More from Recovering Our Forgotten Preamble by John W. Welch and James A. Heilper See 91 S. CALIF. L. REV. 1021 (2018).
E. THE PREAMBLE AND ITS EIGHTEENTH-CENTURY UNDERSTANDING OF RIGHTS
While it exceeds the scope of this Article to retrace the origins of “rights” in Roman and western thought, a brief summary of the intellectual history of rights shows how they were conceived in 1787 (and as recently as shortly before the mid-twentieth century) not as privileges but as “moral powers.” As is skillfully documented by James Hutson, Director of the Manuscript Division of the Library of Congress, “the current presumption that the idea of a right was an unchanging feature of American society ‘from the beginning’ conflicts with evidence that, at the dawn of American history, a ‘modern’ understanding of rights was absent or, at best, inchoate.”
Rights, as understood in Roman law, entitled people to their “just share” of society’s “benefits and burdens,” and rights (jura) conferred benefits but at the same time burdens and obligations to create “a just and harmonious order.” Understood this way, rights were “objective” and naturally imposed duties, both to be proactive and preventative. Rights thus came to be seen as powers, most famously in Ockham’s persuasive arguments on behalf of the Franciscans that the Pope’s plan for them to have rights over property, which they did not want, stood just as contrary to the Franciscan the vow of poverty as did possessing the property itself. But with this development, rights shifted from being “objective” to being “subjective”; that is, not referring to some “share of an external object,” but as a “power inherent in an individual.” And, being “conferred upon man” by his Creator, subjective rights carried with them not only the old notions of burdens and duties but also were “grounded in religion” in general and “on Christian morality” in specific.
In the ensuing centuries, philosophical and legal developments elaborated the contours of subjective rights, until in eighteenth-century America, John Locke, following Grotius, derived all “rights from duties.” John Dunn “stressed that Locke’s concept of rights must be understood in the context of his religious belief,” and asserted “all the rights humans have . . . derive from, depend upon and are rigidly constrained by a framework of objective duty, [which constitutes] God’s requirement for human agents.” So understood, subjective rights were necessary to perform the duties that God, nature, or society had imposed upon them. “A right, therefore, in the new United States meant, in its fullest sense, power inherent in and owned by an individual to act in a way consistent with Christian morality.” In the words of Vattel, a right was “nothing more than the power of doing what is morally possible.” It was in this sense that rights were axiomatic for the founding generation of the Constitution.
Responding to Rousseau’s claim that Americans had invented the science of rights, John Adams argued they had simply “found it in their religion.” Whether this clever statement of Adams represents a majority or minority view among the Founders or not, it is clear that the popular view of the science of subjective rights as based on duties—the view which prevailed in Adams’ day—has been largely forgotten since the middle of the twentieth century.
By losing that bearing, American jurisprudence has also lost touch with the eighteenth-century communitarian foundations and civic functions of the Preamble, for it is in the Preamble that particular duties of the people, which are delegated to their representative governments, are to be found. Those duties are the purposes obligingly undertaken by all, “We the People,” in recognition of the powers given to each to do what is possible to form a more perfectly united nation, to establish social justice, to ensure collective tranquility, to provide cooperatively for the common defense, to promote and facilitate the well-being of the nation, and to permanently secure and maintain the blessings of liberty for themselves and also for generations to come .