving as a reminder, both to the people and to their government, of the reasons for instituting government and of the terms of the social contract and constitution . 77

Nonetheless, as Sections II.B and II.C demonstrate, the Founders often referred to certain rights, including speech and press freedoms, in a more legalistic way. Enumerated constitutional rights were “exceptions” to legislative authority, James Madison explained to Caleb Wallace in 1785. 78 This would have been quite a strange comment if Madison were alluding to liberty that could be regulated to promote the public good. Others called for a bill of rights so that a “Check will be placed on the Exercise of . . . the powers granted.” 79 Indeed, Thomas Jefferson claimed that enumerating rights would put a “legal check . . . into the hands of the judiciary,” 80 even though American elites broadly agreed that judges had no business resolving cases based on judicial assessments of the general welfare. 81

In fact, speech and press freedoms had assumed greater determinacy in two respects. First, as explained in Section II.B, the Founders recognized an inalienable natural right to express one’s thoughts, sometimes described as the “freedom of opinion.” Second, as shown in Section II.C, American elites widely embraced an assortment of common-law rules, including a ban on press licensing, that offered more determinate legal protections for expressive freedom. 82 In this way, speech and press freedoms were legally distinct, with the latter referring only to the customary legal rules that protected printing-press operators. Finally, Section II.D concludes with a discussion of the contested relationship between natural rights, inalienable natural rights, and the common law.

A. Natural Rights and Expressive Freedom

The intellectual foundation of Founding Era constitutionalism was social-contract theory. 83 Essentially, the theory was a thought experiment designed to reveal the proper scope and distribution of political authority. It began by positing a world without government , commonly known as a “state of nature,” in which individuals had only “natural rights.” The theory then explored why people in this condition would choose to organize politically. 84

Natural rights were any capacities that humans could rightly exercise on their own, without a government. (Positive rights, by contrast, were defined in terms of governmental action or inaction.) Consequently, natural rights encompassed nearly all human activities, sometimes summarized as a right to liberty or a “right to act . ” 85 More typically , however, natural-rights rhetoric developed around particular controversies. The natural rights to conscience and self-defense were part of the eighteenth-century lexicon, for instance, while other aspects of natural liberty , like eating and sleeping, were largely unmentioned. 86

Without recognizing this broader natural-rights discourse, scholars often view the freedom of speech as a term of art that originated with the legislative privilege of speech and debate, 87 or they conclude that “freedom of speech . . . had little history as an independent concept when the first amendment was framed.” 88 For the Founders, however, mentioning a “freedom to do something” naturally alluded to natural rights, without any need for further clarification or consistent terminology. 89

Not surprisingly, then, the Founders invoked the natural right of expressive freedom in all sorts of ways. References to the freedom of speaking, writing, and publishing seem to have been the most common, 90 probably because that phrasing appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777. 91 In the committee that revised Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain natural rights which [we] retained,” including the right “of [s]peaking, writing and publishing . . . with decency and freedom.” 92 B ut in the course of discussing natural rights, contemporaries also mentioned the “right to speak,” 93 “[t]he right of publication,” 94 “the natural right of free utterance ,” 95 the “liberty of discussion,” 96 “the liberty of the tongue,” 97 the “exercise of . . . communication,” 98 and so forth.

Eighteenth -century commentators sometimes referred to “the liberty of the press” as a natural right, too. 99 “Printing,” after all, was “a more extensive and improved Kind of Speech.” 100 Some Founders distinguished the freedom of publishing , as a natural right, from the freedom of the press , as a common-law rule against press licensing. 101 ( In eighteenth-century English, “ t he press” was a reference to printing; the term did not refer to journalists until the nineteenth century. 102 ) But the use of this terminology was fluid, and Founding Era discussions of press freedom often alluded to natural-rights concepts. 103 Some writers even equated “the Liberty of the Press” with “the Liberty of publishing our Thoughts in any Manner, whether by Speaking, Writing or Printing,” thus treating speech and press freedoms as synonymous. 104

Recognizing that expressive freedom was a natural right, however, is just the beginning. We also need to consider what that classification meant in terms of limits on governmental power. And that issue turned on two inquires: first , the scope of pre-political natural liberty, and, second , the extent to which individuals surrendered control of that liberty upon entering into a political society. As we will see, the Founders defined pre-political natural rights in two distinct ways, but this difference ended up being of little practical significance because of a comparable divergence over how much natural liberty individuals surrendered when leaving the state of nature.

In terms of the scope of natural rights, the Founders universally accepted that pre-political natural liberty was circumscribed by natural law. 105 At a minimum, natural law required that individuals not interfere with the natural rights of others. 106 There was no natural right to assault others, for instance, because assault interfered with the natural right of personal security. Viewed in this way, natural rights could be roughly understood as human liberty to act unless those acts directly harmed others.

But some Americans, informed by David Hume’s view that humans are inherently sociable, 107 defined natural law in terms of social obligations, too. “Man, as a being, sociable by the laws of his nature,” Vermont jurist Nathaniel Chipman observed, “has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men.” 108 James Wilson echoed this theme in his law lectures, explaining that natural law requires individuals to avoid injury, selfishness, and injustice. 109 Thus, Wilson explained, every person can act “for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labo u rs . This right is natural liberty.” 110

At the next stage of social-contract theory, the Founders imagined that individuals—recognizing the deficiencies of a state of nature —would unanimously agree to form a political societ y (or body politic ) under a social contract (or social compact ) . 111 “The body-politic is formed by a voluntary association of individuals,” the Massachusetts Constitution of 1780 characteristically declared, and “is a social compact , by which the whole people covenants with each citizen , and each citizen with the whole people , that all shall be governed by certain laws for the common good.” 112 Creation of a body politic, the Founders imagined, then set the stage for another pact , the constitution , in which the people vest ed power in a government by majority consent. 113

Elites widely agreed about the essence of the social contract—namely, that the political society should protect natural liberty and should limit freedom only to promote the public good. 114 And the Founders generally understood this concept of the public good in an aggregate, collective sense, embracing the “safety and happiness of society,” as Madison put it. 115 (A slew of interchangeable terms referred to the same idea, including “collective interest,” “common good,” “general utility,” “general welfare,” “public interest,” and so forth. 116 ) In the end, this framework prioritized the interests of the whole society over narrower private interests. The common good, the Founders repeatedly implored, often required individual sacrifices. 117 At the same time, however, “respect for the public interest meant that lawmakers had to consider everyone’s interests, and not merely those of particular individuals or factions.” 118

But while largely in agreement on substance, the Founders spoke in a confusing assortment of ways about the retention of natural rights. The most common phrasing was, as William Blackstone put it, that “every man, when he enters into society, gives up a part of his natural liberty.” 119 Meanwhile, others talked about it being “necessary to give up [natural] liberty” entirely , 120 or at least necessary to “surrender[] the power of controuling . . . natural alienable rights.” 121 Still more insisted that in forming a republic, “the people surrender nothing .” 122

This dizzying array of statements—that individuals retained some, all, or none of their natural liberty—has created an extraordinary amount of confusion among scholars. 123 And it would seem to indicate substantial differences of opinion among the Founders about the scope of their natural rights. In truth, however, the disagreement was semantic, not substantive, because competing views about the terms of the social contract mirrored the competing views about the scope of pre-political natural rights.

For those who viewed natural rights as inherently circumscribed by a concern for the general welfare, individuals could retain all of their natural liberty without creating any conflict with “the due exercise of the powers of government, for the common good.” 124 In 1816, for instance, Thomas Jefferson wrote that “ the idea is quite unfounded, that on entering into society we give up any natural right .” 125 But Jefferson clarified that these natural rights were limited not only by a prohibition on “commit[ing] aggression on the equal rights of another” but also by “the natural duty of contributing to the necessities of the society.” 126 Consequently, by incorporating social duties into natural law, no conflict arose between the preservation of natural rights and the exercise of governmental powers to promote the public good. 127 “To give up the performance of any action, which is forbidden by the laws of moral and social nature,” Nathaniel Chipman insisted, “cannot be deemed a sacrifice.” 128

This is not to say that natural rights were identically defined after the formation of a political society. Some natural rights, Chipman explained, “to render them universally reciprocal in society, may be subjected to certain modifications .” 129 Yet, these rights, he insisted, “can never justly be abridged ,” meaning they could not “suffer any dim[i]nution.” 130 This refrain was especially familiar with respect to property rights. Many people “consider property as a natural right,” James Wilson noted, but one that “may be extended or modified by positive institutions.” 131 Accordingly, as Wilson explained:

[B]y the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but . . . every citizen will gain more liberty than he can lose by these prohibitions . . . . Upon the whole, therefore, man’s natural liberty, instead of being abridged , may be increased and secured in a government, which is good and wise. 132

A natural right that could not be modified , by contrast, was an aspect of natural liberty over which the government simply had no authority. 133

For those who thought that individuals gave up some of their natural liberty in a social contract, however, retained natural liberty was still regulable so long as those regulations were in pursuit of the public good and made by a representative legislature. 134 As William Blackstone observed, natural liberty could be “so far restrained by human laws . . .  as is necessary and expedient for the general advantage of the public.” 135 Importantly, this framework did not endorse governmental power to abridge retained natural rights. Rather, it simply recognized that individuals in a political society assumed certain reciprocal obligations that did not exist in a state of nature. 136 Regard for the public good, in other words, was always implicit in the retention of natural rights.

In sum, whether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare. Decisions about the public good, however, were left to the people and their representatives—not to judges—thus making natural rights more of a constitutional lodestar than a source of judicially enforceable law. 137 N atural rights , in other words, dictated who could regulate natural liberty and why that liberty could be restricted, but they typically were not “rights” in the modern sense of being absolute or presumptive barriers to governmental regulation .

Speaking, writing, and publishing were thus ordinarily subject to restrictions under law s that promoted the public good. The principle that “Speech is a natural Right . . . reserved,” Thomas Hayter explained, was consistent with “the Power of Legislators, to restrain every impious, or immoral Abuse of speech” because “The principal End of every Legislature is the public Good.” 138 Or, as another writer put it, the “right to speak and act without controul . . . is limited by the law—Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.” 139

Consequently, even though the Founders broadly acknowledged that speaking, writing, and publishing were among their natural rights, governmental limitations of expressive freedom were commonplace. B lasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation even though they did not directly interfere with the rights of others . 140 Some states even banned theater performances because of their morally corrupting influence. 141 Although stated without qualification , and often viewed by modern interpreters as being unconditional , 142 natural rights were always implicitly qualified , with the scope of their qualifications often turning on assessments of public policy .

Yet while the Founders broadly agreed that governmental power should be defined and exercised only to promote the general welfare, they often disagreed passionately about the details. As Joseph Priestley noted, there was “a real difficulty in determining what general rules, respecting the extent of the power of government, or of governors, are most conducive to the public good.” 143 And nowhere was this difficulty more pronounced than the long-running controversy over sedition laws.

Arguments for punishing sedition were straightforward. It was “necessary for the preservation of peace and good order,” Alexander Addison of Pennsylvania explained, “to punish any dangerous or offensive writing, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency.” 144 Proponents of this view rejected the argument that narrowly tailored sedition laws would stifle useful criticisms of government and that counter-speech was sufficient to prevent lasting harm. 145 “It may be said, that an unrestrained license to publish on the conduct of public men, would operate as a restraint upon [the government], and thus promote the public good,” Massachusetts Governor James Sullivan wrote, “but this is not true; an unrestrained license to publish slander against public officers, would . . . answer no possible valuable purpose to the community.” 146 In fact, some argued that it was even more necessary to punish sedition in a republic. “In a Republican Government, where public opinion rules everything,” John Rutledge Jr. insisted during the Federalist effort to reauthorize the Sedition Act in 1801, “it is all-important that truth should be the basis of public information.” 147

Other eighteenth-century writers, however, argued that punishing sedition would, in the long run, harm the general welfare, even though sedition itself was deleterious. “The great object of society—that object for which alone government itself has been instituted, is the general good ,” Elizabeth Ryland Priestley wrote in 1800. 148 Thus, she continued, “It may perhaps be urged, and plausibly urged, that the welfare of the community may sometimes, and in some cases, require certain restrictions on [an] unlimited right of enquiry: that publications exciting to insurrection or immorality for instance, ought to be checked or suppressed.” 149 Yet “ascertaining the proper boundary of such restrictions” would be vexing, she observed, and governmental power to regulate harmful speech, “once conceded, may be extended to every [opinion] which insidious despotism may think fit to hold out as dangerous.” 150 Moreover, as Republicans frequently argued, fear of being prosecuted might have a chilling effect on useful criticisms of government. 151

Notably, these arguments all relied on contingent judgments about public policy—not an understanding of natural rights that categorically permitted or barred governmental efforts to suppress expression, irrespective of the public good. 152 Americans thus offered vastly different visions of how far expressive freedom should extend (due to differing calculations of what best furthered the public good) even while sharing the same conceptual understanding of speech and press freedoms.

Further evidence of the Founders’ conceptual understanding of expressive freedom comes from their recognition of an equality between speech and press freedoms and, at the same time, their acceptance of distinct legal rules regarding oral and written statements. “The freedom of speech of writing and of printing are on equal grounds by the words of the constitution,” one commentator observed in 1782, referring to the Pennsylvania constitution. 153 As concepts, therefore, the freedoms of speaking, writing, and publishing were identical, allowing the government to punish only “the disseminating or making public of falsehoods, or bad sentiments, destructive of the ends of society.” 154 Yet these equivalent principles were perfectly consistent with broader liability and harsher punishment for written libels. “The reason,” the commentator explained, was that written statements were “more extended” and “more strongly fixed,” thus posing a greater threat to public order. 155 In short, speech and press freedoms were equivalent, as natural rights, but the legal implications of these rights differed.

B. Inalienable Natural Rights and the Freedom of Opinion

Unlike ordinary natural rights, which were regulable to promote the public good, certain inalienable natural rights imposed more determinate constraints on legislative power. 156 These rights, Nathaniel Chipman explained, were aspects of natural liberty that “can never justly be subject to civil regulations, or to the control of external power.” 157 Some writers limited this category to the freedoms of conscience and thought 158 without necessarily including a correlative liberty to exercise religion or to express thoughts. 159 “Op inions are not the objects of legislation ,” James Madison succinctly explained to his congressional colleagues in 1794. 160 Few would have disagreed. But by the late eighteenth century, Americans widely embraced the idea that the government could not prohibit well-intentioned statements of one’s thoughts, either.

Opinions were sacrosanct because they were understood to be non-volitional. 161 Unlike “ Volition , or Willing ,” John Locke explained, “in bare naked Perception the Mind is, for the most part, only passive; and what it perceives, it cannot avoid perceiving.” 162 Consequently, in Francis Hutcheson’s words, “the Right of private Judgment, or of our inward Sentiments, is unalienable; since we cannot command ourselves to think what either we our selves, or any other Person pleases . ” 163 Or, as Madison put it in his famous Memorial and Remonstrance , “the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.” 164 The freedom of opinion was thus, at its core, a freedom against governmental efforts to punish people for their thoughts. (The Founding Era term “freedom of opinion ” is thus somewhat misleading; the essence of the principle was protection for non-volitional thoughts . 165 )

Americans often invoked the freedom to have opinions to defend a correlative freedom to express opinions. 166 Among the natural rights that individuals had not surrendered to government, Thomas Jefferson wrote in 1789, were “ the rights of thinking, and publishing our thoughts by speaking or writing .” 167 The inalienability of this liberty was broadly recognized. All men had a right “of speaking and writing their minds—a right, of which no law can divest them,” Congressman John Vining observed in January 1791, before the First Amendment was ratified. 168 This right, Fisher Ames echoed in agreement, was “an unalienable right, which you cannot take from them, nor can they divest themselves of.” 169 Any abridgment of that right, he insisted, would be “nugatory.” 170

The freedom to express thoughts, however, was limited to honest statements—not efforts to deceive others. “The true liberty of the press is amply secured by permitting every man to publish his opinions,” Pennsylvania jurist Thomas McKean explained in 1788, “but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame.” 171 For that reason, this Article often refers to a “freedom to make well-intentioned statements of one’s thoughts.” The Founders, immersed in their own constitutional language, hardly needed such a periphrastic term; they could simply invoke the “freedom of opinion” or “freedom of speech.”

Sedition laws were thus facially consistent with the freedom of opinion when confined to false and malicious speech. “Because the Constitution guaranties the right of expressing our opinions, and the freedom of the press,” Federalist John Allen asked rhetorically during the congressional debates over the Sedition Act, “am I at liberty to falsely call you a thief, a murderer, an atheist?” 172 Answering his own question, and again treating the First Amendment as guaranteeing “the liberty of opinion and freedom of the press,” 173 Allen implored that “[t]he freedom of the press and opinions was never understood to give the right of publishing falsehoods and slanders, nor of exciting sedition, insurrection, and slaughter, with impunity. A man was always answerable for the malicious publication of falsehood; and what more does this bill require?” 174 Over and over, Federalists emphasized the requirement of “a false and malicious intention.” 175

Opponents of the Adams Administration saw through the Federalist charade, viewing the Sedition Act as part of “a legislative program designed to cripple, if not destroy, the Republican Party.” 176 Frequent complaints that Federalists had “countenance[d] a punishment, for mere freedom of opinion,” thus appear justified. 177 Yet in their more contemplative moments, some Republicans recognized that the Sedition Act itself fell short of abridging the freedom of opinion. If the law were perfectly administered, one Virginia editorial noted, “No person  . . . would be the subjects of ruin under this statute, unless they annexed to those opinions a design that was not pure.” 178 Or, as libertarian writer John Thomson acknowledged, if prosecutions “were not for the publication of opinions , then the Constitution has not been violated by them.” 179

Also notable about the Sedition Act controversy, however, was the nearly universal acknowledgment by Federalists that well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded. 180 “[I]t is well known,” Alexander Addison remarked, “that, as by the common law of England, so by the common law of America, and by the Sedition act, every individual is at liberty to expose, in the strongest terms, consistent with decency and truth all the errors of any department of the government.” 181 Federalists, in other words, firmly rejected the long-discredited rule that “no private man can take upon him[self] to write concerning the government at all.” 182 By limiting the Sedition Act to false and malicious statements, and by providing a truth defense, 183 Federalists could reasonably claim fidelity to this longstanding respect for the freedom of opinion. Indeed, Federalists sought to renew the Sedition Act in January 1801—with a new administration poised to take the helm—because the Act, in their view, had “enlarged instead of abridg[ed] the ‘liberty of the press.’” 184

Scholars, however, routinely overlook Federalist support for expressive freedom. Defenders of the Sedition Act, one author writes, equated “the freedom of speech and press” with an understanding that “government could restrain speech post-publication or post-utterance in whatever way it pleased.” 185 In fact, not a single Federalist in Congress took that view. To be sure, many Federalists interpreted the freedom of the press as simply a rule against prior restraints—an idea that we will turn to next. 186 But the First Amendment, as Federalist Harrison Gray Otis explained, also guaranteed “the liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party, whether it be the Government or an individual, for false, malicious, and seditious expressions, whether spoken or written.” 187 This was a qualified liberty, of course, and perhaps inadequate when executed by a partisan administration and partisan judiciary. But Federalists widely accepted the freedom of opinion, even in the late 1790s.

Readers may be curious about the scope of the freedom to make well-intentioned statements of one’s thoughts—whether, for instance, it applied to certain forms of expressive conduct like flag burning or political donations. Historical evidence offers no clarion answers, but the principles of social-contract theory frame the inquiry in a way that disfavors categorical protection for expressive conduct. To be sure, engaging in expressive behavior was an innate human capacity, so it was properly understood as falling within the natural right of expressive freedom. 188 But there was little basis for recognizing an inalienable natural right of expressive conduct. The scope of inalienable rights, after all, depended on whether individuals were physically capable of parting with certain aspects of natural liberty and, if so, whether collective control of that liberty would serve the public good. 189 Some expressive conduct, like instinctive smiles, surely fell on the side of inalienability. But when expressive conduct caused harm and governmental power to restrict that conduct served the public good, there is no reason to think that the freedom of opinion nonetheless immunized that conduct.

Consequently, although the freedom of opinion was fixed in some respects—allowing individuals to criticize the government in good faith, for instance—determining its scope called for the same policy-driven analysis that characterized the Founders’ general approach to natural rights. In short, outside of the core protection for well-intentioned statements of one’s thoughts, the boundaries of the freedom of opinion depended on political rather than judicial judgments.

C. Common-Law Rights and the Freedom of the Press

In addition to inalienable natural rights, state declarations of rights in the 1770s and 1780s also included numerous fundamental positive rights, like the right to trial by jury and the rule against ex post facto laws. Unlike “natural liberty . . . retain[ed],” one Anti-Federalist noted, fundamental positive rights were “particular engagements of protection, on the part of government.” 190 These were rights defined in relation to governmental authority. And what made them “fundamental” was an acceptance of their inviolability, usually based on their recognition in the social contract or constitution. 191 In short, these rights were, as Thomas Jefferson explained in 1790, “certain fences which experience has proved particularly efficacious against wrong, and rarely obstructive of right.” 192 Interestingly, Jefferson classified the freedom of the press as a fundamental positive right. 193

Scholars typically assert that the freedom of speech and the freedom of the press were equivalent, 194 and, as we have seen, those concepts were equivalent as natural rights. 195 Yet in the context of enumerated bills of rights, discerning the meanings of these freedoms is more complicated and reveals an important difference between speech and press freedoms. 196 The Pennsylvania Constitution of 1776, for instance, separated the “ right to freedom of speech, and of writing, and publishing ” from “ the freedom of the press .” 197 That split strongly suggests a distinction in meaning. And Jefferson’s letter suggests an intriguing explanation: the term “freedom of the press” could denote a particular fundamental positive right.

The content of this right was widely known. “The liberty of the press,” William Blackstone had famously declared, “ consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 198 And without a governmental censor, local juries rather than royal agents controlled how far publishing could be restricted. “The liberty of the press, as established in England,” Jean Louis de Lolme wrote in 1775, effectively meant that courts considering libels against printers “must . . . proceed by the Trial by Jury.” 199

Americans , and particularly those with legal training, frequently echoed these ideas . “[W]hat is meant by the liberty of the press ,” James Wilson observed during the 1787 ratification debates, “ is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual .” 200 Others mentioned the importance of empowering juries to determine the proper bounds of expressive freedom. “[S]hould I be unjustly accused of [sedition],” Virginia lawyer Alexander White remarked, “the trial by a jury of my countrymen is my security—if what I have said or wrote corresponds with their general sense of the subject, I shall be acquitted.” 201

In sum, although many of the Founders discussed press freedom as a natural right, it also had a readily available meaning as a fundamental positive right against press licensing, thus empowering juries to determine the proper scope of expressive freedom.

D. Nature and Law

The notion that speech and press freedoms referred to natural rights, inalienable natural rights, and fundamental positive rights may appear confused or even contradictory. In the eighteenth century, however, these rights were closely intertwined. 202 The fundamental positive rights embodied in common law informed understandings of natural rights, and vice versa.

The common law did not directly recognize natural rights as a set of positive rights. Natural rights, after all, were simply the liberty that humans would enjoy in a state of nature, bounded by the dictates of natural law. In contrast to positive rights, they were not defined in terms of governmental action or inaction. When a constitution protected certain natural rights against abridgment, however, it became important to determine the scope of retained natural liberty. And to assist with this task, the Founders naturally turned to positive law, and particularly the common law.

The common law was probative, in part, because it helped define the natural-law boundaries of natural rights. 203 Natural law, we must recall, was not a finely tuned set of legal rules. Rather, it embodied the dictates of reason and justice. “We discover it,” James Wilson explained, “by our conscience, by our reason, and by the Holy Scriptures.” 204 Not surprisingly, therefore, the Founders recognized considerable underdeterminacy about what natural law required. 205 “[W]hoever expects to find, in [reason, conscience, and the Holy Scriptures], particular directions for every moral doubt which arises,” Wilson cautioned, “expects more than he will find.” 206

In day-to-day practice, then, natural law itself provided little guidance about how to resolve difficult legal questions. Instead, lawyers and judges used a system of customary legal rules known as the common law. Yet the legal system operated on the assumption—or at least the fiction—that the common law and natural law were in harmony. 207 “The common law ,” Alexander Addison characteristically observed, “is founded on the law of nature and the revelation of God.” 208 Consequently, the common law could help determine the proper boundaries of natural liberty. Governmental powers recognized at common law were presumptively acceptable, while common-law limits on those powers (such as the rule against prior restraints) recognized presumptively unjustified abridgments of natural rights .

Moreover, for those who viewed social obligations as stemming from common consent rather than from natural law, the common law helped delineate the scope of those obligations. The common law, after all, had the presumptive consent of the people over an extended period. “[L]ong and uniform custom,” English jurist Richard Wooddeson explained, “bestows a sanction, as evidence of universal approbation and acquiescence.” 209 Though certainly not immune to change, 210 the common law at least presumptively comported with the reciprocal obligations that individuals had assumed in the social contract. In short, customary positive law helped reveal the proper scope of natural liberty.

At the same time, Americans sometimes used natural-law reasoning to shape their understanding of positive law. This approach reflected the prevalent view that positive law should reflect and conform to natural law. “[M]unicipal laws are under the control of the law of nature,” Wilson noted in his law lectures, meaning that natural law was superior to positive law. 211 Because of its underdeterminacy, natural-law reasoning was typically reserved within legal circles for resolving ambiguities in the common law or statutory law; judicial assessments of natural justice could not displace positive law. 212 Among the laity, however, the priority of natural law sometimes prompted calls for an abandonment of legal pedantry. “It is our business to do justice between the parties,” John Dudley of New Hampshire opined about the jury’s role, “not by any quirks of the law out of Coke or Blackstone, books I have never read, and never will, but by common sense and common honesty as between man and man.” 213 Some Republican lawyers took a similar view. The meaning of Virginia’s press clause, lawyer George Hay opined, “presents a great constitutional question, the solution of which depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature, and whose validity depends on their tendency to promote the permanent interests of mankind.” 214

Not surprisingly, then, forceful disagreements emerged about the extent to which the common law defined the scope of natural rights. 215 During the ratification debates, for instance, lawyers like James Wilson, Rufus King, and Alexander White equated press freedom with the common-law rule against press licensing. 216 A decade later, when Republicans attacked the Sedition Act of 1798 as violating the freedom of the press, Federalist lawyers again turned to the familiar terrain of legal authority. “By the freedom of the press,” jurist Alexander Addison insisted, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.” 217

For Americans with less elitist inclinations, however, determining the scope of natural rights was not exclusively within the ken of professionally trained lawyers. James Madison’s famous Virginia Report of 1800, for instance, made arguments from “plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts” to wage an extended attack on Federalist reliance upon the common law. 218 It would be a “mockery” to confine press freedom to a rule against prior restraint, Madison implored, because post-publication punishments would have the same effect of suppressing expression. 219 Moreover, practical experience showed that American printers enjoyed a “freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.” 220 It was thus “natural and necessary,” Madison concluded, that press freedom in the United States went beyond the confines of English common law. 221

Scholars, it is worth cautioning, have overstressed this part of the Virginia Report. Madison, whose views on expressive freedom were more liberal than those of his colleagues, plainly identified these observations as being “for consideration only,” without, “by any means, intend[ing] to rest the [constitutional] question on them.” 222 (The Virginia Report actually rested its constitutional argument on the First Amendment’s supposed denial of federal power to impose any restrictions on printers.) 223 Nonetheless, Madison’s mode of reasoning in this political dictum reflected an important strand of Republican thought grounded in a natural-rights view of expressive freedom.

III. explicating the first amendment

Now that we have a grasp on how the Founders talked about rights in general, and about speech and press freedoms in particular, we can more closely evaluate the original meanings of the First Amendment .

This Part begins with an analysis of the ratification debates and drafting of the First Amendment. It draws two principal conclusions. First , the impetus for a bill of rights was a desire to enumerate well-recognized rights, not create new ones. Consequently, historical context strongly supports the view that the Speech and Press Clauses incorporated the meanings of expressive freedom discussed in Part II. Second , although originalist scholarship tends to treat speech and press freedoms as equivalent, the ratification debates reinforce that the Founders often referred to these ideas distinctly, particularly when mentioning press freedom as a fundamental common-law right.

Then, Section III.B synthesizes the evidence in Part II and Section III.A to assess the most likely original meanings of the Speech and Press Clauses. It argues that the Speech and Press Clauses recognized both abstract principles and concrete legal rules that were grounded in Founding Era rights discourse. The Section then responds to some competing accounts of the First Amendment’s original meaning.

A. Enumerating Expressive Freedoms

The Constitution drafted by the Philadelphia Convention famously lacked a declaration of rights. 224 T h is omission quickly became a favorite point of attack for the opponents of ratification, commonly known as the Anti-Federalists. 225 Especially dangerous, Anti-Federalists insisted, was unchecked congressional power under the Necessary and Proper Clause. 226 “The powers, rights, and authority, granted to the general government by this constitution,” Brutus explained, “are as complete, with respect to every object to which they extend, as that of any state government.” 227 Consequently, a federal declaration of rights was every bit as necessary as state declaration s in order to restrict the means of federal power.

Anti-Federalists often focused their criticisms on the lack of protection for the freedom of the press. But their references to press freedom were usually cursory, with no elaboration about what the term meant or what a declaration in its f avor would accomplish. Often Anti-Federalists simply pointed out numerous ways that the federal government could regulate printers —whether through “the trial of libels , or pretended libels against the United States , ” 228 taxes on newspapers, 229 the copyright authority, 230 or federal power over the capital district. 231 Importantly, these worries often went beyond mere concern about prior restraints, 232 but Anti-Federalists rarely suggested how an enumerated guarantee of press freedom would constrain federal authority . 233

Notably, the freedom of speech played almost no role in the public jousting that occurred in newspapers, pamphlets, and state ratification conventions. 234 Anti-Federalist fears about unenumerated rights, it turns out, usually focused on positive rights that imposed more determinate limits on governmental authority. 235 (Scholars, by contrast, often describe the freedom of speech as an important Anti-Federalist issue, but their evidence notably mentions only the liberty of the press, again highlighting the scholarly conflation of speech and press rights.) 236 Amidst the wide-ranging and creative arsenal of Anti-Federalist arguments, concern about the freedom of speech was conspicuously missing.

In response to Anti-Federalist admonitions about the liberty of the press , Federalists generally made two related arguments. First, many explained that bills of rights were merely declaratory of pre-existing rights and were therefore legally unnecessary. 237 It was “absurd to construe the silence  . . . into a total extinction” of the press right, John Jay insisted, because “silence and blank paper neither grant nor take away any thing.” 238 The Virginia and New York ratification conventions later passed declaratory resolutions making the same point. 239 Indeed, many Federalists thought that fundamental positive rights were recognized in the social contract, 240 obviating any need for subsequent enumeration, just as modern legislation hardly needs to specify that it operates only within constitutional boundaries.

Second, Federalist d enials of authority to abridge the liberty of the press relied on the lack of any enumerated power that would justify a licensing regime. In response to the Anti-Federalist argument that the federal government might abridge the freedom of the press under the taxing power, for instance, Alexander Hamilton asked in Federalist No. 84 , “ why declare that things shall not be done which there is no power to do?” 241 But Hamilton, unlike some of his Federalist colleagues, 242 was not rejecting all federal power over printers . Rather , he clarified, “declarations . . . in favour of the freedom of the press” were not understood to be “a constitutional impediment to the impositions of duties upon publications.” 243

When it came to natural rights, Federalists used a similar tack. Rather than denying any federal authority over speech, Federalists insisted that protections for natural liberty were superfluous under republican governments. As we have seen, 244 that argument had considerable merit. In some sense, the people in a republic retained every aspect of natural liberty because no natural rights were surrendered to an unaccountable monarch. Enumerating retained natural rights, Federalists therefore concluded, would be pointless. In republics, Alexander Hamilton explained in Federalist No. 84 , “the people surrender nothing, and as they retain every thing, they have no need of particular reservations.” 245

As the ratification contest dragged on, however, some Federalists gradually perceived a need for amendments to quell Anti-Federalist opposition. 246 Declaring rights, they realized, would help undercut Anti-Federalist calls for broader reforms. 247 Some men, including Thomas Jefferson and James Madison, also came to recognize merit in the Anti-Federalist arguments. 248 Al though Congress was confined to enumerated powers, Madison explained in his speech introducing a draft of amendments to the House of Representatives that it “has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the s tate g overnments under their constitutions may to an indefinite extent.” 249

Madison was not admitting that Congress could properly abridge customary rights. Nonetheless, Congress had power under the Necessary and Proper Clause “to fulfil every purpose for which the government was established,” and it was “for them to judge of the necessity and propriety to accomplish those special purposes.” 250 Madison had previously criticized declarations of rights as mere “paper barriers,” but in his congressional speech he justified the m as having “a tendency to impress some degree of respect for [rights] , to establish the public opinion in their favor, and rouse the attention of the whole community.” 251 Moreover, he noted, a written guarantee would help embolden judges to uphold their legal duty to enforce certain rights. 252 In short, an enumeration of rights might be useful after all .

Madison’s initial proposal for constitutional recognition of expressive freedom was divided in two parts: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 253 His notes suggest that he also remarked to his colleagues that speech and conscience were among the “ natural rights , retained .” 254 By contrast, his separation of the right of speaking, writing, and publishing from the freedom of the press suggests a positive-law connotation of press freedom. 255

This dual structure became clearer within the House Committee of Style when Roger Sherman proposed dividing these clauses into separate articles. In one article, he addressed “certain natural rights which are retained,” including the right “of Speaking, writing and publishing . . . with decency and freedom.” 256 Six articles later, he presented a two-part ban on licensing rules: “Congress s hall not have power to grant any monopoly or exclusive advantages of C ommerce to any person or Company; nor to restrain the liberty of the Press.” 257 Notably, only Sherman’s proposed press clause, surely meant as a rule against press licensing, was framed as a categorical denial of congressional power.

For unknown reasons, but probably just for sake of brevity, the Committee of Style shorten ed Madison’s proposal to read : “The freedom of speech, and of the press, . . . shall not be infringed.” 258 And, with various revisions accepted in the Senate, the third proposed amendment eventually read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 259 The drafters of the final version of the amendment thus, perhaps unwittingly, stripped away the earlier textual indication that speech and press freedoms had distinct meanings.

B. Original Meanings

So, what did the Speech and Press Clauses originally mean? A detailed answer to that question would require an account of what it means for a clause to have a “meaning,” 260 both conceptually and in terms of evidentiary thresholds. And the Founders often disagreed about methods of constitutional interpretation, so assigning a definitive “original meaning” to any constitutional clause may require contestable methodological choices. 261 Rather than venturing down that path, this Section simply points out a range of possibilities that—while different in some respects—display a substantial degree of agreement among Founding Era elites. In doing so, it focuses on conceptual meanings of the Speech and Press Clauses, not their precise doctrinal details. This synthesis suggests that the best account of the First Amendment’s meaning is likely one rooted in a multifaceted view of expressive freedom, recognizing the interplay of natural rights, inalienable natural rights, and fundamental common-law rights. Importantly, this account reveals, at least in some respects, distinct meanings of the Speech and Press Clauses.

Because expression was a natural right, one possibility is that the Speech and Press Clauses originally referred exclusively to ordinary natural rights that were fully regulable to promote the public good. 262 Under this view, customary protections for speech and press freedoms would likely suggest the proper bounds of natural liberty—perhaps even directing judges to interpret statutes “equitably” to avoid conflicts with these longstanding rules—but without imposing any fixed, judicially enforceable restraints on legislative power. 263 The Speech and Press Clauses, in other words, might have had legal implications without constitutionally ossifying any particular set of legal rules.

