It Is Dangerous to Be Right When the Government Is Wrong Page 2
The Yearnings of Mankind
St. Thomas Aquinas stated that the Natural Law was the role in which human beings play in the Eternal Law. The primary distinction between human beings and other objects of the Eternal Law is that we are in possession of reason and free will. As stated above, human beings are able to recognize self-evident truths about the world in which we live through observation and the application of reason to those observations. Thus if we go to bed at night and the ground is dry, and we observe the next morning that the dirt has turned into mud, we are able to reason that it rained during the night. Moreover, we exercise reason and free will in order to realize all of our fundamental human yearnings, such as life, liberty, and the pursuit of happiness. This inclination to reach a proper end (our yearnings) through the application of reason is the Natural Law; it is our human nature. Although this may all sound abstract, we experience this process on a daily basis: Since we have a human yearning to provide for ourselves and our loved ones, we have learned through the exercise of reason that we can best accomplish that “proper end” by going to work nearly every day. Thus, it is a fundamental human inclination to exert energy to meet one’s natural needs. If we don’t, we die.
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This, of course, begs the question of what are those “proper ends” that God has dictated we as humans naturally strive for, or—for our secular readers—what nature has dictated that we instinctually strive for. Indeed, it is the perceived subjectivity of the answer to that question which has made Natural Law an unappealing philosophy to many. As was mentioned above, one of the traditional answers was “all of those things which we yearn for.” To begin with, all living things strive for self-preservation. Thus, it is a natural inclination to consume food and water, and to defend oneself from attacks. However, as humans possess certain traits which are peculiar to themselves, there are additional “ends” which we do not share with other animals. For example, it is a natural yearning to love, to acquire knowledge, and to express oneself creatively. Those yearnings, however, do not lend themselves to being “listed.” In fact, to do so is to tread into dangerous territory because if we only recognize those listed yearnings, then we are in danger of disparaging others that we leave out. As we shall discuss below, the Founders recognized this problem and provided a solution to it with the Ninth and Fourteenth Amendments.
Since I first read the Declaration of Independence as a high school student, I have been fascinated with the concept of self-evident truths. If we agree with the generally accepted definition of self-evident truths—those which do not require hard evidence in order to evince acceptance—we run into two problems. The first is that at some time there surely must have been some evidence that caused universal acceptance of these truths; as in, it is self-evident that the Sun rises in the east every morning because the ancients and we have seen it there; as in, every human being has material needs to stay alive because the ancients and we have gotten hungry and cold and awkward at nakedness; as in, all things are subject to the laws of cause and effect, except for the uncaused cause, whom believers call God and our secular colleagues call Nature. These observations of the Sun and realizations of our own self-needs are, in fact, evidence for their universal acceptance. But the universality of these “truisms” (another way of saying self-evident truths) allows us to dispense with the need to provide scientific evidence in support of them whenever we articulate them. Stated differently, no rational person can seriously challenge truisms when we use them as building blocks for our arguments.
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The second problem we need to confront when commencing an argument with truisms is the realization that many people are willfully blind even to the obvious. Thus, while the truism that “all Men are created equal” may have been self-evident to the Founders2, it surely was not self-evident to King George III or to the millions on the planet then and now to whom the divine right of kings provided and still provides a moral basis for tyranny. Moreover, it was not self-evident to the Founders themselves that “all Men are created equal” applied to all human beings, not solely to property-owning adult white males.
From the above we can conclude that not every person in every age is sufficiently exposed to the truth so as to recognize it. Because we are all fallen—that is, our human nature has inherited the imperfections of original sin—we do not always recognize a truism. This is so because the truth is often inconvenient, painful, and upsetting; and it requires rational thought, acceptance of revelation, and personal courage to pursue.
Jefferson’s remarkable, radical insistence that “all Men are created equal” and are “endowed by their Creator” with certain “unalienable Rights” and that among those rights are “Life, Liberty, and the Pursuit of Happiness,” and all these principles are “self-evident . . . Truths,” was surely inconvenient, painful, and upsetting to many and hardly self-evident to the elites of his time. What about women, what about people of color, what about children, what about those without property: Why wasn’t the self-evident truth of their equality and their natural rights recognized? And if the king didn’t morally have all the power he claimed to have, how did the colonists come to occupy the land that he gave them via their predecessors? Even the most enlightened of men were blind to some truisms.
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What does it take to peel away errors of willful blindness? It takes intellect and free will. That we all possess the free will to pursue the truth, the intellect to recognize and accept it, and that its pursuit is the ultimate goal of human activity, is the ultimate truism. There are many self-evident truths that all rational persons recognize. Some come from human reason (the Sun rising, our needs for food, shelter, and clothing, as examples), and some come from revelation (we have the rights to life, liberty, property, and happiness; it is wrong to lie, cheat, steal, and murder, as examples). Some come from reason and revelation (government is essentially the negation of liberty; humans have free immortal souls while governments are finite and based on coercion and force). But the concept of self-evident truths—or truisms—is absolutely essential to freedom. Truisms reject moral relativism, and American exceptionalism. They compel an understanding of the laws of nature that animate and regulate all human beings at all times, in all places, and under all circumstances. And truisms equal freedom.
