By Tim Dunkin
A little while back, I had a discussion with some libertarian-minded individuals who, at one point in the conversation, seemed to assert that "natural rights" were pretty much unlimited, and that it was illegitimate for the government to interfere with the our behavior at any point (aside, I assume, from things universally understood to be overtly wrong such as, say, murder or rape). While in modern America this is a fairly common understanding of the principle of natural rights, it nevertheless is somewhat incorrect, because it ignores the natural rights basis upon which our governing system was originally founded. Far from intending an "anything goes" system whereby man is free to do whatever he wants to or with others, even to himself, the Founders envisioned a system in which man voluntarily chose to restrain his own behavior to within certain well-understood and commonly accepted norms, norms which existed because of a basis in the greater "natural law" that the Founders saw to be the guiding structure of man's relations in society. This is why John Adams, for example, made his famous observation about our Constitution,
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
His point? The freedom afforded by our Constitution can only necessarily exist when man self-governs, when he refuses to yield to every whim and impulse that comes to mind. Far from being released to some sort of anarchic libertarian free-for-all, man existing under our Constitution as it was originally intended was constrained by the limits of self-control. This self-control, in turn, existed as man submitted himself to "the laws of nature and nature's God." It was only in such a framework that true freedom and security would really exist.
Looking at the history of modern natural law theory, we begin with Thomas Hobbes, who posited the understanding of natural law in terms that are very much like that held by many modern libertarians, especially those of an Objectivist bent. In the state of nature, Hobbes held, the individual had no duty to respect the rights and property of others – for such restraint would in fact be an imposition on the first individual's own purposes, which essentially negates any practical understanding of unalienable rights of the individual. Such was the makeup of Hobbes' "state of nature," the hypothetical state of man prior to the existence of human government and society. For Hobbes, the duty to respect the rights of others only entered in when man formed governments and entered into social contracts – it was from these agreements of confederation that the protection of rights arose. As such, Hobbes still reflected an antique understanding of rights as primarily being socially-derived: defensible rights exist are granted to those who are part of the body politic, much the same way as the ancient Greeks connected rights with participation in the political system of the polis; if you were a slave or a woman, who had no participation, then you had no rights.
The true origins of our constitutional system of liberty are found with John Locke. Locke departed from Hobbes – and thereby from both the classical and the proto-Objectivist conceptions of natural law and rights – by understanding that even in the state of nature, man had the duty to respect the rights of others, even if in that state this was not very likely to happen; the protection of these natural rights was, for Locke, the impetus behind the formation of government and society. However, "rights" did not originate from society. They had an inhering basis – that of natural law. In other words, natural rights exist even apart from any society, and apply to all societies – they are the common birthright over every human being, not just those with citizenship in a political system.
The origin of these natural rights is natural law. In turn, the origin of natural law was its bestowal upon man by God. Locke's First Treatise on Civil Government strongly makes his case that natural law was a gift to man from God his Creator, and that every human being has the birthright of natural liberty because of our common descent from the federal headship of Adam. In his Second Treatise on Civil Government, Locke then expounded the case for natural law and the rights inhering from it. For Locke, the rights of one individual were restricted when those exercise of those rights would intrude upon the rights of another, the basic origin of the "my right to swing my fist ends where your nose begins" argument.
Even more formative to the thought of our Founders, however, was the work of the English jurist William Blackstone, whose Commentaries on the Laws of England was extremely popular in the colonies prior to the Revolution, and formed a large part of the ideological basis of the colonists seeking independence from Great Britain (which makes it very ironic that Blackstone himself vociferously opposed independence for the colonies in Parliament, contrary to the ideological arguments advanced in his own writings). In his Commentaries, Blackstone strongly identified God as the author of natural law, and therefore natural liberties. He believed that natural law was dictated by God, and further said,
"…This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state since we find that, until they were revealed, they were hid from the wisdom of the ages."
It's important to keep in mind that, contextually, what Blackstone was arguing was the congruity between the laws of nature observable in the world around us and what he called "those precepts when revealed," by which he was referring to the biblical Scriptures, to written revelation. There is an essentially unity between the two, as God is the source of both, and He cannot contradict Himself. He elsewhere stated,
"This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this;… upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."
Blackstone's point finds itself stated in Scripture itself most explicitly in Romans 1:19-20,
"Because that which may be known of God is manifest in them; for God hath shewed it unto them. For the invisible things of him from the creation of the world are clearly seen, being understood by the things that are made, even his eternal power and Godhead; so that they are without excuse."
Even man who has never seen a Bible is still faced with the essential truths from God embedded in the testimony of the natural world around him. Natural law and revelation coincide on these many points. This same argument seems to be inferred in other portions of Scripture such as,
"God that made the world and all things therein, seeing that he is Lord of heaven and earth, dwelleth not in temples made with hands; Neither is worshipped with men's hands, as though he needed any thing, seeing he giveth to all life, and breath, and all things; And hath made of one blood all nations of men for to dwell on all the face of the earth, and hath determined the times before appointed, and the bounds of their habitation; That they should seek the Lord, if haply they might feel after him, and find him, though he be not far from every one of us: For in him we live, and move, and have our being; as certain also of your own poets have said, For we are also his offspring." (Acts 17:24-28)
"By the word of the LORD were the heavens made; and all the host of them by the breath of his mouth. He gathereth the waters of the sea together as an heap: he layeth up the depth in storehouses. Let all the earth fear the LORD: let all the inhabitants of the world stand in awe of him. For he spake, and it was done; he commanded, and it stood fast." (Psalm 33:6-9)
Where the creation of the world (that "law of nature, co-eval with mankind and dictated by God Himself") is connected with His Word and with what should be man's universal response to it.
Blackstone's view of natural law, and natural rights that derive from it, while respecting the place that human reason had in interpreting and understanding this law and applying it in civil society, nevertheless rejected the place of primacy and the ultimate power of arbitration given to human reason in earlier systems of natural law theory such as those of Cicero and Grotius. It was this intellectual framework which did so much to shape the thinking of our patriot forefathers about natural law and rights.
This ideology was reflected broadly in the writings and public pronouncements of our Founders, to give only a few examples,
"The…natural law was given by the Sovereign of the Universe to all mankind." (John Jay)
"I…recommend a general and public return of praise and thanksgiving to Him from whose goodness these blessings descend. The most effectual means of securing the continuance of our civil and religious liberties is always to remember with reverence and gratitude the source from which they flow." (John Jay)
"The…law established by the Creator…extends over the whole globe, is everywhere and at all times binding upon mankind…This is the law of God by which he makes his way known to man and is paramount to all human control." (Rufus King, signer of the Declaration of Independence)
"The transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." (James Madison, in Federalist 43)
"Human law must rest its authority ultimately upon the authority of that law which is divine." (James Wilson)
"The laws of nature are the laws of God, whose authority can be superseded by no power on earth." (George Mason)
And, of course, there is the statement in our Declaration of Independence, penned by Thomas Jefferson, decrying the acts of the British government which defied "the laws of nature and of nature's God."
Hence, the men who fought for our liberty from the Crown, who crafted our Constitution, who gave us the birthright of liberty, did so under a firmly theistic understanding of natural law that intimately connected the laws of nature with the revelation of Scripture.
So, looking back to the discussion I had with my libertarian correspondents, is it really true, then, that "natural law" essentially gives every individual an unlimited right to do whatever they like, with whoever they like, however they like, no matter what the consequences may be?
The answer to this question is, "of course not."
Simply put, there is no such thing as a natural right to things like abortion, prostitution, mind-altering drugs, homosexual "marriage," adultery, or any number of things which conflict with both the laws of nature and nature's God. What those represent can be termed "natural lawlessness," behaviors which people engage in because they are revolting against God.
This being said, does this mean that government should always and at all times have a free hand to make as many laws against immorality and vice that it feels it should, as if we were to exist in some sort of moralistic theocracy? I do not believe it should, and I would justify this view on the observation that because of the corruption of this fallen world, the actions of government are almost always even more detrimental to the natural liberties of the individual than are the consequences of the actions of those who surrender to their natural lawlessness. In other words, government's "medicine" is nearly always worse than the disease it seeks to eradicate out of a sense of "do-gooding."
One exquisite example from our own history – Prohibition. Seeking to restrain the deleterious effects of drunkenness on families, such as poverty, spousal abuse, and other vices, Prohibition was put into place. However, the fruits of Prohibition were vastly greater crime and violence, and the entrance into American law of all kinds of laws that unconstitutionally infringed upon our gun and property rights, our rights to conduct our own finances as we see fit, and our liberties in many other areas. Prohibition made Leviathan possible in America.
Today, we see the "War on (Some) Drugs," which I believe should be ended, even if it means repealing laws against currently illegal drugs. Does this mean that I, like some libertarians seem to, believe there is some "God-given right" to take drugs? No. But the medicine is worse than the cure. The vast expansion of police powers, the warrantless no-knock raids, the property forfeiture laws, the restrictions upon gun ownership, the militarization of police forces, the spying on average citizens to see if they're consuming more electricity than they "should" be, the lives lost due to police ineptitude and disregard for our constitutional rights – all these exist because of the "War on Drugs." It's simply not worth it. While using mind-altering, even hallucinogenic, drugs is morally wrong, the efforts by the government to combat it are even more wrong. While drug users may sometimes harm other people, the extent to which government has trampled on real, natural rights is so much more pervasive.
Conversely, however, I don't have the same issue with restrictions against prostitution, for instance, because such restrictions have not resulted in the massive intrusions against our liberties that the "War on Drugs" has. Yet, were some government "War on Hookery" to begin doing so, then I would say end it and get the government away from it.
Because we live in a fallen world, it is simply often not worth it to produce positive laws against something forbidden by the laws of nature and nature's God. Not when these laws become an excuse to intrude on these inherent rights afforded by that natural law.
This is where that principle of self-government, mentioned earlier with Adams, comes into play. Self-control regulates our behavior and adheres to the laws of nature and nature's God far better than any positive law made by any expansive government ever could. This is what allows a free people to walk that narrow line between, on the one hand, the social conservative's nightmare of unrestrained drug use and child pornography on every street corner, and on the other hand, the libertarian's nightmare of a morality policeman stationed in every bedroom. Self-government is, in fact, what allows the liberty envisioned by Locke to exist – where we really and truly do respect each others' rights, and restrain ourselves from transgressing against them. With self-government, you have neither the Hobbesian world of people doing whatever they want, regardless of how it affects anyone and everyone else, directly or indirectly, nor an other-governing Progressive moralism that micromanages everybody's lives so that we don't ever do anything that somebody else might not like.
Self-government is vital to liberty because it is what really allows us to conform to the laws of nature and nature's God that form the underpinning of our liberty system as enshrined in our Constitution and other founding documents. Neither hedonistic libertarianism nor theocratic moralism was envisioned or intended by the Founders. Instead, they wanted a system in place where each individual was free to maximize his or her own liberty and opportunity, while minimizing the impact which he or she had on the equal right to natural liberty that others enjoyed. When people do not engage in self-government – when we have the, perhaps stereotyped, libertarian utopia of unrestrained intemperance - then they inevitably will intrude on the natural liberties of others, just as the drunk driver will eventually end up taking away somebody else's liberty of life or property, even if he "gets away with it" a few times before finally having a wreck. Natural lawlessness is wrong, because it does affect other peoples' liberties, even if the effect is often less, in aggregate and in extent, than government remedies instituted to combat it.
Abortion steals life. Homosexual "marriage" denigrates the God-ordained institution of marriage. Drug use can lead people to do things that will destroy the life or property of others as well those of the user. Prostitution often relies upon forced exploitation of vulnerable young women. These things are not "natural rights" sanctioned by the Creator. They are evils that exist because of man's sin. They are the antithesis of self-governing temperance which keeps liberty alive. They create the conditions that will eventually "require" government intervention to deal with them – as we're seeing today. What libertines think is "freedom" leads eventually to government slavery for all, participants or not, as George Weigel also points out.
While I agree with libertarians that many of the vices that exist in our world today are lesser affronts to liberty than the government measures used to suppress them, I nevertheless completely reject the notion, expressed by my libertarian correspondents, that these vices are somehow "natural rights" given by a holy God for the purpose of "man's felicity" (to use Blackstone's phrase). Further, I think it is a fatal flaw in libertarian thought to confuse the libertine for liberty. Self-government is the key to liberty, where we voluntarily restrain ourselves from doing evil that may, or will, harm another. The sort of extremely libertarianism, especially the sort that segues into outright Objectivism, is a hollow reed that can never support a liberty-oriented structure for civil society. Conservatives would do well to reject it, and to hold to the liberty ideology handed down to us by our Founders.