This is a plausible view. Speaking, writing, and publishing were liberties that people could exercise without governmental intervention, and the Founders thus viewed these freedoms as being among their natural rights. This liberty, moreover, was circumscribed by social obligations—either imposed by natural law or voluntarily assumed in a social contract—and therefore only restrictions of expression beyond those that promoted the public good were “abridgments” of natural rights. 264 Consequently, as Republican lawyer George Hay summarized in 1799, a natural-rights understanding of the First Amendment would “amount precisely to the privilege of publishing,” as well as speaking and writing, “as far as the legislative power shall say, the public good requires.” 265

Other Founding Era commentary supports the possibility that the Speech and Press Clauses referred exclusively to natural rights. Not all aspects of Founding Era bills of rights, we must recall, had determinate meanings. Indeed, some declarations of rights announced principles that were, as Alexander Hamilton disparagingly put it in Federalist No. 84 , “aphorisms” that “would sound much better in a treatise of ethics than in a constitution of government.” 266 Provocatively, and perhaps disingenuously, Hamilton insisted that the freedom of the press was so indeterminate that “whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.” 267

Nonetheless, the Founders often described declarations of rights as supplying stricter limits on legislative authority. A bill of rights, Theophilus Parsons remarked, should specify both “unalienable natural rights,” over which “the supreme power hath no control,” and a set of fundamental positive rights, “also unassailable by the supreme power.” 268 Indeed, one of James Madison’s principal rationales for a bill of rights in 1789 was to limit the “discretionary powers with respect to the means ” of federal authority. 269 If state bills of rights were useful “for restraining the state governments,” Madison explained, “there is like reason for restraining the federal government.” 270

Viewed in this light, it makes sense to construe the First Amendment as imposing at least some fixed limits on federal power. There is a compelling case, for instance, that the Press Clause codified at least a positive right against press licensing, thus putting juries in charge of restricting speech. 271 Meanwhile, the freedom of speaking, writing, and publishing —likely invoked in the Speech Clause—shielded from regulation any well-intentioned statements of one’ s thoughts (subject, of course, to the natural-law proscription against abridging the rights of others) . 272 As with most other enumerated rights, these principles constrained the means that the federal government could employ when exercising its other powers. And this positive-rights dimension of the Speech and Press Clauses reveals an important distinction in their meanings.

Following this train of thought, perhaps the Speech and Press Clauses referred exclusively to these more determinate customary rules, without directly recognizing a retention of the broader (but shallower) natural right of expressive freedom. Federalists in the late 1790s, it turns out, often interpreted the First Amendment in precisely this way. “By the freedom of the press,” Addison implored, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.” 273

Finally, perhaps the Speech and Press Clauses in the First Amendment recognized both the natural right of expressive freedom (in which the Speech and Press Clauses had a common meaning) and the more determinate customary protections for expression (in which the Speech and Press Clauses had distinct meanings). Like the other historical accounts of the First Amendment’s original meaning, this interpretation recognizes the interplay between natural rights, inalienable natural rights, and positive law, and it differs only by suggesting that this full spectrum of rights was incorporated into the Constitution itself. The First Amendment, on this account, recognized any customary legal principles that protected speech and the press while also recognizing that, apart from these rules, Congress was otherwise free to limit expression in pursuit of the public good (subject, of course, to any other constitutional constraints). In my view, this account best fits the available historical evidence, which shows the Founders constantly and fluidly moving between different notions of speech and press freedoms. Moreover, isolating First Amendment rights to a particular aspect of Founding Era expressive freedom seems dubious in light of the Ninth Amendment’s implied reservation of rights.

In sum, it remains debatable whether the Speech and Press Clauses directly recognized ordinary natural rights, a set of more determinate legal rights, or both. But because of the fluid relationship between natural rights and positive rights, all of these possibilities point in basically the same direction: the First Amendment recognized (either implicitly or outright) the ordinary natural right of expressive freedom along with (either absolute or presumptive) protection for a set of customary rules with more determinate legal meanings. 274

Other accounts of original meaning, however, are much less plausible. A common view is that the “freedom of speech” in the First Amendment was analogous to the “freedom of speech and debate” mentioned in Article I (and in various state constitutions) . 275 That freedom was a separation-of-powers rule, barring legislators from being punished by the executive or judiciary for their speeches and activities within the legislative chamber. 276 But legislatures could, and occasionally did, punish their own members at will. 277 Based on this supposed genealogy of the freedom of speech, scholars often conclude that the First Amendment’s protections are confined to political expression—the type of speech that typically occurs in legislative assemblies. 278

This interpretation of the Speech Clause has a variety of problems. First and foremost, legislative privilege played basically no role in Founding Era debates about the First Amendment. 279 This lack of historical evidence may not bother “intratextualists,” who are known to “draw[] inferences from the patterns of words that appear in the Constitution even in the absence of other evidence that these patterns were consciously intended.” 280 This Article’s analysis, however, focuses on historical understandings of speech and press freedoms, not modern textualist theories. And there simply is no evidence that anybody in the late 1780s thought that the freedom of speech was directly analogous to, or drew its meaning from, the legislative privilege of speech and debate. Another difficulty is that the Founding Era right of speaking, writing, and publishing clearly extended to any subject, not just to political matters. 281

Other scholars assert that the Speech Clause made speech “not subject to legislative regulation for the public good” but “nevertheless limited by the rights of others.” 282 Reading the text of the First Amendment in isolation might support this so-called “libertarian” view. For those Founders who defined natural rights without regard to social obligations, after all, restrictions of natural liberty to promote the common good could easily be understood as “abridgments” of the liberty that had existed in a state of nature.

Viewed in historical context, however, this “libertarian” interpretation of the First Amendment is incomplete. To be sure, the Founders thought that the freedom to make well-intentioned statements of one’s views was an inalienable natural right, rendering improper any restrictions that did not flow from natural law. And since the government itself did not possess natural rights that could be abridged, it was beyond the power of the government to punish speech that criticized the government in good faith. 283 These were important departures from the view that speech was always regulable in the public interest.

But the freedom of opinion did not encompass all expression. Individuals who joined together in a social contract, after all, had no reason to immunize efforts to lie or mislead. Nor did they need to prevent the government from preserving norms of civility and morality, like rules against blasphemy and profane swearing. Indeed, the Founders constantly mentioned that the inalienable right to speak was limited to those who spoke with decency and truth, 284 and state governments routinely and uncontroversially restricted plenty of speech that did not directly violate the rights of others. 285 Evidence from the late 1780s and early 1790s provides no indication that the First Amendment adopted a different understanding of expressive freedom.

Just the opposite, in fact. The Founders widely viewed enumeration as a conservative project meant to preserve existing rights, not to change their meaning or scope. 286 The proposed amendments, James Madison informed his congressional colleagues, provided for “simple and acknowledged principles” and not ones of “a doubtful nature . ” 287 The purpose of enumeration, in other words, was to guarantee at the federal level the rights already recognized by state constitutions and social contracts. Consequently, to the extent that states could regulate expression without “abridging” reserved natural liberty, the federal government could properly do so as well. 288 The freedom of expression that could not be “abridged,” in other words, was a liberty qualified by social obligations that stemmed either from natural law or from the imagined social contract. 289

Nor did the First Amendment, as some scholars suggest, elevate speech to a constitutionally privileged liberty interest to be defended by free-ranging judicial supervision. 290 Founding Era judges, after all, were confined to defending “marked and settled boundaries” of governmental authority, disregarding legislation only where constitutional violations were clear. 291 Judges could not apply jurisprudential concepts “regulated by no fixed standard” on which “the ablest and the purest men have differed,” 292 even when those principles were enumerated in a written Constitution. 293 Judicial applications of the First Amendment were therefore limited to enforcing customary legal principles, 294 even though the concept of expressive freedom, as a natural right, had a far broader range of potential implications.

Finally, the First Amendment did not comprehensively ban federal regulations of expression. 295 This view became prominent only later in the 1790s, when Republicans realized that Federalist control of all three branches of the federal government, combined with the administration’s ability to choose jurors, threatened their political survival. 296 The First Amendment, many Republicans argued, imposed a “total exemption of the press from any kind of legislative control,” leaving state common-law suits for abridgments of private rights as the only permissible limits on expression. 297

Modern proponents of this view find support in the First Amendment’s opening phrase, “Congress shall make no law.” 298 However, a provision that “Congress shall make no law past some threshold”— such as the abridgment of the freedom of speech or of the press— simply does not suggest a lack of regulatory power leading up to that threshold. If anything , it implies just the opposite, as Federalist defenders of the Sedition Act repeatedly pointed out with glee. 299

Another amendment passed by the House of Representatives in 1789 reinforces that the First Amendment did not withdraw all authority regarding speech and the press. In addition to declaring that “[t]he Freedom of Speech, and of the Press . . . shall not be infringed”—a rule applicable only to the federal government—the House passed a propos al that “[n]o State shall infringe . . . the freedom of speech, or of the press.” 300 If infringement s of speech and press freedom s arose from any controls over expression , then this proposal would have barred state laws against libel, defamation, conspiracy, threats, profanity, blasphemy, perjury, sedition, and so forth. All of these laws, after all, suppress various forms of communication. But no evidence suggests that the House of Representatives was radically proposing to bar any federal or state limits on expression . 301 Rather, the First Amendment —just like its state-restraining counterparts—left ample room for the government to regulate speech in promotion of the public good, so long as it respected customary legal protections as well .

IV. using history

How might this history inform modern constitutional interpretation? Most judges and scholars incorporate history into their interpretative method in some way. 302 But uses of history vary substantially. Originalism in particular now comes in many forms, and the Founding Era history of speech and press freedoms might inform originalist analysis in a range of ways.

One option is simply to return wholesale to a Founding Era perspective, recognizing that judges are not well positioned to evaluate whether a legislature has acted in good faith or whether restrictions of speech promote the public good. 303 In short, this approach would call for dismantling a huge swath of modern free-speech law. For instance, the Supreme Court’s foundational decision in New York Times v. Sullivan , 304 which makes it harder for public officials to sue for defamation, conflicts even with the libertarian strand of Founding Era thought. 305 And while the Founders viewed well-intentioned statements of one’s thoughts as shielded from regulation, there is no indication that this principle would have extended to, say, donations to a political candidate. 306 Even assuming that giving money to a campaign is expressive, or is an exercise of the natural right to freedom of association, this activity was among the countless aspects of natural liberty subject to regulations that promote the general welfare.

Of course, many who use history in constitutional interpretation also accept the authority of precedent and may thus perceive modern speech law as too entrenched to be properly overruled. 307 Even under this view, Founding Era history may still have “gravitational force” in resolving ambiguities in modern doctrine. 308 Judges, for instance, often use conflicting definitions of what it means for a speech regulation to be “content based,” and a historically grounded approach may help resolve contested issues of this sort. 309

If we set aside Founding Era conceptions about the judicial role, 310 however, then modern doctrine is far easier—though perhaps still difficult—to justify on historical terms. In particular, a natural-rights reading of the Speech Clause would require the government to act for reasons that serve the public good , and scholars have noted that speech doctrine is largely structured as a way of smoking out illicit motives. 311 The heightened scrutiny that applies to content-based regulations, for instance, may correspond to an increased risk of parochial, rather than public-spirited, objectives.

Indeed, rather than serving as categorical legal “immunities” or “trumps,” modern free-speech rights often simply force the government to show a sufficient justification for abridgments of speech. 312 “Rights are not general trumps against appeals to the common good or anything else,” Richard Pildes explains about modern American law. 313 “[I]nstead,” he writes, “they are better understood as channeling the kinds of reasons government can invoke when it acts in certain arenas.” 314 A ban on all fires in public, for instance, would trigger a lower degree of judicial scrutiny than a ban on flag burning, even though both would effectively ban flag burning. 315 And in either scenario, the government would have a chance to show that the law is sufficiently tailored to serve sufficiently important governmental interests. Modern doctrine, in other words, still accommodates certain claims to the public good. 316

But certain claims only. The Court has staunchly resisted the notion, for instance, that claims to the public good might factor into the threshold decision of how closely courts should scrutinize speech restrictions. “The whole point of the First Amendment,” the Court recently declared, “is to afford individuals protection against [speech] infringements” justified by “a generalized conception of the public good.” 317 Rather, the Court has generally relegated the public-good analysis to the second stage of its analysis, thus putting the burden on the government to show the necessity of speech regulations and giving judges responsibility for ensuring, in the case of content-based regulations, that the proffered governmental interests are “compelling.” The public good can still override the speech right, but only rarely. 318

This approach departs from history in two ways: First, it waters down what was originally absolute protection for well-intentioned statements of one’s views—a category of speech over which the Founders often said that the government simply had no power (except to regulate statements that violated natural law). Second, beyond this category, modern doctrine inverts the Founding Era understanding of freedom of speech as a natural right by putting the onus on the government to demonstrate a “compelling” justification for speech restrictions and by making judges the arbiters of what interests are compelling. Historically, it was up to legislators to assess which restrictions of speech would best serve the common good, with very little room for judicial oversight. Speech doctrine has thus followed a familiar pattern across an array of constitutional rights in the twentieth century: a vast expansion in the scope of rights coupled with a notable decrease in the afforded level of protection. 319

Still, history offers at least some support for our non-absolutist approach to expressive freedom. Given the absence of any explicit textualist basis for a tiers-of-scrutiny approach, speech law is open to criticism by those who view rights as absolutes. The First Amendment’s opening declaration that “Congress shall make no law,” Justice Black famously insisted, does not invite judges to balance its protections against countervailing social interests. 320 Yet if Black had read the text of the First Amendment in a historically informed way, he might have been more sympathetic to the tiers-of-scrutiny approach that his colleagues on the Supreme Court were beginning to adopt. After all, beyond their protection for a narrow set of customary legal rights, the Speech and Press Clauses simply recognized the natural right of expressive freedom, and natural rights were always implicitly qualified by legislative authority to promote the public good.

On this view, modern doctrine is valid so long as it tries to confine the processes of democracy to a good-faith pursuit of the public good—a goal that aligns with a democracy-reinforcing account of judicial review 321 —or, perhaps, so long as it confines policy outcomes to those that comport with the public good. (The proper level of generality to use in making these decisions is unclear.) As noted above, 322 for instance, one could defend the tiers-of-scrutiny approach as a way of teasing out whether the government was restricting speech for public-spirited reasons or was simply trying to insulate itself from criticism. Or one might take the view that content-neutral regulations of speech are, on the whole, conducive to the public good, whereas content-based restrictions erode the benefits of an open speech marketplace. 323 But on either view, modern interpreters must make our own assessments of which doctrines best fulfill these objectives.

In giving doctrinal precision to underdeterminate constitutional provisions, Jack Balkin explains, “we are permitted, even encouraged, to favor some [historical] opinions over others—even minority opinions in their day—and render judgments on the past.” 324 In other words, although the history of speech and press freedoms might settle the meanings of the Speech and Press Clauses, we can learn from the mistakes of history in deciding how to apply those provisions today. Founding Era support for punishing sedition and blasphemy, for instance, would not prevent us from making our own determination about the consistency of these laws with the public good. Consequently, although the constitutional reach of governmental power over speech is certainly far different now than it was at the Founding, modern speech law could nonetheless have deeper historical roots, or more feasible historical justifications, than scholars often realize.

Rather than justifying modern rules in this way, however, the Supreme Court routinely claims to be shackled by history. Writing for the Court, Justice Scalia once insisted that the freedom of speech “is the very product of an interest balancing by the people,” leaving no room for governmental officials, including judges, to assess whether restrictions of speech promote the public good. 325 In a similar vein, the Court recently rejected as “startling and dangerous” an approach to the First Amendment that would allow judges to identify “low-value” speech based on its utility. 326 Instead, it asserted, “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” 327 And just two terms ago, the Court seemed to treat the distinction between content-based and content-neutral restrictions as baked into the First Amendment. 328

This Article has nothing to say about whether the rule against content-based regulations advances the public good, or whether confining low-value speech to traditional categories is a good idea. Those are empirical and value-based inquiries that have little to do with the Founding Era. But the history of speech and press freedoms overwhelmingly disproves the Supreme Court’s insistence that modern doctrines inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

As a natural right, expression was originally subject to regulations that furthered the public good, leading to vibrant and long-running constitutional debates about expressive freedom. Nearly everyone who spoke on the issue agreed that well-intentioned statements of one’s thoughts were constitutionally protected. A few people thought that any governmental efforts to suppress political speech caused more harm than good. But for most, deliberate efforts to mislead the public were a different matter entirely and were deserving of punishment. In sum, opinions were wide-ranging, with arguments cast at different levels of generality. It bears emphasis that, on the whole, natural rights provided only a framework for argument—not a set of determinate legal rights.

The pliability of natural rights thus fostered a dynamic constitutional culture at the Founding. Natural liberty could be restrained, as William Blackstone put it, only when “necessary and expedient for the general advantage of the public.” 329 Whenever natural liberty “is, by the laws of the state, further restrained than is necessary and expedient for the general advantage,” St. George Tucker declared in 1796, “a state of civil slavery commences immediately.” 330 Steeped in this tradition, the Founders virulently contested the scope of all sorts of governmental powers—including the capacity to regulate expression—from the standpoint of policy, all the while casting their arguments in terms of an unchanging original bargain.

Recognizing the contested relationship between natural rights and legal rules at the Founding also has implications that resonate beyond the context of expressive freedom. Scholars often read constitutional phrases like “freedom of speech,” “unreasonable searches and seizures,” and “cruel and unusual punishments” as, in the words of Jack Balkin, “abstract and vague rights provisions.” 331 Indeed, the presence of several open-textured provisions in the Bill of Rights seems to reinforce that the Founders often preferred general constitutional standards over specific constitutional rules. 332 This Article, however, joins other recent scholarship suggesting that many Founding Era legal elites saw none of these rules as being abstract or vague. Rather, in their minds, these provisions simply reaffirmed longstanding features of Anglo-American law.

In the Fourth Amendment context, for instance, Laura Donohue has shown that Founding Era jurists viewed the ban on “unreasonable” searches and seizures as a simple reference to customary legal rules. “[A]t the Founding,” she explains, “there was no such thing as a ‘standard of reasonableness,’ such as has marked the Fourth Amendment discourse since the 1967 case of Katz v. United States .” 333 Rather, Donohue uncovers, unreasonableness meant “‘against reason,’ which translated into ‘against the reason of the common law.’” 334

Along similar lines, John Stinneford persuasively argues that, far from stating a “vague moral command,” the Eighth Amendment rule against “cruel and unusual” punishments actually called for a careful study of the common law. 335 “[T]he best way to discern whether a government practice comported with principles of justice,” Stinneford writes, “was to determine whether it was continuously employed throughout the jurisdiction for a very long time, and thus enjoyed ‘long usage.’” 336

In part, this Article reinforces these arguments. For many Founding Era legal elites, the First Amendment—far from being vague or abstract—imposed discrete legal commands recognized at common law. The First Amendment, in other words, was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom.

At the same time, the history of the First Amendment complicates the idea that seemingly abstract constitutional rights actually carried more determinate common-law meanings. 337 Many Founders, as this Article demonstrates, forcefully rejected lawyerly assumptions about constitutional interpretation. In this way, the Founders’ virulent contest over the legal implications of expressive freedom muddies the historical accounts offered by Donohue and Stinneford. If Republicans like George Hay were right that answering “a great constitutional question . . . depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature,” 338 that observation resonated far beyond the topic of expressive freedom. 339

A scholarly focus on the indeterminacy of the original First Amendment may thus seem deserved. That emphasis, however, misses a crucial point. As concepts, speech and press freedoms were relatively well defined, even though written in a different language. And perhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

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United States v. Stevens, 599 U.S. 460, 470 (2010); see also District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]he First [Amendment] . . . is the very product of an interest balancing by the people.”).

1  Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 1:11 (2016).

See, e.g. , Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent 15-30 (2016); Leonard W. Levy, Emergence of a Free Press 170-71 (1985); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions , 102 Yale L.J. 907, 919 & n.39 (1993); Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression , 78 B.U. L. Rev . 1275, 1289, 1292 (1998); Leonard W. Levy, On the Origins of the Free Press Clause , 32 UCLA L. Rev. 177, 180, 204 (1984); Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech? , 26 Hastings L.J. 639, 640-41 (1975); Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment , 97 Geo. L.J. 1057, 1079-83 (2009). The term “freedom of expression” was rarely used in the eighteenth century but is used here for simplicity. But see Answer of the Senate of Pennsylvania to Governor Mifflin’s Speech , Dunlap & Claypoole’s Am. Daily Advertiser (Philadelphia), Dec. 14, 1795, at 3 (“The communication of sentiment, with temper and decency, is a right which never should be impaired: Freedom of expression will only be abused by those who wish to conceal, or pervert, the truth.”).

See, e.g. , Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 168 (2012); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 46-47 (1985); Richard A. Primus, The American Language of Rights 73 & n.44 (1999); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 292 (1996).

See, e.g. , George Anastaplo, Reflections on Freedom of Speech and the First Amendment 66 (2007); Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 34-37 (1960); Akhil Reed Amar, Intratextualism , 112 Harv. L. Rev. 747, 815 (1999).

David A. Anderson, The Origins of the Press Clause , 30 UCLA L. Rev . 455, 487 (1983); see also Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century , 34 Wm. Mitchell L. Rev. 773, 793 (2008) (agreeing with Anderson); Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech , 86 Ind. L.J. 1, 17 (2011) (same).

Erwin Chemerinsky, Constitutional Law 1198 (4th ed. 2013); see also, e.g. , Akhil Reed Amar, The Constitution Today: Timeless Lessons for the Issues of Our Era 7 (2016) (“The Sedition Act of 1798 was clearly unconstitutional . . . .”).

Scholars who emphasize the indeterminacy of original meaning typically highlight the clashing views over sedition. See, e.g. , Smolla, supra note 2, at § 1:11. By contrast, those who take sides often argue that the opposing view was not prevalent until the late 1790s. Compare Levy, supra note 3 , at xii (“[T]he theory of freedom of political expression remained quite narrow until 1798 . . . .”), with Anderson, supra note 6 , at 521 (“The Federalists who sought to prevent criticism of government by passing the Sedition Act were not the Framers, nor did they share the Framers’ views.”). For other key works, see Bird, supra note 3 ; Phillip I. Blumberg, Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law (2010); Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal , 1970 Sup. Ct. Rev . 109; David S. Bogen, The Origins of Freedom of Speech and Press , 42 Md. L. Rev . 429 (1983); Hamburger, supra note 3 ; Philip B. Kurland, The Original Understanding of the Freedom of the Press Provision of the First Amendment , 55 Miss. L.J. 225 (1985); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression , 84 Colum. L. Rev . 91 (1984); David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History , 37 Stan. L. Rev. 795 (1985); and Stephen A. Smith, The Origins of the Free Speech Clause , 29 Free Speech Y.B. 48 (1991).

Geoffrey R. Stone, The Story of the Sedition Act of 1798: “The Reign of Witches , ” in First Amendment Stories 13, 23 (Richard W. Garnett & Andrew Koppelman eds., 2012). For others who emphasize a lack of consensus at the Founding, see, for example, David L. Lange & H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment 210 (2009); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel 70 (1986); Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev . 815, 837; Robert H. Bork, Neutral Principles and Some First Amendment Problems , 47 Ind. L.J. 1, 22 (1971); Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism , 82 Fordham L. Rev . 721, 748-54 (2013); and Saul Cornell, The People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate over Originalism , 23 Yale J.L. & Human . 295, 326-34 (2011) [hereinafter Cornell, The People’s Constitution vs. The Lawyer’s Constitution ].

Jonathan Gienapp, Historicism and Holism: Failures of Originalist Translation , 84 Fordham L. Rev . 935, 942 (2015).

4 William Blackstone, Commentaries * 152.

See Wendell Bird, Liberties of Press and Speech: ‘Evidetestnce Does Not Exist To Contradict the . . . Blackstonian Sense’ in Late 18th Century England? , 36 Oxford J. Legal Stud. 1 (2016).

The intellectual foundation of this language was social-contract theory. See Jud Campbell, Republicanism and Natural Rights at the Founding , 32 Const. Comment. 85, 87 (2017 ) (reviewing Randy E. Barnett, Our Republican Constitution: Securing The Liberty And Sovereignty of We the People (2016)). Founding Era discussions of social-contract theory and natural rights were common. See, e.g. , John Adams, A Defence of the Constitutions of Government of the United States of America 6 (Philadelphia, Hall & Sellers 1787); 1 William Blackstone, Commentaries * 47; Alexander Hamilton , The Farmer Refuted (1775) , reprinted in 1 The Papers of Alexander Hamilton 81, 88 (Harold C. Syrett ed., 1961); James Madison, Essay on Sovereignty (1835), in 9 The Writings of James Madison 568, 570 (Gaillard Hunt ed., 1910); Gouverneur Morris, Political Enquiries (1776), in To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris 5, 9 (J. Jackson Barlow ed., 2012); 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 16 (Windham, John Byrne 1795); Richard Wooddeson, Elements of Jurisprudence: Treated of in the Preliminary Part of a Course of Lectures on the Laws of England 22 (London, T. Payne & Son 1783).

See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress of the United States of America 811, 822 (Charlene Bangs Bickford et al. eds., 1992) [hereinafter Documentary History of the First Federal Congress] ; Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson 131, 132 (Julian P. Boyd ed., 1971); An Old Whig IV , Indep. Gazetteer ( Philadelphia), Oct. 27, 1787, reprinted in 13 The Documentary History of the Ratification of the Constitution 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter Documentary History of the Ratification] . The Founders sometimes referred to positive rights as adventitious rights or social rights. See The Impartial Examiner 1 , Va. Indep. Chron. ( Richmond ) , Feb. 20, 1788, reprinted in 8  Documentary History of the Ratification, supra , at 387, 390 (1988); [George Logan], Letters Addressed to the Yeomanry of the United States . . . 39 (Philadelphia, Eleazer Oswald 1791); Philanthropos , Newport Herald , June 17, 1790, reprinted in 26 Documentary History of the Ratification , supra , at 1051, 1051 (John P. Kaminski et al. eds., 2013).

Common Sense [Thomas Paine], Candid and Critical Remarks on Letter 1, Signed Ludlow , Pa. J. & Wkly. Advertiser , June 4, 1777, at 1; see also 1 Thomas Rutherford, Institutes of Natural Law 36 (Cambridge, J. Bentham 1754) (“Another division of our rights is into natural and adventitious. Those are called natural rights, which belong to a man . . . originally, without the intervention of any human act.”); Hamburger, supra note 3 , at 919 (“[Americans] understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government.”).

See Campbell, supra note 13, at 92-98.

See id. at 96-98.

See Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 10 (1969); Bernadette Meyler, Towards a Common Law Originalism , 59 Stan. L. Rev . 551, 581 (2006).

See infra Section II.D.

See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 296-97, 306. As Cornell notes, “the conflict over legal interpretation . . . exist[ed] along a spectrum in which elite culture shaded gradually into a more popular plebian culture.” Id. at 309.

Id. at 306 (quoting [ Benjamin Austin ], Honestus, Observations on the Pernicious Practice of the Law 20 (Boston, Adams & Nourse 1786)).

Scholars have widely noted how methodological disagreements among the Founders can complicate efforts to recover original meanings. See, e.g. , id. at 296-98; Larry Kramer, Two (More) Problems with Originalism , 31 Harv. J.L. & Pub. Pol’y 907, 912-13 (2008); Caleb Nelson, Originalism and Interpretive Conventions , 70 U. Chi. L. Rev . 519, 555-56, 561, 571-73 (2003).

See, e.g. , Alexander Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 13 (Vergennes, Samuel Chipman 1799) (arguing that sedition leads to the “greatest of all plagues, the corruption of public opinion”).

See, e.g. , John Thomson , An Enquiry, Concerning the Liberty, and Licentiousness of the Press, and the Uncountroulable Nature of the Human Mind 83 (New York, Johnson & Stryker 1801) (describing the “laws of society”—akin to the proverbial marketplace of ideas—as “fully sufficient to the purpose” of handling malicious falsehoods); Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press 170 (New York, George Forman 1800) (“Public prosecutions for libels are . . . more dangerous to Society than the misrepresentation which they are intended to punish.”). This view developed among English radicals, whose writings circulated in America. See, e.g. , Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 25 (London, Barlow & Babcock 1784) (arguing that the “evils” of granting civil authority to regulate speech outweigh the benefits); James Burgh, Of the Liberty of Speech and Writing on Political Subjects , in 3 Political Disquisitions 246, 254 (London, Edward and Charles Dilly 1775) (“For if you punish the slanderer , you deter the fair inquirer .”).

Readers need not accept a general distinction between meanings and expected applications in order to recognize my point, which is simply that individuals could simultaneously agree that speaking, writing, and printing were natural rights regulable in the public interest and disagree about whether particular governmental restrictions of speaking and printing promoted the public good. For arguments in favor of a general distinction between meanings and expected applications, see Christopher R. Green, Originalism and the Sense-Reference Distinction , 50 St. Louis U. L.J. 555, 559 (2006); and Keith E. Whittington, Originalism: A Critical Introduction , 82 Fordham L. Rev. 375, 383 (2013).

See infra Section II.A.

See infra Section II.B.

See infra Section II.C.

See, e.g. , Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 128 (1993) (Kennedy, J., concurring).

United States v. Stevens, 559 U.S. 460, 468-71 (2010).

Id. at 470; see also United States v. Alvarez, 132 S. Ct. 2537, 2544, 2547 (2012) (plurality opinion) (summarizing the same idea, with application to false statements).

McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014).

Compare Zechariah Chafee Jr., Freedom of Speech 17-24 (1920) ( insisting that the First Amendment was designed to bar seditious libel prosecutions), with Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 2-3 (1960) ( arguing that historical evidence “points strongly in support” of the conclusion that the First Amendment “left the law of seditious libel in force”) , and Rabban, supra note 8, at 796 ( arguing that Levy’s focus on seditious libel led him to overlook genuine and growing support among the Founders for a greater degree of expressive freedom).

See, e.g. , Vikram Amar, Introduction to The First Amendment Freedom of Speech: Its Constitutional History and the Contemporary Debate 13, 13 (Vikram David Amar ed., 2009); Genevieve Lakier, The Invention of Low-Value Speech , 128 Harv. L. Rev. 2166, 2180-81 (2015); Marc Lendler, “Equally Proper at All Times and at All Times Necessary”: Civility, Bad Tendency, and the Sedition Act , 24 J. Early Republic 419, 426 n.28 (2004).

See Bird , supra note 3, at 77; Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 47-48 (1991); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act , 48 Vand. L. Rev . 1539, 1556, 1567-71 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment , 88 Nw. U. L. Rev . 1106, 1111-14 (1994); Mayton, supra note 8, at 97, 119.

See supra note 4 (collecting sources).

See supra notes 2 and 9 and accompanying text.

See Hamburger, supra note 3, at 908-11.

Hamburger’s only engagement with this issue is an unilluminating footnote:

[N]atural law was not necessarily the only indication of what was an abridgement of the constitutional right, because a constitution might enumerate a natural right but qualify or supplement its protection of the right. The First Amendment right of free speech and press, for example, was understood to preclude publication censorship . . . . [T]his preference for postpublication restraints was highly compatible with the notion of a physical natural right, but it was not claimed to be derived from natural rights analysis.

Id. at 954 n.130. In a similar vein, David Bogen shows that many Founders viewed the freedom of speech as a natural right, but he offers little account of what that meant. See Bogen, supra note 8, at 453 (“[N]atural rights theory . . . failed to mark the line between protected liberty and punishable license.”). Like Hamburger, Bogen does not explore the place of customary positive rights within a natural-rights framework. See id. at 450-53.

See, e.g. , Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People , 16 S. Ill. U. L.J. 267, 278-79 (1992); see also Levy , supra note 3, at 225 (“The Framers believed that . . . no provision of the Constitution authorized the government to act on any natural rights.”); cf. Heyman, supra note 3, at 1282 (classifying freedom of thought as a right “not subject to legislative regulation for the public good . . . [but] nevertheless limited by the rights of others”). For others who interpret the First Amendment as a categorical ban on federal regulations of expression, see supra note 36 (collecting sources).

See infra notes 114-118 and accompanying text.

See infra notes 290-294 and accompanying text.

See, e.g. , Patterson v. Colorado, 205 U.S. 454, 462 (1907) (providing that the First Amendment prohibits prior restraints on speech but permits “the subsequent punishment of such [speech] as may be deemed contrary to the public welfare”). See generally Crowley v. Christensen, 137 U.S. 86, 89 (1890) (“[T]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”); Victoria F. Nourse, A Tale of Two Lochners : The Untold History of Substantive Due Process and the Idea of Fundamental Rights , 97 Calif. L. Rev. 751, 752 (2009) (“Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights.”).

See, e.g. , N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (“The liberty of uttering our sentiments and giving publicity of our thoughts, might be supposed an evil were it not well guarded against by wholesome laws, which prevents any one man from injuring another.”).

See infra notes 188-189 and accompanying text.

Because of the evidence available, this Article relies on the views of Founding Era elites. References to the Founders, Americans, and so forth, should be read accordingly. Of course, this binary distinction between “elites” and “non-elites” is stylized. See Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard , 29 Const. Comment . 383, 388 (2014).

Although “large numbers of Americans spoke about government, liberty and constitutional law on the basis of some shared assumptions about natural rights and the state of nature,” Hamburger, supra note 3, at 915, these speakers may not be representative of the entire Founding generation, see id. at 916.

Perhaps those unfamiliar with natural-rights reasoning would have understood the term as the practical freedom that speakers and publishers exercised at the time of the First Amendment’s ratification—a meaning that would prevent the government from instituting any new restrictions of speech or the press. Without evidence, one scholar posited this idea. See Leonard W. Levy, The Legacy Reexamined , 37 Stan. L. Rev. 767, 769 (1985); cf. James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of Pennsylvania , Claypoole’s Am. Daily Advertiser (Philadelphia), Apr. 11, 1799, reprinted in 3  The Documentary History of the Supreme Court of the United States, 1789-1800 , at 332, 347 (Maeva Marcus et al. eds., 1990) [hereinafter Iredell] (“What might be deemed the Freedom of the Press, if it had been a new subject, and never before in discussion, might indeed admit of some controversy.”). Or perhaps Americans unfamiliar with social-contract theory would have interpreted the First Amendment in light of the Speech and Debate Clause. Yet again, however, historical evidence does not support that view. See infra notes 275-281 and accompanying text.

See infra Part IV. For this reason, this Article cannot refute interpretive arguments based on other methodologies.

Readers may refer to any Supreme Court opinion that mentions history. To be sure, Justice Scalia once asserted that the Constitution’s original meaning “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v. Heller, 554 U.S. 570, 577 (2008). But the Court never demonstrates that elite sources reflect how “ordinary citizens” would have understood the Constitution’s words and phrases, and it regularly relies on highly technical legal sources that were surely unfamiliar to most ordinary citizens. Cf. Lawrence B. Solum, District of Columbia v. Heller and Originalism , 103 Nw. U. L. Rev . 923, 970 (2009) (offering an originalist perspective on the “public meaning” of terms of art). Of course, limiting the relevant public to voters might narrow the linguistic gap between the public and elites, see Mark Tushnet, Heller and the New Originalism , 69 Ohio St. L.J . 609, 611-12 (2008), but that limitation is unwarranted if the relevant public includes non-voting members of the body politic.

See, e.g. , Larry D. Kramer, Madison’s Audience , 112 Harv. L. Rev . 611, 676 (1999); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev . 1409, 1415 (1990).

See, e.g. , Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience , 117 Harv. L. Rev . 1765, 1767 nn. 6-8, 1768 (2004) (listing several theories).

See, e.g. , Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 199 (1996) (“The First Amendment . . . cannot be applied to concrete cases except by assigning some overall point or purpose to the amendment’s abstract guarantee of ‘freedom of speech or of the press.’”).

See Meiklejohn , supra note 5; Cass R. Sunstein, Democracy and the Problem of Free Speech (1993); Ashutosh Bhagwat, The Democratic First Amendment , 110 Nw. U. L. Rev. 1097 (2016 ).

See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection , 97 Va. L. Rev. 595 (2011).

See Martin H. Redish, The Value of Free Speech , 130 U. Pa. L. Rev . 591, 593 (1982) (describing the “one true value” of free speech as “individual self-realization”).

In particular, many scholars have noted that preserving republican government was the primary objective for many proponents of speech and press freedoms. See Bhagwat, supra note 55, at 1102 (“[A] broad consensus has emerged over the past half-century regarding the fundamental reason why the Constitution protects free speech: to advance democratic self-governance.”). That account of the Founders’ motives is certainly true. But one goal of this Article is to show that the meanings of speech and press freedoms, as concepts, were not defined by or limited to concerns about preserving republican government.

Gordon S. Wood, The Creative Imagination of Bernard Bailyn , in The Transformation of Early American History: Society, Authority, and Ideology 16, 46 (James A. Henretta et al. eds., 1991).

See G. Edward White, Intellectual History and Constitutional Decision Making , 101 Va. L. Rev . 1165, 1176-77 (2015). American judges, for instance, unanimously upheld sedition prosecutions. See Blumberg , supra note 8, at 145. For twentieth-century developments, see, for example, Lakier, supra note 35; and G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America , 95 Mich. L. Rev . 299 (1996).