Once we recognize those human yearnings, we can begin to understand the evil of government commands which infringe upon those yearnings. The Third Reich provides a case study in how governments devise policies and institutions which trespass on just about every human yearning there is, and the human suffering which inevitably follows from those trespasses. It is wrong to detain, torture, and murder humans because they possess an inherent inclination to roam the world freely, to avoid pain, and to preserve their lives. Compulsory sterilization is wrong because humans possess a yearning to reproduce. Proscription of free speech is wrong because it violates the natural human urge to express oneself and communicate ideas to others. Confiscation of property is wrong because humans endeavor to produce things which enrich their lives or can be traded for other things which do so. Requiring accountability or imposing surveillance is wrong because humans desire privacy; i.e., to be left alone. When government interferes with the natural order of things, whether as innocently as planting corn in Siberia, or as atrociously as exterminating persons, there are always disastrous consequences. And even if flouting the natural law benefits a majority (as is typically the claim), there will always be someone who pays the price of having his human nature transgressed upon. Proponents of Positivism and the welfare state have not been able to demonstrate even one credible example to the contrary.
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Natural Rights
Natural Rights is a related but separate concept to the Natural Law. If each of us lived on an island by ourselves, we could live without fear of the Natural Law being transgressed. However, almost all of us live in complex societies where social interaction is the norm. The problem is that humans have a
frightening tendency to impede the natural inclinations of other human beings, presenting a dilemma: Although humans must be able to mesh with one another, they need to do so in a manner which preserves the Natural Law. Therefore, there is a need for rights which establish rules respecting those interactions so as to reinforce the pursuit of our yearnings implicit in nature. Professor Randy Barnett defines them in the following manner:
Natural rights attempts to identify conceptually the space within which vulnerable people need to be free to make their own choices about the directions of their lives, which includes crucially the choices of how to acquire, use, and dispose of scarce physical resources.3
In other words, our natural rights protect our ability to pursue our natural inclinations free from government interference: To live, to love, to acquire property, to be productive, to be left alone. If a human or if a government transgresses those rights, then it is violating those rules of social interaction, and hence the Natural Law.
Stated simply, because natural rights protect our human nature and are based on the eternal law, they are described as self-evident and inalienable. By self-evident, it is meant that these rights do not require some scientific proof in order to explain their existence. Humans have a natural inclination to preserve their own lives: Although we can certainly try to understand precisely why it is that humans try to preserve their lives, it can stand by itself and needs no further explanation or rationalization. Although a legislature may order that the right to life will be disregarded, it can never take that right away or alter the fundamental human yearning to live, just as Khrushchev could never change the fact that corn cannot grow in Siberia.
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Natural rights are in contrast to political rights, which we do in fact acquire by virtue of the government. Thus, in addition to natural rights, we can possess whichever political rights the government guarantees. For example, most of the rights recognized in the Constitution are Natural Rights. However, some, such as the right to be indicted by a grand jury before prosecution, depend upon the Constitution, and not the Natural Law, for their existence. Is there a fundamental human yearning to compel government prosecutors to present a case to a grand jury, at which no judge or defense counsel is present, and the make-up of which is usually timid souls eager to please the prosecutors? Certainly not. Although it may sometimes work as a matter of policy as a check on the government, it has nothing to do with human inclinations and the Natural Law. Nonetheless, it is an additional right which we enjoy by virtue of being under the jurisdiction of the federal government (as opposed to simply being human). Therefore, unlike Natural Rights which can be called pre-political, there are indeed political rights which rely upon government for their existence, and cannot be considered self-evident.
By inalienable it is meant that these rights cannot be taken away from us under any circumstances, although we can give them up. Thus, even if we desired to do so, we could never sell ourselves into slavery and relinquish all claims on liberty. Such a transaction would be void as contrary to the Natural Law. But one may argue, can’t we sell our property, thus making it alienable? Although we can alienate our property, we can never alienate our right to acquire, possess, alter, and trade property. Thus when we exchange one good for another, we are merely converting the subject of that right into something else; we are not adversely affecting the right itself. If we grew corn and donated it to a local charity, the fact of that donation does not change that we always have a right to claim future corn production for ourselves.
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The cornerstone of a libertarian understanding of Natural Rights, and how social interactions should be structured so as to maximize the pursuit of our fundamental human yearnings, is the nonaggression principle. This states that we are free to do as we choose, but only to the extent that our actions do not infringe upon the freedoms of others. Thus, my freedom to swing my arms ends a few inches in front of your nose. In addition to individuals, governments must also obey the nonaggression principle, as governments are merely the constructs of individuals, deriving their just powers from what the governed have consensually given them, and are thus temporal “things” secondary to the Natural Law.
