Sunday, July 4, 2010

Freedom and Natural Law

A few weeks ago in an interview with Reason TV, libertarian Judge Andrew Napolitano made the following statements about the Constitution of the United States in the context of natural law:
The constitution protects persons, it's not limited to Americans. And persons is not even limited to good persons. It protects Americans, it protects aliens, it protects those legally here, it protects those illegally here, it protects those who wish us well and those who have caused us harm. It makes no distinction whatsoever. This is absolutely consistent, the constitutional protection of persons, with the Lockean, and Jeffersonian, and Augustinian, view, and Thomistic view, that our rights come from God and are gifts into our humanity, and are as much a part of us as the fingers on the ends of our hand.

That would apply to me, to you, to George W. Bush, to Barack Obama, to Khalid Sheik Mohammad, to Richard Speck, to Al Capone, to anybody that the government wants to restrain for any reason.
The boldness and openness, even brashness, of these statements undoubtedly take even proponents of natural rights off guard. Yet somehow the tone is familiar. Quite a long time ago someone else boldly made the case for natural law:
True law is in keeping with the dictates of both reason and of nature. It applies universally to everyone. It is unchanging and eternal. Its commands are summons to duty, and its prohibitions declare that nothing wrongful must be done. As far as good men are concerned, both its commands and its prohibitions are effective; though neither have any effect on men who are bad. To attempt to invalidate this law is sinful. Nor is it possible to repeal any part of it, much less to abolish it altogether. From its obligations neither Senate nor people can release us. And to explain or interpret it we need no one outside our own selves.

There will not be one law at Rome, and another at Athens. There will not be different laws now and in the future. Instead there will be one, single, everlasting, immutable law, which applies to all nations and all times. The maker, and umpire, and proposer of this law will be God, the single master and ruler of us all. If a man fails to obey God, then he will be in flight from his own self, repudiating his own human nature. As a consequence, even if he escapes the normal punishment for wrongdoing, he will suffer the penalties of the gravest possible sort. [Translation by Michael Grant.]

This is the famous passage on natural rights from Book III of Cicero's "On the State" and it seems safe to say Cicero exceeds Judge Napolitano in eloquence. Even with Cicero, though, there is something daring about discussing the natural law, something audacious about declaring one rule for all everywhere. It's exhilarating too.

HBO's miniseries John Adams properly suggests the initial impact of such a statement. Adams, upon reviewing Jefferson's draft of the Declaration:
Well this is something altogether unexpected. . . not only a declaration of our independence but of the rights of all men.
Indeed, and the draft bears even more striking resemblance to Cicero than the final version, speaking of how the king "waged cruel war against human nature itself." [1] Nonetheless the final draft rings clear also:
. . . to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them. . .
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator  with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . .
Individual rights are an individual's by nature. Period. The statement is boldly laid down as an axiom, not open to negotiation. This is not a dissertation on independence, but a declaration of it. These rights do not come down from kings or oligarchs or up from the majority, but reside in each individual.

Indeed, and Napolitano also makes a key point: that the American Constitution only mentions individuals, not groups. It does not create distinctions and does not have different sets of rules for dealing with different "types" or "groups" of people. It can only deal with people in one way, as individuals.

What a risk, not just to personal life, but of failure in establishing law and government of such a nature. For a mob to behead its tormentors is one thing and it is similar for a small oligarchy to change its puppet. History has many such examples and historians and philosophers have noted the tendency of governments to rotate amongst democracy, oligarchy, aristocracy, and monarchy. The forming of a constitutional democratic-republic formed by delegates elected from the people in order to replace a tyranny is not quite as common.

Many factors, some of chance and some created, must come to be for success in such an undertaking. Aristotle noted one, "In the generations of men as in the fruits of the earth, there is a varying yield; now and then, where the stock is good, exceptional men are produced for a while, and then decadence sets in." (Rhetoric II, xv.) Notions of "stock" aside, the Founding Fathers were a remarkable generation. (Using "generation" loosely as their ages were actually rather varied.) It is common to praise, even glorify, these men, but panegyric unfortunate and unnecessary. While it would be foolish and inappropriate to praise as a group their individual virtues, a broad reading of their lives reveals at least one virtue: the intellectual. Aside from the difficulties of the philosophical and liberal arts works that constituted the core of their education, the study of the law was particularly difficult. This owed to a lack of what we know as "text books," difficulties in obtaining texts, and the "dreary ramble" (in Adams' words) of studying the law with the standard text of the time, the "bewildering mass" of the work of Sir Edward Coke. [2]

While we of course benefit from their great sacrifices and challenges, we too continue to gain from what were at the time minute things: staying home to study and wading through Aristotle, Thucydides, and Edward Coke.

In what is actually a paraphrase and amalgamation of correspondence between John and Abigail Adams, HBO's miniseries about America's 2nd president ended with this statement:
No, posterity, you will never know how much it cost us to preserve your freedom. I hope that you will make a good use of it. If you do not, I shall repent in heaven that I ever took half the pains to preserve it.

 At the site where John Adams as buried, United First Parish Church, Quincy, MA.

(click to enlarge)

From Lives thus spent thy earthly Duties learn;
Form Fancy's Dreams to active Virtue turn:
Let Freedom, Friendship, Faith, thy Soul engage,
And serve like them, they Country and thy Age.

[2] Malone, Dumas. Jefferson the Virginian. Little, Brown and Company. Boston. 1948.

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