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Introduction ROOTS OF THE
ROOTS OF THE
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
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.
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 natural right and can only be taken away after due process, it cannot be taken away simply because a legislature says so. Thus, Natural Law protects minority rights from incursion by the majority. Neither Congress nor any state legislatures can declare that freedom of speech no longer exists, or take any words--which are only expressions of ideas--and make them illegal.
Under Natural Law, if Congress made it unlawful to speak out against abortion, or if a state governor issued a decree that ordered
Christians and Jews to cease worshiping, judges would surely invalidate those acts even if there were no First Amendment protecting freedom of speech and religion because the right to speak and worship as we wish comes from our humanity, not from the government or from the First Amendment. Because of that, judges can enforce those rights--regardless of the misguided will of Congress or a state governor.
In this same way, Natural Law also prevents the majority from having its way all of the time. For example, voters cannot directly or indirectly (through a legislature) take property that properly belongs to A and give that property to B.
Why not? Because under Natural Law, that legislation would exceed the power of any government by violating the right of A to the use and enjoyment of his own property. Property owners have the right to use and enjoy what is theirs whether or not the positive (i.e., written down) law protects those rights.
The Founders certainly saw things this way. Constitutional limits on government, as Alexander Hamilton once said, "serve to protect the security of Property . . . against the majority's will." Soon after the states ratified the Bill of Rights, Supreme Court Justice
Samuel Chase wrote, "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact,
[i.e., the Natural Law] cannot be considered a rightful exercise of legislative authority. . . ."
Under Natural Law, legislatures have unwritten limitations imposed upon them, and those limitations prevent a legislature, no matter how one-sided the vote and no matter how popular the legislation,
from enacting a law which interferes with a natural right.
Congress could take a lesson from Rice's theory that "The Natural
Law provides a guide through which we can safely and rightly choose to love God by acting in accord with our nature and by helping others to do the same. We can know the requirements of Natural Law through reason unaided by explicit revelation." Natural Law declares that when the people created state legislatures, and when the states created the Congress, they never gave these bodies the authority to interfere with natural rights. They did not do so because they could not do so. As we observed earlier, no one can take away another's natural rights except a jury, following due process.
Natural Law also commands certain prohibitions. For example,
since enslaving a person or taking an innocent life is always wrong,
Natural Law commands that slavery and murder are unlawful,
whether the legislature declares them so or not.
Natural Law does, however, recognize that not all rights are natural,
and some rights do come from the state. For example, the right to drive a motor vehicle on a government-owned roadway is a right that comes from the state; hence, the government can lawfully regulate it (e.g., by requiring a driver's license, limiting speed, etc.) and lawfully take it away (e.g., from habitual drunk drivers).
THE NEGATIVE OF POSITIVE
Positivist theory is more or less the opposite of Natural Law theory.
Under Positivism, the law is whatever those in power say it is,
whether that decision is democratic or dictatorial in nature. Positivism demands that all laws be written down, and requires that there are no theoretical or artificial restraints (such as Natural Law) on the ability of the government to enact whatever laws it wishes. No higher law exists; deuces beat a royal flush if enough people in power say so.
In this theory the majority always rules and always gets its way,
since there are no minority rights to be protected--except whatever rights the majority might condescend to grant.
To follow our earlier example, if, under a Positivist system, a state legislature or the Congress were to enact legislation prohibiting public criticism of abortion, or a state governor ordered Christians and
Jews to cease worshiping, so long as the legislature was legally elected and it followed its own rules in enacting the legislation, and so long as the legislation proscribed criticism of abortion or authorized the governor's behavior, the prohibition of speech and the interference with the free exercise of religion would be the law of the land, and no court could interfere with it.
In the Positivist scheme, rights come from government, and government can always repeal what it grants. Critics of Positivism have argued that it leads to the tyranny of the majority. These critics remind us that Hitler and the Nazis were popularly elected. Once in power, under a Positivist legal theory, they passed all sorts of horrific laws, all of which were "lawfully" enacted. The Nazis rejected
Natural Law, which protects the minority, and we all know what happened to the minority in Hitler's Germany.
In America, the Declaration of Independence is traditionally referred to as the sheet anchor of our liberties. It does not grant liberties;
it publicly pronounces and secures them, just as an anchor secures a boat. Similarly, the Constitution of the United States also does not grant rights, but rather recognizes their existence, guarantees their exercise, and requires the government to protect them.
Just look at the First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech. . . ." This clearly reveals that the authors of the amendment--the Founders--recognized that freedom of religious worship and freedom of speech preexisted, and thus come from some source other than, the Constitution. Properly understood then, the First
Amendment is not a grant of rights to the people, but a restriction on government that prevents it from infringing on the rights the people already have. It also implies that not only may Congress not interfere with freedom of speech or the free exercise of religion, but
Congress must prevent all who act in the name of the government from interfering with them as well.
IN A LAND OF NO CONSTRAINTS
Throughout this book I will be discussing rights and liberties. As I
will use the terms, rights are specific freedoms specifically guaranteed by the Constitution, such as freedom of speech, freedom of the
press, and the right to bear arms; liberties are more general freedoms,
like the right to travel, the right to think whatever you please, and the right to be left alone, with which the government may not interfere without due process.
As the reader can no doubt safely guess by now, I am a strong and fervent believer in Natural Law. The only valid laws are those grounded in a pursuit of goodness. Anything else--like taking property from A and giving it to B, like silencing an unpopular minority,
like interfering with freedom of worship--is an unjust law and, theoretically,
need not be obeyed, just like the law that told Rosa Parks to find her seat in the rear of the bus. No government may enact laws interfering with our natural freedoms, no matter how popular the enactment.
The Positivist would say that since the majority in a free society gives freedom, the majority can take it away. Natural Law says only
God gives freedom, and the government can only take it away as a punishment for violating Natural Law, and then only through due process.
To a Positivist, the government's goal is to bring about the greatest benefit to the greatest number of people.
Under Natural Law, the only legitimate goal of government is to secure liberty, which is the freedom to obey one's own free will and conscience, rather than the free wills or consciences of others, no matter whether those others are in the streets, in City Hall, in the state legislatures, on Capitol Hill, or in the White House.
The problem today in America--the greatest and gravest threat to personal freedom in this country--is that the Positivists are carrying the day. Under their sway, the government violates the law while busily passing more legislation to abridge our liberties. The government recognizes no constraints on its power and enacts whatever laws it wishes.
If we wish to survive the near future with our rights intact, we need to understand the size and scope of the threat. We must also understand its true identity: a government that claims it can give you rights can also take them away.
Throughout the coming pages, we will explore the gravity and disaster inherent in that simple fact. First we'll look at the nature of the Constitution--what it says and what it means. Then, chapter by chapter, we'll explore how politicians and judges have slowly driven the Constitution and its restraints on the government into exile.