Opinion Forum

Limited By What?

November 13th, 2010

“We want limited government!”

The cries can be heard everywhere, from signs at the smallest Tea Party protests to speeches given by the most prominent conservatives and Republicans. But the cry for limited government begs the question: limited by what? And when it comes to the answer to that question, it seems that nobody’s really sure what to say.

When pressed, many Tea Partiers and conservatives will say, “limited by the Constitution.” And practically speaking, the Constitution as it stands today makes an excellent goal. For one thing, it’s already written down and been implicitly agreed to by all Americans, so using it as our guide can save us a lot of time that we’d otherwise have to spend arguing. For another, it’s close enough to the ideal to work. Libertarians might argue there shouldn’t be federal roads or a post office, but if those were the only economic services the government did perform, I suspect even the most anarchist of libertarians would be willing to deal with their disappointment. Finally, the fact that we’ve gone so far from it already means that just getting government back within its Constitutional limits is more than enough work for one lifetime, so why argue over impractical goals that we’d probably never be able to get the majority to agree on, anyway?

But to say that the Constitution should be the limit on the powers of the federal government is only a partial answer. After all, if the Constitution is the limit to the government, then what is the limit to the Constitution? If America passed a Constitutional amendment declaring health care a right, would it become one? If Congress passed, via the proper procedure, an amendment to the Constitution nullifying the First Amendment, would I no longer have any right to freedom of speech?

Well, obviously these things are not true. But why not? What decides the limits, and how do we determine them?

Bill Whittle comes closest in his Firewall video when he points out that the United States was the first country in history to be governed by the principles of natural law. Whittle correctly points out that there are two types of law: political law and natural law, and that while political law can be twisted to mean anything those in political power please, natural law is fixed and unchanging.

The Declaration was, at its root, a declaration of the supremacy of natural law. The Constitution was an imperfect attempt to create a government and a political process which would ultimately be governed by and govern in accordance with natural law. Because the Founders knew that this Constitution would be imperfect (indeed, they deliberately allowed imperfections to be written into it, i.e. slavery, in the interest of maintaining the Union), they also provided a process for amending the Constitution. This process, far from depending on a simple majority vote, was deliberately made complicated in order to make it exceedingly unlikely that an amendment could make it into the highest law of the land that would contradict natural law.

And what is natural law? Well, what scientific law is to the realm of the physical universe, natural law is to the realm of human societies and human action. Just as scientific law is the set of rigid, unchanging principles which govern the actions of physical nature, natural law is the set of rigid, unchanging principles which any human society must recognize and live by if it is to prosper, or even survive. Many conservatives will claim that natural law is “revealed,” as though angels hand it down to mortals from on high. But the truth is that natural law is reasoned, just as scientific law is reasoned, and the smoke test of natural law is in its ability to create freer and more prosperous human societies, just as the smoke test for physical law is its efficacy in predicting and controlling physical reality.

Many might argue the points in the preceding paragraph on the grounds that human societies do not follow the same principles as physical reality. And it is true that because the realm of human action can be far murkier and convoluted than the realm of physical reality, natural law can be very difficult to accurately determine. Also, because of the fact that in human societies it is possible to pass the costs of bad decisions onto others for short periods of time, sometimes governments and individuals can pretend to themselves that something they are doing is actually beneficial, even though it violates the principles of natural law. A good smoke test for this is to take that bad idea to its logical extreme, and see whether it would still work if everybody did it all the time. Liars can cash in on the trust in a society when most of that society is honest; in a dishonest society, they could not. The Fed can print $1000 dollars without wrecking the economy; if they try printing $100 trillion, they cannot. Welfare recipients can get away with their actions when the majority of society is productive; when they are in the majority and are being supported by an ever-shrinking minority, they cannot.