See Michael W. McConnell, Time, Institutions, and Interpretation , 95 B.U. L. Rev. 1745, 1777 (2015); John O. McGinnis, The Duty of Clarity , 84 Geo. Wash. L. Rev. 843, 843 (2016).

Plenty of originalists value precedent. See, e.g. , William Baude, Is Originalism Our Law? , 115 Colum. L. Rev . 2349, 2358-59 (2015); see also infra note 307 (collecting sources).

491 U.S. 397 (1989).

530 U.S. 640 (2000).

558 U.S. 310 (2010).

562 U.S. 443 (2011).

See, e.g. , Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 132-49, 255-71 (rev. ed. 2014). This view is ahistorical, see Campbell, supra note 13, at 105-08, but that does not make it “wrong.” Modern constitutional practice ultimately has to be based on normative grounds (or some other assessment of what counts as our law), which may call for only a limited form of historical inquiry. See Whittington, supra note 25, at 400-04 (discussing the relationship between originalism and judicial review).

See, e.g. , Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine , 63 U. Chi. L. Rev. 413, 414 (1996); David A. Strauss, The Ubiquity of Prophylactic Rules , 55 U. Chi. L. Rev . 190, 196-202 (1988).

For different formulations of this two-step process of constitutional adjudication, see, for example, Mitchell N. Berman, Constitutional Decision Rules , 90 Va. L. Rev. 1 (2004); Richard H. Fallon, Jr., Foreword: Implementing the Constitution , 111 Harv. L. Rev . 54 (1997); and Lawrence B. Solum, The Interpretation-Construction Distinction , 27 Const. Comment. 95 (2010).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison 193, 194 (Charles F. Hobson & Robert A. Rutland eds., 1979).

Thomas Hayter, An Essay on the Liberty of the Press Chiefly as it Respects Personal Slander 18 (London, J. Raymond 1755); see also Freeman’s J.: or, The North-Am. Intelligencer (Philadelphia), Nov. 16, 1785, at 3 (reprinting this passage); Pa. Packet (Philadelphia), Nov. 12, 1785, at 2 (same); Va. Gazette (Williamsburg), May 18, 1776, at 1 (same). For other sources that identify speaking, writing, and publishing as retained natural rights, see, for example, 8 Annals of Cong . 2,148 (1798) (statement of Rep. Harrison Gray Otis) (mentioning the “liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party”); 4 Annals of Cong . 918 (1794) (statement of Rep. William Giles) (referring to the “the inalienable privilege of thinking, of speaking, of writing, and of printing”); Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress , supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995) (describing the freedom of speech as an “unalienable right”); id. at 340 (statement of Rep. John Vining) (“[N]o law can divest” individuals of the right “of speaking and writing their minds . . . .”); Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H. Cogan ed., 1997) [hereinafter Complete Bill of Rights] (“Speaking, writing and publishing” are among “certain natural rights which are retained”); Resolution of the Virginia House of Delegates, Va. Gazette, & Gen. Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural right of speaking and writing freely”); 2 Joseph Priestley, Lectures on History, and General Policy 47 (Philadelphia, P. Byrne 1803) (“[I]n a state of society, every man retain[s] his natural powers of speaking, writing, and publishing his sentiments on all subjects . . . .”); Freeborn American , Bos. Gazette & Country J., Mar. 9, 1767, reprinted in Freedom of the Press from Zenger to Jefferson 95, 95 (Leonard W. Levy ed., 1996) [ hereinafter Freedom of the Press] (“Man, in a state of nature, has undoubtedly a right to speak and act without controul.”); Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958) (“[R]ights which it is useless to surrender to the government” include “the rights of thinking, and publishing our thoughts by speaking or writing . . . . ”); and Letter from Thomas Paine to Thomas Jefferson (Mar. 1788), in 13 The Papers of Thomas Jefferson, supra note 14 , at 4, 5 (1956) (“[N]atural rights” include “the rights of thinking, speaking, forming and giving opinions . . . .”). The understanding of speaking, writing, and publishing as natural rights was articulated in seminal discussions about speech and press freedoms during the Zenger controversy. See Argument of Andrew Hamilton, in Freedom of the Press , supra , at 43, 54 (“I beg Leave to insist, That the Right of complaining or remonstrating is natural; And the Restraint upon this natural Right is the Law only, and that those Restraints can only extend to what is false  . . . .”); N.Y. Weekly J . (Nov. 1733), reprinted in Freedom of the Press, supra , at 30 (“No Nation Antient or Modern ever lost the Liberty of freely Speaking, Writing, or Publishing their Sentiments, but forthwith lost their Liberty in general and became Slaves.”).

For instance, one scholar insists that confining regulations of expression to lawful restraints would have been “nothing but a tautology.” Bird , supra note 3, at 11. But this reflects an anachronistic view of freedom. Confining any restraints of natural liberty to known laws passed with the consent of the people and in pursuit of the public good was, according to many eighteenth-century thinkers, the very essence of freedom. See John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty 38-39 (2005); see, e.g. , The Democratic Society of the City of New-York, to Their Brethren the Citizens of the United States (Jan. 14, 1795), in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 192, 195 (Philip S. Foner ed., 1976) [hereinafter Democratic-Republican Societies] (“ Civil Liberty is the right of the citizen freely to dispose of his actions subject only to the restraint of the laws . . . . Restraint commences . . . where the liberty of one individual is incompatible with the safety, or happiness of another—it is dictated by justice, and constitutes law.”).

See, e.g. , A Citizen of New-York [John Jay], An Address to the People of the State of New York (Apr. 15, 1788), in 20 Documentary History of the Ratification, supra note 14, at 922, 933 (John P. Kaminski et al. eds., 2004).

See, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 24, 1788) (statement of James Iredell), reprinted in 4 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 10-11 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Debates in the Several State Conventions ]; The Federalist No. 84 (Alexander Hamilton); Remarker, Indep. Chron. , Dec. 27, 1787, reprinted in 5 Documentary History of the Ratification, supra note 14, at 527, 529-30 (John P. Kaminski et al. eds., 1998); see also Gordon S. Wood, The History of Rights in Early America , in The Nature of Rights at the American Founding and Beyond 233, 236-42 (Barry Alan Shain ed., 2007) [hereinafter The Nature of Rights] (describing the development of this view in England and America).

See Herbert J. Storing, What the Anti-Federalists Were For 69-70 (Murray Dry ed., 1981); Jack N. Rakove, The Dilemma of Declaring Rights , in The Nature of Rights , supra note 76, at 181, 193-94.

Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison, supra note 72, at 350, 351 (Robert A. Rutland et al. eds., 1973).

Letter from Samuel Chase to Richard Henry Lee (May 16, 1789), in 15 Documentary History of the First Federal Congress, supra note 14, at 565, 565 (Charles Bangs Bickford et al. eds., 2004); see also The Massachusetts Convention (Jan. 23, 1788) (statement of Samuel Thompson), in 6 Documentary History of the Ratification, supra note 14, at 1312, 1317 (John P. Kaminski et al. eds., 2000) (“[W]here is the bill of rights which shall check the power of this Congress, which shall say, thus far shall ye come and no farther. ”).

Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 659, 659 (1958).

See Campbell, supra note 13, at 107-08; see also infra notes 290-294 and accompanying text.

Although not explored in this Article, other parts of the First Amendment also protected fundamental positive rights that furthered the natural right of expressive freedom. The ancient right to petition, for instance, was a procedural device through which individuals and groups could seek redress of grievances with accompanying “protect[ion] from formal political retaliation by governmental authorities.” Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right To Petition , 66 Fordham L. Rev . 2153, 2202 (1998). The right of peaceable assembly similarly barred prosecutions for peaceable public meetings, although its broader implications were contested. See Saul Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech , 84 Fordham L. Rev . 915, 928-30 (2015); see also J ohn D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 21-29 (2012) (discussing the history of the freedom of assembly in the Founding Era).

See Campbell, supra note 13, at 87.

Id. at 87-88.

See, e.g. , Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact 74-75 (1974); John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 88-90 (1986); James Wilson, Of the Natural Rights of Individuals , in 2 Collected Works of James Wilson 1053, 1055-56 (Kermit L. Hall & Mark David Hall eds., 2007).

When Federalists came under fire for not enumerating rights, however, they mercilessly mocked their Anti-Federalist opponents by pointing out the limitless breadth of natural liberty. See Philip A. Hamburger, Trivial Rights , 70 Notre Dame L. Rev . 1, 20-30 (1994).

See infra notes 275-281 and accompanying text.

Anderson, supra note 6, at 487 (citing Levy , supra note 34, at 5-6); accord Jay, supra note 6, at 793; Rosenthal, supra note 6, at 17.

See supra notes 14-15, 83-86 and accompanying text.

See supra note 73 and infra notes 93-98 (collecting sources).

Pa. Const . of 1776, art. 12; Vt. Const. of 1777, ch. 1, art. 14.

Proposal by Sherman to House Committee of Eleven, July 21-28, 1789, in Complete Bill of Rights, supra note 73, at 83.

Freeborn American , supra note 73, at 95.

Alexander Addison, Analysis of the Report of the Committee of the Virginia Assembly, on the Proceedings of Sundry of the Other States in Answer to their Resolutions 44 (Philadelphia, Zachariah Poulson Jr. 1800).

John Taylor, An Inquiry into the Principles and Policy of the Government of the United States 473 (Fredericksburg, Green & Cady 1814).

Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 21-22 (London, T. Cadell 1784).

Eteocles, An Essay on the Freedom of Speech , Md. Gazette (Annapolis), Nov. 24, 1780, at 180.

Addison, supra note 23, at 4.

See, e.g. , James Alexander, Letter to the Editor, Pa. Gazette (Philadelphia), Nov. 24, 1737, reprinted in Freedom of the Press , supra note 73, at 62, 66 (referencing “freedom of speech and liberty of the press” as “natural rights”).

Hayter , supra note 73, at 18; see also Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written, or printed, or by pictures or other signs.”); William Bollan, The Freedom of Speech and Writing upon Public Affairs, Considered 3-4 (London, S. Baker 1766) (discussing “speech and writing, or printing, a species of writing invented for the more expeditious multiplication of copies, both being modes of presenting to the eye what speech conveys to the ear”).

See, e.g. , 8 Annals of Cong. 2147-48 (1798) (statement of Rep. Otis) (distinguishing “the liberty of writing, publishing, and speaking” from “the freedom of the press”).

See 12 The Oxford English Dictionary 411 (J.A. Simpson & E.S.C. Weiner eds., 2d. ed. 1989); see also James Sullivan, Dissertation upon the Constitutional Freedom of the Press in the United States 10 (Boston, Joseph Nancrede 1801) (“The conventions of the states, and the Congress of the United States, use the word press as descriptive of the free communication of ideas and sentiments, by the art of printing.”). See generally Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today , 160 U. Pa. L. Rev. 459 (2012).

See, e.g. , 8 Annals of Cong. 2167-68 (1798) (statement of Rep. Harper) (decrying the “licentious abuse” of the liberty of the press, thus alluding to the natural-rights distinction between liberty and license —i.e., the abuse of liberty); Nathaniel Chipman, Sketches of the Principles of Government 152 (Rutland, Vt., J. Lyon 1793) (“Let there be no restraint upon the liberty of the Press, no check upon public or private discussion, but what is imposed by the manners, morals, taste, and good sense of the age.”).

The Craftsman No. 121 , in 3 The Craftsman 274, 274 (Caleb D’Anvers ed., London, R. Francklin 1731) (emphasis omitted); see American Intelligence , Indep. Gazetteer (Philadelphia), Jan. 5, 1789, at 3 (“Freedom of speech, which is nothing more than the freedom of press, is the great bulwark of liberty . . . .”). Other authors treated the freedom of speech as synonymous with “the liberty of individuals to communicate their thoughts to the public.” Of the Liberty of the Press and Elections , London Evening Post , Oct. 29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518-19 (1754). As this passage illustrates, “liberty” and “freedom” were typically used interchangeably.

See Hamburger, supra note 3, at 922-30.

See id. at 930 .

See David Hume , Of the Original Contract , in 2 Essays and Treatises on Several Subjects 287, 289-91 (London, A. Millar 1760); see also Rutherford, supra note 15, at 10 (“It is therefore the law of [man’s] nature, that he should live in society with others of his own species” and “should join with them in a common interest . . . as to labour with them for a general good.”).

Chipman, supra note 103, at 75.

Wilson, supra note 85, at 1056.

Id. at 1055-56 (emphasis added).

See Campbell, supra note 13, at 88; see, e.g. , John Locke, Second Treatise of Government §§ 96-97 (1690), reprinted in T wo Treatises of Government and a Letter Concerning Toleration 142 (Ian Shapiro ed., 2003); Theophilus Parsons , Essex Result , in Memoir of Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). Although typically cast in historical terms, the social contract was a theoretical idea used to frame the relationship between individuals and their government. See Campbell, supra note 13, at 87 n.10, 89 n.19.

Mass. Const . of 1780, pmbl.

See, e.g. , Adams , supra note 13, at 6; 1 William Blackstone, Commentaries * 52; Madison, supra note 13, at 570. In English and colonial thought, this agreement was often described as an “original contract” between the people and the monarch. See Reid , supra note 85, at 132-34. Founding Era writers sometimes merged the social contract and constitution . See Philip Hamburger, Law and Judicial Duty 98-99, 294 (2008) ; see, e.g. , Sullivan, supra note 102 , at 11 (“In the social compacts, which we denominate constitutions . . . .”). This conflation was common in the United States after independence, see Thad W. Tate, The Social Contract in America, 1774-1787: Revolutionary Theory as a Conservative Instrument , 22 Wm. & Mary Q . 375, 376 (1965), likely because the notion of an “original contract” between the people and a monarch became obsolete. But American constitutional theorists maintained the distinction between a social contract and a constitution. See, e.g. , Adams , supra note 13, at 6; Madison, supra note 13, at 570; see also 3 John Phillip Reid, Constitutional History of the American Revolution 114 (1991) (“American Whigs, in contrast to later historians, seldom compound[ed] or confuse[d] the two contracts.”); Reid , supra note 85, at 133-34 (noting eighteenth-century political writers’ distinctions between the social contract and the original contract).

See Campbell, supra note 13, at 92-94; see, e.g. , Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty 12-13 (2d ed., London, J. Johnson 1771) (“It must necessarily be understood, therefore, whether it be expressed or not, that all people live in society for their mutual advantage; so that the good and happiness of the members, that is the majority of the members of any state, is the great standard by which every thing relating to that state must finally be determined.”); John Witherspoon , Lectures on Moral Philosophy , in The Selected Writings of John Witherspoon 191 (Thomas P. Miller ed., 1990) (“[I]t is certain that the public good has always been the real aim of the people in general in forming and entering into any society.”). When Jefferson recommended five works on “the organization of society into civil government . . . according to the rights of nature,” Letter from Thomas Jefferson to John Norvell (June 11, 1807), in 5 The Writings of Thomas Jefferson 90, 90-91 (H. A. Washington ed., 1853), all of his recommendations prioritized the public good. See Chipman , supra note 103, at 174-75 (noting that retained natural rights “must be in a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, as are clearly derived from those laws”); John Locke , Second Treatise of Government § 130 (1690), reprinted in John Locke , supra note 111 , at 156 (noting that individuals surrender “as much . . . natural Liberty . . . as the Good, Prosperity, and Safety of the Society shall require”); The Federalist No. 43, at 297 (James Madison) (Jacob E. Cooke ed., 1961) (“[T]he safety and happiness of society are the objects at which all political institutions aim.”); Priestley , supra , at 57 (“[A]ll claims of individuals inconsistent with the public good are absolutely null and void.”); Algernon Sidney, Discourses Concerning Government 255 (2d ed., London, J. Darby 1704) (stating that “the publick Good . . . is the end of all . . .  Government”) (emphasis added).

The Federalist No. 43, supra note 114, at 297 (James Madison); see also supra note 114 and accompanying text (discussing the public good).

See, e.g. , Alexander Hamilton, Opinion on the Constitutionality of the Bank , in 8 The Papers of Alexander Hamilton, supra note 13, at 91 (1965).

See, e.g. , The Federalist No. 37, supra note 114, at 239 (James Madison) (noting “the necessity of sacrificing private opinions and partial interests to the public good”); James Wilson, Of Citizens and Aliens, in 2 Collected Works of James Wilson, supra note 85, at 1038, 1043 (“By the will and by the interest of the community, every private will and every private interest must be bound and overruled.”); see also Campbell, supra note 13, at 93 n.41 (collecting other sources).

Campbell, supra note 13, at 94 (emphasis removed).

1 William Blackstone, Commentaries *125 (emphasis added); see also Hamburger, supra note 3, at 931 n.70 (collecting sources).

1 Zephaniah Swift, A Digest of the Laws of the State of Connecticut 15 (New Haven, S. Converse 1822); see also New York Ratification Convention Debates (June 25, 1788) (statement of Melancton Smith), in 22 Documentary History of the Ratification, supra note 14, at 1877, 1879 (John P. Kaminski et al. eds., 2008) (“What is government itself, but a restraint upon the natural rights of the people?”).

Parsons, supra note 111, at 366 (emphasis added).

The Federalist No. 84 , supra note 114, at 578 (Alexander Hamilton) (emphasis added); see also, e.g. , Massachusetts Ratification Convention Debates (Jan. 23, 1788) (statement of Theophilus Parsons), in 6 Documentary History of the Ratification, supra note 14, at 1324 (John P. Kaminski et al. eds., 2000) (“ [T]he people divest themselves of nothing.”).

This confusion is most apparent in the view that natural rights were categorical exclusions of regulatory authority. See sources cited supra note 41. For an illuminating effort to trace and unravel much of the confusion, see Dan Edelstein, Early-Modern Rights Regimes: A Genealogy of Revolutionary Rights , 3 Critical Analysis L. 221 (2016).

Chipman , supra note 103, at 117.

Letter from Thomas Jefferson to Francis W. Gilmer (June 7, 1816), in 15 Writings of Thomas Jefferson 23, 24 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).

For a discussion of how individuals could “retain” their natural rights in a social contract but consent to certain restrictions of those liberties under law, see Campbell, supra note 13, at 96-98.

Chipman , supra note 103, at 74.

Id. at 175 (emphasis added); see also Supplement to Max Farrand’s The Records of the Federal Convention of 1787 , at 183 (James H. Hutson ed., 1987) (“[W]e are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society . . . .” (quoting Nathaniel Chipman)) .

Chipman , supra note 103, at 175 (emphasis added).

James Wilson, On the History of Property , in 1 Collected Works of James Wilson, supra note 85, at 387.

Wilson, supra note 85, at 1056 (emphasis added).

See Addison, supra note 94, at 46 (“[T]he liberty of conscience cannot be modified, and the liberty of the press cannot be abridged, by authority of the United States.”); Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of the Residence Bill (July 15, 1790), in 17 The Papers of Thomas Jefferson, supra note 14, at 194, 195-97 (1965) (using the phrase “abridged or modified,” and treating “modified” as synonymous with “regulated in [its] exercise by law”). In the late 1790s, some Republicans elided the inherent limits on expressive freedom imposed by natural law and social obligation, thus leading to the view that any regulation of expression was an abridgment of the freedom of speech. See St. George Tucker , View of the Constitution of the United States (1803), reprinted in View of the Constitution of the United States with Selected Writings 91, 386 (1999).

1 William Blackstone, Commentaries * 125.

Hayter , supra note 73, at 8, 18.

Freeborn American , supra note 73, at 95; see Tenax, To the People of Pennsylvania , The Freeman’s Journal: or, the North-American Intelligencer , Oct. 30, 1782, at 1; William Livingston, Of the Use, Abuse, and Liberty of the Press , The Indep. Reflector or Wkly. Essays on Sundry Important Subjects , Aug. 30, 1753, reprinted in Freedom of the Press , supra note 73, at 75, 79.

See, e.g. , Jacob Rush, The Nature of an Oath Stated and Explained , in Charges, and Extracts of Charges, on Moral and Religious Subjects 33, 44 (Philadelphia, 1804) (defending bans on profane swearing because it “lessen[s] that awe and reverence of the Supreme Being, which is one of the strongest guards against perjury; and consequently be in a high degree, injurious to society”). Others recognized that disrupting the “peace and order of society” was grounds for restricting publications, even without directly violating the rights of others. See Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788); cf. Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson, supra note 14, at 364, 367 (1958) (endorsing restrictions of speech “affecting the peace of the confederacy with foreign nations”). Occasionally, writers worried that a general declaration of press freedom might be construed to “extend to the justification of every possible publication .” America [Noah Webster], To the Dissenting Members of the Late Convention of Pennsylvania , N. Y. Daily Advertiser , Dec. 31, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 484, 487 (John P. Kaminski et al. eds., 2003); see also Hamburger, supra note 3, at 936 n.83; cf. N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Samuel Jones) (“[H]e hoped that something might be done, if it were possible, to discriminate between the liberty and the licentiousness of the press. The amendment now proposed would be nugatory, as something similar thereto was already included in the constitution. Unless it went a little farther, it appeared to him as if this amendment would not leave it in the power of the legislature to make any law even to punish the injuries that might be done to individuals by the indiscriminate publication of libels.”). But these sources do not indicate that existing legal privileges actually extended that far or that the Founders wanted to extend them that far.

See Heather S. Nathans, Early American Theatre from the Revolution to Thomas Jefferson: Into the Hands of the People 37-70 (2003).

See, e.g. , Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring); Bird , supra note 3, at 27, 112, 461.

Priestley, supra note 114, at 57. Priestley emphasized that this inquiry depended on empirical assessments, not purely abstract reasoning. Id. at 58 .

Addison , supra note 23, at 10.

See, e.g. , 10 Annals of Cong . 925 (1801) (statement of Rep. Samuel Dana) (“[T]hough upon general principles, truth may be said to be an antidote to falsehood, truth does not always make its appearance in time to prevent the evil intended by the evil-disposed.”).

Sullivan , supra note 102, at 21-22. Sullivan, despite being a Republican, defended the constitutionality of the Sedition Act. See id.

10 Annals of Cong . 931 (1801) (statement of Rep. John Rutledge Jr.); see, e.g. , Addison, supra note 94, at 42-43.

E[lizabeth] P[riestley], On the Propriety and Expediency of Unlimited Enquiry , in Thomas Cooper, Political Essays 62, 62 (Thomas Cooper ed., Philadelphia, 2d ed. 1800). For a brief introduction to this essay, see Eugene Volokh, Elizabeth Ryland Priestley, Early American Author on Free Speech , 4 N .Y.U. J.L. & Liberty 382 (2009).

P[riestley], supra note 148, at 63.

Id. at 63-64; see also, e.g. , 10 Annals of Cong . 928 (1801) (statement of Rep. Benjamin Huger) (“[S]o nice and delicate were the shades of distinction between the licentiousness of the press, and a necessary freedom of discussion, that it was upon the whole better perhaps . . . to leave the measures of Government and its Administration entirely open to investigation and animadversion, without attempting to repress the eccentricities and exuberances of public discussion by even an ideal restraint.”).

See, e.g. , 10 Annals of Cong . 923 (1801) (statement of Rep. Joseph Nicholson).

To be sure, the doctrinal conclusions that Republicans reached were often categorical, but their pre-doctrinal understandings of expressive freedom usually were not. See, e.g. , George Hay, An Essay on the Liberty of the Press 27- 28 (Richmond, Samuel Pleasants, Jr. 1803) (concluding that publications on “matters of public concern” were immune from punishment because “the point at which freedom of enquiry ends and licentiousness begins, must remain forever unknown”). For a narrower interpretive argument that did take a categorical form, see infra Section II.B. Republicans in the late 1790s also wholly denied federal power over expression based on a novel interpretation of the First Amendment. See infra Section III.B; see also Jud Campbell, The Invention of First Amendment Federalism (Sept. 10, 2017) (unpublished draft) (on file with author).

Tenax, supra note 139, at 1, 2.

Id. Though unattributed, this language was drawn directly from Blackstone. See 4  William Blackstone, Commentaries *152 (“[T]he disseminating, or making public, of bad sentiments, destructive of the ends of society is the crime which society corrects.”).

Tenax, supra note 139, at 2; see also, e.g. , Sullivan , supra note 102, at 12 (drawing the same distinction between oral and written communication).

Confusingly, the Founders sometimes referred to inalienable rights in an entirely different sense—namely, rights that could not be surrendered to the control of a monarch. See Campbell, supra note 13, at 96-98.

Chipman , supra note 103, at 174.

See N. H. Const . of 1784, pt. 1, art. IV ; Parsons , supra note 111, at 366, 371; Witherspoon , supra note 114, at 405, 408; see also Jack N. Rakove, The Madisonian Theory of Rights , 31 Wm. & Mary L. Rev. 245, 260 (1990); Barry A. Shain, Rights Natural and Civil in the Declaration of Independence , in The Nature of Rights, supra note 76, at 116, 119.

See An Eastern Layman, To The Publick , Va. Gazette ( Williamsburg ) , Aug. 14, 1779, at 1.

4 Annals of Cong . 934 (1794) (statement of Rep. James Madison); see also, e.g. , Thomas Jefferson, A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson, supra note 14, at 545, 546 (1950) (noting that “the opinions of men are not the object of civil government, nor under its jurisdiction”); Oliver Ellsworth, A Landholder No. 7 (Dec. 17, 1787), reprinted in 14 Documentary History of the Ratification, supra note 14, at 448, 451 (John P. Kaminski et al. eds., 1983) (“Civil government has no business to meddle with the private opinions of the people.”); Resolutions Adopted Upholding Freedom of Speech, Writing, and Publishing, Dec. 17, 1794, reprinted in Democratic-Republican Societies , supra note 74 , at 148, 148-49 (“[T]he freedom of opinion is a right inherent in nature, and never was intended to be surrendered to government.”).

See, e.g. , Thomas Cooper, A Treatise on the Law of Libel, at ix-x, xxii-xxiii (1830); Thomson , supra note 24, at 11, 13-14, 18-19.

John Locke, An Essay Concerning Human Understanding 119 (A.D. Woozley ed., Meridian Books 1969) (1690).

Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue: In Two Treatises 185 (Knud Haakonssen ed., Liberty Fund 2004) (1726).

James Madison, Memorial and Remonstrance against Religious Assessments , reprinted in 8 The Papers of James Madison , supra note 72, at 295, 299 (Robert A. Rutland et al. eds., 1973).

The Founders thus referred interchangeably to the freedom to express “sentiments,” see, for example, Pa. Const. of 1776, ch. 1, §  12, and “thoughts and opinions,” Pa. Const. of 1790, art. IX, §  7. To the extent that statements of opinion received broader protection than statements of fact , it was because of a duty to tell the truth. See Rutherford, supra note 15, at 295 (“[U]nlawful lyes [include] . . . not only such falshoods, as will directly injure a man, or hinder his innocent benefit; but all such falshoods likewise, as are inconsistent with that tacit consent to tell him the truth.”).

See, e.g. , Thomson , supra note 24, at 11-12 (“[M]en should be allowed to express those thoughts, with the same freedom that they arise. In other words—speak, or publish, whatever you believe to be truth .”); Albert Gallatin , The Speech of Albert Gallatin, a Representative from the County of Fayette, in the House of Representatives of the General Assembly of Pennsylvania , reprinted in 3 The Writings of Albert Gallatin 1, 6 (Henry Adams ed., 1879) (“Whether the opinion be right or wrong, as long as it is only an opinion, everybody has a right to express it.”). Alexander Addison drew a distinction between thought and speech , but he also, following Blackstone, limited his endorsement of speech restrictions to “bad sentiments.” See Addison , supra note 23, at 10 (“[L]iberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.”).

Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson , supra note 14, at 676, 678 (1958); see also Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson , supra note 14, at 131, 132 (noting “an universal and almost uncontroverted position in the several states, [is] that the purposes of society do not require a surrender of all our [natural] rights”). Notably, Jefferson did not categorically reject governmental authority to punish malevolent expression. See Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 The Papers of Thomas Jefferson , supra note 14, at 440, 442 (1956) (“A declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. John Vining), in 14 Documentary History of the First Federal Congress , supra note 14, at 340 (William Charles DiGiacomantonio et al. eds., 1995). This debate occurred before the First Amendment was formally ratified, but this fact evidently made little difference to the members of the First Congress. See also Congressional Debates (Feb. 11, 1790) (statement of Rep. Elias Boudinot), in 12 Documentary History of the First Federal Congress, supra note 14 , at 288 (Helen E. Veit et al. eds., 1994) (“[I]t has been so lately contended, and settled, that the people have a right to assemble and petition for redress of grievances.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress , supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995).

Id. Vining and Ames were opposing a proposal to prevent tax collectors “from interfering, either directly, or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices.” Id. at 339 (statement of Rep. James Jackson). Some representatives enthusiastically supported the proposal, suggesting that it ought to be applied to other governmental officials, see id. at 340-41 (statement of Rep. Elbridge Gerry); id. at 341 (statement of Rep. John Laurance); id. at 342 (statement of Rep. Roger Sherman), thus protecting “the freedom of elections” from official interference, id. at 341 (statement of Rep. Michael Stone). The law did not prohibit speech, some proponents of the bill noted, because it merely placed a condition on office holding, see, e.g. , id. at 340 (statement of Rep. Egbert Benson), although Roger Sherman advocated a broader ban on “the arts of electioneering,” id. at 339-40 (statement of Rep. Roger Sherman). The House ended up rejecting the measure.

Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa. 1788); see also Addison, supra note 94, at 50 (“If a man willfully, maliciously, and with intent to defame, publish an opinion not supported by fact, it is an offense.”); James Wilson, Of the Nature of Crimes; and the Necessity and Proportion of Punishments , in 2 Collected Works of James Wilson, supra note 85, at 1087, 1090 (“The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event.”); Extract from a Charge . . . by the Honorable Thomas M’Kean, Chief Justice of the Supreme Court, with the unanimous approbation of the other Judges , in Pa. Packet (Philadelphia), Apr. 19, 1785, at 3 (“Men therefore have only to take care in their publications, that they are decent, candid and true, that they are for the purpose of reformation and not of defamation, and that they have an eye solely to the public good.”) .

8 Annals of Cong . 2097 (1798) (statement of Rep. John Allen).

Id. at 2098; see also id. (mentioning “liberty of the press and of opinion”).

10 Annals of Cong . 917 (1801) (statement of Rep. Jonas Platt); see, e.g. , H.R. Rep. No. 5-110, at 183 (1799); Addison, supra note 94, at 50; Iredell, supra note 49, at 348.

Stone, supra note 9, at 16. This point is widely recognized, though any effort to appreciate Federalist motives must at least grapple with the ongoing tumult in France. See Kathryn Preyer, United States v. Callender : Judge and Jury in a Republican Society , in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 , at 173, 187 (Maeva Marcus ed., 1992) (“Only present-mindedness or lack of imagination leads us to dismiss casually [Federalist] fears as paranoia.”). The Federalist effort to reauthorize the Sedition Act in 1801 further complicates this standard historical account. For a penetrating review of Federalist thought, see Lendler, supra note 35, at 419-25.

The Dissent of the Minority of the House of Representatives of the Commonwealth of Pennsylvania, from the Address to the President of the United States, Adopted by Said House, December, 1798 , at 4 (Philadelphia, 1799).

The Independant (Dec. 11, 1798), Times & Alexandria Advertiser , Dec. 15, 1798; see also 10 Annals of Cong . 922 (1801) (statement of Rep. Joseph Nicholson) (“It was and might be further urged, that the act was only aimed at false and malicious libels, tending to defame the Government. He granted it; but who were to be the judges?”).

Thomson , supra note 24, at 25. Later, Thomson made a broader argument against regulations of expression. See id. at 81-84; see also, e.g. , John Page, An Address to the Freeholders of Gloucester County 15 (Richmond, John Dixon 1799) (describing the Sedition Act as “ unjust as well as unconstitutional ” because it applied to those who criticized the government “patriotically, and conscientiously, and constitutionally”).

To be sure, Federalists generally preferred deferential rather than populist politics, and they abhorred the Democratic-Republican societies in the mid-1790s that claimed to speak on behalf of the people. But contrary to some portrayals, see James P. Martin, When Repression Is Democratic and Constitutional: The Federalist Theory of Representation and the Sedition Act of 1798 , 66 U. Chi. L. Rev . 117, 134-35 (1999), these ideas did not come close to a view that individuals could or should be barred from discussing public affairs or criticizing the government in good faith, see Richard Buel Jr., Securing the Revolution: Ideology in American Politics , 1789-1815, at 93-112, 128-35, 244-61 (1972); Richard Buel Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1820 , in The Press and the American Revolution 59, 89 (Bernard Bailyn & John B. Hench eds., 1981).

Addison, supra note 94, at 42; see also 10 Annals of Cong . 933 (1801) (statement of Rep. John Rutledge, Jr.) (“[E]very man has the privilege of expressing unreservedly whatever he thinks on political subjects.”).

The Trial of the Seven Bishops (1688) (opinion of Richard Allibond), in 12 A Complete Collection of State Trials 183, 428 (London, T.B. Howell ed., 1816). For English statements against this view, see, for example, Jean Louis de Lolme, The Constitution of England, or An Account of the English Government 280 (London, T. Spilsbury 1775) (“[T]he English constitution . . . has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and . . . has thus delivered into the hands of the People at large, the exercise of the Censorial power.”); and [Thomas Gordon], Letter No. 15 (Feb. 4, 1720), in 1 John Trenchard & Thomas Gordon, Cato’s Letters: or, Essays on Liberty, Civil and Religious, and Other Important Subjects 110, 111 (Ronald Hamowy ed., 1995) (“That men ought to speak well of their governors, is true, while their governors deserve to be well spoken of; but to do publick mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.”). For similar statements by Supreme Court justices, see John Blair’s Charge to the Grand Jury of the Circuit Court for the District of Delaware (Oct. 27, 1794), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49 , at 485, 489 (Maeva Marcus ed., 1988) (“[W]hile men pay an external obedience to the laws, they have a right to think of them as they please, and even beyond this, to express their opinion decently, yet strongly, as a mean of obtaining an alteration . . . .”); Draft of John Jay’s Charge to the Grand Jury of the Circuit Court for the District of Virginia (before Apr. 22, 1793), in 2 Documentary History of the Supreme Court of the United States, 1789-1800 , supra note 49 , at 359, 364 (Maeva Marcus et al. eds., 1990) (“As free Citizens we have a Right to think and speake our Sentiments . . . in Terms . . . explicit plain and decorous.”); and Wilson, supra note 85 , at 1046 (stating that every “citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning publick men, publick bodies, and publick measures”). An enormous literature addresses the political controversies in the seventeenth and eighteenth centuries from which this freedom emerged. See, e.g. , Bogen, supra note 8 , at 442-44, 446; Mayton, supra note 8 , at 102-08; Michael E. Stevens, Legislative Privilege in Post-Revolutionary South Carolina , 46 Wm. & Mary Q. 71, 71-73 (1989). See generally Fredrick Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Controls (1952).

For earlier discussions of the truth defense, see , for example, Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press , supra note 73, at 152, 153; Letter from John Marshall to Archibald Stuart (May 28, 1794), in 2  The Papers of John Marshall 267, 268 (Charles T. Cullen & Herbert A. Johnson eds., 1977). For a discussion of a famous controversy in New York over the truth defense, see Kate Elizabeth Brown, Rethinking People v. Croswell : Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic , 32 L. & Hist. Rev . 611 (2014). Some judges thought that “a defendant could establish the truth of the publication only to show that he lacked the requisite malicious intent.” David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence , 45 Am. J. Legal Hist. 154, 192 (2001); see, e.g. , id. at 198-99 (describing the views of James Kent and Joseph Story).

H.R. Rep. No. 5-110, at 183 (1799); see 10 Annals of Cong . 92 0-21 (1801) (statement of Rep. Roger Griswold). Notably, some Federalists in January 1801 still held out hope that the presidential election would eventually swing their way after an impending deadlock between Jefferson and Burr. See James Roger Sharp, The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance 139-41 (2010).

Lakier, supra note 35, at 2180; see sources cited supra note 35. The few scholars who have noted possible differences between speech and press rights either have yet to illuminate their relationship, see, e.g. , Anderson, supra note 6, at 490 & n.211, or have insisted that the freedom of speech was derived from the legislative privilege of speech and debate, see sources cited supra note 4.

