by Nancy Spannaus
July 3, 2020—On the occasion of this Fourth of July, which is bound to be fraught with virulent attacks on the Declaration of Independence, I was tempted to simply repeat Abraham Lincoln’s stirring refutation (which I featured last year). But there was a deeper philosophical point to be made, one that challenges the simplistic views of people on both sides of the traditional political divide. The question I pose is, why did the Founders declare the pursuit of happiness rather than the right to property as one of the key three unalienable rights?
Mainstream historiography on the American Revolution, as you probably know, asserts that the major philosophical influence on the Founding Fathers was English philosopher John Locke. Locke was famous for his Treatises on Government, published in 1689, which put forward the concept of natural rights, the right to overthrow an illegitimate government, and three unalienable rights: the rights to life, liberty, and property. Indeed, I have heard speeches given in this day and age which claim that our Declaration enshrined those same three rights.
Yet, the Committee of the Continental Congress which oversaw the production of the Declaration did not choose Locke’s trilogy. Instead, Jefferson wrote, and his fellow committee members (including John Adams and Benjamin Franklin) approved the “pursuit of happiness” as the third right. Where did the idea of this inalienable right come from? And what are its implications for our nation’s founding conceptions?
Happiness as a Right and a Duty
Those committed to the Lockean thesis point to the widely expressed praise for the English philosopher by Founders like Thomas Jefferson and George Washington, and a phrase found in Locke’s Essay on Human Understanding. But when it comes to evidence of the extent of Locke’s intellectual influence, the picture becomes more cloudy. Historian Clinton Rossiter in his book Seedtime of the Republic argues that Locke’s work, which was not published in the American until 1773, was just one among many popular sources on the purpose of government. He notes that the writings of Swiss philosophers Jean-Jacques Burlamaqui (1694-1748) and Emmer de Vattel (1714-1767) on natural rights were at least equally popular and widely circulating.
Vattel was an ardent protagonist for the ideas of the great German scientist-philosopher Gottfried Wilhelm Leibniz and a student of Burlamaqui. His Law of Nations, originally written in French, was published in English in 1759, and became the most often consulted writing on natural law among leading political circles in the American colonies by at least the time of the First Continental Congress. This popularity continued into the middle of the 19th Century.
The obligation of government to strive for and procure happiness for its population lies at the center of Leibniz, Vattel, and Burlamaqui’s thinking. I quoted extensively from Leibniz and Vattel on the subject in a post in January of this year, which I will not repeat. Recently, I came across a discussion of the work of Burlamaqui, which further strengthens the argument for the influence of non-Lockean sources.
Historian John Schmeeckle’s article “The Declaration of Independence without Locke: A Rebuttal of Michael Zuckert’s ‘Natural Rights Republic’” is a tour de force on the influence of Burlamaqui’s thinking on the Declaration of Independence, and the Founding Fathers in general. Schmeeckle establishes without a doubt that Burlamaqui’s writings call for governments to ensure the rights of their citizens, which rights are “nothing else but whatever reason certainly acknowledges as a sure and concise means of attaining happiness, and approves as such.” That happiness, he adds, is intimately connected with the duty of the citizen to promote the happiness of others, and is to be governed by reason.
No such idea ever appears in Locke, Schmeeckle argues. His world is one where government is more of a policeman preventing individuals from violating each others’ freedoms. Locke considers any more harmonious society unrealistic, at least in this life.
Then There’s Cicero
A discussion of the idea of happiness would not be complete without reference to the Classical philosopher to whom many of the Founding Fathers looked for wisdom about government and natural law, the Roman statesman and philosopher Marcus Tullius Cicero (106-43 BC). Cicero, who was an avid student of Classical Greek philosophy, wrote voluminously about natural law and government, with ideas that are consonant with those of the Declaration of Independence.
Cicero was a major proponent of natural law. He asserted that all individuals should be considered equal before the law, and that they had were born with the natural God-given ability – reason –to attain to virtue, and to care for their fellow men. He believed that good government and good laws should therefore work to ensure that virtue, honor, and benefit for the citizenry should coincide. Happiness comes from cultivating virtue, in one’s self and the society.
Schmeeckle puts it this way: “Cicero states
that we are born for Justice, and that right is based not upon men’s opinions but upon Nature. This fact will immediately be plain if you once get a clear conception of man’s fellowship and union with his fellow men’; which Cicero clarifies asour natural inclination to love our fellow-men, and this is the foundation of Justice.’”
The Right to Property
But what about the right to property?
The idea of an individual’s right to property – his body and personal possessions, including land – is not per se antithetical to the right to the pursuit of happiness.
Property rights were precious to the vast majority of American colonists who had suffered as virtual serfs in oligarchical Europe, unable to own land and pass it on to their families. In many cases, they were not even free to marry, keep their own income, or even control their own bodies. Some historians estimate that over half of English and German immigrants to America came as indentured servants, which maintained them in that unfree condition for four to seven years. Many Africans were treated as indentured servants as well, even in Virginia, where it took decades after 1619 for laws to be passed to enforce and condone strict hereditary slavery and unfettered brutality against Blacks.
But to elevate property rights above the general welfare of the nation (i.e., their rights to pursue happiness as a society) was clearly an oligarchical idea, which the Declaration’s writers rejected.