But the fact remains that murky though the determination of natural law can be, it does indeed exist. And at the fundamental root of natural law is the nature of individual man, and his rights. Man has a fundamental right to life, which is the base for all other natural law. His life can only be sustained by the use of his mind to create wealth, which is the root of his right to liberty. Liberty is at root the freedom of the mind to think; from this comes freedom of speech and freedom of belief, protected by the First Amendment. Since he cannot use the wealth his mind has created to maintain his life if he has no right to it, from this comes the right to own property and dispose of it as he chooses, and the right to self-defense of his life, liberty and property. And finally, since the right to life implies the fundamental corollary of the right to choose the meaning of that life and to enjoy that life, he has the right to pursue his own happiness, so long as he violates no other man’s rights in the pursuit of that right. All other rights, such as the right against unwarranted search and seizure, the right to a trial by jury, the right to keep the rewards of one’s labor regardless of its material size, are derivatives of those fundamental rights to life, liberty, property, and happiness as enshrined (with the exception of property, though it was understood implicitly and mentioned in some other founding documents) in the Declaration and protected by the Bill of Rights and the Constitution.

Individual rights are the concretized expression of natural law. It is because we have equal individual rights that we are equal under the law. And we understand that a violation of the rights of one man is the same as a violation of the rights of all men, regardless of what is being violated, or to what degree, or whom the violating is being done by. To silence the speech of Beck or Olbermann is to silence my speech, to confiscate the wealth of Bill Gates or Steve Jobs is to confiscate my wealth. My right to speech is equally violated whether it is done by the threats of a Yemeni cleric or by the FCC; my right to property is equally invalidated whether my wealth is confiscated by a thief, a beggar, a corporation, or by the government in the name of a beggar or a corporation.

Political law, properly written, is the expression of natural law in such a way as to equally protect the natural rights of each individual. We have a right to life; murder is illegal (though killing in self-defense is not). We have a right to liberty; laws abridging the freedom of men to think and speak those thoughts are illegal. We have the right to accumulate property with which to sustain our life and liberty; theft and fraud are illegal. These laws provide against the threat of our rights being violated by our fellow men. But in order to do this, governments must be instituted in order to secure those rights. And if history has shown us one thing, it is that the institution with the monopoly on the force necessary to punish those who violate our rights has far more power to violate those rights than any private individual could ever accumulate for himself, no matter how rich and powerful he became. Thus the structure of the American government, the government which “derives its just powers from the consent of the governed,” is formed with the understanding that if it ever violates our rights itself, it becomes “the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

The underlying message: we understand that neither human beings nor governments are perfect, but we expect our government to at least attempt to restrain itself to the bounds of natural law. And if our government ever openly flouts those bounds, then it is no longer legitimate and we have no duty to obey it.

Only once before has the Union been threatened by such a dissolution: during the time of the Civil War. And in that case, natural law won the day when Lincoln finally named the war for what it was by signing the Emancipation Proclamation: a war over the tenets of natural law. The secession of the South was wrong not because they seceded, but because they seceded over slavery, which violates natural law by forbidding to the slave his fundamental rights to life, liberty and property.

I do not think the Union is threatened today by an organized movement of secession (though I can’t vouch for the intentions of Texas). But I do believe it is threatened by the possibility of dissolution because for a very long time it has been flouting natural law. Not with something as obvious as men in physical chains, but with the more subtle methods of hobbling them with taxes, welfare programs, regulations, and red tape. Today our property is stolen not blatantly for the use of the state, but through soothing platitudes of how we are our brothers’ keepers, that the world is too complex for individuals to successfully look after themselves and each other, and that we need government on some level (regulatory agencies, welfare agencies, etc.) in order to take care of our needs for us.

If it wishes to save itself, America must turn back to the principles of natural law. In order to do this, it must return to a government that is fundamentally limited not by the wishes of the people or even fundamentally by the Constitution, but by the principles of individual rights that lie at the foundation of natural law.

Articles written by Brianna Aubin
Tags: Constitution, liberty, limited government, natural law, property, rights
Categories: Law, Politics | Comments (25) | Home

25 Responses to “Limited By What?”

Clarissa | November 13th, 2010 at 6:17 pm

I think this is the best post you have ever written. Great job!

Paul Beaird | November 13th, 2010 at 8:17 pm

Terrfic! This woman thinks the usual bromides through to their root and gives us an understanding of them in plain English. It is a pleasure to read. Limited government? Limited TO what? To the protection of individual rights. I love her way of explaining “natural law”. Others get so tangled up trying to say how it is law and why it is natural. More, more!

Dan Miller | November 13th, 2010 at 9:24 pm

I very much like the article as well, but have a few difficulties with it.

