3 - Rights of the Founding

Summary

America has a fascination with its origins. Lawyers, politicians, and others who want to find truths about political morality or constitutional law regularly consult the thoughts and writings of the small group of men who are known collectively, if roughly, as the Founders of the Republic or the Framers of the Constitution. Founding codifications of rights in federal and state constitutions, as well as the Founders' arguments about the rights they claimed, continue to affect what rights modern Americans have and how they conceive of rights in general. For all of the attention that modern political and legal theorists pay to the Founding era, however, many differences between how the Founders thought and spoke about rights and how leading modern theorists think and speak about rights have not been noticed or sufficiently understood. There are differences as well as similarities between political and academic rights discourse, and although many of the Founders can legitimately be regarded as self-conscious political theorists, their major projects were more political than academic. Indeed, the category of professional academic philosophers hardly existed in America at the Founding. Perhaps not coincidentally, Founding rights discourse was relatively unconcerned with many of the analytic strictures that concern modern rights theorists and which some modern theorists try to read into the discourse of the Founding.