While the founding of the United States (and its legal system based on the English common law) was carried out by people who believed strongly in natural law, nonetheless the seeds of dissent were already being sown in England. Jeremy Bentham, a philosopher who also had a strong effect on the development of modern economic theory, did not believe in natural law and certainly not in natural rights. Mises wrote,
… Bentham, the radical, shouted: “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense.” With him “the sole object of government ought to be the greatest happiness of the greatest possible number of the community.” Accordingly, in investigating what ought to be right he does not care about preconceived ideas concerning God’s or nature’s plans and intentions, forever hidden to mortal men; he is intent upon discovering what best serves the promotion of human welfare and happiness….
Bentham believed that governments could use a combination of negative and positive “reinforcement” and threats of outright coercion in order to accomplish whatever “worthy” goals that government might have. People, to Bentham, did not have “rights” or at least what Jefferson called “inalienable rights.” Instead, whatever “rights” citizens did have were granted by the State, and thus the State could take them away arbitrarily.
This was hardly a new way of thinking. Indeed, it went back to the way that most governments had operated throughout history. Caligula, the bloody Roman tyrant, was famous for declaring edicts printed in tiny letters on signs lifted well above the ground so no one could read them. We should not be shocked that modern governments are taking away rights, as perhaps it is a miracle of history that those in positions of political power ever held views comparable to Jefferson’s and Locke’s in the first place.
Nonetheless, it took less than a century after the American Revolution for Americans to experience arbitrary mass arrests and the destruction of rights, as the government of Abraham Lincoln engaged in measures to defeat the breakaway Confederacy in the War Between the States. Lincoln suspended habeas corpus, held thousands of political prisoners, and engaged in war without a congressional declaration.
What is most important to remember is that Lincoln and his government were able to eviscerate much of the Constitution without paying a political price. (Indeed, Lincoln is revered by historians who purposely overlook his transgressions.) Although the U.S. political system partially returned to its semi-Jeffersonian roots after the end of Reconstruction in 1877, the coming intellectual storm would prove too much for the concepts of natural law and natural rights to survive.
Marxism and Progressivism
First came Marxism. Socialism as an idea existed before Marx, but it was Marx who attempted to place socialist views in a comprehensive system of thought. He attacked the Aristotelian logic that was a foundation for natural law, and he declared that there were no laws of human action and certainly no natural and inalienable rights for people. Instead, he said that different historical eras operated according to different “laws” and that different groups of people engaged in different forms of logic. Wrote Mises,
Marxian polylogism asserts that the logical structure of the mind is different with the members of various social classes. Racial polylogism differs from Marxian polylogism only in so far as it ascribes to each race a peculiar logical structure of mind and maintains that all members of a definite race, no matter what their class affiliation may be, are endowed with this peculiar logical structure.
No concept of natural law could survive in that kind of intellectual atmosphere, and it should surprise no one that the Marxist governments have been the most murderous and tyrannical in the history of the world. While the United States has not moved in the direction of Marxism, nonetheless its intellectuals and political classes embraced a parallel intellectual movement called Progressivism.
The leaders of Progressivism tended to be secular in outlook and held the belief that the U.S. Constitution was a “dated” document that should have no application to a modern, “scientific” society. The idea of decentralized government in which states operated in a semi-autonomous way and the presence of a Congress that debated and compromised was anathema to people who believed that the United States needed a strong executive branch that governed according to “scientific” principles.
The United States had roots deep enough in liberty and natural law to withstand the tide of Marxism but not enough to avoid being changed forever by Progressivism. One important reason was that Progressives could appeal to a “unique, American spirit” in which it was held that Americans “could do anything.” Unfortunately, that “anything” not only meant participation in World War I, but also a veiled attempt to run natural law into the ground and replace it with “positive law.”
Attacking the market
Progressives took aim at the American private-enterprise economy, with its emphasis on private-property rights, sanctity of contract, and the rights of free exchange. An economy based on those things, Progressives argued, was “chaotic” and led to “rapacious monopolies” that were bad for consumers.
In truth, through most of the 19th century the standard of living in the United States improved at a dizzying pace. It is true that Americans a century ago were quite poor by modern standards, but at the time, most people could not believe the economic progress that was being made. However, Progressives believed that the application of “positive law” with the emphasis on regulating the workplaces, setting prices for businesses, and overseeing economic exchange by “scientific” regulation would produce a society that was superior to anything based on the older constitutional order.
Where American life before the Progressive Era tended to be decentralized with community orientation, Progressives emphasized the primacy of the central government based on loyalty to the State, or their version of “patriotism.” The advent of World War I not only brought war collectivism, but also prohibitions against freedom of speech and movement. (One American filmmaker was imprisoned because he produced a movie about the American Revolution, and American politicians did not want anything in print or in cinema that showed Great Britain, an American war ally, in a bad light.)
After the First World War ended, the American system shed some but not all of the wartime controls, and Prohibition became the law of the land. (I note that in 1919, it took a constitutional Amendment to create Prohibition; today, however, the drug war, which is just another form of Prohibition, has come about through simple legislation and executive orders.)
As noted earlier, Progressives believed in “positive law,” which came from the Benthamite view that law was nothing more than a government creation and that the use of “proper” incentives as well as outright force and “scientific” application would help steer humanity into acting in the “best interests of society.” For example, before the Progressive Era, legislators and judges held that economic exchange was governed by the “natural regulation” of supply and demand and did not need to be directed by the State. In fact, they believed that attempts by government to govern exchanges and prices were a violation of the natural order and would result in unforeseen but also unfortunate outcomes.
Progressives would have none of that. Child labor, for example, in their view was singularly evil and needed to be eradicated, despite the fact that most children worked because they came from poor families, and working was necessary for their survival. Businesses need to work for something other than profit, and the government should require at least a minimum of pay for work. The natural-law concepts simply could not apply there, as Progressives had to employ “positive law” that would direct specific outcomes of economic exchange.