Slavery, a contentious issue when the Constitution was adopted and for many years thereafter, was one of the factors in the southern attempts to dissolve the union a century and a half ago; it was far from the only factor. Much of United States history is and has been viewed through distorting lenses of current perception; that is commonly the case. Back then, the rights of the states and of their citizens, rather than those of the federal (perhaps now a nascent world) government, were of paramount importance — as still reflected in the U.S. Constitution and laws albeit to a lesser extent with successive statutory enactments and judicial interpretations. General Robert E. Lee, whom I very greatly admire, was a citizen of the Commonwealth of Virginia (which I am also proud and honored to claim as my native state) first and of the United States second. With great reluctance, he tendered his resignation as a colonel in the United States Army to ally with the Confederacy, soon as the Commander of the Army of Northern Virginia and the leader of the Army of the Confederacy. What might a current “citizen of the world” do in modern circumstances?

As to Natural Law, I must admit that I don’t understand the concept; I hear of it often but don’t know what it means.

The Laws of Nature, such as gravity and the laws of motion seem, at least based on our current information, to apply throughout the known universe; whether that will always appear to be the case I don’t know. They appear to be rather different now than even a piddling five hundred years ago. Might there be “alternative universes” where the Laws of Nature are slightly or even substantially different? Perhaps some day we or our survivors will find out. Should there be a “Nature’s” god or gods, are there different “Nature’s” gods for different universes? Beats the Hell out of me.

The Laws of Nature, to the extent that we understand them, most likely apply everywhere at least on Earth (with the possible exception of in the confines of the Hadron Collider), including the Democratic Peoples’ Republic of Korea, Iran, Venezuela etc. Natural law, as described in the article and elsewhere, does not seem to apply everywhere on Earth, at least as far as I am aware, and certainly not the precepts as articulated in the U.S. Constitution. North Korea is essentially a human theocracy under whatever Great Leader may be chosen less than “democratically;” Iran is pretty much an Islamic theocracy and Venezuela is essentially a “thugocracy.”

In my view, Natural Law (unlike the Laws of Nature over which we presently have little if any control) applies in the United States only to the extent that we want it to do so and enforce our desires by whatever means may be necessary. If that’s what we want, we had better make sure that we do it.

Brianna | November 13th, 2010 at 10:31 pm

Dan

I am aware that slavery was not the only issue that divided the South from the North; a tariff on cotton exports was also a big factor, if I remember correctly. However, I consider slavery to be the fundamental issue, and when you look at the historical record, you can see that Lincoln’s war against the South did not really gain moral force with the North until he signed the Emancipation Proclamation, thereby making the war a war over slavery rather than about the preservation of the Union.

Natural Law as it applies to human action applies everywhere, but not all governments choose to follow it or take it into account. For example, you mentioned Iran and NKorea. Certainly neither one takes into account Natural Law, and I would argue that they are paying the price for those failures. NKorea is obviously governed by Communism, a philosophical and legal system which I would argue explicitly defies the tenets of natural law, and one of the results of that defiance is the fact that once the USSR collapsed and stopped helping that state prop itself up, all industry and social systems literally collapsed almost overnight. The factories literally went still, the food distribution systems ran out of food, there is not even the most basic goods and services, and 2 million died of starvation. Also, it is not a coincidence that all communist states were horror chambers, with the most horrible being the ones that most consistently followed Communism, nor is it a coincidence that as China stopped following Communist economic principles (which violate natural law horriby) it also became more prosperous.

Iran is not as bad as NKorea, because horrible though Sharia is, it is certainly more in accordance with natural law (particularly economics) than Communism. However, I would argue that Islam and Sharia tremendously stifle an individual’s intellectual liberty because people are supposed to have faith and submit their will to Allah rather than use reason and logic to figure out the world for themselves. Evidence that this hurts them can be seen through the fact that practically nothing of value comes out of the Muslim world. Iran has electricity shortages for example despite the fact that they have some of the largest reserves in the world, because they cannot refine their own crude. The Muslim world would not even have oil if Western oil companies had not built their oil rigs; the oil facilities were seized by Muslim governments in the 70s. And more books are translatd into Greek a year than are translated into Arabic over the entire Muslim world. Israel, OTOH, has many prestigious unversities and patents thousands of inventions a year. Islamic law is also horribly out of accordance with natural law when it comes to equal rights for women and those of other faiths, which I would argue is extremely detrimental to them in 100 subtle ways (for example, if they treated their Jews with equal rights and didn’t kick them out of their countries, they’d probably be a lot more prosperous; just look at Israel). And their widespread practice of polygamy I would argue destroys family and husband-wife relationships in many subtle ways as well; read Now They Call Me Infidel by Nonie Darwish for an excellent critique of polygamy.

