In the first chapter to his superb new book, Our Republican Constitution, Professor Randy Barnett opens with the events and intellectual background that lead to our Declaration of Independence. Of primary importance is the concept and place of natural law and natural rights. Thousands of men risked their necks in order to assume “the separate and equal station to which the laws of nature” entitled them. Whatever structures of government were to follow, their designs would recognize self-evident truths, that all men are in possession of God-given, natural, unalienable rights. While the literature of the time emphasized rights to life, liberty, and property, what else do natural laws and rights entail? What exactly is a right anyway?
To these questions, Barnett brings some Libertarian perspective to two terms that are often confused, natural law and natural rights.
The unwritten laws of nature are what Barnett calls ‘normative principles.’ They are not limited to behavior. For instance, engineers utilize natural law relationships involving force and mass to design buildings and bridges. Just as an engineer could ignore the various discoveries in materials science, so too can society ignore certain principles conducive to the natural order. If the goal is to build a sturdy bridge or a stable, congenial and happy society, there are certain unwritten laws leading to principles that should be followed. If not followed, bridges will fall and societies will be miserable.
While the laws of nature for society cannot be reduced to mathematical certainty, man’s reason can discover the best practices to adopt. As Barnett writes, “The idea that the world, including worldly governments, is governed by laws or principles that dictate how society ought to be structured, in the very same way that such natural laws dictate how buildings ought to be built . . . was well accepted by Americans at the founding of the US.” While few understand or demand that engineers explain every accepted principle used to design a strong and safe bridge, the natural laws that govern a happy society also exist and are actually far easier to discern.
Toward this understanding, Barnett introduces an approach to natural law reasoning that revolves around a straightforward “given, if, then” analysis. For instance, given that the nature of human beings and the world in which we live is X, if we want to achieve Y, then we ought to do Z.
Barnett’s analysis is evident in our Framers natural law approach to the Constitution.
For example, given the nature of human beings in society is a desire to live quiet lives in safety, if We The People wish to form a more perfect union, establish justice, . . . and secure the blessings of liberty, then we ought to establish a Constitution for the United States of America.
Given the nature of men in power is to acquire more power, if We The People wish to limit their power, then we ought to enumerate the powers of these men.
While this approach to law making is simple enough for the dimmest congressman or senator to understand, they obviously disregard nature and the legitimate duties of congress. Given that the family is the natural and necessary building block of society, if we wish to strengthen the family and society, then government should take no action or establish no policies that encourage fatherless homes.
Unfortunately, as touched upon in Congressman X, the thought process of nearly all members of congress goes something like, “Given that my nature is to put my reelection above all considerations including the best interests of my country, if I am going to be reelected, then I must please big donors and not risk angering any racial, gender, sexual or religious special interest.”
While related to natural law, natural rights analysis is different, and Barnett’s inquiry is unfortunately sketchier. Natural rights analysis begins with the assumption that there is a space within which individuals have sole jurisdiction, or liberty to do as they wish without interference. This assumption was held by our Framing generation, and goes back to at least Algernon Sidney, who succinctly wrote, “Liberty solely consists in an independency upon the will of another.” The concepts defining this liberty or moral space came to be known as natural rights.
Where the natural law approach is a guide to individual and governmental conduct, the discovered principles should not be coercively enforced by statutes if doing so would violate the moral space or liberty defined by natural rights.
While I am somewhat disappointed with the brevity of Barnett’s natural rights examination, the larger and more important point is that our founding and framing generations based both the Declaration and Constitution on natural law and natural rights concepts. When followed and respected, individuals and society are far happier than when they are ignored.
We are the many; our oppressors are the few. Be proactive. Be a Re-Founder of the American Republic. Join Convention of States.
Barnett, Randy E. Our Republican Constitution: Securing the Liberty and Sovereignty of We The People. New York: Harper Collins, 2016.