I came across a brilliant synopsis of how the U.S. Supreme Court should decide “hard cases” that involve a party claiming an individual right under the auspices of the Constitution:

I confess that in the end I do not have much confidence in constitutional jurisprudence. One consequence, it seems to me, of requiring of the Court a wisdom about “rights” beyond that of the Framers is that it undermines the habits of citizenship that rely on the confidence of the people in constitutional majorities. I modestly suggest, therefore, a rule of prudence to be applied to constitutional jurisprudence: A Justice should always consider, when deciding “a novel and difficult case,” whether the outcome will increase or diminish the ability of the people to govern themselves by the mechanisms laid down in the Constitution. This very likely would mean subordinating the intractable questions of individual right, insofar as they reflect changing social mores, to the political process. True, the tyranny of the majority is the intrinsic danger in a democracy, but the tyranny of pernicious ideas, tricked out in the language of rights, it seems to me, is far worse than having to abide by the rule of constitutional majorities.

This analysis is an afterthought in a broader book review by Robert Licht concerning Mary Ann Glendon’s book critiquing American jurisprudence on individual rights and arguing in favor of communitarianism (which Licht’s book review does not support).  While this post is not about communitarianism, I find the analysis quoted above to be spot on. 

The Supreme Court’s individual rights jurisprudence has subverted the political system and removed important questions from the will of the people.  (Keep in mind that Supreme Court Justices in the U.S. are unelected and are appointed for life, so they are completely unaccountable to the people.)  In the close cases, the Supreme Court often exploits the ambiguity in the law to declare national policies and invent new “individual rights” under the Constitution that cannot be changed by anyone except the Supreme Court.

If these individual rights do not come explicitly from the text of the Constitution, where do they come from?  God?  Hard to imagine that’s the case, given the types of issues the Court has removed from the political will of the people.

When is the last time you were able to vote on the legality of ordinary abortion?  When is the last time that anyone you elected (on the local, state, or federal level) had a chance to vote on the legality of abortion?  How about prayer in schools?  The Court should tread lightly in these areas, deferring to the political process.  Yes, the political process may yield an unjust democratic decision, but that is much easier to correct than an unjust legal decision made under the Constitution.  To correct that, the people must amend the Constitution, which is no easy task.  This is why losers of elections run to court.

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Libertarians are commonly described as economic conservatives and social liberals.  They typically promote a deregulated, laissezfaire economy, along with a rather extreme (but not necessarily wrong-headed) view of social freedom that permits such things as prostitution and the most harmful forms of drug use.  Thus, many (and probably most) libertarians, as social liberals, favor the Roe v. Wade regime of “reproductive freedom.” 

However, libertarians seem to adopt J.S. Mills’ idea of the “harm principle” (also termed “aggression”) as the sole justification for criminal laws, rather than reference to the common good or a moral grounding for criminal law.  (It is unclear to me whether libertarians generally believe that God-given natural rights obligate the government to limit criminal law in this way, or if libertarians simply prefer this version of social freedom.)  This is why abusing drugs like heroin is legal in a libertarian world: it (arguably) does not harm anyone else, and the law is not to keep you from harming yourself.  This line of thinking, however, would seem to leave ample room for a libertarian to be pro-life, because abortion does harm another human being in the most vicious way imagineable.  Vox Day, a staunch libertarian, provides us with the pro-life libertarian argument:

The reason unborn children have human rights is that they are human. They exist, they are human, ergo they have the same right to life, liberty and property that their mothers and fathers do. As Ron Paul, a fine and upstanding libertarian, has pointed out, there are few acts of aggression more violent and unprovoked than those involved in murderously vivisecting an unborn child.

There is not a single pro-abortion argument that stands up to science and reason. Every single one is not only spurious, but easily demonstrated to be spurious. It is not necessary to bring religious arguments into the debate to conclusively settle the matter in favor of the pro-life position, in fact, the Bible-based arguments against abortion are, in my opinion, weaker than the rational and scientific arguments.

Criminalizing abortion is no more questionable from a libertarian position than criminalizing murder. It is an act of lethal, unprovoked aggression, often state-supported and sometimes state-dictated, of the sort that every libertarian, religious or secular, should vehemently oppose.

Incidentally, as a Christian, I absolutely agree with Vox Day that the Bible-based arguments are weaker than the arguments from nature and reason.  The Bible recognizes the same principles of moral reason that can be applied to the abortion question, but those principles of moral reason do not depend on the Bible.  It is possible to know that murder is wrong apart from the Bible (and indeed impossible not to know that murder is wrong), and it is possible to know that unborn children are human and therefore ought not be murdered through plain reason (with scientific factual support if necessary for rebuttal purposes).  Those who disbelieve in the Bible have no refuge against these arguments. 

(Additionally, note that there is an organization of pro-life libertarians.)

The Meaning of “Rights”

August 27, 2009

We hear a lot about “rights” in American discourse.  Just watching Sportscenter, I heard the term “animal rights” (in reference to Michael Vick), which got me thinking.  What is a right?

Civil rights.  Animal rights.  Equal rights.  So-called “reproductive rights.”  “Gay rights.”  The right of privacy.  We hear lately that everyone has a “right to healthcare”. 

From America’s founding document: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” 

I did a Wikipedia search on the subject just to see what was there, and the summary was brief and, in my opinion, incomplete, but it still mentioned a couple of the concepts I will discuss below. 

Read the rest of this entry »

With a blog called “The Natural Lawyer,” I suppose it’s about time I explain what I mean by the concept of “Natural Law.”

Professor J. Budziszewski at Texas University is one of the prominent scholars on the subject.  I will briefly borrow from an interview he did for the Acton Institute; it’s useful here because it’s in Q&A format:

What is the natural law?

Budziszewski: Our subject is called natural law because it has the qualities of all law. Law has rightly been defined as an ordinance of reason, for the common good, made by the one who has care of the community, and promulgated. Consider the natural law against murder. It is not an arbitrary whim, but a rule that the mind can grasp as right. It serves not some special interest, but the universal good. Its author has care of the universe, for he (God) created it. And it is not a secret rule, for God has so arranged his creation that every rational being knows about it.

Our subject is called natural law because it is built into the design of human nature and woven into the fabric of the normal human mind. Another reason for calling it natural is that we rightly take it to be about what really is—a rule like the prohibition of murder reflects not a mere illusion or projection, but genuine knowledge. It expresses the actual moral character of a certain kind of act.

R&L: Why is the natural law something that “we can’t not know?”

Budziszewski: Mainly because we have been endowed by God with conscience. I am referring to “deep conscience,” which used to be called synderesis—the interior witness to the foundational principles of morality. We must distinguish it from “surface conscience,” which used to be called conscientia—what we derive from the foundational principles, whether correctly or incorrectly, whether by means honest or dishonest. Deep conscience can be suppressed and denied, but it can never be erased. Surface conscience, unfortunately, can be erased and distorted in numerous ways—one of several reasons why moral education and discipline remain necessary.

In fact there are at least four ways in which we know the natural law. Deep conscience, the First Witness, is the one primarily responsible for “what we can’t not know.” The others concern “what we can’t help learning.” The Second Witness is our recognition of the designedness of things in general, which not only draws our attention to the Designer, but also assures us that the other witnesses are not meaning ful. The Third Witness is the particulars of our own design—for example, the interdependence and complementarity of the sexes. The Fourth Witness is the natural consequences of our behavior. All four work together.

There is obviously a lot more to Natural Law Theory; this summary just provides the starting points.  Professor Budziszewski has also written a fascinating article on the consequences of denying conscience, both societally and individually.

I also wrote another entry describing the basics of Natural Law Theory here.