In my last entry I commented on Thomas Paine and how his 1776 sensation "Common Sense" gave voice to what historian Bernard Bailyn identified as the most basic goal of the American Revolutionary Era: "[to] free the individual from the oppressive misuse of power, [and] from the tyranny of the state.”
A decade and a half later, Paine's "Rights of Man," published in stages from 1791-94, elaborated on the theme (and along the way helped fuel the French Revolution), by stating the basic principle that “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured.”
Explaining the circumstances under which man cedes some of his natural rights to the care of society and government (we may call those natural rights so entrusted as “civil” rights), Paine said:
"The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective…."
“[N]atural rights are the foundation of all his civil rights…., [and include] all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others."
"Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection…."
"He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”
"The natural right which he retains[, by contrast,] are all those in which the power to execute it is as perfect in the individual as the right itself….”
For a modern perspective on these progressive liberty ideas, Charles Fried says in his recent book, "Modern Liberty: And the Limits of Government" (a book on which I've blogged here previously):
“It is generally thought that we must have the state for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…."
Fried continues,
"It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around…. The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do...."
"[That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law."
Paine's and Fried's descriptions capture well the principles of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty.
These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).
