The Fall 2011 issue of the Claremont Review of Books contains a fascinating article by Hadley Arkes, entitled, A Natural Law Manifesto. In it, Arkes lays out a compelling argument for the use of Natural Law in adjudicating Constitutional issues. One of the topics discussed in the article is the mistaken reliance on the doctrine of “original intent,” by conservative jurists. The thoughts below are derived in part from what Arkes had to say.
Does man exist for the sake of government or government for the sake of man? The founding of this country was based on the latter proposition. Under governments where the Divine Right of Kings was held sacred, the people living in a country were not citizens, but subjects who owed service and fealty to the king. The United States was founded on a radically different conception of what government should be. Government does not bequeath or invent new rights for its people, it is instead a mechanism, in the words of Founder James Wilson, “to acquire a new security for the possession or the recovery of those rights.” These rights are naturally inherent in human beings.
The idea of natural and absolute rights is the lynch-pin of our founding documents. The securing of natural rights is the purpose of our Constitution. Logically to be secured, they must have existed prior to the formulation of the Constitution. The words, “All men are endowed by their creator with certain unalienable rights …” is an example of the Founders’ thinking about the nature of man and what it entails. The Founders rejected the notion that government or legislation had to provide rights. Hence, many of those in opposition to the inclusion of a Bill of Rights were so opposed, because there was something implicitly improper with the idea of reserving to people rights they had not surrendered in the first place. The States, as administrative entities, relinquished some measure of power to the federal government, but the people did not. Natural rights cannot be forfeited.
The irony is that this concept, so universally understood by the Framers, is largely ignored today, even by those who purport to adhere to the constitution. Many judges on the right side of the p0litical spectrum focus on the concept of “originalism,” rather than on the underlying moral principles that justify the making of any law. The problem with this approach, is that the nation’s political traditions and culture provide a poor substitute for the pure logic of natural law. Moral truths are truths, even if they are counter to the will of a majority. Slavery is a good example of this. At particular periods of time in our history, slavery was accepted as a longstanding tradition and fact of the culture. That didn’t make it right. Slavery is wrong on the basis of natural law and always has been. Recognizing a moral truth like this is to acknowledge that there may be other moral truths, and requires us to look at behaviors in terms of absolutes, an anathema to many.
However, the first principles of natural law are intrinsic to laws in general, and are transparently obvious, if you take the time to look. For example, rather than arguing the meanings of semantic phraseology in the second amendment, on the basis of “original intent,” we could look deeper into its underpinnings in natural law. The second amendment explicitly calls out an inherent right, that of people to protect themselves from unwarranted aggression. Another first principle of natural law is the concept that people are not responsible for things they were powerless to affect. Ex post facto laws fall into this category, as do crimes perpetrated by one’s ancestors.
It is the principles that underlie the text of the Constitution that make it comprehensible as well as compelling. Rather than getting lost in legislative history and the historical record, a record fraught with inconsistencies imposed by the times, we are better served in examining the premises on which the Constitution was framed – natural law.