In so doing, they followed Vattel and Burlamaqui, not John Locke (1632-1704), as an examination of Locke’s life and works demonstrates.
Locke’s prominence came from his patronage by Anthony Ashley-Cooper, the first Earl of Shaftsbury. Shaftsbury was a member of the British oligarchy who came to prominence under King Charles II, and later was involved in the coup against King James II called the so-called Glorious Revolution, which brought Holland’s William of Orange to the British throne. Locke became Shaftsbury’s private secretary and physician in 1666, and became intimately involved with his political and business ventures.
Locke’s positions in colonial administration were myriad. He was Secretary to the Council of Trade and Plantations, in which capacity he drafted the Fundamental Constitutions of Carolina in 1669. Hailed as “liberal” by many biographers because of a degree of religious toleration, the Carolinian Constitution (which allegedly was not strictly enforced during its 40 years in operation) enshrined absolute power over slaves, a hereditary nobility, and hereditary serfdom in addition to slavery. From 1669 to 1675 Locke was secretary of the Proprietors of the Carolina and from 1673-74 the secretary to the treasurer to the English Council for Trade and Foreign Plantations. It should be noted that it was in 1672 that the British Crown established the Royal African Company which declared itself the monopoly of the country’s extensive slave trade. Shaftsbury was an investor in that company, which was the largest transporter of slaves out of Africa to America.
Political conflict involving his patron Shaftsbury disrupted Locke’s career in the 1670s and 1680s; he spent time in France, and then exiled himself to Holland in 1683. Shaftsbury died, but Locke, who was reworking his Two Treatises on Government, was considered the political theoretician of the overthrow of James II. He returned to England when William took over as king (1688) and again played a political as a member of the Board of Trade (1696-1700).
While Locke does not devote his theoretical treatises on government to discussing his concrete ideas on governing the colonies, the theoretical basis for doing just that is there. Locke begins from positing a “state of nature” which features radical individualism, each individual’s assertion of his rights to freedom and property. As reflected in his famous concept of the human mind being a “tabula rasa,” Locke asserts that human beings have no innate sense of morality or principles other than self preservation.
While he acknowledges that, theoretically. Following natural law would permit peaceful co-existence, that law is seldom perceived, he says. Correct behavior comes therefore primarily from the threat of punishment. To survive, mankind must thus come to some kind of “social compact” which will allow the adjudication of competing interests, hopefully guided by a respect for equity, the common good, limits on taxation to those which the people approve, and restraint.
This concept is in sharp contrast to the ideas of Cicero, Leibniz, Burlamaqui, and Vattel, who put man’s innate sociability and God-given reason at the center of human existence from the beginning. People never existed independent of their society. They naturally seek bonds of love and friendship toward their fellow-man, an impulse that grows more fully as they gain in the acquisition of wisdom and virtue. People can be unhappy in the midst of vast possessions; a true, solid happiness comes from laboring for the happiness of others and society as a whole.
Where the Founding Fathers Stood
Clearly not all the Founding Fathers agreed, even on fundamental issues. Conflict among the delegates over slavery, for example, appears to have been the reason that Jefferson’s original condemnation of it does not appear in the final version of the Constitution. But in the Declaration, the leaders assembled in Philadelphia did not elevate the “right to property” (which adamant pro-slavers might have liked) to a top position; they reserved those top rights to life, liberty, and the pursuit of happiness.
What should be clear from the above discussion is that by happiness, the Founders did not mean individual pleasure. They were speaking of a higher idea, one that involved the pursuit of increasing wisdom and striving toward the general welfare. They believed human beings were inherently capable of a society based on such an idea, as difficult as that may be to achieve. To understand the “pursuit of happiness” to mean the pursuit of pleasure would be a travesty.
A similar point could and should be made about the unalienable right to liberty enshrined in the Declaration. As everyone is a member of society, no one has the right to be totally free to “do your own thing;” society itself imposes certain obligations of social responsibility, obligations which, as Cicero asserts, are actually embedded in the human psyche. The fact that certain people apparently lack those feelings of benevolence toward others – as in the devil-may-care attitude of many people in the face of the pandemic today – is the result of a sickness in society as a whole, a sickness fostered, if not created, by bad government.
As Abraham Lincoln, John Quincy Adams, and many others have eloquently asserted, the Declaration of Independence was a watershed in world history, the assertion of principles of government and society which, although still not attained, set a standard for a free and humane government. Its principles were profound and effective in stirring the hearts and minds of billions throughout the world for centuries to follow. They needed to be complemented by a Constitutional framework and the American System of economics, but as principles, understood in their depth, they can indeed make us proud to be Americans.
As long as we realize that we still have a lot of work to do.
 Cited in “The Declaration of Independence without Locke: A Rebuttal of Michael Zuckert’s`Natural Rights Republic’”, published at academia.edu. This article by John Schmeeckle is a treasure trove of material on the subject, which he also deals with in a number of other articles.
 See Edmund S. Morgan, American Slavery, American Freedom: The Order of Colonial Virginia,” W.W. Norton & Company, 1975.
 Information on Locke’s career in imperial politics comes largely from “John Locke, Carolina, and the Two Treatises of Government by David Armitage, Harvard, 2004.