See, e.g. , 8 Annals of Cong. 2148 (1798) (statement of Rep. Harrison Gray Otis) (“[T]he liberty of the press is merely an exemption from all previous restraints.”).

See, e.g. , Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written or printed, or by pictures or other signs.”); see also Volokh, supra note 3, at 1059 (“The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning.”). The fact that expressive and non-expressive aspects of natural liberty were both subject to regulation in the promotion of the public good negated the need for a distinction between “speech” and “conduct.” Cf. Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language , 67 Geo. L.J. 899, 902-03 (1979) (“In order that the first amendment be applied effectively to carve out a category of activity for special protection, consideration must be given to the meaning of the word ‘speech’ . . . .”). Some Founders denounced theater bans, for instance, as obstructing “the natural right of every freeman to dispose of his time and money, according to his own taste and disposition, when not obnoxious to the real interests of society,” without any mention of the expressiveness of theater performance. To the Honorable the General Assembly of Pennsylvania, the Subscribers Being a Committee of the Dramatic Association . . . , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3. Moreover, theater supporters emphasized the permissibility of governmental regulation to promote the public good. See, e.g. , Arguments in Favour of the Drama , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3 (removing a ban on theater would still permit theaters to “be regulated,” because “every thing that has an immoral tendensy should be prohibited;—every exceptionable play, now extant, should be altered, or rejected, and none but those that have the good of mankind for their object, should be acted”). For an analysis of mid-1790s controversies about raising liberty poles, see Cornell , supra note 82, at 922-32.

See, e.g. , Hutcheson , supra note 163, at 185 (asking “[i]f the Alienation be within our natural Power” and whether it “may serve some valuable Purpose”).

An Old Whig IV , Indep. Gazetteer ( Philadelphia), Oct. 27, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981). Benjamin Rush lamented that combination, writing in 1777 that Pennsylvania’s “Bill of Rights has confounded natural and civil rights in such a manner as to produce endless confusion in society.” Benjamin Rush, Observations upon the Present Government of Pennsylvania , in Four Letters to the People of Pennsylvania 3 (Philadelphia, Styner & Cist 1777).

See Campbell, supra note 13, at 99.

Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 Papers of Thomas Jefferson, supra note 14, at 132.

Id. (listing “trial by jury, Habeas corpus laws, free presses” as positive rights); see also Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification , supra note 14, at 979, 983-84 (2004) (distinguishing natural rights from “constitutional or fundamental” rights); Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification , supra note 14, at 1051, 1059 (2004) (describing press freedom as a “fundamental right”). But see Heyman, supra note 3, at 1289 (citing Federal Farmer for the idea that press freedom is a natural right); McAffee, supra note 41, at 278-79 (same).

See sources cited supra note 3.

See supra Part II.

The Founders also often mentioned the freedom of the press as an obligation of printers to publish all items “conducive of general Utility,” without discrimination among writers. Livingston, supra note 139 , at 81. See generally Robert W. T. Martin, The Free and Open Press: The Founding of Democratic Press Liberty, 1640-1800 (2001) (presenting a scholarly account of the development of the concept of the free press). This usage was prevalent, but it related to the public norms applicable to printers, not limitations on governmental power, and it seems to have had no direct relationship to original understandings of the First Amendment.

Pa. Const . of 1776, art. 12 (“[T]he people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”); see also Complete Bill of Rights , supra note 73, at 93 (presenting similar proposals of North Carolina, Rhode Island, Virginia, and the Pennsylvania minority). For a history of this provision, see Smith, supra note 8, at 58-63. Scholars have elided the distinct meanings of these clauses. See, e.g. , Levy, supra note 3, at 204; Volokh, supra note 3, at 1080-81. Other states opted for a simple declaration in favor of the liberty of the press. See Anderson, supra note 6, at 464-65, 538-41. Vermont, which had asserted its independence from New York, was the only other state to invoke the freedom of speech in its constitution. See Vt. Const . of 1786; Vt. Const. of 1777, ch. 1, §  14. For John Adams’s earlier proposal of a nearly identical provision, see John Adams, The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts (Sept. 1, 1779), reprinted in 4  The Works of John Adams 219, 227 (Charles Francis Adams ed., Boston, Charles C. Little & James Brown 1851) (“The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.”). For a brief history of this proposal, see Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts 133-36 (1906).

4 William Blackstone, Commentaries * 151, *152. Notably, Blackstone assumed that “the object of legal punishment” was harmful speech, “destructive of the ends of society.” Id. at * 153.

De Lolme, supra note 182, at 283. Sedition was originally tried in the Star Chamber, without common-law procedural rights. See Mayton, supra note 8, at 105.

Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 455 (Merrill Jensen ed., 1976); see also, e.g. , [Hugh Williamson], Speech at Edenton, N.C. , N.Y. Daily Advertiser (Feb. 25, 1788), in 16 Documentary History of the Ratification, supra note 14, at 201, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (equating freedom of the press with freedom from “the restraint of any license”); N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (same).

To the Citizens of Virginia , Winchester Va. Gazette , Feb. 22, 1788, reprinted in 8  Documentary History of the Ratification , supra note 14, at 404-05 (1988) ; cf. Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press , supra note 73, at 152, 153 (“[I]f the jury found [the putatively libellous statements] true and that they were published for the Public good, they would readily acquit.”); Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 160, 163 (John P. Kaminski et al. eds., 2003) (warning that without a jury the government “will easily find pretexts” to restrain “what it may please them to call—the licentiousness of the press”).

See, e.g. , Meyler, supra note 18, at 581.

See Hamburger, supra note 3, at 954. Inalienable natural rights, just like alienable natural rights, were circumscribed by natural law. Id. at 931-32, 954.

Wilson, supra note 131, at 509.

Id. at 514-18.

Id. at 522.

See R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 97-98 (2015).

Addison, supra note 94, at 29; see Helmholz, supra note 207, at 96 (mentioning English invocations of this idea); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 Stan. L. Rev . 843, 854 (1978) (describing the custom of the common law as “the most reliable evidence of the content of natural law”); see also Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court , 115 Harv. L. Rev . 5, 39-40 (2001) (noting that natural rights required political recognition before entering the customary constitution).

Wooddeson, supra note 13, at 28; see, e.g. , 1 William Blackstone, Commentaries *74 (observing that the common law “probably was introduced by the voluntary consent of the people”); Sullivan , supra note 102, at 16 (“The common law, is a system of commonly received opinions, established by the common consent of the people, without acts of the legislature, and defined by practice in the courts of law.”); James Wilson, Of Municipal Law , in 1 Collected Works of James Wilson , supra note 85, at 549, 569 (“A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.”).

See Reid, supra note 74, at 22. Overlooking the Founders’ appreciation for the substantial indeterminacy of natural law, James Whitman asserts that their writings about custom and reason lacked coherence and intelligibility and were, instead, “a confused mélange.” James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason? , 58 U. Chi. L. Rev . 1321, 1323, 1367 (1991). This position leads Whitman to the bold conclusion that “[t]here is little point in trying to identify the underlying logic of American legal thinking in the revolutionary era,” and “[s]tudies that purport to explain the Founders’ conception of the Constitution are thus doomed to mislead.” Id. at 1366-67. In my view, Whitman gives inadequate attention both to the recognition of underdeterminacy in reason, which made it far easier to claim simultaneous fidelity to both reason and custom, and to the rational need for established legal rules, including customary rules. Locke and Blackstone, for instance, each insisted that human law must conform to natural law, that natural law is a highly underdeterminate source of law, and that reason dictates that governments must act pursuant to established rules. See 1 William Blackstone, Commentaries *42-55, *67-71; John Locke , Second Treatise of Government §§ 135-137 (1690), reprinted in John Locke, supra note 111, at 159-61.

See James Wilson, Of the Law of Nations , in 1 Collected Works of James Wilson , supra note 85, at 526, 529; see also , e.g. , 1 William Blackstone, Commentaries *41 (“This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other . . . . [N]o human laws are of any validity, if contrary to this.”).

Hamburger , supra note 113, at 38-39.

John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire 25 (2004) (quoting Dudley).

Hay , supra note 152, at 9.

Of course, the divide between lawyers and non-lawyers is stylized, just like my distinction between elites and non-elites. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 309.

See supra notes 200-201 and accompanying text.

Addison, supra note 94, at 48; see also, e.g. , William Paterson, Second Draft Opinion on the Sedition Law of 1798, reprinted in Williamjames Hull Hoffer, William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law , 22 J. Sup. Ct. Hist. 36, 48 (1997) (“[T]he freedom of the press is a relative term; and refers to an existing rule. We must first know in what the freedom of the press consists . . . .The com. law gives the rule, which is well known to every part of the U. States.”). Federalist arguments about judicial power had drifted in some respects by the late 1790s. See Larry D. Kramer, Marbury and the Retreat from Judicial Supremacy , 20 Const. Comment . 205, 220-21 (2003). But struggles between lawyerly and non-lawyerly modes of constitutional interpretation were already prominent by the late 1780s. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 304-11.

James Madison, The Report of 1800 (Jan. 7, 1800), in 17 The Papers of James Madison 303, 309 (David B. Mattern et al. eds., 1991). The context of this passage was a defense of state interpretive authority, but Madison’s language nicely captures the essence of his attack on using the common law to delineate the scope of speech and press freedoms.

Id. at 336.

Id. at 338. This analysis came in the midst of Madison’s discussion of “the proper boundary between the liberty and licentiousness of the press,” id. at 337, and the degree to which states, as a matter of “wis[e] . . . policy,” id. at 338, had properly chosen to underenforce speech-restrictive rules. The Virginia Report of 1800 never took the broad, affirmative position that any restriction of political speech necessarily violates speech and press freedoms. Rather, it presented a narrower, negative argument that American protections for expressive freedom ought to be “greater” than in England, id. at 337, and were, in practice, “not . . . confined to the strict limits of the common law,” id. at 338.

Id. at 337. Relatedly, Republicans denied that judges were the exclusive or supreme arbiters of constitutional meaning. See Kramer, supra note 217, at 222.

Madison, supra note 218, at 337, 339.

See id. at 339 (“[The First Amendment] was meant as a positive denial to Congress, of any power whatever on the subject.”).

For the defeat of proposals to guarantee the freedom of the press, see 2 The Records of the Federal Convention of 1787 , at 341, 587-88, 617 (Max Farrand ed., 1911). For a more detailed account, see Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity , 9 Sup. Ct. Rev . 301, 304-08 (1990).

See, e.g. , George Mason, Objections to the Constitution of Government Formed by the Convention , in 8 Documentary History of the Ratification , supra note 14, at 43, 43 (John P. Kaminski & Gaspare J. Saladino eds., 1988). Anti-Federalists “were by no means a homogenous or cohesive group,” but “common themes run through many of their writings.” Wesley J. Campbell, Commandeering and Constitutional Change , 122 Yale L.J. 1104, 1127-28 (2013). For the leading treatment of Anti-Federalism, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999). For a concise history of the Bill of Rights, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 435-68 (2010).

See, e.g. , Pennsylvania Ratification Convention Debates (Nov. 28, 1787) (statement of Robert Whitehill), in 13 Documentary History of the Ratification , supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (stating that “from the nature of their power they must necessarily be the judges, what laws are necessary and proper”); Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The powers of Congress are unlimited and undefined. They will be the judges of what is necessary and proper .”); Virginia Ratification Convention Debates (June 10, 1788) (statement of James Monroe), in 9 Documentary History of the Ratification, supra note 14, at 1092, 1112 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (stating that Congress would be “not restrained or controuled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect”) .

Brutus II , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 154, 156 (John P. Kaminski et al. eds., 2003); see also, e.g. , Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in id. at 160, 162 (“The conventions that made the state and the general constitutions, sprang from the same source, were delegated for the same purpose . . . .”).

An Officer of the Late Continental Army , Indep. Gazetteer (Philadelphia), Nov. 6, 1787, reprinted in 2 Documentary History of the Ratification , supra note 14, at 210, 211 (Merrill Jensen ed ., 1976). The following year, Findley tied the “right of every man to publish his sentiments on public proceedings” to the requirement of a jury trial, but he did not suggest that publishers were constitutionally immune from prosecution even with a jury . Pennsylvania Assembly Debates (Sept. 1788) (statement of Rep. William Findley), in Respublica v. Teischer, 1 U.S. (1 Dall.) 335, 335-36 n.* (Pa. 1788). For other concerns about the manipulations of libel laws, see Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification , supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (noting that Congress might construe its powers to punish “any writer [who] should dare to stand forth and expose to the community at large, the abuses of those powers”); and Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 467, 468 (Merrill Jensen ed ., 1976) (“The liberty of the press is not secured. Congress may license the press, and declare what shall be a libel.”). Others located a possible grounding for this power in the Speech and Debate Clause. See Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification, supra note 14, at 454 , 454 (Merrill Jensen ed., 1976) (“The press is by this clause restrained; because the members shall not be questioned for speeches in any other place.”).

A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification , supra note 14, at 942, 961 ( John P. Kaminski et al. eds., 2004); Federal Farmer No. 16 (Jan. 20, 1788), in id. at 1059.

See, e.g. , Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification , supra note 14, at 454 , 454 (Merrill Jensen ed., 1976) (stating that Congress, under the Copyright Clause, “may license the press, no doubt ; and under licensing the press, they may suppress it”) .

See, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 30, 1788) (statement of William Lenoir), in 4 Debates in the Several State Conventions, supra note 76, at 203 (“[Congress] have also an exclusive legislation in their ten miles square . . . . Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury.”); Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification, supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (“[C]ould they not . . . lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it?”).

But see An Old Whig III , Indep. Gazetteer (P hiladelphia), Oct. 20, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 425, 426-27 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (identifying the Supremacy Clause as a potential threat to the freedom of the press).

Cf. Address of the Minority of the Maryland Convention , Annapolis Md. Gazette , May 1, 1788, reprinted in 17 Documentary History of the Ratification, supra note 14, at 242, 244 ( John P. Kaminski & Gaspare J. Saladino eds., 1995) (“In prosecutions in the federal courts for libels, the constitutional preservation of this great and fundamental right may prove invaluable.”); Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 160, 163-64 (John P. Kaminski et al. eds., 2003) (describing press freedom as the “only” security “that will save any future printer from the fangs of power” because otherwise “the judges might put the verdict of a jury out of the question”).

An exception was the frequent Anti-Federalist inclusion of a “right to freedom of speech, and of writing and publishing their sentiments,” or similar phrases, in their lengthy lists of draft amendments. See Virginia Convention Amendments (June 27, 1788), in 18 Documentary History of the Ratification , supra note 14, at 199, 202 ( John P. Kaminski & Gaspare J. Saladino eds., 1995); see also Proposals from the State Conventions, in Complete Bill of Rights , supra note 73, at 93 (presenting similar proposals by North Carolina, Rhode Island, and the Pennsylvania minority); The Society of Western Gentlemen Revise the Constitution , Va. Indep. Chron. ( Richmond ), Apr. 30, 1788, reprinted in 9 Documentary History of the Ratification , supra note 14, at 769, 773 ( John P. Kaminski & Gaspare J. Saladino eds., 1990) (“That the people have a right to the freedom of speech, of writing, and publishing their sentiments; therefore printing presses shall not be subject to restraint, other than liableness to legal prosecution, for false facts printed and published.”) . A decade earlier, some town returns in Massachusetts mentioned the omission of the freedom of speech (or speaking, writing, and publishing) in the state’s proposed constitution. See The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 , at 682, 742, 749-50, 762, 789, 795, 856 (Oscar Handlin & Mary Handlin eds., 1966).

Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification, supra note 14, at 1051, 1057-58 ( John P. Kaminski et al. eds., 2004); see also, e.g. , A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification , supra note 14, at 942, 961-62 ( John P. Kaminski et al. eds., 2004) (focusing on fundamental positive rights); Brutus II , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 154, 156-59 ( John P. Kaminski et al. eds., 2003) (same); Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 12 The Papers of Thomas Jefferson, supra note 14, at 438, 440 (1955) (same). Many Anti-Federalists mentioned the freedom of conscience, which was an inalienable natural right that had assumed a place in the customary constitution (through the Toleration Act, for instance). McAffee asserts that Federal Farmer’s “same analysis applied to the rights that were considered natural and inalienable,” McAffee, supra note 41, at 278, but McAffee errs by concluding that Federal Farmer viewed press freedom as a retained natural right. See supra note 193.

See, e.g. , Heyman, supra note 3, at 1289 (noting that the “most important” rights to Anti-Federalists included “freedom of speech and press”); cf. Mayton, supra note 8, at 118 (“[A]n understanding was reached at the convention and during the ratification process that the national government had no power over speech.”). But see Rosenthal, supra note 6, at 15 (“As for freedom of speech, anti-Federalists said virtually nothing about it.”); Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification, supra note 14, at 979, 985 (John P. Kaminski et al. eds., 2004) (mentioning only press freedom); Virginia Ratification Convention Debates (June 16, 1788) (statement of Patrick Henry), in 10 Documentary History of the Ratification, supra note 14, at 1328, 1332 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (same); Philanthropos [Tench Coxe], To the People of the United States , Pa. Gazette ( Philadelphia ), Jan. 16, 1788, reprinted in 15 Documentary History of the Ratification, supra note 14, at 391, 393 ( John P. Kaminski & Gaspare J. Saladino eds., 1984) (noting that, outside of Pennsylvania, “the freedom of speech” was unmentioned by leading Anti-Federalists). Anti-Federalist references to freedom of expression usually related to the effect of press restraints on public discussion. See, e.g. , An Old Whig I , Indep. Gazetteer ( Philadelphia) , Oct. 12, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 376, 378 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ( mentioning, in a discussion of press freedom, “free communication . . . on political subjects”); [Samuel Bryan], Centinel II , Phila. Freeman’s J. , Oct. 24, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 457, 460, 466 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ( mentioning “the right of expressing and publishing . . . sentiments upon every public measure” but otherwise focusing solely on press freedom). Mentions of the longstanding English right of petition were similarly rare. See Mark, supra note 82, at 2206.

See Wood, supra note 18, at 295-96; Rakove, supra note 77, at 187 ; John Phillip Reid, The Authority of Rights at the American Founding , in The Nature of Rights , supra note 76, at 67, 97 ; Suzanna Sherry, Natural Law in the States , 61 U. Cin. L. Rev . 171, 171-72 (1992) ; Suzanna Sherry, The Founders’ Unwritten Constitution , 54 U. Chi. L. Rev. 1127, 1157-58 (1987); William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 502 (2005). Whether customary positive rights implicitly limited governmental authority continued to be a topic of heated discussion. Compare Calder v. Bull, 3 U.S. (3 Dall.) 386, 387-89 (1798) (opinion of Chase, J.) (concluding that certain fundamental positive rights were implicit limitations on governmental power), with id. at 398-99 (opinion of Iredell, J.) (confining judicial review to enumerated rights).

[Jay], supra note 75, at 933; see also, e.g. , Uncus , Md. J. ( Baltimore ) , Nov. 9, 1787, reprinted in 14 Documentary History of the Ratification, supra note 14, at 76, 78 ( John P. Kaminski & Gaspare J. Saladino eds., 1983) (declaring that freedom of the press is “a privilege, with which every inhabitant is born;-a right . . . too sacred to require being mentioned”); Fo e deral Constitution , Pa. Gazette ( Philadelphia), Oct. 10, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 362, 363 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[T]he Liberty of the Press would have been an inherent and political right, as long as nothing was said against it.”); South Carolina Ratification Convention Debates (Jan. 18, 1788) (statement of Charles Cotesworth Pinckney), in Complete Bill of Rights , supra note 73, at 98, 98 (“The general government . . . has no power to take away the liberty of the press.”).

See Virginia Ratification Convention Debates (June 25, 1788), in 10 Documentary History of the Ratification, supra note 14, at 1537-38 ( John P. Kaminski & Gaspare J. Saladino eds., 1993); New York Declaration of Rights, Form of Ratification, and Recommendatory Amendments to the Constitution (July 26, 1788), in 23 Documentary History of the Ratification , supra note 14, at 2326, 2326-28 ( John P. Kaminski et al. eds., 2009).

See Campbell, supra note 13, at 100.

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton); see also, e.g. , A Native of Virginia: Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 Documentary History of the Ratification, supra note 14, at 655, 691 ( John P. Kaminski & Gaspare J. Saladino eds., 1990) (“[A]s the Congress can claim the exercise of no right which is not expressly given them by this Constitution; they will have no power to restrain the press in any of the States; and therefore it would have been improper to have taken any notice of it.”); [Robert Sherman], A Citizen of New Haven , Conn. Courant ( Hartford), Jan. 7, 1788, reprinted in 3 Documentary History of the Ratification, supra note 14, at 524, 525 (Merrill Jensen ed., 1978) (“The liberty of the press can be in no danger, because that is not put under the direction of the new government.”).

See James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 Documentary History of the Ratification , supra note 14, at 337, 340 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ; Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 454, 454-55 (Merrill Jensen ed., 1976); [James Iredell], Marcus No. 4 , Norfolk & Portsmouth J. , Mar. 12, 1788, reprinted in 16 Documentary History of the Ratification , supra note 14, at 379, 382 ( John P. Kaminski & Gaspare J. Saladino eds., 1986) (“[T]he future Congress will have no other authority over [the press] than to secure to authors for a limited time the exclusive privilege of publishing their works.”). But Federalists generally denied only federal power over the freedom of the press .

The Federalist No. 84, supra note 114, at 580 n.* (Alexander Hamilton). Other Federalists equated press freedom with freedom from “the restraint of any license.” Hugh Williamson, Speech at Edenton, N.C. , N.Y. Daily Advertiser , Feb. 25, 1788, reprinted in 16 Documentary History of the Ratification, supra note 14, at 201, 202 ( John P. Kaminski & Gaspare J. Saladino eds., 1986); see, e.g. , Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 454, 455 (Merrill Jensen ed., 1976) (“[W]hat is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”).

See infra notes 122 -128 and accompanying text.

The Federalist No. 84, supra note 114, at 578 (Alexander Hamilton); see Shain, supra note 158, at 127; see, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 29, 1788) (statement of [Archibald] Maclaine), in 4 Debates in the Several State Conventions , supra note 76, at 160, 166-67; John De Witt No. 2 , Am. Herald ( Boston), Oct. 29, 1787, reprinted in 4 Documentary History of the Ratification, supra note 14, at 156, 158-59 ( John P. Kaminski & Gaspare J. Saladino eds., 1997); see also Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent , ” 15 Harv. J.L. & Pub. Pol’y 965, 988-97 (1992) (collecting dozens of examples).

See, e.g. , Letter from George Washington to James Madison (ca. May 31, 1789), in 12 The Papers of James Madison , supra note 72, at 191, 191 (Charles F. Hobson et al. eds., 1979); Letter from David Ramsay to Benjamin Rush (Nov. 10, 1787), in 14 Documentary History of the Ratification , supra note 14, at 83, 83-84 ( John P. Kaminski & Gaspare J. Saladino eds., 1983).

See Finkelman, supra note 224, at 336-37; see also Cornell , supra note 225, at 158-63 (explaining the modesty of the Bill of Rights); see also, e.g. , Letter from Fisher Ames to Thomas Dwight (June 11, 1789), in 16 Documentary History of the First Federal Congress, supra note 14, at 748, 749 (Charlene Bangs Bickford et al. eds., 2004) (“Upon the whole, it may do some good towards quieting men who attend to sounds only, and may get the mover [James Madison] some popularity—which he wishes.”); Letter from Pierce Butler to James Iredell (Aug. 11, 1789), in 16 Documentary History of the First Federal Congress, supra , at 1288, 1289 (Charlene Bangs Bickford et al. eds., 2004) (“A few milk-and-water amendments have been proposed by Mr. M[ adison ], such as liberty of conscience, a free press, and one or two general things already well secured.”).

See Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson , supra note 14, at 659, 660 (1958) (“This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild [sic] submitted to them.”). Scholars have long disagreed about Madison’s private ambivalence about a bill of rights. See Stuart Leibiger, James Madison and Amendments to the Constitution, 1787-1789: “Parchment Barriers , ” 59 J .S. Hist . 441, 441-42 (1993) (reviewing the scholarly debate).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 823 (Charlene Bangs Bickford et al., eds., 1992).

Id. at 823-24.

Id. at 823.

Id. at 825 (“ [I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights”). Scholars often misattribute to Madison the idea that enumerating a right in the Constitution was necessary and sufficient for its judicial enforceability against contrary legislation. See, e.g. , Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation? , 5 N.Y.U. J.L. & Liberty 1, 19-20 (2010). Both the wording and the context of Madison’s statement, however, indicate that “ Madison was making a point about judicial psychology and judicial politics, not judicial duty.” Jud Campbell, Judicial Review and the Enumeration of Rights , 15 Geo. J.L. & Pub. Pol’y 569, 571 (2017). Madison, in other words, was addressing the same types of concerns that Alexander Hamilton mentioned in The Federalist regarding the “natural feebleness” of the judiciary, which Hamilton described as “in continual jeopardy of being overpowered, awed or influenced by [the] coordinate branches . . . .” The Federalist No. 78, supra note 114 , at 523 (Alexander Hamilton ).

Madison Resolution (June 8, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 9 , 10 (Charlene Bangs Bickford & Helen E. Veit eds., 1986).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison , supra note 72, at 193, 194 (Charles F. Hobson et al. eds., 1979) (“ natural rights , retained—as Speech, Con[science]”) .

Madison also singled out the freedom of the press in a set of three rights that would apply against state governments, again suggesting an intent to treat speech and press freedoms differently. See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 826 (Charlene Bangs Bickford et al. eds., 1992).

Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in Complete Bill of Rights, supra note 73, at 83, 83.

House Committee of Eleven Report (July 28, 1789), in Complete Bill of Rights , supra note 73, at 84, 84. For a slightly longer discussion of the Amendment’s drafting history, see Rosenthal, supra note 6, at 15-17.

U.S. Const. amend. I.

See generally A. P. Martinich, Four Senses of ‘Meaning’ in the History of Ideas: Quentin Skinner’s Theory of Historical Interpretation , 3 J. Phil. Hist . 225 (2009) (classifying the four types of “meaning” in the history of ideas); Lawrence B. Solum, Intellectual History as Constitutional Theory , 101 Va. L. Rev. 1111 (2015) (examining the role of intellectual history in constitutional theory). Prompted by critics, see, e.g. , Paul Brest, The Misconceived Quest for the Original Understanding , 60 B.U. L. Rev. 204, 215-16 (1980), contemporary originalism scholarship focuses largely on the original “meanings” of constitutional provisions rather than the Framers’ intentions. The distinction between intentions and meanings is somewhat porous, however, considering that Madison—a native speaker of the language of eighteenth-century American constitutionalism—tried to draft a provision with the meaning that he intended. See Gienapp, supra note 10, at 938 & n.15; Solum, supra , at 1134-36.

See supra note 22 (collecting sources that discuss Founding Era disagreements about methods of constitutional interpretation).

See supra Section II.A.

For an introduction to “equitable” interpretation, see Hamburger , supra note 113, at 344-57; McConnell, supra note 252, at 20-21; and Michael W. McConnell, The Ninth Amendment in Light of Text and History , 2009 Cato Sup. Ct. Rev. 13.

See supra notes 124-136 and accompanying text.

Hortensius [ George Hay ], An Essay on the Liberty of the Press 38 (Philadelphia, Aurora Office 1799).

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton).

Id. at 580; see also Cooper v. Telfair, 4 U.S. (4. Dall.) 14, 18 (1800) (opinion of Chase, J.) (“The general principles contained in the constitution are not to be regarded as rules to fetter and controul; but as matter merely declaratory and directory . . . .”); 3 Documentary History of the Ratification, supra note 14 , at 471, 472-73 (Merrill Jensen ed., 1978) (making a similar point); [Webster], supra note 140 , at 484, 490 (“[A]ny restriction of [Congressional] power by a general indefinite expression, is a nullity—mere formal nonsense .”). In The Federalist , Hamilton expressed contradictory views, stating both that without judicial protection “the reservations of particular rights or privileges would amount to nothing,” The Federalist No. 78 , supra note 114 , at 524 (Alexander Hamilton), and that placing “ the whole power of the proposed government . . . in the hands of the representatives of the people . . . is the essential, and after all the only efficacious security for the rights and privileges of the people which is attainable in civil society,” The Federalist No. 28 , supra note 114, at 178 (Alexander Hamilton).

Parsons , supra note 111, at 367; see also, e.g. , Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison , supra note 78, at 350, 351 (Robert A. Rutland et al. eds., 1973) (describing bills of rights as providing “exceptions” to legislative authority); The Federalist No. 78, supra note 114, at 524 (Alexander Hamilton) (describing constitutional rights like the rule against “ex-post-facto laws” as “certain specified exceptions to the legislative authority” that are enforceable in court).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 823 (Charlene Bangs Bickford et al. eds., 1992) (emphasis added).

Id. at 824.

See supra Section II.C.

See supra Section II.B.

Addison, supra note 94, at 48. That stance, however, may be less revealing of original meaning than of the emergent Federalist quest for judicial supremacy, which sought to separate constitutional interpretation from matters of policy. Cf. Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 307 (“Elite legal culture in the Founding Era, particularly among Federalists, was designed to shore up a basic distinction between law and politics . . . . Proponents of popular constitutionalism generally sought to eliminate this distinction . . . .”); Iredell, supra note 49, at 344 (distinguishing “considerations of policy” from “questions of law”).

This account of the “original meaning” of the First Amendment is subject to the caveats mentioned in Part I regarding elite sources.

See sources cited supra note 4.

See Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 87-90 (2007); Bogen, supra note 8, at 431-35; Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers , 86 Harv. L. Rev . 1113, 1120-40 (1973).

Bogen, supra note 8, at 436.

Amar, supra note 5, at 815; see sources cited supra note 5.

As one scholar observes, “The tie between legislative privilege and the first amendment was asserted as early as 1799 by George Hay.” Bogen, supra note 8, at 435 (citing [Hay] , supra note 265). True, but Hay was defining the meaning of the word “freedom,” not the provenance of the term “freedom of speech.” [ Hay ], supra note 265, at 42 (“[T]he meaning of the word freedom, is precisely and unequivocally established by the constitution itself.”). Hay argued that this “freedom” was secured through “a total exemption from the control of any law, or the jurisdiction of any court.” Id. John Thomson also analogized to legislative privilege without suggesting that it was the originating concept for the freedom of speech. See Thomson , supra note 24, at 19-20, 76-77.

Amar, supra note 5, at 790; cf. William Michael Treanor, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 Mich. L. Rev . 487, 494 (2007) (criticizing Amar’s “assumption that careful reading of the text consistently reveals original meaning”).

See, e.g. , Pa. Const . of 1790, art. IX, § 7 (declaring the right to speak on “any subject”); 3 Joseph Story, Commentaries on the Constitution of the United States § 1874 (1833) (recognizing “a right to speak, write, and print his opinions upon any subject whatsoever”); Tucker , supra note 133, at 376 (“Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political . . . .”); Wilson, supra note 85, at 1055-56 (stating that natural liberty existed for man to accomplish “those purposes . . . as his inclination and judgment shall direct”); Letter from William Cushing to John Adams (Feb. 18, 1789), in Freedom of the Press , supra note 73, at 147, 150 (“[D]oes [press freedom] not comprehend a liberty to treat all subjects and characters freely, within the bounds of truth?”) . A polity could, of course, choose to reaffirm only a portion of this natural liberty in its declaration of rights. See, e.g. , Vt. Const . of 1786, ch. I, § V (“That the people have a right of freedom of speech and of writing and publishing their sentiments, concerning the transactions of government . . . .”). Again, my focus is the meanings of the Speech and Press Clauses, not the motives for enacting them. See supra note 58 (explaining my approach).

Heyman, supra note 3, at 1282; see supra note 48 (discussing Philip Hamburger’s views).

Individuals, by contrast, had natural rights—and particularly the right of reputation—that could be abridged even through well-intentioned statements, thus placing a natural-law qualification on the inalienable right to make well-intentioned statements.

See sources cited supra note 182.

Examples include profane swearing bans, blasphemy laws, restrictions on advertising, restrictions on theater performances, and rules against making certain agreements on Sundays. See 8 Annals of Cong . 2148-49 (1798) (statement of Rep. Harrison Gray Otis) (recounting many extant legal restrictions on speech); Constitution and Laws of the State of New Hampshire; Together with the Constitution of the United States 339 (1805) ( prohibiting lotteries and any advertising thereof) ; 3 Laws of the Commonwealth of Pennsylvania, 1700-1810, at 177-78 (1810) ( forbidding “any worldly employment or business whatsoever” on Sunday, as well as profanity and swearing at all times).

See Michael W. McConnell, Tradition and Constitutionalism Before the Constitution , 1998 U. Ill. L. Rev . 173, 196; Rakove, supra note 77, at 193. Indeed, the Ninth Amendment may reject “the necessity or superiority of enumeration.” Kurt T. Lash, The Lost History of the Ninth Amendment 82 (2009). Some people suggested that enumeration would facilitate the judicial enforcement of rights, see, e.g. , An Old Whig II , Indep. Gazetteer ( Philadelphia), Oct. 17, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 399, 402 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[W]ho can overrule [Congress’s] pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements.”), but these claims surely referred to legal rights and did not intimate that judges would assume the position of deciding which restrictions of natural liberty promoted the public good, see supra notes 232-236 and accompanying text.

Congressional Debates (Aug. 15, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 1259, 1259 (Charlene Bangs Bickford et al. eds., 1992); see Rakove, supra note 4, at 324.

Federalists made this point over and over in the Sedition Act debates. See, e.g. , H.R. Rep. No. 5-110, at 183 (1799) (contending that press freedom had never extended, “according to the laws of any State . . . to the publication of false, scandalous, and malicious writings against the Government”); Iredell, supra note 49, at 348 (arguing that state constitutions and bills of rights were the “strongest proof . . . that the freedom of the press does not require that libellers shall be protected from punishment”).

But see Bogen, supra note 8, at 458 (“At a minimum, the freedom of speech meant that restrictions on speech are impermissible unless necessary to accomplish a legitimate function of government, and that the courts rather than the legislature should ultimately determine that necessity.”).

Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (opinion of Iredell, J.). The limited nature of Founding Era judicial review is well known. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law , 7 Harv. L. Rev . 129, 140-42 (1893); see also Christopher R. Green, Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review , 57 S. Tex. L. Rev . 169, 172-83 (2015) (documenting the strong presumption of constitutionality evident in early state court decisions); McGinnis, supra note 62, at 880-904 (explaining that early judges would find unconstitutionality only when constitutional meaning was “clear”) Notably, the clarity of constitutional law did not depend solely on text but “drew on well-established principles of the customary constitution as well.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 99 (2004).

Calder , 3 U.S. (3 Dall.) at 399 (opinion of Iredell, J.).

See, e.g. , Campbell, supra note 13, at 99-104.

Consequently, Founding Era judges repeatedly upheld narrowly drawn sedition laws. See Blumberg , supra note 8, at 1-6. Wendell Bird argues that some Federalist judges rejected the constitutionality of sedition laws. See Bird , supra note 3, at 474. Bird’s research is prodigious, but his evidence merely shows that Federalist judges accepted the freedom of opinion, not that they rejected the constitutionality of narrowly drawn sedition laws. See supra notes 166-187 and accompanying text. Bird, like Leonard Levy before him, “fails to recognize that it was possible for the framers of the first amendment [among other Founders], influenced by republican political theory, to expand the protection for freedom of expression well beyond the narrow boundaries of the English common law while retaining some conception of seditious libel.” Rabban, supra note 8, at 796.

But see supra notes 36 & 41 and accompanying text. To be sure, if viewed in isolation from its context, the First Amendment’s text could be stretched to eliminate federal power to regulate speech. All that a reader would have to do, after all, is disregard the limits on expressive freedom imposed by natural law and social obligation, leading to a view that the First Amendment categorically prohibited any interference with expression. See Tucker, supra note 133, at 386.

See Campbell, supra note 152. Although Republicans prevailed in their inventive interpretation of the First Amendment, an understanding of speech freedom as a natural right remained prominent in the nineteenth century. See, e.g. , Cooper , supra note 161, at 41; 1 Benjamin L. Oliver, The Rights of An American Citizen 222 (1832).

[Hay] , supra note 265, at 39.

See, e.g. , Leonard W. Levy, Introduction to Freedom of the Press , supra note 73, at xix, lvi-lvii; Jay, supra note 6, at 791.

