Introduction
ROOTS OF THE CURRENT DEBATE
What Rosa Parks Knew That We Forget
To understand the Constitution and where it came from, we must look at its counterpart, the Declaration of Independence, and we must understand the Natural Law that grounds both documents.
Whether they realize it or not, most contemporary legal scholars and politicians in the Western world stand behind two competing theories about the origins of law and liberty: Natural Law and Positivism. The Natural Law school of thought argues that freedom comes by virtue of being created human, from our very nature, and holds that laws created by kings or legislatures are always secondary to the Natural Law. It is the royal flush against which any other law is merely a pair of deuces.
This is not a new concept. The Greek writer Sophocles "recognizes the reality that human laws are subject to a higher law," according to my professor of constitutional law and jurisprudence at Notre Dame Law School, Charles E. Rice. Similarly, Aristotle observed that "one part of what is politically just is natural, and the other part is legal." Cicero described it as "the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite." Writes Cicero, "Right is based, not upon men's opinion [from popular legislatures], but upon Nature."
In more recent times, Justice Clarence Thomas, writing about the "higher law political philosophy" of the Founding Fathers, stated, "Natural rights and higher law arguments are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of judicial review--a judiciary active in defending the Constitution. Rather than being a justification for the worst type of judicial activism, higher law is [the] only alternative to the willfulness of both run-amok majorities [in Congress] and run-amok judges [in federal courts]."
Natural Law theory teaches that the law extends from human nature, which is created by God. The Natural Law theory states that because all human beings desire freedom from artificial restraint and because all human beings yearn to be free, our freedoms must stem from our very humanity--and ultimately from the Creator of humanity.
Perhaps no one can answer the question of "What is the Natural Law?" more clearly than Professor Rice: "Natural law will seem mysterious if we forget that everything has a law built into its nature. . . . If you eat a barbed-wired sandwich, it will not be good for you. If you want your body to function well, you ought not to treat it as if it were a trash compactor. Natural law is easy to understand when we are talking about physical nature. But it applies as well to the moral sphere."
Think of your human experience as derived from God, as Rice has suggested, like a car that is derived from its manufacturer. God (or the Universal Spirit if you are not religious) is the manufacturer of your life. God created you and sent along a manual, much like the vehicle manufacturer includes in the glove compartment of your car (does anyone actually keep gloves in them?). The manufacturer wants you to drive your car successfully so that you and your friends will buy more cars, so it gives you tips on how to maintain the car and how to get out of trouble should it break down. Likewise, according to the Natural Law, God has equipped you with a manual--some say it is the Bible, others the Tanakh, others the Koran, others a rational mind. No matter what you believe, the Natural Law of the world can be seen running throughout any of the time-tested documents of Western Civilization. "It would be a strange motorist who would resent the existence of that manual and refuse to look at it," says Rice.
Strange indeed when you think of the important, real-world implications and consequences of Natural Law. Take the case of Rosa Parks.
Parks's famous refusal to give up her seat on a bus in 1955 in Alabama was a demonstration of "a proper reading of the Natural Law," according to Rice, because she refused to obey an unjust law. She played the royal flush and trumped the segregationists, who relied on the prejudiced opinion of popular majorities, not higher law. Said Martin Luther King Jr., "A just law is a man-made code that squares with the moral law or the law of God. . . . An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, 'unjust law is a human law that is not rooted in eternal law and natural law.'"
These concepts about law and liberty played an important role in the American experience from the very start.
NATURAL RIGHTS
The language of the Declaration of Independence refers specifically to God-given rights, those received by virtue of our humanity. The very first sentence claims a God-given right to be separate and equal beings--existing apart from a political power. The Declaration says that it is possible and even sometimes necessary--like Parks's refusal writ large--for "one people to dissolve the political bonds which have connected them with another, and to assume . . . the separate and equal station to which the laws of nature and of nature's God entitle them. . . ." God grants "certain unalienable rights." Government is supposed to secure them.
If the text of the Declaration is not sufficient evidence of the role of Natural Law in the formation of our country as an independent state, Thomas Jefferson's studies and writings reveal a strong adherence to Natural Law principles. Jefferson was heavily influenced by the writings of John Locke and Thomas Paine. He borrowed considerably from the language and philosophies of both men in drafting the Declaration. For example, both Locke and Paine used the word "unalienable" to describe human rights.
Locke, in his Second Treatise on Government, wrote, "Reason . . . teaches all Mankind . . . that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." That immunity from harm includes harm caused by government--language and thoughts clearly echoed in the Declaration and its understanding of natural rights.
In The Rights of Man, Paine wrote that these natural rights 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." The government, Jefferson and Paine argued, is necessary to secure those rights in the civil context.
Jefferson's own writings, prior to and after the Declaration, also display his belief in Natural Law. In a legal argument written in 1770, Jefferson wrote that "Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the Author of nature, because necessary for his own sustenance." Note that Jefferson chose to capitalize the A in Author--a reference to God that would have been crystal-clear to his contemporaries. Jefferson could be more explicit when he needed to be. "The God who gave us life, gave us liberty at the same time," he declared in July 1774.
It is clear from the text of the Declaration, and the influences and writings of its principal drafter, that Natural Law principles establish the rights referenced in the Declaration of Independence. And that is precisely how constitutional originalists such as Justice Clarence Thomas interpret it.
The significance of the Declaration for constitutional scholars is that it is believed to contain the philosophical underpinnings of the Constitution. In other words, an understanding of Natural Law, its conferral of rights upon men and women, and the relationship between those rights and the role of government is fundamental to understand and interpret the Constitution properly.
WHY SHOULD WE CARE?
That freedom comes not from government, not from the consent of the governed, not from the community, but from God and is inherent to our humanity has profound effects on modern jurisprudence. It means that our basic freedoms--such as freedom of the press, freedom of speech, freedom of religion, freedom of association, freedom to travel, and freedom from arbitrary restraints--cannot be taken away by the government unless we are convicted of violating Natural Law, and the government can only convict us if it follows what is called "procedural due process."
Due process means that we know in advance of the violations of Natural Law that the government will prosecute, that we are fully notified by the government of the charges against us, that we have a fair trial with counsel before a truly neutral judge and jury, that we can confront and challenge the government's evidence against us, that we can summon persons and evidence on our own behalf, that the government must prove our misdeeds beyond a reasonable doubt, and that we have the right to appeal the outcome of that trial to another neutral judge.
Under the Natural Law, the only way that any of our natural rights can be taken away is by conviction by a jury. Our rights cannot be legislated away, no matter how universally accepted the legislation, and they cannot be commanded away, no matter how beloved, benign, or correct the commander may be.
Because free speech is a na...
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