ABSTRACT
The United States was founded on the principle that all persons had natural rights to life, liberty and property, which is to say that the Framers of the Constitution accepted the theories of John Locke rather than Thomas Hobbes. Government did not simply exist to maintain law and order and keep the masses under control, but to preserve, defend and guarantee the rights of the people. By popular demand in the 1780s, the Bill of Rights was also added to the Constitution, which stated expressly which rights were guaranteed to the people and what the exact limits of government would be. Over time, these rights were extended to women, blacks and other minorities, who did not have them originally. For these reasons the U.S. criminal justice system has trial by jury, protections against forced confessions, self-incrimination, unreasonable search and seizure, right to counsel, habeas corpus and a requirement that all persons are considered innocent until proven guilty.
John Locke was the social contact theorist who influenced the writers of the U.S. Constitution and Bill of Rights in the 1780s, particularly because he insisted that all human being had natural rights to life, liberty and property even in the state of nature prior to the existence of any governments. These ideas were fundamental in the Bill of Rights and all the subsequent expansion of human rights to blacks, women, Native Americans and other groups over the next two hundred years. Locke also defended the overthrow of King James II in the Glorious Revolution of 1688 because he ruled arbitrarily and violated the rights of the people, which the American Founders also believed was the justification for their own revolution against King George III. Locke was not the only political philosopher who was influential at the time, however, since Thomas Hobbes and Jean Jacques Rousseau also had their own theories about social contracts between the people and the state, while radical English Whigs in the 17th Century like James Harrington and Thomas Gordon also inspired many of the American revolutionaries to move in a more radical and democratic direction. All of these ideas were applied to the Bill of Rights, including trial by jury, the right to equal justice and a fair trial, habeas corpus, prohibition of unreasonable search and seizure, and freedom of the press and religion. At that time in the U.S., equal rights and equal justice under the law were denied to blacks and other minorities, and so it remained in many areas until the civil rights movements of the 1960s. Even today in the criminal justice system there remains a bias against nonwhites that it a legacy of the days of slavery and segregation, and this has always been the greatest failing with that system and American society as a whole.
Hobbes did not believe that natural rights even existed in the state of nature and thought that the main purpose of government was to maintain law and order. As he wrote in Leviathan (1660) he did not even care whether the type of government was a monarch, dictator or parliamentary system as long as retrained the greedy and violent nature of human beings. He was far more pessimistic about humanity than Locke or Rousseau and his ideas were never in “the mainstream of the contract tradition” (Mills, 1997, p. 15). In his state of nature there was a war of all against all, and people were free to kill, rape and plunder at will because there was no superior force to control them. With no rules and no morality there could be no rights, but rather “every man has right to everything and consequently, no action can be unjust” (Hobbes Chapter 14). For barbarians like these, freedom meant only the power of the strong and the ruthless to dominate everyone else, but with the creation of government they all agreed to put a “restraint upon themselves” (Hobbes Chapter 17). Hobbes certainly did not believe in democracy or a society of equal rights for all, but expected that the no laws would codify “who will command and who will obey, who will be a master and who a servant” (Hobbes Chapter 14). Those who dissented from this new system or defied its authority would simply be put to death, to maintain order.
John Locke had a more optimistic view of human nature than Hobbes, and along with Rousseau his views prevailed in the American and French Revolutions of the 18th Century. In the Second Treatise on Government (1690), written after the overthrow of James II, Locke wrote that even in the state of nature all people were “equal and independent” and enjoyed natural rights to “life, health, liberty” and property (Locke Chapter 2). They were not simply mindless brutes and thugs, but rational beings who discussed and contracted together to form a government that could do for them what they could not do separately and independently. After the government was formed, they still retained their natural human rights and could overthrow it in another revolution if the rulers violated them. Other than that, they retained they freedom and liberty, and this could not be restrained by “no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact” (Locke Chapter 4). This same principle of government by the consent of the governed and equal rights for all citizens was explicitly incorporated into the Declaration Independence, the Constitution and the Bill of Rights.
Although the Bill of Rights was not part of the original Constitution in 1787, it was added by popular demand to specify exactly what the rights of the people were and to place express limits on the powers of the national government. From this derives all the fundamental rights of freedom of the press, religion and opinion, as well as to protest, petition and demonstrate against the government. Locke had called these natural rights but over time they came to be considered fundamental human rights that should be universally applied. Ratification of the Constitution proved very difficult and in the end it would not have been approved at all had James Madison and Alexander Hamilton not agreed to add a Bill of Rights. Western farmers and the frontier and backcountry regions of every state strongly opposed it as an elitist and undemocratic document, while most “gentleman of property” in the North and South worked hard for ratification (Main, p. 7). White small farmers were the backbone of the Antifederalists in every part of the country and were heavily influenced by radical, democratic ‘Commonwealth’ writers of the 17th and 18th Centuries like Thomas Gordon, James Harrington and John Trenchard, who distrusted wealthy elites and concentrated political and economic power. This strain of populism ran deep in American politics and culture, as expressed by “Democritus” in Massachusetts who wrote that that the rich and powerful looked “upon their inferiors as their property” (Main, p. 10). Benjamin Franklin, Thomas Jefferson and other Democratic Republicans—as they came to be called in the 1790s—also favored this ideology of democracy in the U.S. being based on small-property owners. In Virginia, New Hampshire, Massachusetts, and New York, a clear majority of the ratifying conventions opposed the Constitution, while North Carolina and Rhode Island refused to ratify it unless the Bill of Rights was added (Main, p. 221). Wealthy planters, merchants, manufacturers and commercial farmers favored ratification, and also controlled most of the press at that time, shutting out the Antifederalists almost everywhere.