See, e.g. , The Address of the Minority in the Virginia Legislature to the People of that State; Containing a Vindication of the Constitutionality of the Alien and Sedition Laws 12 (1799); Addison, supra note 94, at 44; Paterson, supra note 217, at 48; cf. The Federalist No. 84, supra note 114, at 575, 579 (Alexander Hamilton) (expressing concern that bills of rights could be “dangerous” because they could “afford a colourable pretext to claim more [governmental powers] than were granted”) .

House Resolution and Articles of Amendment (Aug. 24, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 35, 36, 39 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) (emphasis added).

See Anderson, supra note 6, at 493, 502, 508; Bogen, supra note 8, at 458 n.143. Even strict textualists might accept this argument. Cf. John F. Manning, Textualism as a Nondelegation Doctrine , 97 Colum. L. Rev . 673, 737 n.272 (1997) (“[T]extualist judges . . . do not categorically exclude a statute’s drafting evolution from their consideration of statutory context.”); Caleb Nelson, What Is Textualism? , 91 Va. L. Rev . 347, 361 (2005) (“[M]any textualists use records of a bill’s drafting history . . . .”).

See supra note 52 and accompanying text.

See Caleb Nelson, Judicial Review of Legislative Purpose , 83 N .Y.U. L. Rev . 1784, 1796 (2008).

376 U.S. 254 (1964).

See, e.g. , Wortman, supra note 24, at 259 (stating that public officials can sue for libel “upon the same footing with a private individual,” given that “[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy”); Tucker, supra note 133, at 237-38 (same); cf. Thomson , supra note 24, at 81-84 (calling for unimpeded public debate about public figures).

See supra notes 188-189 and accompanying text.

See, e.g. , John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 181-85 (2013); Baude, supra note 63, at 2358-61; McConnell, supra note 62, at 1765; Stephen E. Sachs, Originalism as a Theory of Legal Change , 38 Harv. J.L. & Pub. Pol’y 817, 861-64 (2015).

See generally Randy E. Barnett, The Gravitational Force of Originalism , 82 Fordham L. Rev . 411, 420-31 (2013) (arguing that originalism can exert a “gravitational force” on doctrine, even when original meaning does not explicitly form the basis of judicial decisions).

See infra note 328.

For instance, robust judicial management of the Speech Clause might stem from a broader project of judicial engagement, see, e.g. , Barnett , supra note 69, at 132-49, 255-71, or process-based concerns about regulations of expression, see, e.g. , John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 105-16 (1980).

See, e.g. , Kagan, supra note 70, at 414; Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism , 27 J. Legal Stud . 725, 736-44 (1998); Strauss, supra note 70, at 196-202. See generally Richard H. Fallon, Jr., Implementing the Constitution 89-95 (2001) (discussing motive tests).

See Ronald Dworkin, Taking Rights Seriously, at xi (1977) (defining rights as “political trumps held by individuals”); Pildes, supra note 311, at 728 (identifying “the view of rights as immunities” as “the prevailing view among rights philosophers”). Modern doctrine permits regulation of speech for good reasons. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law , 97 Mich. L. Rev . 1, 19-26 (1998); Pildes, supra , at 736-44.

Pildes, supra note 311, at 729.

See generally United States v. Eichman, 496 U.S. 310 (1990) (invalidating a federal law that criminalized flag burning); Texas v. Johnson, 491 U.S. 397 (1989) (holding that flag burning is protected expression under the First Amendment); John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis , 88 Harv. L. Rev . 1482 (1975) (analyzing flag-desecration cases). Similarly, the government can impose criminal penalties on “fighting words”—i.e., speech likely to provoke violence—but it cannot target a more limited set of fighting words that the government finds especially objectionable. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

An important qualification is that the government generally cannot justify speech-suppressing laws based on communicative harms . This principle finds no historical support unless one supposes that its adoption, in the aggregate, promotes the public good.

See, e.g. , Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding a content-based regulation of speech in the context of judicial elections).

The same pattern has been true of press freedoms. In the early twentieth century, the scope of the rule against prior restraints expanded beyond just bans on licensing regimes. See Near v. Minnesota, 283 U.S. 697 (1931). At the same time, the Court recognized that countervailing governmental interests can sometimes justify prior restraints. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (collecting cases). Similarly, procedural due process rights have vastly expanded in scope (covering “new property,” for instance), while now providing only a “flexible” degree of “procedural protections as the particular situation demands,” Matthews v. Eldridge, 424 U.S. 319, 321 (1976), rather than an inflexible set of common-law procedural rules. One could make a similar argument about many other rights.

See, e.g. , Hugo Black, The Bill of Rights , 35 N. Y.U. L. Rev . 865, 874 (1960); see also Alexander Meiklejohn, The First Amendment Is an Absolute , 1961 Sup. Ct. Rev . 245 (arguing that the First Amendment is absolute within the domain of self-governance).

See generally Ely, supra note 310.

See supra note 311 and accompanying text.

Some proponents of more robust speech doctrine in the early twentieth century took this approach, emphasizing the aggregate social benefits of speech-protective doctrines. See White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America , supra note 60, at 316-21. But a weakness in this approach was the indeterminacy of questions about the public good and doubts about why judges were better situated than legislators to make these types of assessments. Id. at 322.

Jack M. Balkin, The Construction of Original Public Meaning , 31 Const. Comment . 71, 93 (2016).

District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

United States v. Stevens, 559 U.S. 460, 470 (2010).

Id. ; see also, e.g. , United States v. Alvarez, 567 U.S. 709, 717-18, 722-23 (2012) (plurality opinion) (summarizing the same idea and applying it to false statements).

See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015). The issue in Reed was how to identify “content-based” speech restrictions—a concept aptly described as “the keystone of First Amendment law.” Kagan, supra note 70, at 443; see also Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality , 16 U . Pa. J. Const. L. 1261, 1263 n.2 (2014) (collecting sources). Opting for a broader, more speech-protective definition, the Court declared that the First Amendment “expressly targets the operation of the laws— i.e. , the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” Reed , 135 S. Ct. at 2229 (alteration in original) (quoting U.S. Const. amend. I). Historically, however, the mere “operation” of a speech restriction did not present a judicially cognizable First Amendment problem unless it abridged either a common-law right or the inalienable liberty to express one’s thoughts. See supra notes 260-274 and accompanying text.

1 William Blackstone, Commentaries *125.

St. George Tucker , On the State of Slavery in Virginia (1796), reprinted in View of the Constitution of the United States with Selected Writings, supra note 133, at 402, 407.

Jack M. Balkin, Living Originalism 32 (2011); see also id. at 42 (identifying “abstract or vague phrases of the Constitution,” including “cruel and unreasonable punishments” and “freedom of speech”); id. at 350 n.12 (making the same point with respect to “the Fourth Amendment’s standard of ‘unreasonable’ searches and seizures and the First Amendment’s principle of ‘freedom of speech’”); Dworkin , supra note 54, at 199 (“The First Amendment, like the other great clauses of the Bill of Rights, is very abstract.”).

Cf. Dworkin , supra note 54, at 272 (“The framers meant to enact a moral principle of constitutional dimensions, and they used broad and abstract language appropriate to that aim.”).

Laura K. Donohue, The Original Fourth Amendment , 83 U. Chi. L. Rev. 1181, 1192 (2016); see also id. at 1270-71 (“That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal.”).

Id. at 1192.

John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation , 102 Nw. U. L. Rev. 1739, 1743, 1745 (2008).

Id. at 1745.

By overwhelmingly relying on Founding Era legal elites, Donohue and Stinneford implicitly accept their sources’ belief that ostensibly abstract terms like “unreasonable” and “unusual” should be read as legal terms of art. Stinneford discounts a contrary statement by Samuel Livermore during the First Congress because “Livermore . . . does not appear to have been within the mainstream of eighteenth-century thought regarding the usefulness of common law precedent generally.” Stinneford, supra note 335, at 1809. But while Stinneford is surely correct that Livermore was outside the mainstream of constitutional thought among legal elites , his view nonetheless reflected an important current in American constitutional thought.

To be sure, originalists might accept the more lawyerly Federalist position, leaving the Donohue and Stinneford positions undisturbed. But that choice, it is worth noting, would require accepting Federalist views of the First Amendment, too, thus undermining any plausible originalist basis for modern speech law.

Background Essay: The Declaration of Independence, Natural Rights, and Slavery

What is natural rights theory and how is it at the foundation of the Declaration of Independence? How do natural rights theory and the Founding principles at the heart of the Declaration of Independence challenge slavery?

Essential vocabulary.

Written by: The Bill of Rights Institute

The Declaration of Independence asserted revolutionary principles of natural rights, self-government, and human equality. Abolitionist Frederick Douglass thought that the principles contained in the document were “saving principles” in the nation’s destiny. President Abraham Lincoln stated those principles were the “definitions and axioms of free society.” Those ideals forced the Founding generation to confront the moral evil of the institution of slavery. One of the great questions was whether they would live up to those noble ideals and create a just political order for all.  

The Declaration of Independence claimed that all human beings were created equal as a self-evident truth. They were equally “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” At its core, the Declaration of Independence holds that all humans are equal in the possession of certain natural rights. These rights are embedded in human nature and cannot be violated by government or other individuals.  

The equality of human beings also meant that they had equal right to consent to the form of government, and that only government based on consent was legitimate. All authority derived from the sovereign people equally. The Declaration then explains that the purpose of that government was to protect the natural rights of the people. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The people had the right to overthrow a government that violated their rights after a long series of abuses. Therefore, the people had a right of resistance or revolution against an unjust government.  

The universal truths of the Declaration of Independence raised an immediate moral problem confronting Americans. The holding of enslaved persons contradicted the natural rights and republican principles animating Founding documents. Slavery was a system of unfree and coerced labor that violated the enslaved person’s natural rights of liberty and consent by stealing the fruits of their labor. Slavery was at its core a violent and brutal system that stripped away human dignity from the enslaved and violated the principles of equality by making one person subordinate to another. In other words, slavery was a great injustice, according to the foundational principles of the American republican government.

Thomas Jefferson (right) was the primary author of the Declaration of Independence. John Adams (center) and Benjamin Franklin (left)–who also contributed to the original draft–are depicted here alongside Jefferson. Ferris, Jean Leon Gerome. Writing the Declaration of Independence, 1776. 1900. Painting. Wikipedia. https://en.wikipedia.org/wiki/Committee_of_Five#/media/File:Writing_the_Declaration_of_Independence_1776_cph.3g09904.jpg

Many Americans at the time acknowledged that slavery contradicted the ideals they espoused. Many Americans — Founders, politicians, farmers, artisans, pamphleteers, and enslaved people — wrote eloquently about slavery violating the rights of humans. Their words are very important for understanding their highest aspirations and explaining their motivations. However, the most important measure of their beliefs is whether they acted.  

A lot of focus and scrutiny has been on important Founders themselves as political and moral leaders at the time and role models for centuries to come. The question of whether they lived up to the inspiring words they wrote, or whether they should just be judged as hypocrites, is an important one . Some, including the one that claimed to author the Declaration of Independence, Thomas Jefferson, continued to hold well over 100 enslaved people, despite his public criticisms and actions against the institution. Others freed their slaves outright or at some point in their lives, such as George Washington who freed his enslaved people in his will and provided for their education and support. A broader perspective than a handful of Founders is important. Examining the lives and actions of a few key figures from the Founding can be instructive, but a wider examination of how the Founding generation dealt, or did not deal, with the institution of slavery is important. 

Americans acted in a variety of ways in the face of this core contradiction. Thousands of slaveholders continued to hold enslaved people and even to defend the institution on historical, biblical, or economic grounds. At the same time, hundreds of white Americans manumitted , or privately freed, their slaves. Some Founding statesmen and politicians took important steps against slavery at the state or national level immediately or over the next generation.  

African Americans responded to the rhetoric of natural rights and self-government in a variety of dynamic ways. Some were deeply influenced by the Declaration of Independence and state declarations of rights. They directly appealed to those free principles and petitioned legislatures or sued in courts for their natural rights. Thousands ran to the British during the Revolutionary War to escape enslavement for the promise of liberty. Thousands also joined the Continental Army and state militias to earn their freedom during the Revolutionary War. Approximately 100,000 enslaved people gained their freedom in the largest emancipation in world history at that time.  

Yet, tragically, slavery continued for more than 300,000 African Americans and endured for decades. Abraham Lincoln believed that the Founders saw slavery as a “necessary evil” and put it on the “course of ultimate extinction,” but they did not end it altogether. As a result, liberty and slavery, equality and inequality, democratic self-governance and oligarchy paradoxically continued to co-exist in the new American republic. Lincoln stated plainly, “When the white man governs himself that is self-government; but when he governs himself, and also governs another man [without his consent] — that is despotism.” By the time of the Civil War, the country was half-slave, half-free.

President Abraham Lincoln believed that slavery was a contradiction of the Founding ideals of equality and liberty. Slavery would not gradually fade away as many of the Founders hoped, and Lincoln needed to lead the country through a bloody war to finally end the unjust institution. Brady, Matthew Benjamin. Abraham Lincoln. 1860. Photograph. Wikipedia. https://en.wikipedia.org/wiki/Abraham_Lincoln#/media/File:Lincoln_O-17_by_Brady,_1860.png

The story is a central part of understanding U.S. history.  The country was built upon a set of ideals and aspirations that were not fully realized for all at the time of the American Founding. Asking difficult questions, examining evidence, and studying the history of the subject is not just an important job for historians but a responsibility of citizenship.

Comprehension and Analysis Questions

• What were the major assertions of the Declaration of Independence?
• How did slavery contradict the principles of the Declaration of Independence?
• How did Americans respond to the claims of natural rights in the Declaration of Independence?

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Handout D: Analysis: James Otis and John Locke’s Theory of Natural Rights

Equal and Inalienable Rights

All humans are born with equal inherent rights, but many governments do not protect people's freedom to exercise those rights. The way to secure inalienable rights, the Founders believed, was to consent to giving up a small amount of our freedom so that government has the authority to protect our rights. Freedom depends on citizens having the wisdom, courage, and sense of justice necessary to take action in choosing virtuous leaders, and in holding those leaders to their commitments.

Thomas Paine, Common Sense, 1776

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Home » Political Theory » Rights » John Locke’s Natural Rights Theory: A Foundation for Modern Political Thought

John Locke’s Natural Rights Theory: A Foundation for Modern Political Thought

Introduction.

Natural rights theory is a philosophical approach that holds that certain rights, such as life, liberty , and property, are inherent to all human beings and are not granted by the state or society. One of the most well-known proponents of natural rights theory is John Locke (1632-1704) , an English philosopher who is considered one of the Founders of modern political philosophy. In this blog, we will explore Locke’s concept of natural rights and his social contract theory, as well as the influence of his ideas on the American Revolution and the Declaration of Independence.

Locke’s Concept of Natural Rights

Locke defined natural rights as “life, liberty, and estate.” He argued that these rights are inherent to all human beings and are not granted by the state or society. According to Locke, natural rights are essential for the preservation of human life and the pursuit of happiness, and they serve as the foundation for political society. Locke believed that the purpose of government is to protect natural rights, and that individuals have a right to alter or abolish the government if it fails to fulfill this role.

Locke’s Social Contract Theory

Locke’s concept of natural rights is closely related to his social contract theory , which is the idea that individuals form a social contract with the state in order to protect their natural rights. According to Locke, individuals agree to give up some of their natural rights in exchange for the protection of their remaining rights by the state. This social contract is based on a hypothetical “state of nature,” in which individuals live in a state of perfect freedom and equality, but are vulnerable to the actions of others. Locke argued that the purpose of government is to serve the needs and interests of the people, and that the people have the right to alter or abolish the government if it fails to fulfill this role.

Locke’s Influence on the American Revolution and the Declaration of Independence

Locke’s ideas had a significant influence on the political thought of the Founders of the United States, and his concept of natural rights and social contract theory played a central role in the formulation of the Declaration of Independence and the U.S. Constitution . The Declaration of Independence, written by Thomas Jefferson in 1776, cites Locke’s ideas on natural rights and the social contract as justification for the colonies’ separation from Great Britain. The U.S. Constitution, ratified in 1787, also draws on Locke’s ideas on the role of government in protecting natural rights and the right of the people to alter or abolish the government if it fails to fulfill this role.

Criticisms of Locke’s Natural Rights Theory

Despite its influential role in modern political thought, Locke’s natural rights theory has been the subject of criticism. Some argue that the theory is too narrow, as it focuses solely on the rights of property-owning white men and ignores the rights of marginalized groups, such as women, racial and ethnic minorities, and the poor. Others criticize Locke’s social contract theory as being based on a hypothetical and unrealistic scenario, and challenge the idea that natural rights are inherent and universal.

In conclusion, John Locke’s natural rights theory has had a lasting impact on modern political thought and practice. His concept of natural rights and social contract theory served as a foundation for the American Revolution and the Declaration of Independence, and his ideas continue to influence political discourse and policy-making today. However, Locke’s theory has also been the subject of criticism, with some arguing that it is too narrow and based on unrealistic assumptions. Despite these criticisms, Locke’s ideas remain a key part of the discourse on rights and the role of government in protecting them.

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Home » Articles » Topic » Legal Terms and Concepts » General Legal Concepts and Theories » Natural Rights

Natural Rights

Written by John R. Vile, published on July 31, 2023 , last updated on February 18, 2024

Thomas Hobbes (1588–1679) and John Locke (1632–1704) in England, and Jean Jacques Rousseau (1712–1778) in France (pictured above left to right), were among the philosophers who developed a theory of natural rights based on rights to life, liberty, and property (later expanded by Jefferson to “the pursuit of happiness”) that individuals would have in a prepolitical “state of nature.” (Image, public domain)

The concept of natural rights occupies an important place in American political thought as reflected in the  Declaration of Independence . In the Declaration, primarily authored by  Thomas Jefferson , the Second Continental Congress asserted the “self-evident” truths that “all men are created equal” and entitled to “life, liberty, and the pursuit of happiness.” The Declaration then proceeds to excoriate King George III and Parliament for denying such human rights. Jefferson justifies colonial revolution because of this denial of rights.

Scholars think that natural rights emerged from natural law

Many scholars think that the idea of natural rights emerged from  natural law , a theory evident in the philosophy of the medieval Catholic philosopher St. Thomas Aquinas (d. 1274). Natural law was thought to embody principles of right and wrong — especially pertaining to relations between and among individuals — that could be ascertained by human reason, apart from divine revelation. Philosophers, however, were rarely in complete agreement as to the content of such laws. For example, they disagreed over whether natural law prohibits human slavery, as American  abolitionists  later argued.

Idea of natural rights shifted to claims of rights individuals can make against the state

As philosophers applied the concept of natural rights to the secular world, the focus shifted from rules concerning individual behavior to claims of rights that individuals could make against the state. Thomas Hobbes (1588–1679) and  John Locke (1632–1704) in England, and Jean Jacques Rousseau (1712–1778) in France, were among the philosophers who developed a theory of natural rights based on rights to life, liberty, and property (later expanded by Jefferson to “the pursuit of happiness”) that individuals would have in a prepolitical “state of nature.” Some of these rights, especially those pertaining to the relation of individuals to their Creator, were paramount, and in the words of the Declaration of Independence,“unalienable.”

The concept of natural rights occupies an important place in American political thought as reflected in the Declaration of Independence. In the Declaration, primarily authored by Thomas Jefferson (pictured above), the Second Continental Congress asserted the “self-evident” truths that “all men are created equal” and entitled to “life, liberty, and the pursuit of happiness.” The Declaration then proceeds to excoriate King George III and Parliament for denying such human rights. Jefferson justifies colonial revolution because of this denial of rights. (Image via Wikimedia Commons, public domain)

First Amendment dealt with fundamental individual rights

Although the First Amendment was originally third on the list of original proposals in the  Bill of Rights  that Congress submitted to the states for approval, it was the first amendment to deal with individual rights. Almost without exception, the rights in the First Amendment are thought to be fundamental because they deal with matters of conscience, thought, and expression.

The two religion clauses are designed to allow individuals to follow their conscience in matters of faith and worship, which some believe could determine eternal destinies, a basis for the argument that  James Madison  made in his “ Memorial and Remonstrance ” and in the  Virginia Statute for Religious Freedom .

Clauses relative to speech, press, peaceable assembly, and petition are designed to promote discussion and debate concerning the kind of governmental policies that suit a republican, or representative, form of government, and arguably to promote the development of the individual’s personality. Perhaps as a result, courts were slow to recognize rights surrounding commercial speech.

Some provisions in the Bill of Rights are man-made; others are natural rights

It is doubtful that  George Mason  and the authors of the provisions in the First Amendment would have claimed to have originated the rights inherent in the amendment; it is more likely that they would have traced their origins to contemporary documents, including state bills or declarations of rights. Indeed, the Federalists’ initial opposition to the Bill of Rights stemmed in part from the belief that such rights were inherent liberties that did not need to be stated. By contrast, there are some provisions — such as the Fifth Amendment’s prohibition against double jeopardy or the Sixth Amendment’s requirement of trial by jury — that are clearly man-made mechanisms for enforcing fundamental principles of fairness, not morally mandated rights per se.

The natural rights of the First Amendment lead to the “preferred position” doctring

Rights embodied within documents are constitutional, or civil, rights, which serve to shape the values shared by a people. In the U.S. system, individuals can bring claims of such rights to courts, which have the power to enforce them. With the possible exception of equality, which was later recognized in the equal protection clause of the Fourteenth Amendment (1868), it is difficult to identify any rights outside the First Amendment that are more closely associated with the concept of natural rights; from this stem the arguments that these rights should enjoy a “ preferred position ” and that they are relatively absolute.

Embodying such rights within a written text is designed to preclude the necessity for resorting to extralegal means for securing their protection, but such rights would arguably be legitimate moral claims even if they were not embodied in the constitutional text. For example, the Supreme Court has on occasion made decisions on the basis of unenumerated general moral principles, or natural rights, rather than on the basis of a specific constitutional provision. Some believe the modern right to  privacy  is such a judicially created right.

John Vile  is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the  Encyclopedia of the First Amendment . This article was originally published in 2009.

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John Locke (b. 1632, d. 1704) was a British philosopher, Oxford academic and medical researcher. Locke’s monumental An Essay Concerning Human Understanding (1689) is one of the first great defenses of modern empiricism and concerns itself with determining the limits of human understanding in respect to a wide spectrum of topics. It thus tells us in some detail what one can legitimately claim to know and what one cannot. Locke’s association with Anthony Ashley Cooper (later the First Earl of Shaftesbury) led him to become successively a government official charged with collecting information about trade and colonies, economic writer, opposition political activist, and finally a revolutionary whose cause ultimately triumphed in the Glorious Revolution of 1688. Among Locke’s political works he is most famous for The Second Treatise of Government in which he argues that sovereignty resides in the people and explains the nature of legitimate government in terms of natural rights and the social contract. He is also famous for calling for the separation of Church and State in his Letter Concerning Toleration . Much of Locke’s work is characterized by opposition to authoritarianism. This is apparent both on the level of the individual person and on the level of institutions such as government and church. For the individual, Locke wants each of us to use reason to search after truth rather than simply accept the opinion of authorities or be subject to superstition. He wants us to proportion assent to propositions to the evidence for them. On the level of institutions it becomes important to distinguish the legitimate from the illegitimate functions of institutions and to make the corresponding distinction for the uses of force by these institutions. Locke believes that using reason to try to grasp the truth, and determine the legitimate functions of institutions will optimize human flourishing for the individual and society both in respect to its material and spiritual welfare. This in turn, amounts to following natural law and the fulfillment of the divine purpose for humanity.

1.1 Locke’s Life up to His Meeting with Lord Ashley in 1666

1.2 locke and lord shaftesbury 1666 to 1688, 1.3 the end of locke’s life 1689–1704, 2.2 book ii, 2.3 book iii, 2.4 book iv, 2.5 knowledge and probability, 2.6 reason, faith and enthusiasm, 3. locke’s major works on education, 4.1 the second treatise of government, 4.2 human nature and god’s purposes, 4.3 of war and slavery, 4.4 of property, 4.5 the social contract theory, 4.6 the function of civil government, 4.7 rebellion and regicide, 5. locke and religious toleration, primary sources, secondary sources, other internet resources, related entries, 1. historical background and locke’s life.

John Locke (1632–1704) was one of the greatest philosophers in Europe at the end of the seventeenth century. Locke grew up and lived through one of the most extraordinary centuries of English political and intellectual history. It was a century in which conflicts between Crown and Parliament and the overlapping conflicts between Protestants, Anglicans and Catholics swirled into civil war in the 1640s. With the defeat and death of Charles I, there began a great experiment in governmental institutions including the abolishment of the monarchy, the House of Lords and the Anglican church, and the establishment of Oliver Cromwell’s Protectorate in the 1650s. The collapse of the Protectorate after the death of Cromwell was followed by the Restoration of Charles II—the return of the monarchy, the House of Lords and the Anglican Church. This period lasted from 1660 to 1688. It was marked by continued conflicts between King and Parliament and debates over religious toleration for Protestant dissenters and Catholics. This period ends with the Glorious Revolution of 1688 in which James II was driven from England and replaced by William of Orange and his wife Mary. The final period during which Locke lived involved the consolidation of power by William and Mary, and the beginning of William’s efforts to oppose the domination of Europe by the France of Louis XIV, which later culminated in the military victories of John Churchill—the Duke of Marlborough.

Locke was born in Wrington to Puritan parents of modest means. His father was a country lawyer who served in a cavalry company on the Puritan side in the early stages of the English Civil War. His father’s commander, Alexander Popham, became the local MP, and it was his patronage which allowed the young John Locke to gain an excellent education. In 1647 Locke went to Westminster School in London.

From Westminster school he went to Christ Church, Oxford, in the autumn of 1652 at the age of twenty. As Westminster school was the most important English school, so Christ Church was the most important Oxford college. Education at Oxford was medieval. Locke, like Hobbes before him, found the Aristotelian philosophy he was taught at Oxford of little use. There was, however, more at Oxford than Aristotle. The new experimental philosophy had arrived. John Wilkins, Cromwell’s brother in law, had become Warden of Wadham College. The group around Wilkins was the nucleus of what was to become the English Royal Society. The Society grew out of informal meetings and discussion groups and moved to London after the Restoration and became a formal institution in the 1660s with charters from Charles II. The Society saw its aims in contrast with the Scholastic/Aristotelian traditions that dominated the universities. The program was to study nature rather than books. [ 1 ] Many of Wilkins associates were people interested in pursuing medicine by observation rather than the reading of classic texts. Bacon’s interest in careful experimentation and the systematic collection of facts from which generalizations could be made was characteristic of this group. One of Locke’s friends from Westminster school, Richard Lower, introduced Locke to medicine and the experimental philosophy being pursued by the virtuosi at Wadham.

Locke received his B.A. in February 1656. His career at Oxford, however, continued beyond his undergraduate days. In June of 1658, Locke qualified as a Master of Arts and was elected a Senior Student of Christ Church College. The rank was equivalent to a Fellow at any of the other colleges, but was not permanent. Locke had yet to determine what his career was to be. Locke was elected Lecturer in Greek at Christ Church in December of 1660 and he was elected Lecturer in Rhetoric in 1663. At this point, Locke needed to make a decision. The statutes of Christ Church laid it down that fifty five of the senior studentships should be reserved for men in orders or reading for orders. Only five could be held by others, two in medicine, two in law and one in moral philosophy. Thus, there was good reason for Locke to become a clergyman. Since his graduation Locke had been studying medicine. Locke decided to become a doctor.

John Wilkins had left Oxford with the Restoration of Charles II. The new leader of the Oxford scientific group was Robert Boyle. He was also Locke’s scientific mentor. Boyle (with the help of his astonishing assistant Robert Hooke) built an air pump which led to the formulation of Boyle’s law and devised a barometer as a weather indicator. The work on the air pump led to a controversy with Thomas Hobbes because Boyle’s explanations of the working of the air pump were incompatible with Hobbes’ micro-corpuscular theory. This controversy continued for ten years. Boyle was, however, most influential as a theorist. He was a mechanical philosopher who treated the world as reducible to matter in motion. But he had no micro-corpuscular account of the air.

Locke read Boyle before he read Descartes. When he did read Descartes, he saw the great French philosopher as providing a viable alternative to the sterile Aristotelianism he had been taught at Oxford. In writing An Essay Concerning Human Understanding Locke adopted Descartes’ ‘way of ideas’; though it is transformed so as to become an organic part of Locke’s philosophy. Still, while admiring Descartes, Locke’s involvement with the Oxford scientists gave him a perspective that made him critical of the rationalist elements in Descartes’ philosophy.

In the Epistle to the Reader at the beginning of the Essay Locke remarks:

The commonwealth of learning is not at this time without master-builders, whose mighty designs, in advancing the sciences, will leave lasting monuments to the admiration of posterity: but everyone must not hope to be a Boyle or a Sydenham; and in an age that produces such masters as the great Huygenius and the incomparable Mr. Newton, with some others of that strain, it is ambition enough to be employed as an under-labourer in clearing the ground a little, and removing some of the rubbish that lies in the way to knowledge …. (N: 9–10; all quotations are from the Nidditch edition of An Essay Concerning Human Understanding [N])

Locke knew all of these men and their work. Locke, Boyle and Newton were all founding or early members of the English Royal Society. It is from Boyle that Locke learned about atomism (or the corpuscular hypothesis) and it is from Boyle’s book The Origin of Forms and Qualities that Locke took the language of primary and secondary qualities. Sydenham was an English physician and Locke did medical research with him. Sydenham championed careful observation of disease and rejected appeal to underlying causes. Both Boyle and Newton did work on colors that did not involve micro-corpuscular explanations. Locke read Newton’s Principia Mathematica Philosophiae Naturalis while in exile in Holland, and consulted Huygens as to the soundness of its mathematics. Locke and Newton became friends after Locke’s return from Holland in 1688. It may be that in referring to himself as an ‘under-labourer’, Locke is not only displaying a certain literary modesty, he is contrasting the positive discoveries of these men, with his own attempt to show the inadequacies of the Aristotelian and Scholastic and to some degree the Cartesian philosophies. There are, however, many aspects of Locke’s project to which this image of an under-labourer does not do justice (see Jolley 1999: 15–17). While the corpuscular philosophy and Newton’s discoveries clearly influenced Locke, it is the Baconian program of producing natural histories that Locke makes reference to when he talks about the Essay in the Introduction. He writes:

It shall suffice to my present Purpose, to consider the discerning Faculties of a Man, as they are employ’d about the Objects, which they have to do with: and I shall imagine that I have not wholly misimploy’d my self in the Thoughts I shall have on this Occasion, if in this Historical, Plain Method, I can give any Account of the Ways, whereby our Understanding comes to attain those Notions of Things, and can set down any Measure of the Certainty of our Knowledge…. (I.1.2, N: 43–4—the three numbers, are book, chapter and section numbers respectively, followed by the page number in the Nidditch edition)

The ‘Historical, Plain Method’ is apparently to give a genetic account of how we come by our ideas. Presumably this will reveal the degree of certainty of the knowledge based on such ideas. Locke’s own active involvement with the scientific movement was largely through his informal studies of medicine. Dr. David Thomas was his friend and collaborator. Locke and Thomas had a laboratory in Oxford which was very likely, in effect, a pharmacy. In 1666 Lord Ashley, one of the richest men in England, came to Oxford in order to drink some medicinal waters there. He had asked Dr. Thomas to provide them. Thomas had to be out of town and asked Locke to see that the water was delivered. As a result of this encounter, Ashley invited Locke to come to London as his personal physician. In 1667 Locke did move to London becoming not only Lord Ashley’s personal physician, but secretary, researcher, political operative and friend. Living with him Locke found himself at the very heart of English politics in the 1670s and 1680s.

Locke’s chief work while living at Lord Ashley’s residence, Exeter House, in 1668 was as Ashley’s physician. Locke used his medical training to organize a successful operation on Ashley. This was perhaps the most carefully documented operation in the 17th century. Locke consulted doctors across the country to determine what the best practices were for this operation and made cleanliness a priority. In doing so he saved his patron’s life and thus changed English history.

Locke had a number of other jobs. He worked as secretary of the Board of Trade and Plantations and Secretary to the Lords Proprietors of the Carolinas. Lord Ashley was one of the advocates of the view that England would prosper through trade and that colonies could play an important role in promoting trade. Ashley persuaded Charles II to create a Board of Trade and Plantations to collect information about trade and colonies, and Locke became its secretary. In his capacity as the secretary of the Board of Trade Locke was the collection point for information from around the globe about trade and colonies for the English government. Among Ashley’s commercial projects was an effort to found colonies in the Carolinas. In his capacity as the secretary to the Lords Proprietors, Locke was involved in the writing of the fundamental constitution of the Carolinas. There is some controversy about the extent of Locke’s role in writing the constitution. [ 2 ] In addition to issues about trade and colonies, Locke was involved through Shaftesbury in other controversies about public policy. There was a monetary crisis in England involving the value of money, and the clipping of coins. Locke wrote papers for Lord Ashley on economic matters, including the coinage crisis.

While living in London at Exeter House, Locke continued to be involved in philosophical discussions. He tells us that:

Were it fit to trouble thee with the history of this Essay, I should tell thee, that five or six friends meeting at my chamber, and discoursing on a subject very remote from this, found themselves quickly at a stand, by the difficulties that rose on every side. After we had awhile puzzled ourselves, without coming any nearer a resolution of those doubts which perplexed us, it came into my thoughts that we took a wrong course; and that before we set ourselves upon inquiries of that nature, it was necessary to examine our own abilities, and see what objects our understandings were, or were not, fitted to deal with. This I proposed to the company, who all readily assented; and thereupon it was agreed that this should be our first inquiry. Some hasty and undigested thoughts, on a subject I had never before considered, which I set down against our next meeting, gave the first entrance into this Discourse; which having been thus begun by chance, was continued by intreaty; written by incoherent parcels; and after long intervals of neglect, resumed again, as my humour or occasions permitted; and at last, in a retirement where an attendance on my health gave me leisure, it was brought into that order thou now seest it. (Epistle to the Reader, N: 7)

James Tyrrell, one of Locke’s friends was at that meeting. He recalls the discussion being about the principles of morality and revealed religion (Cranston 1957: 140–1). Thus the Oxford scholar and medical researcher came to begin the work which was to occupy him off and on over the next twenty years.

In 1674 after Shaftesbury had left the government, Locke went back to Oxford, where he acquired the degree Bachelor of medicine, and a license to practice medicine, and then went to France (Cranston 1957: 160). In France Locke went from Calais to Paris, Lyons and on to Montpellier, where he spent the next fifteen months. Much of Locke’s time was spent learning about Protestantism in France. The Edict of Nantes (promulgated by Henry IV in 1598) was in force, and so there was a degree of religious toleration in France. Louis XIV was to revoke the edict in 1685 and French Protestants were then killed while some 400,000 went into exile.

While Locke was in France, Shaftesbury’s fortunes fluctuated. In 1676 Shaftesbury was imprisoned in the tower. His imprisonment lasted for a year. In 1678, after the mysterious murder of a London judge, informers (most notably Titus Oates) started coming forward to reveal a supposed Catholic conspiracy to assassinate the King and put his brother on the throne. This whipped up public anti-Catholic frenzy. Though Shaftesbury had not fabricated the conspiracy story, nor did he prompt Oates to come forward, he did exploit the situation to the advantage of his party. In the public chaos surrounding the sensational revelations, Shaftesbury organized an extensive party network, exercised great control over elections, and built up a large parliamentary majority. His strategy was to secure the passage of an Exclusion bill that would prevent Charles II’s openly Catholic brother from becoming King. Although the Exclusion bill passed in the Commons it was rejected in the House of Lords because of the King’s strong opposition to it. As the panic over the Popish plot receded, Shaftesbury was left without a following or a cause. Shaftesbury was seized on July 21, 1681 and again put in the tower. He was tried on trumped-up charges of treason but acquitted by a London grand jury (filled with his supporters) in November.