Every human being everywhere has the same rights as you or I do, including women in Iran or people in NKorea. The constitution does not create natural law or those rights, but rather upholds and preserves those rights by explicitly stating what already exists. The less perfectly a society follows natural law, the worse your society will be. Contradict it entirely, and your country will literally starve and collapse as the Communist states did. The US OTOH, was the only country in the world that attempted to explicitly follow natural law, and it also became the freest and most prosperous. The other country that did the best at following natural law before the US was Britain, and it too became rich and prosperous as a result.

In short, a country can ignore natural law, but it cannot ignore the consequences of ignoring natural law, just as an individual can ignore reality, but not the consequences of his choice to ignore reality.

George | November 13th, 2010 at 10:43 pm

Brianna,
Thank you for this well written, obviously well researched & educated opinion.

Brian | November 14th, 2010 at 6:57 am

Brianna, even Lincoln admitted that the Emancipation Proclamation was a political sop to the abolitionists. The leading dailies of that time, including in NYC and Boston, agreed with the South’s right to secede. The Civil War was about money and wealth, as most wars tend to be. Can you guess which three states brought in the most money to the federal treasury?

Lincoln’s only goal was the preservation of the Union, and to do it at any cost. Lincoln himself wrote that he didn’t believe that blacks and whites could ever get along; that if preserving slavery would preserve the union, he would support it; that if abolishing slavery would preserve the union, he would support that. He even went so far as to study the feasibility of repatriating all slaves back to Africa.

The evidence that the EP was merely political grandstanding is here: if the South had not truly and lawfully seceded and were in fact still a part of the union, the EP had no force of law because it did not go through both houses of congress as a bill to be signed into law by Lincoln. If the South had truly and lawfully seceded, and even if both houses of congress had approved the bill, and Lincoln signed that bill into law, it would have been of no effect because no sovereign can enforce its own law upon another sovereign. Imagine our federal government today “outlawing” nuclear power in France.

Lastly, if the EP had truly been the law of the land, the need for the 13th amendment would have been obviated. And in fact, the EP was only “the law” in areas of the South that the Union did not yet occupy. In the areas of the South that the Union held, the EP did not apply.

As for the rest, I couldn’t have said it better myself. Well done and spot on. The fact that women in Muslim countries are treated like chattel property doesn’t negate their right to not be treated as chattel, it simply means that their rights are being abridged. Ibid for slavery when it existed here.

Dan, with all due respect, the argument that we only have the rights that we can keep via force is the argument of the pragmatists. Pragmatism, as a philosophy, eats its own young. I can’t think of any tyranny that wasn’t ultimately following what it believed to be pragmatic. Pragmatism is the antithesis of natural law. Keynes was a pragmatist, and so were Marx, Engels, Hitler, Stalin, Mao, Pol Pot, Idi Amin, ad infinitum, ad nauseum. Pragmatism isn’t pragmatic because it ultimately destroys the thing which it purports to protect. I cringe every time I hear someone say “we must do thus and so” or “we need to do X, Y, and Z to protect the people…”

As William Pitt the Younger, wrote, “Necessity is the argument of tyrants; it is the creed of slaves.” What is pragmatism if not an argument for “necessity”?

Lastly, on a note of supreme irony, the one place where Rand and Kant agree is how to determine what is ethical and what is not. Kant sums it up in “The Metaphysics of Morals and the Supposed Right to Lie.” The rest of that book is gibberish, but even a blind hog can find an acorn once in a while.

Tom Carter | November 14th, 2010 at 6:59 am

I agree with everyone else, Brianna — this is an excellent article. I also agree with Dan on the issue of slavery in the Civil War and natural law.

