When the original states were separated from England, they passed what were called the “reception statutes.” This received the English law as their own law. Through stare decisis, (let the decision stand) principles of law and notions of rights were passed down.
English history itself is a long struggle to wrest various civil rights from the Crown such as trial by jury, due process and the right to confront an accuser and cross examine witnesses. (Ex. Magna Carta) This body of rights became known as “the rights of Englishmen.” The colonists believed that they were Englishmen entitled to these rights by birth. They were rights not subject to royal whim. The English Crown and Parliament did not recognize that they had such rights.
These were in addition to the “natural rights” of all men identified by John Locke (Second Treatise on Civil Government http://www.constitution.org/jl/2ndtreat.htm ) and other political writers of the time (Edmund Burke and the “old Whigs”) as a right to self defense, a right to liberty, a right to own the fruits of one’s labor, etc.
These concepts are a vital foundational understanding of the political thought justifying the American Revolution and creation of the new United States. Unlike the European notion of rights which is based on the premise that one sacrifices one’s natural rights for superior “civil rights” and the greater good, our individual natural rights are retained from government as is recognized in the Tenth Amendment to the U.. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Very solid points.
Russell Kirk talked about “prescriptive rights as a principle of conservatism.
Third, conservatives believe in what may be called the principle of prescription.
Conservatives sense that modern people are dwarfs on the shoulders of giants, able to see farther than their ancestors only because of the great stature of those who have preceded us in time.
Therefore conservatives very often emphasize the importance of prescription—that is, of things established by immemorial usage, so that the mind of man runneth not to the contrary. There exist rights of which the chief sanction is their antiquity—including rights to property, often. Similarly, our morals are prescriptive in great part. Conservatives argue that we are unlikely, we moderns, to make any brave new discoveries in morals or politics or taste. It is perilous to weigh every passing issue on the basis of private judgment and private rationality.
The individual is foolish, but the species is wise, Burke declared. In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s petty private rationality.