At this point some of the Country Party leaders began plotting an armed insurrection which, had it come off, would have begun with the assassination of Charles and his brother on their way back to London from the races at Newmarket. The chances of such a rising occurring were not as good as the plotters supposed. Memories of the turmoil of the civil war were still relatively fresh. Eventually Shaftesbury, who was moving from safe house to safe house, gave up and fled to Holland in November 1682. He died there in January 1683. Locke stayed in England until the Rye House Plot (named after the house from which the plotters were to fire upon the King and his brother) was discovered in June of 1683. Locke left for the West country to put his affairs in order the very week the plot was revealed to the government and by September he was in exile in Holland. [ 3 ]

While in exile, Locke finished An Essay Concerning Human Understanding and published a fifty-page advanced notice of it in French. (This was to provide the intellectual world on the continent with most of their information about the Essay until Pierre Coste’s French translation appeared in 1704.) He also wrote and published his Epistola de Tolerentia in Latin. Richard Ashcraft, in his Revolutionary Politics and Locke’s Two Treatises of Government (1986) suggests that while in Holland, Locke was not only finishing An Essay Concerning Human Understanding and nursing his health, he was closely associated with the English revolutionaries in exile. The English government was much concerned with this group. They tried to get a number of them, including Locke, extradited to England. Locke’s studentship at Oxford was taken away from him. In the meanwhile, the English intelligence service infiltrated the rebel group in Holland and effectively thwarted their efforts—at least for a while. While Locke was living in exile in Holland, Charles II died on Feb. 6, 1685, and was succeeded by his brother, who became James II of England. Soon after this, the rebels in Holland sent a force of soldiers under the Duke of Monmouth to England to try to overthrow James II. The revolt was crushed, and Monmouth was captured and executed (Ashcraft 1986). For a meticulous, if cautious review, of the evidence concerning Locke’s involvement with the English rebels in exile see Roger Woolhouse’s Locke: A Biography (2007).

Ultimately, however, the rebels were successful. James II alienated most of his supporters, and William of Orange was invited to bring a Dutch force to England. After William’s army landed, James II, realizing that he could not mount an effective resistance, fled the country to exile in France. This became known as the Glorious Revolution of 1688. It is a watershed in English history. For it marks the point at which the balance of power in the English government passed from the King to the Parliament. Locke returned to England in February 1689.

After his return from exile, Locke published An Essay Concerning Human Understanding and The Two Treatises of Government . In addition, Popple’s translation of Locke’s A Letter Concerning Toleration was also published. It is worth noting that the Two Treatises and the Letter Concerning Toleration were published anonymously. Locke took up residence in the country at Oates in Essex, the home of Sir Francis and Lady Masham (Damaris Cudworth). Locke had met Damaris Cudworth in 1682 and became involved intellectually and romantically with her. She was the daughter of Ralph Cudworth, the Cambridge Platonist, and a philosopher in her own right. After Locke went into exile in Holland in 1683, she married Sir Francis Masham. Locke and Lady Masham remained good friends and intellectual companions to the end of Locke’s life. During the remaining years of his life, Locke oversaw four more editions of the Essay and engaged in controversies over the Essay most notably in a series of published letters with Edward Stillingfleet, Bishop of Worcester. In a similar way, Locke defended the Letter Concerning Toleration against a series of attacks. He wrote The Reasonableness of Christianity and Some Thoughts on Education during this period as well.

Nor was Locke finished with public affairs. In 1696 the Board of Trade was revived. Locke played an important part in its revival and served as the most influential member on it until 1700. The new Board of Trade had administrative powers and was, in fact, concerned with a wide range of issues, from the Irish wool trade and the suppression of piracy, to the treatment of the poor in England and the governance of the colonies. It was, in Peter Laslett’s phrase “the body which administered the United States before the American Revolution” (Laslett 1954 [1990: 127]). During these last eight years of his life, Locke was asthmatic, and he suffered so much from it that he could only bear the smoke of London during the four warmer months of the year. Locke plainly engaged in the activities of the Board out of a strong sense of patriotic duty. After his retirement from the Board of Trade in 1700, Locke remained in retirement at Oates until his death on Sunday 28 October 1704.

2. The Limits of Human Understanding

Locke is often classified as the first of the great English empiricists (ignoring the claims of Bacon and Hobbes). This reputation rests on Locke’s greatest work, the monumental An Essay Concerning Human Understanding . Locke explains his project in several places. Perhaps the most important of his goals is to determine the limits of human understanding. Locke writes:

For I thought that the first Step towards satisfying the several Enquiries, the Mind of Man was apt to run into, was, to take a Survey of our own Understandings, examine our own Powers, and see to what Things they were adapted. Till that was done, I suspected that we began at the wrong end, and in vain sought for Satisfaction in a quiet and secure Possession of Truths, that most concern’d us whilst we let loose our Thoughts into the vast Ocean of Being , as if all the boundless Extent, were the natural and undoubted Possessions of our Understandings, wherein there was nothing that escaped its Decisions, or that escaped its Comprehension. Thus Men, extending their Enquiries beyond their Capacities, and letting their Thoughts wander into those depths where they can find no sure Footing; ’tis no Wonder, that they raise Questions and multiply Disputes, which never coming to any clear Resolution, are proper to only continue and increase their Doubts, and to confirm them at last in a perfect Skepticism. Wheras were the Capacities of our Understanding well considered, the Extent of our Knowledge once discovered, and the Horizon found, which sets the boundary between the enlightened and the dark Parts of Things; between what is and what is not comprehensible by us, Men would perhaps with less scruple acquiesce in the avow’d Ignorance of the one; and employ their Thoughts and Discourse, with more Advantage and Satisfaction in the other. (I.1.7, N: 47)

Some philosophers before Locke had suggested that it would be good to find the limits of the Understanding, but what Locke does is to carry out this project in detail. In the four books of the Essay Locke considers the sources and nature of human knowledge. Book I argues that we have no innate knowledge. (In this he resembles Berkeley and Hume, and differs from Descartes and Leibniz.) So, at birth, the human mind is a sort of blank slate on which experience writes. In Book II Locke claims that ideas are the materials of knowledge and all ideas come from experience. The term ‘idea’, Locke tells us “…stands for whatsoever is the Object of the Understanding, when a man thinks” (I.1.8, N: 47). Experience is of two kinds, sensation and reflection. One of these—sensation—tells us about things and processes in the external world. The other—reflection—tells us about the operations of our own minds. Reflection is a sort of internal sense that makes us conscious of the mental processes we are engaged in. Some ideas we get only from sensation, some only from reflection and some from both.

Locke has an atomic or perhaps more accurately a corpuscular theory of ideas. [ 4 ] There is, that is to say, an analogy between the way atoms or corpuscles combine into complexes to form physical objects and the way ideas combine. Ideas are either simple or complex. We cannot create simple ideas, we can only get them from experience. In this respect the mind is passive. Once the mind has a store of simple ideas, it can combine them into complex ideas of a variety of kinds. In this respect the mind is active. Thus, Locke subscribes to a version of the empiricist axiom that there is nothing in the intellect that was not previously in the senses—where the senses are broadened to include reflection. Book III deals with the nature of language, its connections with ideas and its role in knowledge. Book IV, the culmination of the previous reflections, explains the nature and limits of knowledge, probability, and the relation of reason and faith. Let us now consider the Essay in some detail.

At the beginning of An Essay Concerning Human Understanding Locke says that since his purpose is “to enquire into the Original, Certainty and Extent of human knowledge, together with the grounds and degrees of Belief, Opinion and Assent” he is going to begin with ideas—the materials out of which knowledge is constructed. His first task is to “enquire into the Original of these Ideas…and the ways whereby the Understanding comes to be furnished with them” (I.1.3, N: 44). The role of Book I of the Essay is to make the case that being innate is not a way in which the understanding is furnished with principles and ideas. Locke treats innateness as an empirical hypothesis and argues that there is no good evidence to support it.

Locke describes innate ideas as “some primary notions…Characters as it were stamped upon the Mind of Man, which the Soul receives in its very first Being; and brings into the world with it” (I.2.1, N: 48). In pursuing this enquiry, Locke rejects the claim that there are speculative innate principles (I.2), practical innate moral principles (I.3) or that we have innate ideas of God, identity or impossibility (I.4). Locke rejects arguments from universal assent and attacks dispositional accounts of innate principles. Thus, in considering what would count as evidence from universal assent to such propositions as “What is, is” or “It is impossible for the same thing to be and not to be” he holds that children and idiots should be aware of such truths if they were innate but that they “have not the least apprehension or thought of them”. Why should children and idiots be aware of and able to articulate such propositions? Locke says:

It seems to me a near Contradiction to say that there are truths imprinted on the Soul, which it perceives or understands not; imprinting if it signify anything, being nothing else but the making certain Truths to be perceived. (I.2.5, N: 49)

So, Locke’s first point is that if propositions were innate they should be immediately perceived—by infants and idiots (and indeed everyone else)—but there is no evidence that they are. Locke then proceeds to attack dispositional accounts that say, roughly, that innate propositions are capable of being perceived under certain circumstances. Until these circumstances come about the propositions remain unperceived in the mind. With the advent of these conditions, the propositions are then perceived. Locke gives the following argument against innate propositions being dispositional:

For if any one [proposition] may [be in the mind but not be known]; then, by the same Reason, all Propositions that are true, and the Mind is ever capable of assenting to, may be said to be in the Mind, and to be imprinted: since if any one can be said to be in the Mind, which it never yet knew, it must be only because it is capable of knowing it; and so the Mind is of all Truths it ever shall know. (I.2.5, N: 50)

The essence of this argument and many of Locke’s other arguments against dispositional accounts of innate propositions is that such dispositional accounts do not provide an adequate criterion for distinguishing innate propositions from other propositions that the mind may come to discover. Thus, even if some criterion is proposed, it will turn out not to do the work it is supposed to do.

When Locke turns from speculative principles to the question of whether there are innate practical moral principles, many of the arguments against innate speculative principles continue to apply, but there are some additional considerations. Practical principles, such as the Golden Rule, are not self-evident in the way such speculative principles as “What is, is” are. Thus, one can clearly and sensibly ask reasons for why one should hold the Golden Rule true or obey it (I.3.4, N: 68). There are substantial differences between people over the content of practical principles. Thus, they are even less likely candidates to be innate propositions or to meet the criterion of universal assent. In the fourth chapter of Book I, Locke raises similar points about the ideas which compose both speculative and practical principles. The point is that if the ideas that are constitutive of the principles are not innate, this gives us even more reason to hold that the principles are not innate. He examines the ideas of identity, impossibility and God to make these points.

In Book I Locke says little about who holds the doctrine of innate principles that he is attacking. For this reason he has sometimes been accused of attacking straw men. John Yolton has persuasively argued (Yolton 1956) that the view that innate ideas and principles were necessary for the stability of religion, morality and natural law was widespread in England in the seventeenth century, and that in attacking both the naive and the dispositional account of innate ideas and innate principles, Locke is attacking positions which were widely held and continued to be held after the publication of the Essay . Thus, the charge that Locke’s account of innate principles is made of straw, is not a just criticism. But there are also some important connections with particular philosophers and schools that are worth noting and some points about innate ideas and inquiry.

At I. 4. 24. Locke tells us that the doctrine of innate principles once accepted “eased the lazy from the pains of search” and that the doctrine is an inquiry stopper that is used by those who “affected to be Masters and Teachers” to illegitimately gain control of the minds of their students. Locke rather clearly has in mind the Aristotelians and scholastics at the universities. Thus Locke’s attack on innate principles is connected with his anti-authoritarianism. It is an expression of his view of the importance of free and autonomous inquiry in the search for truth. Ultimately, Locke holds, this is the best road to knowledge and happiness. Locke, like Descartes, is tearing down the foundations of the old Aristotelian scholastic house of knowledge. But while Descartes focused on the empiricism at the foundation of the structure, Locke is focusing on the claims that innate ideas provide its first principles. The attack on innate ideas is thus the first step in the demolition of the scholastic model of science and knowledge. Ironically, it is also clear from II.1.9. that Locke sees Descartes’ claim that his essence is to be a thinking thing as entailing a doctrine of innate ideas and principles.

In Book II of the Essay , Locke gives his positive account of how we acquire the materials of knowledge. Locke distinguishes a variety of different kinds of ideas in Book II. Locke holds that the mind is a tabula rasa or blank sheet until experience in the form of sensation and reflection provide the basic materials—simple ideas—out of which most of our more complex knowledge is constructed. While the mind may be a blank slate in regard to content, it is plain that Locke thinks we are born with a variety of faculties to receive and abilities to manipulate or process the content once we acquire it. Thus, for example, the mind can engage in three different types of action in putting simple ideas together. The first of these kinds of action is to combine them into complex ideas. Complex ideas are of two kinds, ideas of substances and ideas of modes. Substances are independent existences. Beings that count as substances include God, angels, humans, animals, plants and a variety of constructed things. Modes are dependent existences. These include mathematical and moral ideas, and all the conventional language of religion, politics and culture. The second action which the mind performs is the bringing of two ideas, whether simple or complex, by one another so as to take a view of them at once, without uniting them. This gives us our ideas of relations (II.12.1, N: 163). The third act of the mind is the production of our general ideas by abstraction from particulars, leaving out the particular circumstances of time and place, which would limit the application of an idea to a particular individual. In addition to these abilities, there are such faculties as memory which allow for the storing of ideas.

Having set forth the general machinery of how simple and complex ideas of substances, modes, relations, and so forth are derived from sensation and reflection, Locke also explains how a variety of particular kinds of ideas, such as the ideas of solidity, number, space, time, power, identity, and moral relations arise from sensation and reflection. Several of these are of particular interest. Locke’s chapter on power gives rise to a discussion of free will and voluntary action (see the entry on Locke on freedom ). Locke also made a number of interesting claims in the philosophy of mind. He suggested, for example, that for all we know, God could as easily add the powers of perception and thought to matter organized in the right way as he could add those powers to an immaterial substance which would then be joined to matter organized in the right way. His account of personal identity in II. xxvii was revolutionary. (See the entry on Locke on personal identity) . Both of these topics and related ones are treated in the supplementary document: Some Interesting Issues in Locke’s Philosophy of Mind

In what follows, we focus on some central issues in Locke’s account of physical objects. (See also the entry Locke’s philosophy of science , which pursues a number of topics related to Locke’s account of physical objects that are of considerable importance but largely beyond the scope of this general account of Locke’s philosophy.) These include Locke on knowledge in natural philosophy, the limitations of the corpuscular philosophy and Locke’s relation to Newton.

Locke offers an account of physical objects based on the mechanical philosophy and the corpuscular hypothesis. The adherents of the mechanical philosophy held that all material phenomena can be explained by matter in motion and the impact of one body on another. They viewed matter as passive. They rejected the “occult qualities” and “causation at a distance” of the Aristotelian and Scholastic philosophy. Robert Boyle’s corpuscularian hypothesis treated the material world as made up of particles. Some corpuscularians held that corpuscles could be further divided and that the universe was full of matter with no void space. Atomists, on the other hand, held that the particles were indivisible and that the material world is composed of atoms and the void or empty space in which the atoms move. Locke was an atomist.

Atoms have properties. They are extended, they are solid, they have a particular shape and they are in motion or rest. They combine together to produce the familiar stuff and physical objects, the gold and the wood, the horses and violets, the tables and chairs of our world. These familiar things also have properties. They are extended, solid, have a particular shape, and are in motion and at rest. In addition to these properties that they share with the atoms that compose them, they have other properties such as colors, smells, tastes that they get by standing in relation to perceivers. The distinction between these two kinds of properties goes back to the Greek atomists. It is articulated by Galileo and Descartes as well as Locke’s mentor Robert Boyle.

Locke makes this distinction in Book II Chapter 8 of the Essay and using Boyle’s terminology calls the two different classes of properties the primary and secondary qualities of an object. This distinction is made by both of the main branches of the mechanical philosophy of the seventeenth and early eighteenth century. Both the Cartesian plenum theorists, who held that the world was full of infinitely divisible matter and that there was no void space, and the atomists such as Gassendi, who held that there were indivisible atoms and void space in which the atoms move, made the distinction between these two classes of properties. Still, the differences between these two branches of the mechanical philosophy affect their account of primary qualities. In the chapter on Solidity (II.4) Locke rejects the Cartesian definition of body as simply extended and argues that bodies are both extended and impenetrable or solid. The inclusion of solidity in Locke’s account of bodies and of primary qualities distinguishes them from the void space in which they move.

The primary qualities of an object are properties which the object possesses independent of us—such as occupying space, being either in motion or at rest, having solidity and texture. The secondary qualities are powers in bodies to produce ideas in us like color, taste, smell and so on that are caused by the interaction of our particular perceptual apparatus with the primary qualities of the object. Our ideas of primary qualities resemble the qualities in the object, while our ideas of secondary qualities do not resemble the powers that cause them. Locke also distinguishes a second class of secondary properties that are the powers that one substance has to effect another, e.g. the power of a fire to melt a piece of wax.

There has been considerable scholarly debate concerning the details of Locke’s account of the distinction. Among the issues are which qualities Locke assigns to each of the two categories. Locke gives several lists. Another issue is what the criterion is for putting a quality in one list rather than another. Does Locke hold that all the ideas of secondary qualities come to us by one sense while the ideas of primary qualities come to us through two or is Locke not making the distinction in this way? Another issue is whether there are only primary qualities of atoms or whether compounds of atoms also have primary qualities. And while Locke claims our ideas of primary qualities resemble the primary qualities in objects, and the ideas of secondary qualities do not resemble their causes in the object, what does ‘resemble’ mean in this context? Related to this issue is how we are supposed to know about particles that we cannot sense. It seems clear that Locke holds that there are certain analogies between the middle sized macroscopic objects we encounter in the world, e.g. porphyry and manna for example, and the particles that compose these things. Maurice Mandelbaum called this process ‘transdiction’. These analogies allow us to say certain things about the nature of particles and primary and secondary qualities. For example we can infer that atoms are solid and that heat is a greater rate of motion of atoms while cold is a slower motion. But these analogies may not get us very far in grasping the necessary connections between qualities in nature. Yet another issue is whether Locke sees the distinction as reductionistic. If what we mean by reductionistic here is that only the primary qualities are real and these explain the secondary qualities then there does not seem to be a clear answer. Secondary qualities surely are nothing more than certain primary qualities that affect us in certain ways. This seems to be reductionistic. But on Locke’s account of “real ideas” in II.30 both the ideas of primary and secondary qualities count as real. And while Locke holds that our ideas of secondary qualities are caused by primary qualities, in certain important respects the primary qualities do not explain them. Locke holds that we cannot even conceive how the size, figure and motion of particles could cause any sensation in us. So, knowing the size, figure and motion of the particles would be of no use to us in this regard (see IV.3.11–40, N: 544–546).

Locke probably holds some version of the representational theory of perception, though some scholars dispute this. On such a theory what the mind immediately perceives are ideas, and the ideas are caused by and represent the objects which cause them. Thus perception is a triadic relation, rather than simply being a dyadic relation between an object and a perceiver. Such a dyadic relational theory is often called naive realism because it suggests that the perceiver is directly perceiving the object, and naive because this view is open to a variety of serious objections. Some versions of the representational theory are open to serious objections as well. If, for example, one treats ideas as things, then one can imagine that because one sees ideas, the ideas actually block one from seeing things in the external world. The idea would be like a picture or painting. The picture would copy the original object in the external world, but because our immediate object of perception is the picture we would be prevented from seeing the original just as standing in front of a painting on an easel might prevent us from seeing the person being painted. Thus, this is sometimes called the picture/original theory of perception. Alternatively, Jonathan Bennett called it “the veil of perception” to emphasize that ‘seeing’ the ideas prevents us from seeing the external world. One philosopher who arguably held such a view was Nicholas Malebranche, a follower of Descartes. Antoine Arnauld, by contrast, while believing in the representative character of ideas, is a direct realist about perception. Arnauld engaged in a lengthy controversy with Malebranche, and criticized Malebranche’s account of ideas. Locke follows Arnauld in his criticism of Malebranche on this point (Locke, 1823, Vol. IX: 250). Yet Berkeley attributed the veil of perception interpretation of the representational theory of perception to Locke as have many later commentators including Bennett. A.D. Woozley puts the difficulty of doing this succinctly:

…it is scarcely credible both that Locke should be able to see and state so clearly the fundamental objection to the picture-original theory of sense perception, and that he should have held the same theory himself. (Woozley 1964: 27)

Just what Locke’s account of perception involves, is still a matter of scholarly debate. A review of this issue at a symposium including John Rogers, Gideon Yaffe, Lex Newman, Tom Lennon, and Vere Chappell at a meeting of the Pacific Division of the American Philosophical Association in 2003 and later expanded and published in the Pacific Philosophical Quarterly (2004, volume 85, issue 3) found most of the symposiasts holding the view that Locke holds a representative theory of perception but that he is not a skeptic about the external world in the way that the veil of perception doctrine might suggest.

Another issue that has been a matter of controversy since the first publication of the Essay is what Locke means by the term ‘substance’. The primary/secondary quality distinction gets us a certain ways in understanding physical objects, but Locke is puzzled about what underlies or supports the primary qualities themselves. He is also puzzled about what material and immaterial substances might have in common that would lead us to apply the same word to both. These kinds of reflections led him to the relative and obscure idea of substance in general. This is an “I know not what” which is the support of qualities which cannot subsist by themselves. We experience properties appearing in regular clumps, but we must infer that there is something that supports or perhaps ‘holds together’ those qualities. For we have no experience of that supporting substance. It is clear that Locke sees no alternative to the claim that there are substances supporting qualities. He does not, for example, have a theory of tropes (tropes are properties that can exist independently of substances) which he might use to dispense with the notion of substance. (In fact, he may be rejecting something like a theory of tropes when he rejects the Aristotelian doctrine of real qualities and insists on the need for substances.) He is thus not at all a skeptic about ‘substance’ in the way that Hume is. But, it is also quite clear that he is regularly insistent about the limitations of our ideas of substances. Bishop Stillingfleet accused Locke of putting substance out of the reasonable part of the world. But Locke is not doing that.

Since Berkeley, Locke’s doctrine of the substratum or substance in general has been attacked as incoherent. It seems to imply that we have a particular without any properties, and this seems like a notion that is inconsistent with empiricism. We have no experience of such an entity and so no way to derive such an idea from experience. Locke himself acknowledges this point (I.4.18, N: 95). In order to avoid this problem, Michael Ayers has proposed that we must understand the notions of ‘substratum’ and ‘substance in general’ in terms of Locke’s distinction between real and nominal essences and particularly his doctrine of real essences developed in Book III of the Essay rather than as a separate problem from that of knowing real essences. The real essence of a material thing is its atomic constitution. This atomic constitution is the causal basis of all the observable properties of the thing, from which we create nominal essences. Were the real essence known, all the observable properties could be deduced from it. Locke claims that the real essences of material things are quite unknown to us. Locke’s concept of substance in general is also a ‘something I know not what’. Thus, on Ayers’ interpretation ‘substance in general’ means something like ‘whatever it is that supports qualities’ while the real essence means ‘this particular atomic constitution that explains this set of observable qualities’. Thus, Ayers wants to treat the unknown substratum as picking out the same thing as the real essence—thus eliminating the need for particulars without properties. This proposed way of interpreting Locke has been criticized by scholars both because of a lack of textural support, and on the stronger grounds that it conflicts with some things that Locke does say (see Jolley 1999: 71–3). As we have reached one of the important concepts in Book III, let us turn to that Book and Locke’s discussion of language.

Locke devotes Book III of An Essay Concerning Human Understanding to language. This is a strong indication that Locke thinks issues about language were of considerable importance in attaining knowledge. At the beginning of the Book he notes the importance of abstract general ideas to knowledge. These serve as sorts under which we rank all the vast multitude of particular existences. Thus, abstract ideas and classification are of central importance in Locke’s discussion of language and its importance for knowledge. Without general terms and classes we would be faced with the impossible task of trying to know a vast world of particulars.

There is a clear connection between Books II and III in that Locke claims that words stand for ideas. In his discussion of language Locke distinguishes words according to the categories of ideas established in Book II of the Essay . So there are ideas of substances, simple modes, mixed modes, relations and so on. It is in this context that Locke makes the distinction between real and nominal essences noted above. Perhaps because of his focus on the role that kind terms play in classification, Locke pays vastly more attention to nouns than to verbs. Locke recognizes that not all words relate to ideas. There are also the many particles, words that “…signify the connexion that the Mind gives to Ideas, or Propositions, one with another” (II.7.1, N: 471). Still, it is the relation of words and ideas that gets most of Locke’s attention in Book III.

Norman Kretzmann calls the claim that “words in their primary or immediate signification signify nothing but the ideas in the mind of him that uses them ” (III.2.2) “Locke’s main semantic thesis” (see Kretzmann 1968:179). This thesis has often been criticized as a classic blunder in semantic theory. Thus Mill, for example, wrote, “When I say, ‘the sun is the cause of the day’, I do not mean that my idea of the sun causes or excites in me the idea of day” (Mill 1843: bk 1, ch. 2, § 1). This criticism of Locke’s account of language parallels the “veil of perception” critique of his account of perception and suggests that Locke is not distinguishing the meaning of a word from its reference. Kretzmann, however, argues persuasively that Locke distinguishes between meaning and reference and that ideas provide the meaning but not the reference of words. Thus, the line of criticism represented by the quotation from Mill is ill founded.

In addition to the kinds of ideas noted above, there are also particular and abstract ideas. Particular ideas have in them the ideas of particular places and times which limit the application of the idea to a single individual, while abstract general ideas leave out the ideas of particular times and places in order to allow the idea to apply to other similar qualities or things. There has been considerable philosophical and scholarly debate about the nature of the process of abstraction and Locke’s account of it. Berkeley argued that the process as Locke conceives it is incoherent. In part this is because Berkeley is an imagist—that is he believes that all ideas are images. If one is an imagist it becomes impossible to imagine what idea could include both the ideas of a right and equilateral triangle. Michael Ayers has recently argued that Locke too was an imagist. This would make Berkeley’s criticism of Locke very much to the point. Ayers’ claim, however, has been disputed (see, for example, Soles 1999). The process of abstraction is of considerable importance to human knowledge. Locke thinks most words we use are general (III.1.1, N: 409). Clearly, it is only general or sortal ideas that can serve in a classificatory scheme.

In his discussion of names of substances and in the contrast between names of substances and names of modes, a number of interesting features of Locke’s views about language and knowledge emerge. Physical substances are atoms and things made up of atoms. But we have no experience of the atomic structure of horses and tables. We know horses and tables mainly by secondary qualities such as color, taste and smell and so on and primary qualities such as shape, motion and extension. So, since the real essence (the atomic constitution) of a horse is unknown to us, our word ‘horse’ cannot get its meaning from that real essence. What the general word signifies is the complex of ideas we have decided are parts of the idea of that sort of thing. These ideas we get from experience. Locke calls such a general idea that picks out a sort, the nominal essence of that sort.

One of the central issues in Book III has to do with classification. On what basis do we divide things into kinds and organize those kinds into a system of species and genera? In the Aristotelian and Scholastic tradition that Locke rejects, necessary properties are those that an individual must have in order to exist and continue to exist. These contrast with accidental properties. Accidental properties are those that an individual can gain and lose and yet continue in existence. If a set of necessary properties is shared by a number of individuals, that set of properties constitutes the essence of a natural kind. The borders between kinds are supposed to be sharp and determinate. The aim of Aristotelian science is to discover the essences of natural kinds. Kinds can then be organized hierarchically into a classificatory system of species and genera. This classification of the world by natural kinds will be unique and privileged because it alone corresponds to the structure of the world. This doctrine of essences and kinds is often called Aristotelian essentialism. Locke rejects a variety of aspects of this doctrine. He rejects the notion that an individual has an essence apart from being treated as belonging to a kind. He also rejects the claim that there is a single classification of things in nature that the natural philosopher should seek to discover. He holds that there are many possible ways to classify the world each of which might be particularly useful depending on one’s purposes.

Locke’s pragmatic account of language and the distinction between nominal and real essences constitute an anti-essentialist alternative to this Aristotelian essentialism and its correlative account of the classification of natural kinds. He claims that there are no fixed boundaries in nature to be discovered—that is there are no clear demarcation points between species. There are always borderline cases. There is debate over whether Locke’s view is that this lack of fixed boundaries is true on both the level of appearances and nominal essences, and atomic constitutions and real essences, or on the level of nominal essences alone. The first view is that Locke holds that there are no Aristotelian natural kinds on either the level of appearance or atomic reality. The second view holds that Locke thinks there are Aristotelian natural kinds on the atomic level, it is simply that we cannot get at them or know what they are. On either of these interpretations, the real essence cannot provide the meaning to names of substances. A.O. Lovejoy in the Great Chain of Being , and David Wiggins are proponents of the second interpretation while Michael Ayers and William Uzgalis argue for the first (Uzgalis 1988; Ayers 1991: II. 70).

By contrast, the ideas that we use to make up our nominal essences come to us from experience. Locke claims that the mind is active in making our ideas of sorts and that there are so many properties to choose among that it is possible for different people to make quite different ideas of the essence of a certain substance. This has given some commentators the impression that the making of sorts is utterly arbitrary and conventional for Locke and that there is no basis for criticizing a particular nominal essence. Sometimes Locke says things that might suggest this. But this impression should be resisted. Peter Anstey has characterized Locke’s conventionalism about classificatory terms as both constrained and convergent (Anstey 2011: 209, 212). Locke claims that while the making of nominal essences is the work of the understanding, that work is constrained both by usage (where words stand for ideas that are already in use) and by the fact that substance words are supposed to copy the properties of the substances they refer to. Locke says that our ideas of kinds of substances have as their archetype the complex of properties that produce the appearances we use to make our nominal essences and which cause the unity of the complex of ideas that appear to us regularly conjoined. The very notion of an archetype implies constraints on what properties (and hence what ideas) can go together. If there were no such constraints there could be no archetype. (For further discussion of the nominal-real essence distinction see the entry Locke on Real Essences) .

Let us begin with the usage of words. It is important in a community of language users that words be used with the same meaning. If this condition is met it facilitates the chief end of language which is communication. If one fails to use words with the meaning that most people attach to them, one will fail to communicate effectively with others. Thus one would defeat the main purpose of language. It should also be noted that traditions of usage for Locke can be modified. Otherwise we would not be able to improve our knowledge and understanding by getting more clear and determinate ideas.

In the making of the names of substances, there is a period of discovery as the abstract general idea is put together (e.g. the discovery of violets or gold) and then the naming of that idea and then its introduction into language. Language itself is viewed as an instrument for carrying out the mainly prosaic purposes and practices of everyday life. Ordinary people are the chief makers of language.

Vulgar Notions suit vulgar Discourses; and both though confused enough, yet serve pretty well for the Market and the Wake. Merchants and Lovers, Cooks and Taylors, have Words wherewith to dispatch their ordinary affairs; and so, I think, might Philosophers and Disputants too, if they had a mind to understand and to be clearly understood. (III.11.10, N: 514)

These ordinary people use a few apparent qualities, mainly ideas of secondary qualities to make ideas and words that will serve their purposes.

Natural philosophers (i.e. scientists) come along later to try to determine if the connections between properties which the ordinary folk have put together in a particular idea in fact holds in nature. Scientists are seeking to find the necessary connections between properties. Still, even scientists, in Locke’s view, are restricted to using observable (and mainly secondary) qualities to categorize things in nature. Sometimes, the scientists may find that the ordinary folk had erred, as when they called whales ‘fish’. A whale is not a fish, as it turns out, but a mammal. There is a characteristic group of qualities that fish have that whales do not have. There is a characteristic group of qualities that mammals have that whales also have. To classify a whale as a fish, therefore, is a mistake. Similarly, we might make an idea of gold that only included being a soft metal and gold color. If so, we would be unable to distinguish between gold and fool’s gold. Thus, since it is the mind that makes complex ideas (they are ‘the workmanship of the understanding’), one is free to put together any combination of ideas one wishes and call it what one will. But the product of such work is open to criticism, either on the grounds that it does not conform to already current usage or that it inadequately represents the archetypes that it is supposed to copy in the world. We engage in such criticism in order to improve human understanding of the material world and thus the human condition. This is the convergent character of Locke’s conventionalism. In becoming more accurate, the nominal essence converges on the real essence.

However, we should not forget the master-builders that Locke mentions at the beginning of the Essay . Stephen Gaukroger (2010) claims that Locke’s great achievement was to provide a philosophical justification for the kind of experimental philosophy that Boyle’s work on the air pump, and his and Newton’s work on colors, as well as Sydenham’s observational medicine. All of these had been attacked for not providing explanations in terms of matter theory. Thus, Locke is justifying the autonomy of experimental philosophy. Such experimental explanations depend solely on the relation between phenomena, even when there is some micro-corpuscular basis for the phenomena being explained. According to Gaukroger, this is Locke’s contribution to the collapse of mechanism. For the details of the problem and its solution, see Chapters 4 and 5 of Gaukroger (2010).

The distinction between modes and substances is surely one of the most important in Locke’s philosophy. In contrast with substances, modes are dependent existences—they can be thought of as the ordering of substances. These are technical terms for Locke, so we should see how they are defined. Locke writes:

First, Modes I call such complex Ideas , which however compounded, contain not in themselves the supposition of subsisting by themselves; such are the ideas signified by the Words Triangle, Gratitude, Murther, etc . (II.12.4, N: 165)

Locke goes on to distinguish between simple and mixed modes. He writes:

Of these Modes , there are two sorts, which deserve distinct consideration. First, there are some that are only variations, or different combinations of the same simple Idea , without the mixture of any other, as a dozen or score; which are nothing but the ideas of so many distinct unities being added together, and these I call simple Modes , as being contained within the bounds of one simple Idea . Secondly, There are others, compounded of Ideas of several kinds, put together to make one complex one; v.g. Beauty , consisting of a certain combination of Colour and Figure, causing Delight to the Beholder; Theft , which being the concealed change of the Possession of any thing, without the consent of the Proprietor, contains, as is visible, a combination of several Ideas of several kinds; and these I call Mixed Modes . (II.12.5, N: 165)

When we make ideas of modes, the mind is again active, but the archetype is in our mind. The question becomes whether things in the world fit our ideas, and not whether our ideas correspond to the nature of things in the world. Our ideas are adequate. Thus we define ‘bachelor’ as an unmarried, adult, male human being. If we find that someone does not fit this definition, this does not reflect badly on our definition, it simply means that that individual does not belong to the class of bachelors. Modes give us the ideas of mathematics, of morality, of religion and politics and indeed of human conventions in general. Since these modal ideas are not only made by us but serve as standards that things in the world either fit or do not fit and thus belong or do not belong to that sort, ideas of modes are clear and distinct, adequate and complete. Thus in modes, we get the real and nominal essences combined. One can give precise definitions of mathematical terms (that is, give necessary and sufficient conditions), and one can give deductive demonstrations of mathematical truths. Locke sometimes says that morality too is capable of deductive demonstration. Though pressed by his friend William Molyneux to produce such a demonstrative morality, Locke never did so. The entry Locke’s moral philosophy provides an excellent discussion of Locke’s views on morality and issues related to them for which there is no room in this general account. The terms of political discourse also have some of the same modal features for Locke. When Locke defines the states of nature, slavery, and war in the Second Treatise of Government , for example, we are presumably getting precise modal definitions from which one can deduce consequences. It is possible, however, that with politics we are getting a study that requires both experience as well as the deductive modal aspect.

In the fourth book of An Essay Concerning Human Understanding Locke tells us what knowledge is and what humans can know and what they cannot (not simply what they do and do not happen to know). Locke defines knowledge as “the perception of the connexion and agreement or disagreement and repugnancy of any of our Ideas” (IV.1.1, N: 525). This definition of knowledge contrasts with the Cartesian definition of knowledge as any ideas that are clear and distinct. Locke’s account of knowledge allows him to say that we can know substances in spite of the fact that our ideas of them always include the obscure and relative idea of substance in general. Still, Locke’s definition of knowledge raises in this domain a problem analogous to those we have seen with perception and language. If knowledge is the “perception of … the agreement or disagreement … of any of our Ideas”—are we not trapped in the circle of our own ideas? What about knowing the real existence of things? Locke is plainly aware of this problem, and very likely holds that the implausibility of skeptical hypotheses, such as Descartes’ Dream hypothesis (he doesn’t even bother to mention Descartes’ malin genie or Evil Demon hypothesis), along with the causal connections between qualities and ideas in his own system is enough to solve the problem. It is also worth noting that there are significant differences between Locke’s brand of empiricism and that of Berkeley that would make it easier for Locke to solve the veil of perception problem than Berkeley. Locke, for example, makes transdictive inferences about atoms where Berkeley is unwilling to allow that such inferences are legitimate. This implies that Locke has a semantics that allows him to talk about the unexperienced causes of experience (such as atoms) where Berkeley cannot. (See Mackie’s perceptive discussion of the veil of perception problem, in Problems from Locke , 1976: 51 through 67.)