In modern society, where the natural law has been perverted, we have permitted the government to monopolize violence and coercion. This has resulted in our sheep-like acceptance of theft of property, liberty, and dignity by the government. We have also permitted the perversion of the principle of subsidiarity. Subsidiarity encompasses von Mises’ assertion that government is the negation of liberty, Aquinas’s view that the government’s use of force should be as little as possible, and Jefferson’s mantra that that government is best which governs least. To comply with the doctrine of subsidiarity, governmental tasks should be performed by the lowest level of government possible, so as to disturb the least individual freedom, absorb the fewest public resources, and endure for the briefest time period. I know what you are probably thinking. . . . This doesn’t sound like anything in American government today. You’re right.
Elsewhere in this book, we explore a number of different natural rights which embody the nonaggression principle, such as the right to free speech and the right to property. However, whenever we attempt to discuss Natural Rights, the same “problem” that we encountered with the Natural Law arises: What exactly are those rights? As noted above, those who criticize the philosophy of Natural Rights typically do so because they are frustrated by what they perceive to be an inherent subjectivity in the method of identifying those rights. After all, the law prides itself on being objective and determinable. And sadly, the ambiguity of the Natural Law has been abused from time to time so as to disparage our natural rights.
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Such was the case in Justice Joseph P. Bradley’s concurrence in Bradwell v. Illinois, an 1873 Supreme Court case that upheld Illinois’ refusal to license a woman as a lawyer. He famously stated that “the constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.” Just as geography was once plagued by the belief that the world is flat, so, too, has the practice of discerning the Natural Law fallen victim to ignorance, stereotyping, and invidious discrimination by the government.
The problem with this criticism is that it entirely misconceives the character of natural rights. Rather than be turned off by any sort of perceived subjectivity of determining our “proper ends,” we should be instilled with a sense of deep respect for and complete deference to those immutable yearnings implicit in the order of things. It is no more sensible to reject the natural law for its lack of objectivity than to disparage the field of physics for the cryptic behavior of subatomic particles, and thus revert to the belief that all things are made up of earth, wind, water, and fire because it is easier to understand. Subjectivity has absolutely nothing to do with truth, merely the ease and certainty of determining what those truths are.
Our politicians should be terrified at the prospect of encroaching upon our natural rights, and thus interfering with the natural order of things, especially because of their subjectivity, just as we would be terrified to take some experimental medicine about which nothing was known. And as we shall see, even someone who does not believe in the philosophy of the natural law must accept that, if properly followed, it avoids all of the crimes against humanity which we have seen government commit throughout human history. I speak not just of the truth of Natural Rights, but their capacity to foil tyranny.
However, the concept of rights does not in reality have to be complicated at all. Rather, all rights, and indeed all tenets of libertarian philosophy, can be traced back to one single right: The right to own property. Although we traditionally think of this as the right to control tangible, external things (and that is the understanding adopted by the chapter in this book on property rights), it really begins earlier, with a property right to one�
��s own body. If we acknowledge this application of the right in conjunction with the nonaggression principle, then we also recognize free speech, freedom of association, freedom of travel, and a right to privacy. As Murray Rothbard explains in his book The Ethics of Liberty,
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A person does not have a “right to freedom of speech”; what he does have is the right to hire a hall and address the people who enter the premises. He does not have a “right to freedom of the press”; what he does have is the right to write or publish a pamphlet, and to sell that pamphlet to those who are willing to buy it (or to give it away to those who are willing to accept it). Thus, what he has in each of these cases is property rights, including the right of free contract and transfer which form a part of such rights of ownership. There is no extra “right of free speech” or free press beyond the property rights that a person may have in any given case.4
If we, however, extend this property right beyond the body and acknowledge that humans must retain control over tangible things external to them, then we also recognize the ability of one to do business and freely contract with others. Moreover, it declares government initiatives such as taxation and the Federal Reserve’s inflationary policies as illegitimate and in contravention of the Natural Law. And, as we shall see, some government initiatives, such as war, violate this property right in nearly every single form it can take. Thus, although one may fairly say that libertarians share general principles such as nonaggression and “free markets,” among others, the common denominator within this philosophical movement is simply that there are certain spheres of this world which belong exclusively to the individual. We have dominion over these spheres by virtue of being human, and for that reason, they are natural rights which do not rest on any government for their existence.
Human Law
The key difference between the Eternal Law, the Natural Law, Natural Rights, and Human Law, is that the last of these is not implicit in the order of things, but is actually promulgated by humans. Nonetheless, if lawmakers are to create the best society, they must be informed by human nature. Professor Barnett notes the role that man-made law plays in the scheme of Natural Law: