8 - Fundamental Rights at the American Founding

Summary

This chapter seeks to elucidate the confusing rhetoric about rights at the time of the American founding. Influenced by social contractarian principles and common law traditions, American elites generally thought about rights in three ways. Inalienable natural rights, such as religious conscience, were aspects of freedom that individuals could not rightfully surrender to the control of the body politic. Retained natural rights, often summarized as life, liberty, and property, were rights that individuals voluntarily retained upon entering into a political society but that were regulable by law in promotion of the public good. And fundamental positive rights, such as the right to a jury trial, were rights that individuals acquired only upon the creation of political society. By recovering these categories, the chapter attempts to show not only the malleable and multifaceted nature of eighteenth-century American rights talk but also its overall intelligibility.