What then can we know and with what degree of certainty? We can know that God exists with the second highest degree of assurance, that of demonstration. We also know that we exist with the highest degree of certainty. The truths of morality and mathematics we can know with certainty as well, because these are modal ideas whose adequacy is guaranteed by the fact that we make such ideas as ideal models which other things must fit, rather than trying to copy some external archetype which we can only grasp inadequately. On the other hand, our efforts to grasp the nature of external objects are limited largely to the connection between their apparent qualities. The real essence of elephants and gold is hidden from us: though in general we suppose them to be some distinct combination of atoms which cause the grouping of apparent qualities which leads us to see elephants and violets, gold and lead as distinct kinds. Our knowledge of material things is probabilistic and thus opinion rather than knowledge. Thus our “knowledge” of external objects is inferior to our knowledge of mathematics and morality, of ourselves, and of God. We do have sensitive knowledge of external objects, which is limited to things we are presently experiencing. While Locke holds that we only have knowledge of a limited number of things, he thinks we can judge the truth or falsity of many propositions in addition to those we can legitimately claim to know. This brings us to a discussion of probability.

Knowledge involves the seeing of the agreement or disagreement of our ideas. What then is probability and how does it relate to knowledge? Locke writes:

The Understanding Faculties being given to Man, not barely for Speculation, but also for the Conduct of his Life, Man would be at a great loss, if he had nothing to direct him, but what has the Certainty of true Knowledge … Therefore, as God has set some Things in broad day-light; as he has given us some certain Knowledge…So in the greater part of our Concernment, he has afforded us only the twilight, as I may say so, of Probability, suitable, I presume, to that State of Mediocrity and Probationership, he has been pleased to place us in here, wherein to check our over-confidence and presumption, we might by every day’s Experience be made sensible of our short sightedness and liableness to Error… (IV.14.1–2, N: 652)

So, apart from the few important things that we can know for certain, e.g. the existence of ourselves and God, the nature of mathematics and morality broadly construed, for the most part we must lead our lives without knowledge. What then is probability? Locke writes:

As Demonstration is the shewing of the agreement or disagreement of two Ideas, by the intervention of one or more Proofs, which have a constant, immutable, and visible connexion one with another: so Probability is nothing but the appearance of such an Agreement or Disagreement, by the intervention of Proofs, whose connection is not constant and immutable, or at least is not perceived to be so, but is or appears, for the most part to be so, and is enough to induce the Mind to judge the Proposition to be true, or false, rather than the contrary. (IV.15.1, N: 654)

Probable reasoning, on this account, is an argument, similar in certain ways to the demonstrative reasoning that produces knowledge but different also in certain crucial respects. It is an argument that provides evidence that leads the mind to judge a proposition true or false but without a guarantee that the judgment is correct. This kind of probable judgment comes in degrees, ranging from near demonstrations and certainty to unlikeliness and improbability in the vicinity of impossibility. It is correlated with degrees of assent ranging from full assurance down to conjecture, doubt and distrust.

The new science of mathematical probability had come into being on the continent just around the time that Locke was writing the Essay . His account of probability, however, shows little or no awareness of mathematical probability. Rather it reflects an older tradition that treated testimony as probable reasoning. Given that Locke’s aim, above all, is to discuss what degree of assent we should give to various religious propositions, the older conception of probability very likely serves his purposes best. Thus, when Locke comes to describe the grounds for probability he cites the conformity of the proposition to our knowledge, observation and experience, and the testimony of others who are reporting their observation and experience. Concerning the latter we must consider the number of witnesses, their integrity, their skill in observation, counter testimony and so on. In judging rationally how much to assent to a probable proposition, these are the relevant considerations that the mind should review. We should, Locke also suggests, be tolerant of differing opinions as we have more reason to retain the opinions we have than to give them up to strangers or adversaries who may well have some interest in our doing so.

Locke distinguishes two sorts of probable propositions. The first of these have to do with particular existences or matters of fact, and the second that are beyond the testimony of the senses. Matters of fact are open to observation and experience, and so all of the tests noted above for determining rational assent to propositions about them are available to us. Things are quite otherwise with matters that are beyond the testimony of the senses. These include the knowledge of finite immaterial spirits such as angels or things such as atoms that are too small to be sensed, or the plants, animals or inhabitants of other planets that are beyond our range of sensation because of their distance from us. Concerning this latter category, Locke says we must depend on analogy as the only help for our reasoning. He writes:

Thus the observing that the bare rubbing of two bodies violently one upon the other, produce heat, and very often fire it self, we have reason to think, that what we call Heat and Fire consist of the violent agitation of the imperceptible minute parts of the burning matter…. (IV.16.12, N: 665–6)

We reason about angels by considering the Great Chain of Being; figuring that while we have no experience of angels, the ranks of species above us is likely as numerous as that below of which we do have experience. This reasoning is, however, only probable.

The relative merits of the senses, reason and faith for attaining truth and the guidance of life were a significant issue during this period. As noted above James Tyrrell recalled that the original impetus for the writing of An Essay Concerning Human Understanding was a discussion about the principles of morality and revealed religion. In Book IV Chapters 17, 18, and 19 Locke deals with the nature of reason, the relation of reason to faith and the nature of enthusiasm. Locke remarks that all sects make use of reason as far as they can. It is only when this fails them that they have recourse to faith and claim that what is revealed is above reason. But he adds:

And I do not see how they can argue with anyone or even convince a gainsayer who uses the same plea, without setting down strict boundaries between faith and reason. (IV.18.2, N: 689)

Locke then defines reason as

the discovery of the certainty or probability of such propositions or truths, which the mind arrives at by deduction made from such ideas, as it has got by the use of its natural faculties; viz, by the use of sensation or reflection. (IV.18.2, N: 689)

Faith, on the other hand, is assent to any proposition “…upon the credit of the proposer, as coming from God, in some extraordinary way of communication”. That is we have faith in what is disclosed by revelation and which cannot be discovered by reason. Locke also distinguishes between the original revelation by God to some person, and traditional revelation which is the original revelation “…delivered over to others in Words, and the ordinary ways of our conveying our Conceptions one to another” (IV.18.3, N: 690).

Locke makes the point that some things could be discovered both by reason and by revelation—God could reveal the propositions of Euclid’s geometry, or they could be discovered by reason. In such cases there would be little use for faith. Traditional revelation can never produce as much certainty as the contemplation of the agreement or disagreement of our own ideas. Similarly revelations about matters of fact do not produce as much certainty as having the experience oneself. Revelation, then, cannot contradict what we know to be true. If it could, it would undermine the trustworthiness of all of our faculties. This would be a disastrous result. Where revelation comes into its own is where reason cannot reach. Where we have few or no ideas for reason to contradict or confirm, these are the proper matters for faith.

…that Part of the Angels rebelled against GOD, and thereby lost their first happy state: and that the dead shall rise, and live again: These and the like, being Beyond the Discovery of Reason, are purely matters of Faith; with which Reason has nothing to do. (IV.18.8, N: 694)

Still, reason does have a crucial role to play in respect to revelation. Locke writes:

Because the Mind, not being certain of the Truth of that it evidently does not know, but only yielding to the Probability that appears to it, is bound to give up its assent to such Testimony, which, it is satisfied, comes from one who cannot err, and will not deceive. But yet, it still belongs to Reason, to judge of the truth of its being a Revelation, and of the significance of the Words, wherein it is delivered. (IV.18.8, N: 694)

So, in respect to the crucial question of how we are to know whether a revelation is genuine, we are supposed to use reason and the canons of probability to judge. Locke claims that if the boundaries between faith and reason are not clearly marked, then there will be no place for reason in religion and one then gets all the “extravagant Opinions and Ceremonies, that are to be found in the religions of the world…” (IV.18.11, N: 696).

Should one accept revelation without using reason to judge whether it is genuine revelation or not, one gets what Locke calls a third principle of assent besides reason and revelation, namely enthusiasm. Enthusiasm is a vain or unfounded confidence in divine favor or communication. It implies that there is no need to use reason to judge whether such favor or communication is genuine or not. Clearly when such communications are not genuine they are “the ungrounded Fancies of a Man’s own Brain” (IV.19.2, N: 698). This kind of enthusiasm was characteristic of Protestant extremists going back to the era of the civil war. Locke was not alone in rejecting enthusiasm, but he rejects it in the strongest terms. Enthusiasm violates the fundamental principle by which the understanding operates—that assent be proportioned to the evidence. To abandon that fundamental principle would be catastrophic. This is a point that Locke also makes in The Conduct of the Understanding and The Reasonableness of Christianity . Locke wants each of us to use our understanding to search after truth. Of enthusiasts, those who would abandon reason and claim to know on the basis of faith alone, Locke writes:

…he that takes away Reason to make way for Revelation, puts out the Light of both, and does much what the same, as if he would perswade a Man to put out his eyes, the better to receive the remote Light of an invisible Star by a Telescope. (IV.19.4, N: 698)

Rather than engage in the tedious labor required to reason correctly to judge of the genuineness of their revelation, enthusiasts persuade themselves that they are possessed of immediate revelation. This leads to “odd Opinions and extravagant actions” that are characteristic of enthusiasm and which should warn that this is a wrong principle. Thus, Locke strongly rejects any attempt to make inward persuasion not judged by reason a legitimate principle.

We turn now to a consideration of Locke’s educational works.

Locke’s Some Thoughts Concerning Education and his Conduct of the Understanding form a nice bridge between An Essay Concerning Human Understanding and his political works. Ruth Grant and Nathan Tarcov write in the introduction to their edition of these works:

The idea of liberty, so crucial to all of Locke’s writings on politics and education, is traced in the Essay to reflection on the power of the mind over one’s own actions, especially the power to suspend actions in the pursuit of the satisfaction of one’s own desires until after a full consideration of their objects (II.21.47, N: 51–52). The Essay thus shows how the independence of mind pursued in the Conduct is possible. (G&T 1996: xvi)

Some Thoughts Concerning Education was first published in 1693. This book collected together advice that Locke had been giving his friend Edward Clarke about the education of Clarke’s son (and also his daughters) since 1684. In preparing the revision for the fourth edition of An Essay Concerning Human Understanding Locke began writing a chapter called “The Conduct of the Understanding”. This became quite long and was never added to the Essay or even finished. It was left to Locke’s literary executors to decide what to do with it. The Conduct was published by Peter King in his posthumous edition of some of Locke’s works in 1706. As Locke was composing these works, some of the material from the Conduct eventually made its way into the Thoughts . Grant and Tarcov write that the Thoughts and the Conduct “complement each other well: the Thoughts focuses on the education of children by their parents, whereas the Conduct addresses the self-education of adults” (G&T 1996: vii). Though they also note tensions between the two that illustrate paradoxes in liberal society. The Thoughts is addressed to the education of the sons and daughters of the English gentry in the late seventeenth century. It is in some ways thus significantly more limited to its time and place than the Conduct . Yet, its insistence on the inculcating such virtues as

justice as respect for the rights of others, civility, liberality, humanity, self-denial, industry, thrift, courage, truthfulness, and a willingness to question prejudice, authority and the biases of one’s own self-interest

very likely represents the qualities needed for citizens in a liberal society (G&T 1996: xiii).

Locke’s Thoughts represents the culmination of a century of what has been called “the discovery of the child”. In the Middle Ages the child was regarded as

only a simple plaything, as a simple animal, or a miniature adult who dressed, played and was supposed to act like his elders…Their ages were unimportant and therefore seldom known. Their education was undifferentiated, either by age, ability or intended occupation. (Axtell 1968: 63–4)

Locke treated children as human beings in whom the gradual development of rationality needed to be fostered by parents. Locke urged parents to spend time with their children and tailor their education to their character and idiosyncrasies, to develop both a sound body and character, and to make play the chief strategy for learning rather than rote learning or punishment. Thus, he urged learning languages by learning to converse in them before learning rules of grammar. Locke also suggests that the child learn at least one manual trade.

In advocating a kind of education that made people who think for themselves, Locke was preparing people to effectively make decisions in their own lives—to engage in individual self-government—and to participate in the government of their country. The Conduct reveals the connections Locke sees between reason, freedom and morality. Reason is required for good self-government because reason insofar as it is free from partiality, intolerance and passion and able to question authority leads to fair judgment and action. We thus have a responsibility to cultivate reason in order to avoid the moral failings of passion, partiality and so forth (G&T 1996: xii). This is, in Tarcov’s phrase, Locke’s education for liberty.

We turn now to Locke’s political writings. (See the entry on Locke’s political philosophy , which focuses on five topics (the state of nature, natural law, property, consent and toleration) and goes into these topics in more depth than is possible in a general account and provides much useful information on the debates about them.)

4. The Two Treatises Of Government

Lord Shaftsbury had been dismissed from his post as Lord Chancellor in 1673 and had become one of the leaders of the opposition party, the Country Party. In 1679 the chief issue was the attempt by the Country Party leaders to exclude James, Duke of York from succeeding his brother Charles II to the throne. They wanted to do this because James was a Catholic, and England by this time was a firmly Protestant country. They had acquired a majority in the House of Commons through serious grass roots election campaigns, and passed an exclusion bill, but given the King’s unwillingness to see his brother excluded from the throne, the bill failed in the House of Lords. They tried a couple of more times without success. Having failed by parliamentary means, some of the Country Party leaders started plotting armed rebellion.

The Two Treatises of Government were published in 1689, long after the rebellion plotted by the Country party leaders had failed to materialize and after Shaftsbury had fled the country for Holland and died. The introduction of the Two Treatises was written after the Glorious Revolution of 1688, and gave the impression that the book was written to justify the Glorious Revolution. We now know that the Two Treatises of Government were written during the Exclusion crisis in 1681 and may have been intended in part to justify the general armed rising which the Country Party leaders were planning.

There were serious obstacles to a rebellion to force James’ exclusion from the throne. The English Anglican gentry needed to support such an action. But the Anglican church from childhood on taught that: “…men’s political duties were exhaustively determined by their terrestrial superiors, that under grave conscientious scruples they might rightly decline to carry out those decrees of authority which were in direct breach of divine law, they could under no circumstances have a right to resist such authority”. (Dunn, 1968, 48) Since by 1679 it was abundantly clear that the King opposed excluding his brother from the throne, to favor exclusion implied “explicit and self-conscious resistance to the sovereign”. Passive resistance would simply not do. On the other hand, the royal policy “outraged their deepest religious prejudices and stimulated their most obscure emotional anxieties.” So, the gentry were deeply conflicted and neither of the choices available to them looked very palatable. John Dunn goes on to remark: “To exert influence upon their choice it was above all necessary to present a more coherent ordering of their values, to show that the political tradition within which the dissenters saw their conduct was not necessarily empirically absurd or socially subversive. The gentry had to be persuaded that there could be reason for rebellion which could make it neither blasphemous or suicidal.” (Dunn, 1968, 49) To achieve this goal Locke picked the most relevant and extreme of the supporters of the divine right of Kings to attack. Sir Robert Filmer (c 1588–1653), a man of the generation of Charles I and the English Civil War, who had defended the crown in various works. His most famous work, however, Patriarcha , was published posthumously in 1680 and represented the most complete and coherent exposition of the view Locke wished to deny. Filmer held that men were born into helpless servitude to an authoritarian family, a social hierarchy and a sovereign whose only constraint was his relationship with God. Under these circumstances, anything other than passive obedience would be “vicious, blasphemous and intellectually absurd.” So, Locke needed to refute Filmer and in Dunn’s words: “rescue the contractarian account of political obligation from the criticism of impiety and absurdity. Only in this way could he restore to the Anglican gentry a coherent basis for moral autonomy or a practical initiative in the field of politics.” (Dunn, 1968, 50)

The First Treatise of Government is a polemical work aimed at refuting the theological basis for the patriarchal version of the Divine Right of Kings doctrine put forth by Sir Robert Filmer. Locke singles out Filmer’s contention that men are not “naturally free” as the key issue, for that is the “ground” or premise on which Filmer erects his argument for the claim that all “legitimate” government is “absolute monarchy”—kings being descended from the first man, Adam, and their subjects being naturally slaves. Early in the First Treatise Locke denies that either scripture or reason supports Filmer’s premise or arguments. In what follows in the First Treatise , Locke minutely examines key Biblical passages.

While The Second Treatise of Government provides Locke’s positive theory of government, it also continues his argument against Sir Robert Filmer’s claims that monarchs legitimately hold absolute power over their subjects. Locke holds that Filmer’s view is sufficiently incoherent to lead to governments being established by force and violence. Thus, Locke claims he must provide an alternative account of the origin of government “lest men fall into the dangerous belief that all government in the world is merely the product of force and violence” ( Treatises II,1,4). Locke’s account involves several devices which were common in seventeenth and eighteenth century political philosophy—natural rights theory and the social contract. Natural rights are those rights which we are supposed to have as human beings before ever government comes into being. We might suppose, that like other animals, we have a natural right to struggle for our survival. Locke will argue that we have a right to the means to survive. When Locke comes to explain how government comes into being, he uses the idea that people agree that their condition in the state of nature is unsatisfactory, and so agree to transfer some of their rights to a central government, while retaining others. This is the theory of the social contract. There are many versions of natural rights theory and the social contract in seventeenth and eighteenth century European political philosophy, some conservative and some radical. Locke’s version belongs on the radical side of the spectrum. These radical natural right theories influenced the ideologies of the American and French revolutions.

Locke’s strategy for refuting Filmer’s claims that monarchs have absolute power over their subjects is to show that Filmer is conflating a whole variety of limited powers, all of which might be held by one man and thus give the false appearance that a king has absolute power over wives, children, servants and slaves as well as subjects of a commonwealth. When properly distinguished, however, and the limitations of each displayed, it becomes clear that monarchs have no legitimate absolute power over their subjects.

An important part of Locke’s project in the Second Treatise is to figure out what the role of legitimate government is, thus allowing him to distinguish the nature of illegitimate government. Once this is done, the basis for legitimate revolution becomes clear. Figuring out what the proper or legitimate role of civil government is would be a difficult task indeed if one were to examine the vast complexity of existing governments. How should one proceed? One strategy is to consider what life is like in the absence of civil government. Presumably this is a simpler state, one which may be easier to understand. Then one might see what role civil government ought to play. This is the strategy which Locke pursues, following Hobbes and others. So, in the first chapter of the Second Treatise Locke defines political power.

Political power , then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good. ( Treatises, II, 1,3)

In the second chapter of The Second Treatise Locke describes the state in which there is no government with real political power. This is the state of nature. It is sometimes assumed that the state of nature is a state in which there is no government at all. This is only partially true. It is possible to have in the state of nature either no government, illegitimate government, or legitimate government with less than full political power. (See the section on the state of nature in the entry on Locke’s political philosophy.)

If we consider the state of nature before there was government, it is a state of political equality in which there is no natural superior or inferior. From this equality flows the obligation to mutual love and the duties that people owe one another, and the great maxims of justice and charity. Was there ever such a state? There has been considerable debate about this. Still, it is plain that both Hobbes and Locke would answer this question affirmatively. Whenever people have not agreed to establish a common political authority, they remain in the state of nature. It’s like saying that people are in the state of being naturally single until they are married. Locke clearly thinks one can find the state of nature in his time at least in the “inland, vacant places of America” ( Second Treatise V. 36) and in the relations between different peoples. Perhaps the historical development of states also went though the stages of a state of nature. An alternative possibility is that the state of nature is not a real historical state, but rather a theoretical construct, intended to help determine the proper function of government. If one rejects the historicity of states of nature, one may still find them a useful analytical device. For Locke, it is very likely both.

According to Locke, God created man and we are, in effect, God’s property. The chief end set us by our creator as a species and as individuals is survival. A wise and omnipotent God, having made people and sent them into this world:

…by his order and about his business, they are his property whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. ( Treatises II,2,6)

It follows immediately that “he has no liberty to destroy himself, or so much as any creature in his possession, yet when some nobler use than its bare possession calls for it” ( Treatises II.2.6). So, murder and suicide violate the divine purpose.

If one takes survival as the end, then we may ask what are the means necessary to that end. On Locke’s account, these turn out to be life, liberty, health and property. Since the end is set by God, on Locke’s view we have a right to the means to that end. So we have rights to life, liberty, health and property. These are natural rights, that is they are rights that we have in a state of nature before the introduction of civil government, and all people have these rights equally.

There is also a law of nature. It is the Golden Rule, interpreted in terms of natural rights. Thus Locke writes:

The state of nature has a law of nature to govern it, which obliges everyone: and reason which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions…. ( Treatises II.2.6)

Locke tells us that the law of nature is revealed by reason. Locke makes the point about the law that it commands what is best for us. If it did not, he says, the law would vanish for it would not be obeyed. It is in this sense that Locke means that reason reveals the law. If you reflect on what is best for yourself and others, given the goal of survival and our natural equality, you will come to this conclusion. (See the section on the law of nature in the entry on Locke’s Political Philosophy.)

Locke does not intend his account of the state of nature as a sort of utopia. Rather it serves as an analytical device that explains why it becomes necessary to introduce civil government and what the legitimate function of civil government is. Thus, as Locke conceives it, there are problems with life in the state of nature. The law of nature, like civil laws can be violated. There are no police, prosecutors or judges in the state of nature as these are all representatives of a government with full political power. The victims, then, must enforce the law of nature in the state of nature. In addition to our other rights in the state of nature, we have the rights to enforce the law and to judge on our own behalf. We may, Locke tells us, help one another. We may intervene in cases where our own interests are not directly under threat to help enforce the law of nature. This right eventually serves as the justification for legitimate rebellion. Still, in the state of nature, the person who is most likely to enforce the law under these circumstances is the person who has been wronged. The basic principle of justice is that the punishment should be proportionate to the crime. But when the victims are judging the seriousness of the crime, they are more likely to judge it of greater severity than might an impartial judge. As a result, there will be regular miscarriages of justice. This is perhaps the most important problem with the state of nature.

In chapters 3 and 4, Locke defines the states of war and slavery. The state of war is a state in which someone has a sedate and settled intention of violating someone’s right to life (and thus all their other rights). Such a person puts themselves into a state of war with the person whose life they intend to take. In such a war the person who intends to violate someone’s right to life is an unjust aggressor. This is not the normal relationship between people enjoined by the law of nature in the state of nature. Locke is distancing himself from Hobbes who had made the state of nature and the state of war equivalent terms. For Locke, the state of nature is ordinarily one in which we follow the Golden Rule interpreted in terms of natural rights, and thus love our fellow human creatures. The state of war only comes about when someone proposes to violate someone else’s rights. Thus, on Locke’s theory of war, there will always be an innocent victim on one side and an unjust aggressor on the other.

Slavery is the state of being in the absolute or arbitrary power of another. On Locke’s definition of slavery, there is only one rather remarkable way to become a legitimate slave. In order to do so, one must be an unjust aggressor defeated in war. The just victor then has the option to either kill the aggressor or enslave them. Locke tells us that the state of slavery is the continuation of the state of war between a lawful conqueror and a captive, in which the conqueror delays taking the life of the captive, and instead makes use of him. This is a continued war because if conqueror and captive make some compact for obedience on the one side and limited power on the other, the state of slavery ceases and becomes a relation between a master and a servant in which the master only has limited power over his servant. The reason that slavery ceases with the compact is that “no man, can, by agreement pass over to another that which he hath not in himself, a power over his own life” ( Treatises II.4.24). Legitimate slavery is an important concept in Locke’s political philosophy largely because it tells us what the legitimate extent of despotic power is and defines and illuminates by contrast the nature of illegitimate slavery. Illegitimate slavery is that state in which someone possesses absolute or despotic power over someone else without just cause. Locke holds that it is this illegitimate state of slavery which absolute monarchs wish to impose upon their subjects. It is very likely for this reason that legitimate slavery is so narrowly defined. This shows that the chapter on slavery plays a crucial role in Locke’s argument against Sir Robert Filmer and thus could not have been easily dispensed with. Still, it is possible that Locke had an additional purpose or perhaps a quite different reason for writing about slavery.

There has been a steady stream of articles and books over the last sixty years arguing that given Locke’s involvement with trade and colonial government, the theory of slavery in the Second Treatise was intended to justify the institutions and practices of Afro-American slavery. If this were the case, Locke’s philosophy would not contradict his actions as an investor and colonial administrator. However, there are strong objections to this view. Had he intended to justify Afro-American slavery, Locke would have done much better with a vastly more inclusive definition of legitimate slavery than the one he gives. It is sometimes suggested that Locke’s account of “just war” is so vague that it could easily be twisted to justify the institutions and practices of Afro-American slavery. This, however, is also not the case. In the chapter “Of Conquest” Locke explicitly lists the limits of the legitimate power of conquerors. These limits on who can become a legitimate slave and what the powers of a just conqueror are ensure that this theory of conquest and slavery would condemn the institutions and practices of Afro-American slavery in the seventeenth, eighteenth, and nineteenth centuries. Nonetheless, the debate continues. One element of the debate has to do with Locke’s role in the writing of the Fundamental Constitutions of the Carolinas . David Armitage in his 2004 article “John Locke, Carolina and the Two Treatises of Government” argues that Locke was involved in a revision of the Fundamental Constitution of the Carolinas at the very time he was writing The Two Treatises of Government . The provision that “Every Freedman of the Carolinas has absolute power and authority over his negro slaves” remained in the document unchanged. In his 2016 book The Ashley Cooper Plan , Thomas Wilson gives a detailed account of Ashley Cooper’s intentions for the Carolina colony and how Cooper’s intent was thwarted by Barbadian slave owners who changed Carolina society from a society with slaves to a slave society. L. H. Roper, in his 2004 book Conceiving Carolina: Property, Planters and Plots 1662–1729 , offers a different account of what went wrong, focusing on conflicts over the trade in Indian slaves. James Farr’s article “Locke, Natural Law and New World Slavery” (2008) is one of the best statements of the position that Locke intended his theory of slavery to apply to English absolutism and not Afro-American slavery while noting that Locke’s involvement with slavery has ruined his reputation as the great champion of liberty Roger Woolhouse in his recent biography of Locke (Woolhouse 2007: 187) remarks that “Though there is no consensus on the whole question, there certainly seems to be ‘a glaring contradiction between his theories and Afro-American slavery’”.

Recently, there has been a debate over whose theory of slavery and absolutism Locke was attacking. Johan Olsthoorn and Laurens van Apeldoorn (2020) argue that Locke’s account of slavery and in particular, that no person can consensually establish absolute rule over themselves with all its consequences has little force against other classical contract theories, in particular those of Grotius and Puffendorf. Both Grotius and Puffendorf defended both absolutism and colonial slavery.

Felis Waldmann in “Slavery and Absolutism in Locke’s Two Treatises: A Response to Olsthoorn and van Apeldoorn” objects to a number of their claims finding others not relevant. Most notably, he objects to these claims: First, “Locke is working with an idiosyncratic conception of slavery and absolute rule repudiated by prominent early modern thinkers defending political absolutism.” Second: “Like Filmer, Locke maintains that absolute rulers may arbitrarily kill and maim their subjects at will, by dint of having a dominium in the latter’s lives.” Finally, he objects to the claim that: “Early modern natural lawyers, from Grotius onward, conceptualized slavery rather differently, insisting that enslaved people were not owned in the way we own things (which may be destroyed at will)” (Waldmann 7).

In brief, Waldmann’s response to the first claim is that Filmer accurately represented the Royalist position in the late 1670s and early 1680s and so Locke’s account is not a straw man. Thus, Locke is attacking Filmer’s account of slavery and not some weak and extreme version of the argument for absolutism that no one held. Waldmann suggests that the second claim magnifies this tendency of the two authors’ portrayal of Locke’s argument as not responding to the standard arguments for absolutism. Thus, Olsthoorn and van Apeldoorn attribute Filmer’s position to Locke. Waldmann concludes that the claims of Olsthoorn and van Apeldoorn that since Locke’s position on slavery was significantly different from those of Grotius and Puffendorf, it had little force against them is, in fact, the case. But he thinks this is of little importance since Locke was not arguing against them. One suggestion he considers plausible is that Locke is aiming his argument against the possibility of self-enslavement at Thomas Hobbes. Hobbes was recognized by his contemporaries as asserting both that one could by contract enslave oneself and that the king had dominium, over his subjects.

William Uzgalis, in his 2017 chapter “John Locke, Slavery and Indian Lands,” holds that Locke has two theories of slavery, one of them of legitimate slavery and the other of illegitimate slavery. Note that the authors discussed above simply don’t make this distinction. If they had, it would be plain that while Locke shares with Filmer the dominium conception of slavery that allows a master to kill or maim a slave, neither theory belongs to Filmer, and if Locke is correct about royal absolutism and given the character of the practices of the slave trade and colonial slavery, both absolutism at home and the slave trade and colonial slavery fall under the theory of illegitimate slavery. Neither Grotius, Puffendorf or Hobbes has an explicit theory of illegitimate slavery. Uzgalis also notes that Grotius and Puffendorf provided claims that Locke could have adopted had he wished to justify the slave trade and slavery in the colonies. Still, he denies them all, and with good reason. He would have substantially weakened his argument against the kind of absolutism he attributed to Filmer and the Stuarts had he done so. This suggests that he was crafting an alternative theory and not arguing against its competitors, with the exception, perhaps, of Hobbes.

Holly Brewer in her 2017 article “Slavery, Sovereignty, and ‘Inheritable Blood’, Reconsidering John Locke and the Origins of American Slavery” argues for a different approach to these questions. She presents evidence that the Stuart kings, and Charles II and his brother James, Duke of York, in particular, were not just interested in absolute government at home; they actively promoted the Royal Africa Company, the slave trade and slavery in the colonies as it provided considerable amounts of money to the royal coffers. James was the Governor (the President) of the Royal Africa Company and Admiral of the English fleet. Lord Shaftesbury, Locke’s patron, was the sub-governor, and Locke assisted him. Using the fleet, James attacked and captured Dutch forts on the coast of Africa to make bases for the Royal Africa Company and deprive the Dutch of them. The Stuarts minted guinea coins to celebrate these efforts. After becoming King, James continued as Governor of the Royal Africa Company. Thus Brewer underlines the similarities and connections between the absolutism Locke objected to at home and the slave trade and slavery in the colonies. She argues that the spread of slavery needs to be understood as an English imperial policy and not something that occurred in different times and places unconnected with one another. She also claims that while Locke was a member of King William III’s Board of Trade in the waning years of the seventeenth century, he sought to undo Stuart policies concerning slavery in the colonies.

Chapter 5 “Of Property” is one of the most famous, influential and important chapters in the Second Treatise of Government . Indeed, some of the most controversial issues about the Second Treatise come from varying interpretations of it. In this chapter Locke, in effect, describes the evolution of the state of nature to the point where it becomes expedient for those in it to found a civil government. So, it is not only an account of the nature and origin of private property but leads up to the explanation of why civil government replaces the state of nature (see the section on property in the entry on Locke’s political philosophy).

In discussing the origin of private property Locke begins by noting that God gave the earth to all men in common. Thus there is a question about how private property comes to be. Locke finds it a serious difficulty. He points out, however, that we are supposed to make use of the earth “for the best advantage of life and convenience” ( Treatises II.5.25). What then is the means to appropriate property from the common store? Locke argues that private property does not come about by universal consent. If one had to go about and ask everyone if one could eat these berries, one would starve to death before getting everyone’s agreement. Locke holds that we have property in our own person. And the labor of our body and the work of our hands properly belong to us. So, when one picks up acorns or berries, they thereby belong to the person who picked them up. There has been some controversy about what Locke means by “labor”. Daniel Russell claims that for Locke, labor is a goal-directed activity that converts materials that might meet our needs into resources that actually do (Russell 2004). This interpretation of what Locke means by “labor” connects nicely with his claim that we have a natural law obligation first to preserve ourselves and then to help in the preservation and flourishing of others.

One might think that one could then acquire as much as one wished, but this is not the case. Locke introduces at least two important qualifications on how much property can be acquired. The first qualification has to do with waste. Locke writes:

As much as anyone can make use of to any advantage of life before it spoils, so much by his labor he may fix a property in; whatever is beyond this, is more than his share, and belongs to others. ( Treatises II.5.31)

Since originally, populations were small and resources great, living within the bounds set by reason, there would be little quarrel or contention over property, for a single man could make use of only a very small part of what was available.

Note that Locke has, thus far, been talking about hunting and gathering, and the kinds of limitations which reason imposes on the kind of property that hunters and gatherers hold. In the next section he turns to agriculture and the ownership of land and the kinds of limitations there are on that kind of property. In effect, we see the evolution of the state of nature from a hunter/gatherer kind of society to that of a farming and agricultural society. Once again it is labor which imposes limitations upon how much land can be enclosed. It is only as much as one can work. But there is an additional qualification. Locke says:

Nor was this appropriation of any parcel of land , by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the as yet unprovided could use. So that, in effect, there was never the less for others because of his inclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. No body could consider himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left to quench his thirst: and the case of land and water, where there is enough, is perfectly the same. ( Treatises II.5.33)

The next stage in the evolution of the state of nature involves the introduction of money. Locke remarks that:

… before the desire of having more than one needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man; or had agreed, that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh, or a whole heap of corn; though men had a right to appropriate by their labor, each one of himself, as much of the things of nature, as he could use; yet this could not be much, nor to the prejudice of others, where the same plenty was left to those who would use the same industry. ( Treatises II.5.37)

So, before the introduction of money, there was a degree of economic equality imposed on mankind both by reason and the barter system. And men were largely confined to the satisfaction of their needs and conveniences. Most of the necessities of life are relatively short lived—berries, plums, venison and so forth. One could reasonably barter one’s berries for nuts which would last not weeks but perhaps a whole year. And says Locke:

…if he would give his nuts for a piece of metal, pleased with its color, or exchange his sheep for shells, or wool for a sparkling pebble or diamond, and keep those by him all his life, he invaded not the right of others, he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his property not lying in the largeness of his possessions, but the perishing of anything uselessly in it. ( Treatises II.5.146)

The introduction of money is necessary for the differential increase in property, with resulting economic inequality. Without money there would be no point in going beyond the economic equality of the earlier stage. In a money economy, different degrees of industry could give men vastly different proportions.

This partage of things in an inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing to the use of money: for in governments, the laws regulate the rights of property, and the possession of land is determined by positive constitutions. ( Treatises II.5.50)

The implication is that it is the introduction of money, which causes inequality, which in turn multiplies the causes of quarrels and contentions and increased numbers of violations of the law of nature. This leads to the decision to create a civil government. Before turning to the institution of civil government, however, we should ask what happens to the qualifications on the acquisition of property after the advent of money? One answer proposed by C. B. Macpherson in The Political Theory of Possessive Individualism is that the qualifications are completely set aside, and we now have a system for the unlimited acquisition of private property. This does not seem to be correct. It seems plain, rather, that at least the non-spoilage qualification is satisfied, because money does not spoil. The other qualifications may be rendered somewhat irrelevant by the advent of the conventions about property adopted in civil society. This leaves open the question of whether Locke approved of these changes. Macpherson, who takes Locke to be a spokesman for a proto-capitalist system, sees Locke as advocating the unlimited acquisition of wealth. James Tully, on the other side, in A Discourse of Property holds that Locke sees the new conditions, the change in values and the economic inequality which arise as a result of the advent of money, as the fall of man. Tully sees Locke as a persistent and powerful critic of self-interest. This remarkable difference in interpretation has been a significant topic for debates among scholars over the last forty years. Though the Second Treatise of Government may leave this question difficult to determine, one might consider Locke’s remark in Some Thoughts Concerning Education that

Covetousness and the desire to having in our possession and our dominion more than we have need of, being the root of all evil, should be early and carefully weeded out and the contrary quality of being ready to impart to others inculcated. (G&T 1996: 81)

Let us then turn to the institution of civil government.

Just as natural rights and natural law theory had a fluorescence in the seventeenth and eighteenth century, so did the social contract theory. Why is Locke a social contract theorist? Is it merely that this was one prevailing way of thinking about government at the time which Locke blindly adopted? The answer is that there is something about Locke’s project which pushes him strongly in the direction of the social contract. One might hold that governments were originally instituted by force, and that no agreement was involved. Were Locke to adopt this view, he would be forced to go back on many of the things which are at the heart of his project in the Second Treatise , though cases like the Norman conquest force him to admit that citizens may come to accept a government that was originally forced on them. Remember that the Second Treatise provides Locke’s positive theory of government, and that he explicitly says that he must provide an alternative to the view

that all government in the world is merely the product of force and violence, and that men live together by no other rules than that of the beasts, where the strongest carries it … . ( Treatises II, 1, 4)

So, while Locke might admit that some governments come about through force or violence, he would be destroying the most central and vital distinction, that between legitimate and illegitimate civil government, if he admitted that legitimate government can come about in this way. So, for Locke, legitimate government is instituted by the explicit consent of those governed. (See the section on consent, political obligation, and the ends of government in the entry on Locke’s political philosophy.) Those who make this agreement transfer to the government their right of executing the law of nature and judging their own case. These are the powers which they give to the central government, and this is what makes the justice system of governments a legitimate function of such governments.