There’s no question that slavery was one issue in the Civil War, but it wasn’t the only issue or even the most important. There were economic issues, political issues, cultural differences, and social problems. The Abolitionist movement in the U.S. and Europe was a factor, but the movement was stronger and more effective against government-sanctioned slavery in Europe that it was in the U.S. So while slavery was a factor in the secession of the southern states that led to the Civil War, the primary goal of the federal government was to preserve the Union. As I noted in an earlier article, “Lincoln and the Civil War”:

Much has been written about the Civil War being fought to free the slaves in the South. There’s no doubt that some who fought on the Union side had that goal as a primary motivation, while on the other side some fought to preserve slavery. In reality, however, the Civil War was about economic issues, sovereignty, and the preservation or dissolution of the Union. Slavery was an important factor, and it has led to Lincoln being hailed as “The Great Emancipator.” But freeing the slaves wasn’t his primary goal. In his own words,

“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.”

Natural law is a philosophical construct based on reason and the supposedly unique nature of humanity. It holds that certain rights (life, liberty, etc) inhere to human beings by virtue of their existence but do not extend to other animals. (Aside from a few weirdos, no one believes that we violate a cow’s natural rights when we kill it and munch it.) Examined closely, the fact emerges that humans have no more right to life and liberty than cows — we’re just more capable of defending our lives and our liberty. In our earliest days, defense of life and liberty was an individual matter — survival of the fittest and smartest. Later, we gathered in clans, tribes, and nations to mutually ensure the preservation of our lives and liberty. Some very successful peoples (Rome, for example) managed to do quite well without strictly honoring what we consider to be natural law and rights. The failures of the nations you’ve cited are due to their inefficient and counter-productive economic and political arrangements, not primarily to their rejection of natural law and rights.

The so-called laws of science, on the other hand, are nothing more than our progressive recognition of the way things are. Gravity is and will be what it is, and it’s beyond our ability to change it. In fact, we don’t even fully understand it. Newton’s laws of motion and other descriptions of the way things are shouldn’t even be called “laws” in the first place. That implies a “law-giver” or “law-maker” of some sort, and it requires a giant, illogical leap into the supernatural to conclude that such a thing exists.

Aside from inappropriate use of the word “law” to describe human behavior and natural phenomena, there’s no connection between the two concepts.

Tom Carter | November 14th, 2010 at 7:02 am

Well, I was a couple of minutes behind Brian in posting that last comment. At least we agree in part; as for the rest….

larry | November 14th, 2010 at 9:17 am

Brianna
As always, you have done an excellent job of putting your thoughts into print.

Brianna | November 14th, 2010 at 12:07 pm

“Natural law is a philosophical construct based on reason and the supposedly unique nature of humanity. ”

And scientific law is a construct based on reason and the unique nature of reality.

“It holds that certain rights (life, liberty, etc) inhere to human beings by virtue of their existence but do not extend to other animals. (Aside from a few weirdos, no one believes that we violate a cow’s natural rights when we kill it and munch it.) Examined closely, the fact emerges that humans have no more right to life and liberty than cows — we’re just more capable of defending our lives and our liberty. ”

Natural law is something that applies solely to the realm of human action, not the happenings of the physical universe at large. We can’t tell a wild animal or a thunderstorm that it cannot kill us because we have a right to life, only a human killer, because those rights do not apply to the wild animal or thunderstorm, only the actions of other men.

“In our earliest days, defense of life and liberty was an individual matter — survival of the fittest and smartest. Later, we gathered in clans, tribes, and nations to mutually ensure the preservation of our lives and liberty. Some very successful peoples (Rome, for example) managed to do quite well without strictly honoring what we consider to be natural law and rights.”

I would argue that practically every society prior to the Communist societies of the 20th century were at least somewhat in accord with natural law, whether they were aware of it as such or not. Murder and theft have always been immoral for example, and no culture has ever made a virtue out of lying, cheating and stealing. Sort of like how gravity was understood and acknowledged well before Newton ever came up with the theory of gravity, and nobody ever tried to fly by jumping off of a cliff and flapping his arms simply because the law of gravitation hadn’t been theorized yet. I would also argue that Rome was more in accord with it than usual, and that part of its downfall was due to its failure to continue that. They had currency issues for example, and “bread and circuses,” but I don’t know enough about the history of Rome to say more than that.

