Dec
29
I hope everyone had an enjoyable Christmas holiday! All too short, I’m sure.
Now, back to “business”….
One often hears the terms “natural law” and “due process” used when discussing various (real or perceived) rights and constitutionality of laws. But, to me, at least, it isn’t always clear what people mean by that. (I have some idea, of course.) I found the following explanations by Judge Andrew P. Napolitano (from his book Lies the Government Told You) to be very helpful:
“[The] right to enjoy your own property derives from Natural Law, and Natural Law teaches that human freedom extends from human nature, which originates with God. So under Natural Law, legislatures have unwritten limitations imposed on them because human gifts that come from God are greater than government powers based on consensus, whim, fear, or force.”
I think this makes sense, but it also makes me wonder how atheists, agnostics, pantheists, and others who don’t believe in a personal God understand and ground Natural Law, since it poses the same problem for them as Moral Law. Without a transcendent Lawgiver, there is no basis for objective standards or “rights”.
Porter County Courthouse in Indiana
“Under Natural Law, our fundamental rights — like freedom of speech, freedom to travel, freedom of religion, etc. — cannot be taken away by the government, unless it follows procedural due process. Due process means that we knew before we violated the law that the government would prosecute, that we were fully notified by the government of the charges against us, and that we had a fair trial with a lawyer before a neutral judge and jury. It also means that we can challenge the government’s evidence against us by summoning persons and evidence that support our case, that the government must prove its accusations against us beyond a reasonable doubt, and that we are given the right to appeal to another neutral court. Under the Natural Law, only by following procedural due process can the government deprive us of our Natural Law rights.
Numerous intellectuals throughout history have espoused the Natural Law. Sophocles, Aristotle, and Cicero; Augustine, Aquinas, and Locke; Jefferson, Martin Luther King, Jr., Justice Clarence Thomas, and Pope John Paul II, all recognized the existence and immutability of Natural Law. As Aristotle put it, ‘one part of what is politically just is natural, and the other part is legal.’ If you fast forward a little bit, transcendental thinker Henry David Thoreau argued in his famous essay, Civil Disobedience, that people should follow their own consciences over what the government purports to be right. Civil Disobedience was published in the mid-1800s, a time when slavery was legal and America was in the midst of a war with Mexico. Throughout the text Thoreau emphasized that through the refusal to accept passively what the government actively tells us, the individual chooses to obey his own morality.”
Thoreau’s point, taken in context, was correct… to a point. The chief problem that I see is that his reasoning easily leads to (or stems from) a relativist morality. Given my earlier observation, this isn’t surprising, since Thoreau was a pantheist.
“The underlying message of these philosophers still holds true today within the context of Natural Law. Certain rights are inalienable and implicitly within our humanity, regardless of whether they are written down on paper. Among these natural rights are the right to life, to self-expression, to worship, to the use and enjoyment of one’s own property, the ability to contract, and the right to reap the benefits of one’s own labor; and the right to be left alone.
Not only is the right to your own property implicit through the doctrine of Natural Law, but it is also a concept closely tied to the achievement of the American Dream. The familiar white picket fences, lawns, and cars in the garage are the material things and the consequent set of values that the government threatens through infringing upon our natural rights. If I own the brain inside my head and the fingers on the ends of my hands, then I own what they together have conceived, created, and built, be it a book or a house.
Despite Natural Law rights, the government skulks its way into our homes, businesses, kitchens, and even our backyards (literally). However, courageous people have struggled to keep a grasp on their personal liberties in spite of the government’s powerful encroachment upon them.”
Napolitano’s mention of the government skulking into “our backyards (literally)” refers to a particular case of personal property rights being (in his opinion and mine) violated, which I will post about in a couple days. Meanwhile, any comments about this post? (C’mon, I know yer thinkin’. I smell the smoke from the gears turning….)