Ruth Grant has persuasively argued that the establishment of government is in effect a two step process. Universal consent is necessary to form a political community. Consent to join a community once given is binding and cannot be withdrawn. This makes political communities stable. Grant writes: “Having established that the membership in a community entails the obligation to abide by the will of the community, the question remains: Who rules?” (1987: 114–115). The answer to this question is determined by majority rule. The point is that universal consent is necessary to establish a political community, majority consent to answer the question who is to rule such a community. Universal consent and majority consent are thus different in kind, not just in degree. Grant writes:

Locke’s argument for the right of the majority is the theoretical ground for the distinction between duty to society and duty to government, the distinction that permits an argument for resistance without anarchy. When the designated government dissolves, men remain obligated to society acting through majority rule. (1987: 119)

It is entirely possible for the majority to confer the rule of the community on a king and his heirs, or a group of oligarchs or on a democratic assembly. Thus, the social contract is not inextricably linked to democracy. Still, a government of any kind must perform the legitimate function of a civil government.

Locke is now in a position to explain the function of a legitimate government and distinguish it from illegitimate government. The aim of such a legitimate government is to preserve, so far as possible, the rights to life, liberty, health and property of its citizens, and to prosecute and punish those of its citizens who violate the rights of others and to pursue the public good even where this may conflict with the rights of individuals. In doing this it provides something unavailable in the state of nature, an impartial judge to determine the severity of the crime, and to set a punishment proportionate to the crime. This is one of the main reasons why civil society is an improvement on the state of nature. An illegitimate government will fail to protect the rights to life, liberty, health and property of its subjects, and in the worst cases, such an illegitimate government will claim to be able to violate the rights of its subjects, that is it will claim to have despotic power over its subjects. Since Locke is arguing against the position of Sir Robert Filmer who held that patriarchal power and political power are the same, and that in effect these amount to despotic power, Locke is at pains to distinguish these three forms of power, and to show that they are not equivalent. Thus at the beginning of chapter 15 “Of Paternal, Political and Despotic Power Considered Together” he writes:

THOUGH I have had occasion to speak of these before, yet the great mistakes of late about government, having as I suppose arisen from confounding these distinct powers one with another, it may not be amiss, to consider them together.

Chapters 6 and 7 give Locke’s account of paternal and political power respectively. Paternal power is limited. It lasts only through the minority of children, and has other limitations. Political power, derived as it is from the transfer of the power of individuals to enforce the law of nature, has with it the right to kill in the interest of preserving the rights of the citizens or otherwise supporting the public good. Legitimate despotic power, by contrast, implies the right to take the life, liberty, health and at least some of the property of any person subject to such a power.

At the end of the Second Treatise we learn about the nature of illegitimate civil governments and the conditions under which rebellion and regicide are legitimate and appropriate. As noted above, scholars now hold that the book was written during the Exclusion Crisis, and may have been written to justify a general insurrection and the assassination of the king of England and his brother. The argument for legitimate revolution follows from making the distinction between legitimate and illegitimate civil government. A legitimate civil government seeks to preserve its subjects’ life, health, liberty, and property insofar as this is compatible with the public good. Because it does this, it deserves obedience. An illegitimate civil government seeks to systematically violate the natural rights of its subjects. It seeks to make them illegitimate slaves. Because an illegitimate civil government does this, it puts itself in a state of nature and a state of war with its subjects. The magistrate or king of such a state violates the law of nature and so makes himself into a dangerous beast of prey who operates on the principle that might makes right, or that the strongest carries it. In such circumstances, rebellion is legitimate, as is the killing of such a dangerous beast of prey. Thus Locke justifies rebellion and regicide under certain circumstances. Presumably, this justification was going to be offered for the killing of the King of England and his brother had the Rye House Plot succeeded. Even if this was not Locke’s intention, it still would have served that purpose admirably.

The issue of religious toleration was of widespread interest in Europe in the seventeenth century, largely because religious intolerance with accompanying violence was so pervasive. The Reformation had split Europe into competing religious camps, and this provoked civil wars and massive religious persecutions. John Marshall, in his massive study John Locke, Toleration and Early Enlightenment Culture notes that the 1680s were the climactic decade for this kind of persecution. The Dutch Republic, where Locke spent years in exile, had been founded as a secular state which would allow religious differences. This was a reaction to the Catholic persecution of Protestants. However, once the Calvinist Church gained power, they began persecuting other sects, such as the Remonstrants, who disagreed with them. Nonetheless, The Dutch Republic remained the most tolerant country in Europe. In France, religious conflict had been temporarily quieted by the edict of Nantes. But in 1685, the year in which Locke wrote the First Letter concerning religious toleration, Louis XIV had revoked the Edict of Nantes, and the Huguenots were being persecuted. Though prohibited from doing so, some 200,000 emigrated, while probably 700,000 were forced to convert to Catholicism. People in England were keenly aware of the events taking place in France.

In England itself, religious conflict dominated the seventeenth century, contributing in important respects to the coming of the English Civil War, and the abolishing of the Anglican Church during the Protectorate. After the Restoration of Charles II, Anglicans in parliament passed laws that repressed both Catholics and Protestant sects such as Presbyterians, Baptists, Quakers and Unitarians who did not agree with the doctrines or practices of the state Church. Of these various dissenting sects, some were closer to the Anglicans, others more remote. One reason, among others, why King Charles may have found Shaftesbury useful was that they were both concerned about religious toleration. They parted when it became clear that the King was mainly interested in toleration for Catholics, and Shaftesbury for Protestant dissenters.

One widely discussed strategy for reducing religious conflict in England was called comprehension. The idea was to reduce the doctrines and practices of the Anglican church to a minimum so that most, if not all, of the dissenting sects would be included in the state church. For those which even this measure would not serve, there was to be toleration. Toleration we may define as a lack of state persecution. Neither of these strategies made much progress during the course of the Restoration.

When Locke fled to Holland after the discovery of the Rye house plot, he became involved with a group of scholars advocating religious toleration. This group included Benjamin Furly, a quaker with whom Locke lived for a while, the noted philosopher Pierre Bayle, several Dutch theologians, and many others. This group read all the arguments for religious intolerance and discussed them in book and conversation clubs. Members of the group considered toleration not only for Protestants and Protestant dissenters but Jews, Moslems, and Catholics. A recent discovery of a page of Locke’s reflections on toleration of Catholics shows that Locke considered even the pros and cons of toleration for Catholics (Walmsley and Waldmann 2019). Some members of the group also wrote tolerationist articles and books. They helped each other get jobs. Some of their members founded journals that reviewed books and articles on religious, scientific, and other topics. The group took the notion of free speech, civility, and politeness in discourse seriously. They called themselves the ‘the Republic of Letters’ or in Locke’s phrase ‘the commonwealth of learning.’

What were Locke’s religious views and where did he fit into the debates about religious toleration? This is a quite difficult question to answer. Religion and Christianity in particular, is perhaps the most important influence on the shape of Locke’s philosophy. But what kind of Christian was Locke? Locke’s family were Puritans. At Oxford, Locke avoided becoming an Anglican priest. Still, Locke himself claimed to be an Anglican until he died and Locke’s nineteenth-century biographer Fox Bourne thought that Locke was an Anglican. Others have identified him with the Latitudinarians—a movement among Anglicans to argue for a reasonable Christianity that dissenters ought to accept. Still, there are some reasons to think that Locke was neither an orthodox Anglican or a Latitudinarian. Locke got Isaac Newton to write Newton’s most powerful anti-Trinitarian tract. Locke arranged to have the work published anonymously in Holland though in the end, Newton decided not to publish (McLachlan 1941). This strongly suggests that Locke too was by this time an Arian or unitarian. (Arius, c. 250–336, asserted the primacy of the Father over the Son and thus rejected the doctrine of the Trinity and was condemned as a heretic at the Council of Nicaea in 325. Newton held that the Church had gone in the wrong direction in condemning Arius.) Given that one main theme of Locke’s Letter on Toleration is that there should be a separation between Church and State, this does not seem like the view of a man devoted to a state religion. It might appear that Locke’s writing The Reasonableness of Christianity in which he argues that the basic doctrines of Christianity are few and compatible with reason make him a Latitudinarian. Yet Richard Ashcraft has argued that comprehension for the Anglicans meant conforming to the existing practices of the Anglican Church; that is, the abandonment of religious dissent. Ashcraft also suggests that Latitudinarians were thus not a moderate middle ground between contending extremes but part of one of the extremes—“the acceptable face of the persecution of religious dissent” (Ashcraft 1992: 155). Ashcraft holds that while the Latitudinarians may have represented the “rational theology” of the Anglican church, there was a competing dissenting “rational theology”. Thus, while it is true that Locke had Latitudinarian friends, given Ashcraft’s distinction between Anglican and dissenting “rational theologies”, it is entirely possible that The Reasonableness of Christianity is a work of dissenting “rational theology”.

Locke had been thinking, talking and writing about religious toleration since 1659. His views evolved. In the early 1660s he very likely was an orthodox Anglican. He and Shaftesbury had instituted religious toleration in the Fundamental Constitutions of the Carolinas (1669). He wrote the Epistola de Tolerantia in Latin in 1685 while in exile in Holland. He very likely was seeing Protestant refugees pouring over the borders from France where Louis XIV had just revoked the Edict of Nantes. Holland itself was a Calvinist theocracy with significant problems with religious toleration. But Locke’s Letter does not confine itself to the issues of the time. Locke gives a principled account of religious toleration, though this is mixed in with arguments which apply only to Christians, and perhaps in some cases only to Protestants. He excluded both Catholics and atheists from religious toleration. In the case of Catholics it was because he regarded them as agents of a foreign power. Because they do not believe in God, atheists, on Locke’s account: “Promises, covenants and oaths, which are the bonds of human society, can have no hold upon an atheist” (Mendus 1991: 47). He gives his general defense of religious toleration while continuing the anti-Papist rhetoric of the Country party which sought to exclude James II from the throne.

Locke’s arguments for religious toleration connect nicely to his account of civil government. Locke defines life, liberty, health and property as our civil interests. These are the proper concern of a magistrate or civil government. The magistrate can use force and violence where this is necessary to preserve civil interests against attack. This is the central function of the state. One’s religious concerns with salvation, however, are not within the domain of civil interests, and so lie outside of the legitimate concern of the magistrate or the civil government. In effect, Locke adds an additional right to the natural rights of life, liberty, health and property—the right of freedom to choose one’s own road to salvation. (See the section on Toleration in the entry on Locke’s Political Philosophy.)

Locke holds that the use of force by the state to get people to hold certain beliefs or engage in certain ceremonies or practices is illegitimate. The chief means which the magistrate has at her disposal is force, but force is not an effective means for changing or maintaining belief. Suppose then, that the magistrate uses force so as to make people profess that they believe. Locke writes:

A sweet religion, indeed, that obliges men to dissemble, and tell lies to both God and man, for the salvation of their souls! If the magistrate thinks to save men thus, he seems to understand little of the way of salvation; and if he does it not in order to save them, why is he so solicitous of the articles of faith as to enact them by a law? (Mendus 1991: 41)

So, religious persecution by the state is inappropriate. Locke holds that “Whatever is lawful in the commonwealth cannot be prohibited by the magistrate in the church”. This means that the use of bread and wine, or even the sacrificing of a calf could not be prohibited by the magistrate.

If there are competing churches, one might ask which one should have the power? The answer is clearly that power should go to the true church and not to the heretical church. But Locke claims this amounts to saying nothing. For every church believes itself to be the true church, and there is no judge but God who can determine which of these claims is correct. Thus, skepticism about the possibility of religious knowledge is central to Locke’s argument for religious toleration.

Finally, for an account of the influence of Locke’s works, see the supplementary document: Supplement on the Influence of Locke’s Works

Locke’s Works

Oxford University Press is in the process of producing a new edition of all of Locke’s works. This will supersede The Works of John Locke of which the 1823 edition is probably the most standard. The new Clarendon editions began with Peter Nidditch’s edition of An Essay Concerning Human Understanding in 1975. The Oxford Clarendon editions contain much of the material of the Lovelace collection, purchased and donated to Oxford by Paul Mellon. This treasure trove of Locke’s works and letters, which includes early drafts of the Essay and much other material, comes down from Peter King, Locke’s nephew, who inherited Locke’s papers. Access to these papers has given scholars in the twentieth century a much better view of Locke’s philosophical development and provided a window into the details of his activities which is truly remarkable. Hence the new edition of Locke’s works will very likely be definitive.

• [N] An Essay Concerning Human Understanding , Peter H. Nidditch (ed.), 1975. doi:10.1093/actrade/9780198243861.book.1/actrade-9780198243861-book-1
• Some Thoughts Concerning Education , John W. Yolton and Jean S. Yolton (eds.), 1989. doi:10.1093/actrade/9780198245827.book.1/actrade-9780198245827-book-1
• Drafts for the Essay Concerning Human Understanding, and Other Philosophical Writings: In Three Volumes , Vol. 1: Drafts A and B, Peter H. Nidditch and G. A. J. Rogers (eds.), 1990. doi:10.1093/actrade/9780198245452.book.1/actrade-9780198245452-book-1
• The Reasonableness of Christianity: As Delivered in the Scriptures , John C. Higgins-Biddle (ed.), 2000. doi:10.1093/actrade/9780198245254.book.1/actrade-9780198245254-book-1
• An Essay Concerning Toleration: And Other Writings on Law and Politics, 1667–1683 , J. R. Milton and Philip Milton (eds.), 2006. doi:10.1093/actrade/9780199575732.book.1/actrade-9780199575732-book-1
• Vindications of the Reasonableness of Christianity , Victor Nuovo (ed.), 2012. doi:10.1093/actrade/9780199286553.book.1/actrade-9780199286553-book-1
• volume 1, 1987. doi:10.1093/actrade/9780198248019.book.1/actrade-9780198248019-book-1
• volume 2, 1987. doi:10.1093/actrade/9780198248064.book.1/actrade-9780198248064-book-1
• Volume 1, 1991. doi:10.1093/actrade/9780198245469.book.1/actrade-9780198245469-book-1
• Volume 2, 1991,. doi:10.1093/actrade/9780198248378.book.1/actrade-9780198248378-book-1
• Vol. 1: Introduction; Letters Nos. 1–461 , 2010. doi:10.1093/actrade/9780199573615.book.1/actrade-9780199573615-book-1
• Vol. 2: Letters Nos. 462–848 , 1976. doi:10.1093/actrade/9780198245599.book.1/actrade-9780198245599-book-1
• Vol. 3: Letters Nos. 849–1241 , 1978. doi:10.1093/actrade/9780198245605.book.1/actrade-9780198245605-book-1
• Vol. 4: Letters Nos. 1242–1701 , 1978. doi:10.1093/actrade/9780198245612.book.1/actrade-9780198245612-book-1.
• Vol. 5: Letters Nos. 1702–2198 , 1979. doi:10.1093/actrade/9780198245629.book.1/actrade-9780198245629-book-1
• Vol. 6: Letters Nos. 2199–2664 , 1980. doi:10.1093/actrade/9780198245636.book.1/actrade-9780198245636-book-1
• Vol. 7: Letters Nos. 2665–3286 , 1981. doi:10.1093/actrade/9780198245643.book.1/actrade-9780198245643-book-1
• Vol. 8: Letters Nos. 3287–3648 , 1989. doi:10.1093/actrade/9780198245650.book.1/actrade-9780198245650-book-1

In addition to the Oxford Press edition, there are a few editions of some of Locke’s works which are worth noting.

• An Early Draft of Locke’s Essay, Together with Excerpts from his Journal , Richard I. Aaron and Jocelyn Gibb (eds.), Oxford: Clarendon Press, 1936.
• John Locke, Two Tracts of Government , Phillip Abrams (ed.), Cambridge: Cambridge University Press, 1967.
• Locke’s The Two Treatises of Civil Government , Richard Ashcraft (ed.), London: Routledge, 1987.
• [Axtell 1968], The Educational Writings of John Locke: A Critical Edition , James L. Axtell (ed.), Cambridge: Cambridge University Press.
• [Gay 1964], John Locke on Education , Peter Gay (ed.), New York: Bureau of Publications, Columbia Teachers College, 1964.
• Epistola de Tolerantia: A Letter on Toleration , Latin text edited with a preface by Raymond Klibansky; English translation with an introduction and notes by J. W. Gough, Oxford: Oxford University Press, 1968.
• [G&T 1996] “Some Thoughts Concerning Education” and “The Conduct of the Understanding” , Ruth W. Grant and Nathan Tarcov (eds), Indianapolis: Hackett Publishing Co., 1996.
• [Laslett 1960] Locke’s Two Treatises of Government , Peter Laslett (ed.), Cambridge: Cambridge University Press, 1960.
• [Woozley 1964], An Essay Concerning Human Understanding , abridged, A.D. Woozley (ed.), London: Fontana Library, 1964.

Other Primary Sources

• Boyle, Robert, 1675 [1979], “Some Physico-Theological Considerations About the Possibility of the Resurrection”, in Selected Philosophical Papers of Robert Boyle , M.A. Stewart (ed.), New York: Manchester University Press.
• Mill, John Stuart, 1843, A System of Logic Ratiocinative and Inductive , London: John W. Parker.

Biographies

• King, Lord Peter, 1991, The Life of John Locke: with extracts from his correspondence, journals, and common-place books , Bristol: Thoemmes.
• Fox Bourne, H.R., 1876, Life of John Locke , 2 volumes, New York: Harper & Brothers. Reprinted Scientia Aalen, 1969.
• Cranston, Maurice, 1957, John Locke, A Biography , reprinted Oxford: Oxford University Press, 1985.
• Woolhouse, Roger, 2007, Locke: A Biography , Cambridge: Cambridge University Press.

Books and Articles

• Aaron, Richard, 1937, John Locke , Oxford: Oxford University Press.
• Aarsleff, Hans, 1982, From Locke to Saussure: Essays on the Study of Language and Intellectual History , Minneapolis: University of Minnesota Press.
• –––, 1994 “Locke’s Influence”, in Vere Chappell (ed.), The Cambridge Companion to Locke , Cambridge: Cambridge University Press, pp. 252–289. doi:10.1017/CCOL0521383714.011
• Alexander, Peter, 1985, Ideas Qualities and Corpuscles: Locke and Boyle on the External World , Cambridge: Cambridge University Press.
• Alston, William and Jonathan Bennett, 1988, “Locke on People and Substances”, The Philosophical Review , 97(1): 25–46. doi:10.2307/2185098
• Anstey, Peter R., 2011, John Locke and Natural Philosophy , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199589777.001.0001
• Armitage, David, 2004, “John Locke, Carolina and the Two Treatises of Government ”, Political Theory , 32(5): 602–27. doi:10.1177/0090591704267122
• Arneil, Barbara, 1996, John Locke and America , Oxford: Clarendon Press.
• Ashcraft, Richard, 1986, Revolutionary Politics and Locke’s Two Treatises of Civil Government , Princeton: Princeton University Press.
• –––, 1992, “Latitudinarianism and Toleration: Historical Myth versus Political History”, in Kroll, Ashcraft, and Zagorin 1992: 151–177. doi:10.1017/CBO9780511896231.008
• Ayers, Michael, 1991, Locke: Epistemology and Ontology , 2 volumes, London: Routledge.
• Barresi, John, and Raymond Martin, 2000, Naturalization of the Soul: Self and Personal Identity in the 18th Century , London: Routledge.
• Bennett, Jonathan, 1971, Locke, Berkeley, Hume: Central Themes , Oxford: Oxford University Press.
• Bolton, Martha Brandt, 2004, “Locke on the Semantic and Epistemic Role of Simple Ideas of Sensation”, Pacific Philosophical Quarterly , 85(3): 301–321. doi:10.1111/j.1468-0114.2004.00200.x
• Brandt, Reinhard (ed.), 1981, John Locke: Symposium Wolfenbuttel 1979 , Berlin: de Gruyter.
• Brewer, Holly, 2017, “Slavery, Sovereignty, and ‘Inheritable Blood’: Reconsidering John Locke and the Origins of American Slavery”, The American Historical Review , 122(4): 1038–1078. doi:10.1093/ahr/122.4.1038
• Chappell, Vere, 1992, Essays on Early Modern Philosophy, John Locke—Theory of Knowledge , London: Garland Publishing, Inc.
• –––, 1994, The Cambridge Companion to Locke , Cambridge: Cambridge University Press.
• –––, 2004a, “Symposium: Locke and the Veil of Perception: Preface”, Pacific Philosophical Quarterly , 85(3): 243–244. doi:10.1111/j.1468-0114.2004.00196.x
• –––, 2004b, “Comments”, Pacific Philosophical Quarterly , 85(3): 338–355. doi:10.1111/j.1468-0114.2004.00202.x
• Chomsky, Noam, 1966, Cartesian Linguistics: A Chapter in the History of Rationalist Thought , New York: Harper & Row.
• Dunn, John, 1969, The Political Thought of John Locke , Cambridge: Cambridge University Press.
• Farr, James, 2008, “Locke, Natural Law and New World Slavery”, Political Theory , 36(4): 495–522. doi:10.1177/0090591708317899
• Fox, Christopher, 1988, Locke and the Scriblerians , Berkeley: University of California Press.
• Garrett, Don, 2003, “Locke on Personal Identity, Consciousness and ‘Fatal Errors’”, Philosophical Topics , 31: 95–125. doi:10.5840/philtopics2003311/214
• Geach, Peter, 1967, “Identity”, The Review of Metaphysics , 21(1): 3–12.
• Gibson, James, 1968, Locke’s Theory of Knowledge and its Historical Relations , Cambridge: Cambridge University Press.
• Gordon-Roth, Jessica, 2015, “Locke’s Place-Time-Kind Principle”, Philosophy Compass , 10(4): 264–274. doi:10.1111/phc3.12217
• Grant, Ruth, 1987, John Locke’s Liberalism , Chicago: University of Chicago Press.
• Gaukroger, Stephen, 2010, The Collapse of Mechanism and the Rise of Sensibility: Science and the Shaping of Modernity 1680–1760 , Oxford, Clarendon Press.
• Kretzmann, Norman, 1968, “The Main Thesis of Locke’s Semantic Theory”, The Philosophical Review , 77(2): 175–196. Reprinted in Tipton 1977: 123–140. doi:10.2307/2183319
• Kroll, Peter, Richard Ashcraft, and Peter Zagorin (eds), 1992, Philosophy, Science and Religion in England 1640–1700 , Cambridge: Cambridge University Press. doi:10.1017/CBO9780511896231
• Jolley, Nicholas, 1984, Leibniz and Locke , Oxford: Oxford University Press.
• –––, 1999, Locke, His Philosophical Thought , Oxford: Oxford University Press.
• –––, 2015, Locke’s Touchy Subjects: Materialism and Immortality , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780198737094.001.0001
• Laslett, Peter, 1954 [1990], “John Locke as Founder of the Board of Trade”, The Listener , 52(1342): 856–857. Reprinted in J.S. Yolton 1990: 127–136.
• Lennon, Thomas M., 2004, “Through a Glass Darkly: More on Locke’s Logic of Ideas”, Pacific Philosophical Quarterly , 85(3): 322–337. doi:10.1111/j.1468-0114.2004.00203.x
• LoLordo, Antonia, 2010, “Person, Substance, Mode and ‘the moral Man’ in Locke’s Philosophy”, Canadian Journal Of Philosophy , 40(4); 643–668. doi:10.1080/00455091.2010.10716738
• Lott, Tommy, 1998, Subjugation and Bondage: Critical Essays on Slavery and Social Philosophy , New York: Rowman and Littlefield Publishers Inc.
• Lovejoy, Arthur O., 1936, The Great Chain of Being; a Study of the History of an Idea , Cambridge, MA: Harvard University Press.
• Lowe, E.J., 1995, Locke on Human Understanding , London: Routledge Publishing Co.
• Mackie, J. L. 1976, Problems from Locke , Oxford: Clarendon Press.
• Macpherson, C.B., 1962, The Political Theory of Possessive Individualism , Oxford: Oxford University Press.
• Mandelbaum, Maurice, 1966, Philosophy, Science and Sense Perception: Historical and Critical Studies , Baltimore: The John Hopkins University Press.
• Marshall, John, 2006, John Locke, Toleration and Early Enlightenment Culture , Cambridge UK, Cambridge University Press.
• Martin, C. B. and D. M. Armstrong (eds.), 1968, Locke and Berkeley: A Collection of Critical Essays , New York: Anchor Books.
• Mattern, Ruth, 1980, “Moral Science and the Concept of Persons in Locke”, The Philosophical Review , 89(1): 24–45. doi:10.2307/2184862
• McCann, Edwin, 1987, “Locke on Identity, Life, Matter and Consciousness” Archiv für Geschichte der Philosophie , 69(1): 54–77. doi:10.1515/agph.1987.69.1.54
• McLachlan, Hugh, 1941, Religious Opinions of Milton, Locke and Newton , Manchester: Manchester University Press.
• Mendus, Susan, 1991, Locke on Toleration in Focus , London: Routledge.
• Newman, Lex, 2004, “Locke on Sensitive Knowledge and the Veil of Perception—Four Misconceptions”, Pacific Philosophical Quarterly , 85(3): 273–300. doi:10.1111/j.1468-0114.2004.00199.x
• Olsthoorn, Johan and Laurens van Apeldoorn, 2020, “‘This man is my property’: Slavery and political absolutism in Locke and the classical social contract tradition”, European Journal of Political Theory , 21(2): 253–275. doi:10.1177/1474885120911309
• Rogers, G.A. John, 2004, “Locke and the Objects of Perception”, Pacific Philosophical Quarterly , 85(3): 245–254. doi:10.1111/j.1468-0114.2004.00197.x
• Roper, John, April 2004, Conceiving Carolina: Proprietors, Planters and Plots 1662–1729 , New York, Palgrave/Macmillan.
• Russell, Daniel, 2004, “Locke on Land and Labor”, Philosophical Studies , 117(1–2): 303–325. doi:10.1023/B:PHIL.0000014529.01097.20
• Schouls, Peter, 1992, Reasoned Freedom: John Locke and the Enlightenment , Ithaca, NY: Cornell University Press.
• Simmons, A. John, 1992, The Lockean Theory of Rights , Princeton: Princeton University Press.
• Soles, David, 1999, “Is Locke an Imagist?” The Locke Newsletter , 30: 17–66.
• Strawson, Galen, 2011, Locke on Personal Identity , Princeton: Princeton University Press.
• Stuart, Matthew, 2013, Locke’s Metaphysics , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199645114.001.0001
• Thiel, Udo, 2011, The Early Modern Subject: Self-Consciousness and Personal Identity from Descartes to Hume , Oxford: Oxford University Press. doi:10.1093/acprof:oso/9780199542499.001.0001
• Tarcov, Nathan, 1984, Locke’s Education for Liberty , Chicago: The University of Chicago Press.
• Tipton, I.C. (ed.), 1977, Locke on Human Understanding: Selected Essays , Oxford: Oxford University Press.
• Tully, James, 1980, A Discourse on Property , Cambridge: Cambridge University Press.
• –––, 1993, An Approach to Political Philosophy: Locke in Contexts , Cambridge: Cambridge University Press.
• Uzgalis, William L., 1988, “The Anti-Essential Locke and Natural Kinds”, The Philosophical Quarterly , 38(152): 330–339. doi:10.2307/2220132
• –––, 1990, “Relative Identity and Locke’s Principle of Individuation”, History of Philosophy Quarterly , 7(3): 283–297.
• –––, 2007, Locke’s Essay Concerning Human Understanding—A Reader’s Guide , London: Continuum.
• –––, 2017, “John Locke, Racism, Slavery and Indian Lands”, in Naomi Zack (ed.), The Oxford Handbook to Philosophy and Race , Oxford: Oxford University Press.
• Walmsley, Jonathan and Waldman Felix, 2019 “John Locke and Toleration of Catholics: A New Manuscript”, Historical Journal , 62: 1093–1115. [Includes transcription of “Reasons for tolerating papists with others” St. Johns College, Annapolis, Maryland, Greenfield Library.]
• Wilson, Margaret Dauler, 1999, Ideas and Mechanism: Essays on Early Modern Philosophy , Princeton: Princeton University Press.
• Wilson, Thomas D., 2016, The Ashley Cooper Plan: The Founding of Carolina and the Origins of Southern Political Culture , Chapel Hill, NC: University of North Carolina Press.
• Wood, Neal, 1983, The Politics of Locke’s Philosophy , Berkeley: University of California Press.
• Woolhouse, R.S., 1971, Locke’s Philosophy of Science and Knowledge , New York: Barnes and Noble.
• –––, 1983, Locke , Minneapolis: University of Minnesota Press.
• –––, 1988, The Empiricists , Oxford: Oxford University Press.
• Yaffe, Gideon, 2000, Liberty Worth the Name: Locke on Free Agency , Princeton: Princeton University Press.
• –––, 2004, “Locke on Ideas of Substance and the Veil of Perception”, Pacific Philosophical Quarterly , 85(3): 252–272. doi:10.1111/j.1468-0114.2004.00198.x
• Yolton, Jean S., 1990, A Locke Miscellany , Bristol: Thoemmes Antiquarian Books.
• Yolton, John, 1956, John Locke and the Way of Ideas Oxford, Oxford University Press; reprinted, Bristol: Thoemmes Press, 1996.
• –––, 1969, John Locke: Problems and Perspectives: New Essays , Cambridge: Cambridge University Press.
• –––, 1970, John Locke and the Compass of Human Understanding , Cambridge: Cambridge University Press.
• –––, 1983, Thinking Matter: Materialism in Eighteenth Century Britain , Minneapolis: University of Minnesota Press.
• –––, 1984, Perceptual Acquaintance: From Descartes to Reid , Minneapolis: University of Minnesota Press.

Bibliographies

• Hall, Roland, and Roger Woolhouse, 1983, 80 Years of Locke Scholarship: A Bibliographical Guide , Edinburgh: University of Edinburgh Press.
• Locke Studies (formerly The Locke Newsletter) , edited by Timothy Stanton, Heslington: University of York.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• “John Locke” , entry on Locke, Internet Encyclopedia of Philosophy .
• Images of Locke , National Portrait Gallery, Great Britain.

Berkeley, George | Hume, David | Leibniz, Gottfried Wilhelm | liberalism | Locke, John: moral philosophy | Locke, John: on freedom | Locke, John: on personal identity | Locke, John: philosophy of science | Locke, John: political philosophy | Masham, Lady Damaris | personal identity | substance | tropes

Acknowledgments

The editors would like to thank Sally Ferguson for carefully proofreading the text.

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EssayEmpire

Natural rights essay.

Natural rights are a direct corollary to the theory of natural law. Natural law can be viewed from four perspectives: (1) as a function of the physical laws of nature, (2) as a function of religion, (3) as a function of the nonphysical realm, or (4) as a function of reason or rational determination. A primary example of the first perspective would be the philosophy of Aristotle. An example of the second perspective would be the philosophy of St. Thomas Aquinas. The third perspective would be demonstrated by the philosophy of Plato and his theory of forms. The fourth perspective would be found in the philosophy of Immanuel Kant. From a more political perspective, the philosophy of Thomas Hobbes would also be a good example of the fourth category of natural law. Natural law is, essentially, the law applicable to human beings that is not a result of a government act or social norm. Natural law exists independently and is not based on the positive law, which is generally acknowledged to be the written law enacted by humans, even though the positive law may recognize the natural law. Natural law is generally considered to be a universal principle.

Natural rights are a corollary to natural law. Natural rights exist because of the natural law. Although there are many theories of natural law, the best example of natural rights, for the purposes of American politics and jurisprudence, is found in the writings of Sir William Blackstone. Blackstone was a legal commentator in Great Britain around the time of the American Revolution. He wrote the Commentaries on the Laws of England, a four-volume treatise on the laws of England that had developed over the years. Blackstone is very important, as he was one of the primary influences on the founding fathers who wrote the Declaration of Independence, Constitution, and Bill of Rights, which express the essential political principles of the United States of America.

In this work, Blackstone presented three absolute rights under the natural law: (1) the right to personal security, which included the right to life, health, and reputation; (2) the right to personal liberty, and (3) the right to property. However, these rights were not automatically enforced by a worldwide police force. Political reality dictated that human beings sometimes had to defend themselves and enforce these rights.

Recognizing that these rights had to be enforced, Blackstone also recognized five auxiliary natural rights. These rights were essentially political in nature, in that they attempted to express practical principles to help ensure theoretical liberty.

• The first auxiliary right was that the legislative power had to be independent of the executive of the government. If the legislators were not free of the executive, a tyranny would exist. Legislators also had to be free from bribery and corruption to be able to exercise independent judgment.
• The second auxiliary right concerned the executive branch of government. Blackstone thought that a monarchy was the best form of government. However, he still felt that an unrestrained executive was improper and that an independent legislature was necessary.
• For the third auxiliary right, Blackstone felt that all the people should have the right to present their complaints to a neutral court for a quick resolution. Further, any legal action should be in accordance with previously ascertained laws.
• The fourth auxiliary right concerned unusual cases that could not be addressed by the courts. To address this problem, Blackstone presented the right to petition both the legislature and the executive for relief.
• The fifth auxiliary right was the right to keep and bear arms. This right was necessary both for personal self-defense and to prevent tyranny and oppression. Essentially, it was the right to revolt.

There are, of course, a number of other important philosophers and political theorists who have advanced explanations of natural law and the associated natural rights, which may differ somewhat from those presented by Blackstone. However, given that Blackstone was one of the primary influences on the founding fathers, who expressed fundamental American political philosophy in the Declaration of Independence, the Constitution, and the Bill of Rights; and given that all of Blackstone’s absolute and auxiliary natural rights can be found, in one form or another, in these documents; it follows that Blackstone’s work provides an excellent example of the concept of natural rights in American politics.

It is important to note that the idea of natural rights is closely linked with the concept that such rights are inalienable, in other words, they cannot be removed by an act of human government. They are inherent in every person and are considered fundamental.

The concept of fundamental rights is also present in documents of international scope. For example, in the United Nations Charter and the International Covenant on Civil and Political Rights, many of these fundamental and natural rights are specifically recognized.

Bibliography:

• Aquinas, Thomas. The Summa Theologica of St.Thomas Aquinas. Literally translated by Fathers of the English Dominican Province, 2nd, rev. ed., 1920. Online ed. 2008. Q.90-A.1 to A.4. www.newadvent.org/summa. Originally published 1265–1274.
• “Nichomachean Ethics.” In The Complete Works of Aristotle, edited by Jonathan Barnes. Princeton: Princeton University Press, 1984.
• “Politics.” In The Complete Works of Aristotle, edited by Jonathan Barnes. Princeton: Princeton University Press, 1984.
• Blackstone,William. Commentaries on the Laws of England. 1765–1769.
• Birmingham, Ala: Legal Classics: 1983, 39–43, 119–141.
• Hobbes,Thomas. Leviathan. 1651. New York Everyman’s Library, 1979.
• “Charmides.” In Plato,The Collected Dialogues, edited by Edith Hamilton and Huntington Cairns. Princeton: Princeton University Press, 1963.
• “Republic.” In The Collected Dialogues, edited by Edith Hamilton and Huntington Cairns. Princeton: Princeton University Press, 1963.
• Plouffe,Wm. C., Jr. “The Natural Law in the Minds of The Founding Fathers.” Vera Lex 9, nos. 1 and 2 (2009): 77.

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Proof read. Glorious Revolution Bill of Rights 1669. Correct in footnote. Some awkward sentences. Thomas Jefferson was no influence on JA in 1765. Overall enjoyed. Good luck with orals.

Greetings and thanks for the comment. I will read Glorious Revolution Bill of Rights 1669. As to your comment on proof read. I agree, but I post these articles as I write them for class. I don’t always have the time needed to proof read them. If I will to submit them for publication I will do a closer reading of them and correct any problems. Thanks again, Kev

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The Argument on Natural Rights - Essay Example

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