“The failures of the nations you’ve cited are due to their inefficient and counter-productive economic and political arrangements, not primarily to their rejection of natural law and rights.”

Yes, but “inefficient and counter-productive” by what standard? Natural law and individual rights are based on human nature, which is every bit as fixed and unchanging as the nature of gravity or the sun (much though the progressives wish otherwise). Natural law is simply an expression of what is necessary for a social system to be “efficient and productive,” and the systems are inefficient and counter-productive precisely because they do not follow it.

“The so-called laws of science, on the other hand, are nothing more than our progressive recognition of the way things are.”

Just as I would argue that our understanding of natural law is simply the progressive recognition of the way things are as applied to human beings and human societies.

“Gravity is and will be what it is, and it’s beyond our ability to change it. ”

As is human nature. Just ask the progressives how trying to change human nature has been going for them for the last 100 years.

“In fact, we don’t even fully understand it. Newton’s laws of motion and other descriptions of the way things are shouldn’t even be called “laws” in the first place. That implies a “law-giver” or “law-maker” of some sort, and it requires a giant, illogical leap into the supernatural to conclude that such a thing exists.”

Well, aside from the fact that a lot of people do indeed conclude that such a thing exists, I don’t think that’s really necessary. We call them “laws” because they’re impossible to break. In the case of physical reality, that means that if you don’t acknowledge those laws, you’ll never be able to invent or create anything. Or in the case of natural law as applied to human action, you’ll never create a society that actually works.

Aside from inappropriate use of the word “law” to describe human behavior and natural phenomena, there’s no connection between the two concepts.

Brianna | November 14th, 2010 at 12:14 pm

“Brianna, even Lincoln admitted that the Emancipation Proclamation was a political sop to the abolitionists.”

I know it was a sop, and that Lincoln’s primary goal was to preserve the Union. My point was, why did he have to make that sop in the first place? What made him think that the only way to preserve the Union was to forbid slavery?

” And in fact, the EP was only “the law” in areas of the South that the Union did not yet occupy. In the areas of the South that the Union held, the EP did not apply.”

I confused the hell out of someone once when that was a question on one of those quizzes teachers sometimes hand out on the first day (this was 8th grade). The question was “what did the EP do,” and the expected answer was “free the slaves,” so there wasn’t much room to write. I instead put in this detailed explanation that it didn’t do anything because it only applied in those parts of the Confederacy that were still held by the South so the Confederates ignored it because they viewed it as being issued by a foreign nation, and the poor kid who ended up grading my quiz somehow got picked by the teacher to raed the answer to that question out loud. One, my handwriting was tiny to squeeze it all in, so it was hard to read, and two, she wasn’t expecting my answer at all, so she was really confused 🙂

Tom Carter | November 14th, 2010 at 12:45 pm

Just a couple of points: “We call them ‘laws’ because they’re impossible to break.” The principles of science and how the universe works — yes, as far as we know. Natural law — hardly. If you’re holding the gun, my “right” to life is dependent totally on your decision to pull the trigger. If I’m fast enough to disarm you and then hold the weapon on you, your “right” to life becomes as meaningless as mine was a few seconds earlier. I would much prefer to see these “rights” thought of as principles for moral and ethical behavior by individuals and societies. Why does it matter? Because then we can understand that we have those “rights” only as long as we can defend them, both as individuals and as organized societies/governments.

Lincoln did not have to issue the Emancipation Proclamation. As you rightly point out, it was functionally meaningless, and it did little if anything to advance the Union’s progress in the war. It was done to keep a minority of folks happy, ill-informed though they were, while he went on about the business of preserving the Union.

By the way, I like the way you responded to that question in the 8th grade. Ever the rabble-rouser…. 🙂

Brianna | November 14th, 2010 at 1:02 pm

” Natural law — hardly. If you’re holding the gun, my “right” to life is dependent totally on your decision to pull the trigger.”

Fair enough. Perhaps it would be better to say that they cannot be broken without consequences. In an honest society, your gunman would from then on have to live as a fugitive. In one where his actions were seen as fundamentally OK, i.e. a totalitarian society, since those are the only ones which had no fundamental problem with killing lots of people, your society would be a train wreck.

“Ever the rabble-rouser….”

The funny thing was, I wasn’t trying to rabble-rouse, just to answer the question. For some reason, I seem to have a natural talent for rabble-rousing without even trying.

Tom Carter | November 14th, 2010 at 2:51 pm

Now that natural talent for rabble-rousing — that I can accept, having been forever afflicted with that particular trait myself.

Just a thought — what happens to the “right” to life when the government kills you for violating one of its laws? I suppose that would be an exception, in some people’s eyes, but enough exceptions and the whole concept is down the tubes.

Brianna | November 14th, 2010 at 3:31 pm

I assume you’re referring to the death penalty? Well, in such a case, I would argue that the criminal gives up his right to life when he violates the right of the person he killed (to my knowledge, the death penalty is not used for anything but murder). Since it is the government’s job to catch the violators of our rights and carry out the penalty against them for their violations, the death penalty as carried out by government in accordance with the law in such cases is valid.

Any argument against the death penalty rests not on the right of the guilty man to life; he forfeited that right when he committed the crime. Rather, it rests on the possibility that you might have the wrong man, and since the death penalty is irrevocable, there’s a) no way to fix or even ameliorate your actions if you turn out to be wrong, and b) once the innocent man is dead, there is no incentive to search for the truly guilty one (though this one is pretty marginal because there’s not really much more incentive to search for him if you think you’ve already got the right man in prison, either). Balanced against that is the argument that if the criminal escapes custody, he poses a danger to innocents. I think that danger only outweighs the risks inherent in the irrevocable nature of the death penalty in cases which meet two criterion: there is no margin of error in whether or not the man in question is guilty, and the man has proven through his actions that if he escapes, he will certainly start killing again. So basically, serial killers. Everyone else should get life in prison, not because they deserve their lives but because of the possibility that the man might be innocent.

Tom Carter | November 14th, 2010 at 4:52 pm

Hmmm…so you’re saying that in natural law philosophy, we have a natural right to life unless a group of us (e.g., a government) decides to take it away as a punishment or, extending the logic, for whatever other reason that group of us may decide upon. That argument implies that natural rights are inviolate so long as we want them to be, and then they aren’t.

Brianna | November 14th, 2010 at 5:14 pm

No, I’m saying that the person in question has already forfeited his rights through committing the crime, and that after that everything else is a technical question of which rights he’s given up, and for how long, and how the process of enforcing that should be carried out. There might be a reason to spare his life anyway, but it has nothing to do with the preservation of his own individual rights, because he no longer has any.

BTW, by your argument, the government has no right to put anyone in prison for crimes or punish criminals in any way, and neither does anyone else because it would violate the rights of the criminal. This invalidates the right to self-defense on the part of the innocent individuals involved.

Michael | November 14th, 2010 at 7:04 pm

As far as the Civil War is concerned,there were many reasons (cultural, social, economic) which made the war what it was and these sometimes changed over the course of the war. However ,essentially, the North and South had two different purposes: the North to preserve the Union; and the South to preserve slavery. The ideological issue at heart was indeed slavery and the southerners new it and said so. “State” rights is a bogus term.

As far as Robert Lee is concerned, I think that his focus on a single state may have prevented him from recognizing the importance of the war.

Tom Carter | November 14th, 2010 at 7:50 pm

A bit of a conundrum, isn’t it, Brianna? You say that natural rights inhere to every human being. At the same time, we can decide that one individual’s natural rights are forfeit provided we as a group decide that he/she has done something that justifies the loss of those rights.

The death penalty applies to many crimes other than murder; it varies state-by-state. Better than that, some states have the death penalty, some don’t. Kill someone in Illinois, you can be killed by the state. Kill the same person across the line in Iowa, three hots and a cot for a lot of years.

And liberty and property? We are quick to take those away, too. And the inconsistency between state laws is much worse. Smoke the wrong weed in one state, and you’re off to the big house. In another state, the cop grins and asks for a toke.

Does all this mean we shouldn’t have laws and deprive people of liberty and property as punishment? Of course not. But let’s not ride too high on this business of natural rights, given that we so readily — and capriciously — deprive people of them.

Brianna | November 14th, 2010 at 8:25 pm

Tom, I don’t think you’re reading what I’m writing. I’m saying that when someone commits a crime, they no longer have any rights, because they have forfeited those rights by committing the crime. The trial is to determine whether they have indeed committed the crime, thus forfeiting their rights, and the punishment is simply the enforcement of that forfeiture. Society didn’t deprive them of their rights, they deprived themselves. Government is simply the means by which we enforce that.

Or maybe your complaint is that people get to decide whether the person has committed the crime, or that government gets to pass the sentence, or that the penalties can vary? Well, which punishments are appropriate for which crime is something that is not a categorical absolute, and it’s hard to think of a fairer system for the conviction of criminals than what we have. The state is not allowed to determine innocence or guilt, conviction requires unanimous consent amongst a dozen people, and if you can come up with a better way to determine punishment than a delegated legislature to write the laws, I’d be happy to entertain suggestion. There’s no one political process or legal code that is the absolute best, just as there’s no one best way to write a computer program or build an airplane. We improve them as we figure out improvements, through the legislature and the court systems, just as we figure out how to build better computers and airplanes through a similar system of gradual improvement.

Governments aren’t perfect, and people aren’t either. I would never bother trying to argue that every law in the US is in accordance with natural law, and I explicitly said in my article that most people get that nothing’s perfect, including the State. Practice may not turn out as well as theory does, but that doesn’t mean we don’t need the theory, or that we shouldn’t keep working on it, or that we shouldn’t do the best we can against criminals just beacuse we haven’t gotten it quite right yet.

P.S. The link you provided explicitly says that the death penalty is almost never used for anything other than murder, and the only other crime mentioned with any frequency is child rape, which I must admit I have difficulty arguing. The only other crimes listed are crimes which only garner the death penalty in one or two states, and for which no one is actually on death row, so I don’t know where you get the idea that the states are lusting for the blood of innocents, or even really the guilty.

Michael | November 14th, 2010 at 8:46 pm

Since the topic has somewhat shifted to the subject of crimes and crime punishment I think that there is a no. of ways to punish crime and I’ve listed some below:

Deterrence: Make people not commit crimes by making them afraid of punishment.

Incapacitation: Make people who have committed crimes unable to commit further crimes by taking them out of circulation

Pacification: Provide legal punishment of crimes so that the victims or the mob won’t take the law into their own hands

Rehabilitation: Take people who have committed crimes and change them into people who no longer want to commit crimes

Restitution: Exact compensation for the victims of crimes from the criminals: “Make the victims whole”

Retribution: Make the criminals pay a price for their crimes

Vengeance: Grant the victims the satisfaction of seeing the criminals suffer

The American system of criminal justice is a messy mixture of several of these. We have, at the same time, the attempt to take criminals out of circulation in prison, the attempt to make prison so harsh that people will be afraid to go there (the “scared straight” approach), and the attempt to make prison a place where criminals learn to function in law-abiding society and these are all at cross purposes.

I think that if you want a system of dealing with criminals that makes sense, you need to pick one primary purpose and build the system around it. If it serves other purposes as a side effect, that’s fine, but they shouldn’t be allowed to interfere with the primary purpose. That way lies having a hybrid system that tries to do two or three things and does them all badly.

Brianna | November 14th, 2010 at 10:36 pm

Nope, not getting involved with this one. You and Tom have fun.

Michael | November 14th, 2010 at 11:06 pm

well I only mentioned it as a general point thats all. But otherwise very good article

Brianna | November 14th, 2010 at 11:44 pm

Maybe you can write a guest post on the subject if you’re interested; Tom takes anything as long as it is well written.

Tom Carter | November 15th, 2010 at 4:49 am

I didn’t mean to take the discussion off on a tangent. My points were, and are, that natural law and scientific laws (both questionably use the word “law”) aren’t comparable, there’s no source for natural law other than a belief that it somehow must exist, and that through government we routinely violate what are supposed to be inalienable rights. As far as the death penalty is concerned, it doesn’t matter whether it’s enforced; it does matter that we say that we can deprive a person of the right to life for whatever reasons we wish. That, in my mind, negates both the fact and the power of the existence of something called “natural law.”

Having said that, I ride off into the sunset….