Under the Racial Contract, all nonwhites were considered naturally inferior, subject to slavery and menial labor, and denied equal citizenship rights. There were even two sets of laws and judicial procedures for whites and nonwhites (Mills, p. 23). In the U.S. and most other Western nations at the time, "duties, rights, and liberties have routinely been assigned on a racially differentiated basis” (Mill, p.93). All whites benefitted from this racial hierarchy, even those who otherwise had little political and economic power, since they were at least permitted to express feelings of superiority. In the U.S., slavery was not abolished until 1865 and blacks did not receive citizenship rights until 1868 or voting rights until 1870, while women were not allowed to vote everywhere until 1920. In many states, blacks were denied full legal equality until the Civil Rights Act of 1964 and Voting Rights Act of 1965. All of this was reflected in the American criminal justice system from the beginning, such as slaves not being allowed the right to trial by jury or even allowed to travel without written permission from their owners. Nonwhites were always more likely to be arrested, prosecuted and imprisoned for longer terms than whites and also more likely to be sentenced to death. Even today, over 10% of young black men are in prison and blacks are 70% of those convicted on drug charges even though they use illegal drugs at the same rate as whites (West, 2001, p. xii). They are also ten times more likely to be stopped by the police and searched for drugs, guns and stolen property (Cooper, p. 25). In many parts of the U.S., 40-50% of young black males are in prison or on probation, a far higher proportion than are in college (Cooper, p. 28).
In the use of capital punishment, backs and other minorities have always been more likely to be sentenced to death and executed than whites. There were fifty-two executions in the United States in 2009 and forty-six in 2010, with over 3,000 people waiting on death row for their sentences to be carried out. In most cases these never will be because of lengthy appeals and delays in the courts so for most of those convicted the death penalty is actually a sentence of life imprisonment without parole. Death row inmates are overwhelmingly male, from a lower class background, and on average over 40% in 1977-2009 were black, even though blacks were only 12-13% of the population (Bureau of Justice Statistics 2011). Thirty-six states and the federal government allowed capital punishment, which is mostly done by lethal injection rather than by hanging, gas or electrocution. This is considered a more humane method since the prisoner is rendered unconscious before the poison is administered. At times, doctors and nurses have participated in these executions, which are meant to have a ‘clinical’ look and feel, although this is most definitely a violation of all medical ethics (Marzilli, 2008, p. 12). Capital punishment was often an issue in elections from the 1960s onward, with conservative Republicans regularly denouncing liberal Democrats for being ‘soft on crime’. In the 1988 elections, George H. Bush attacked Michael Dukakis for a parole program in Massachusetts that released a black inmate named Willie Horton, who went on to commit rape and murder (Marzilli, p. 13). In 1992, Bill Clinton made sure to order the execution of a mentally retarded black prisoner in Arkansas to demonstrate that who was a law-and-order candidate who supported capital punishment, while George W. Bush bragged that he had never granted clemency or commuted a death sentence when he was governor of Texas.
In the United States, government was founded on the social contract and other English Whig theorists rather than the authoritarian idea of Thomas Hobbes, and guarantees the same natural rights of life, liberty and property to all. Hobbes simply thought that the purpose of the state was to control the masses and maintain order, since he assumed that human nature was greedy, violent and cruel, but that was not the type of social contract on while the U.S. was founded. To prove the point, when the Constitution was ratified in 1788 it was only after the common people had demanded a Bill of Rights, which included freedom of speech and religion, the right to trial by jury, equal justice under the law, legal counsel, habeas corpus, and the protection against coerced confessions, self-incrimination, and unreasonable search and seizure. These rights were not extended to everyone in the 18th and 18th Centuries and were only gradually applied to blacks and other nonwhite minorities. In the U.S. criminal justice system, as in the society as a whole, one of the major flaws has always been unequal rights and unequal treatment under the law for blacks and other minorities, including the use of the death penalty. This is all a legacy of the past, dating back to the time of slavery and segregation, and has not changed quickly or easily.
REFERENCES
Capital Punishment (2011). Bureau of Justice Statistics.
Cooper, S. (2006). “A Closer Look at Racial Profiling” in S.J. Muffler (ed). Racial Profiling: Issues, Data and Analyses. Nova Science Publishers, pp. 25-30.
Hobbes, T. (1660). Leviathan. Oregonstate.edu
http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html
Locke, J. (1690). Second Treatise on Government. Project Gutenberg.
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Main, J. T. (2004). The Antifederalists: Critics of the Constitution, 1781-1788. University of North Carolina Press.
Marzilli, A. (2008). Capital Punishment, 2nd Edition. Infobase Publishing.
Mills, C. W. (1997). The Racial Contract. Cornell University Press.
West, C. (2001). Race Matters. Boston: Beacon Press, 2001.
