User Tag List

+ Reply to Thread
Results 1 to 4 of 4

Thread: Are There Such Things as “Natural” Rights?

  1. #1
    Points: 665,303, Level: 100
    Level completed: 0%, Points required for next Level: 0
    Overall activity: 84.0%
    Achievements:
    SocialRecommendation Second ClassYour first GroupOverdrive50000 Experience PointsTagger First ClassVeteran
    Awards:
    Discussion Ender
    Chris's Avatar Senior Member
    Karma
    433316
    Join Date
    Feb 2012
    Posts
    197,554
    Points
    665,303
    Level
    100
    Thanks Given
    31,984
    Thanked 80,905x in 54,720 Posts
    Mentioned
    2011 Post(s)
    Tagged
    2 Thread(s)

    Are There Such Things as “Natural” Rights?

    Chapter 5 of Hadley Arkes' new Mere Natural Rights. Some previous books are First Things: An Inquiry into the First Principles of Morals and Justice and Natural Rights and the Right to Choose.

    It is never out of season to recall James Wilson’s line that the purpose of the Constitution was not to invent new rights “by a human establishment,” but to secure and enlarge the rights we already have by nature. In radical contrast, the celebrated William Blackstone said in his Commentaries on the Laws of England that when we enter civil society, we give up the unrestricted set of rights we had in the State of Nature, including the “liberty to do mischief.” We exchange them for a more diminished set of rights under civil society—call them “civil rights” but they are rendered more secure by the advent of a government that can enforce them. To which Wilson responded, “Is it part of natural liberty to do mischief to anyone?” When did we ever have, as Lincoln would say, a “right to do a wrong”? The laws that restrained us from raping and murdering deprived us of nothing we ever had a “right” to do. And so when the question was asked, What rights do we give up in entering into this government?, the answer tendered by the Federalists was, “None.” As Hamilton said in Federalist no. 84, “Here … the people surrender nothing.” It was not the purpose of this project to give up our natural rights. And so what sense did it make to attach a codicil, a so-called “Bill of Rights,” reserving against the federal government those rights we had not given up? How could we do that without implying that in fact we had given up the corpus of our natural rights in coming under this Constitution?

    There has been a curious forgetting, among lawyers and judges as well as ordinary citizens, that there was a serious dispute at the time of the Founding about the rationale and justification of a “Bill of Rights,” and that the reservations did not come from men who had reservations about the notion of “rights.” The concern, rather, was that a Bill of Rights would work to mis-instruct the American people about the ground of their rights. That concern can be glimpsed—and confirmed—in that line we hear so often in our public arguments, when people earnestly insist on claiming those “rights we have through the First Amendment.” Do they really think that without the First Amendment they would not have a right to speak and publish, to press their views in public, to assemble with others who share their views? That was precisely the point made by Theodore Sedgwick when the First Congress was presented with the proposal for a Bill of Rights. Was it really conceivable in a republic and a free society that people would not have these rights even if they were not set down in a constitution? As John Quincy Adams would later argue, the right to “petition the government” was implicit in the very logic of a republican government. That right would be there even if no one had thought to set it down in the First Amendment. It would be there even if there were no First Amendment. It would be there, in fact, even if there were no Constitution.

    But the challenge may quickly arise: If you are saying that those deep principles of a regime of law were there before the Constitution, and they would be there even if there were no Constitution, are you saying that we don’t really need the Constitution? And the answer, of course, is no. The purpose of a constitution is to establish a structure of governance consistent with those deep principles that define the character of the regime. The current Constitution is our second constitution; the first one—the Articles of Confederation—had fanned centrifugal tendencies that undermined the sense of one people forming a nation with a national government.

    On the night he was elected president in November 2008, Barack Obama remarked to a throng in Chicago that we had built this country “for 221 years … calloused hand by calloused hand.” In striking contrast, Lincoln said at Gettysburg, “Four score and seven years ago our fathers brought forth, on this continent, a new nation.” Counting back 221 years from November 2008, Obama put the beginning of the nation at the drafting of the Constitution in 1787. Counting back 87 years from Gettysburg, Lincoln found the beginning of the nation in the Declaration of Independence in 1776. It was then that we had the articulation of that “proposition,” as he called it, that determined the character of this new regime arising in America: “that all men are created equal,” and the only rightful governance over human beings “deriv[es] its just powers from the consent of the governed.” The Declaration provided those defining principles around which the Constitution would be shaped. Lincoln explained the relationship, drawing on Proverbs 25:11, “A word fitly spoke is like apples of gold in pictures of silver”: “The assertion of that principle [‘all men are created equal’] at that time was the word, ‘fitly spoken’ which has proved an ‘apple of gold’ to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.” The Constitution was made for the Union, not the Union for the Constitution. The Union was older than the Constitution, and after all, the Constitution said in its preamble that it was brought forth “in Order to form a more perfect Union.”

    The Constitution was grounded in principles that were already there, but it supplied a structure, and that structure made a profound practical difference: I really do want to know—and so should everyone else—just whom the army will obey as commander in chief if the president dies. And I really want to know whether a state may make its territory available as a military or naval base for another country without the permission of the national government. The path to the enactment of Obamacare was given a serious jolt when the Constitution, for the fifty-sixth time, through peace and war, served up a midterm congressional election. That was a jolt of restraint emanating from the Constitution, but we may no longer notice the midterms as a constitutional happening because we are not litigating over this critical part of the Constitution. But the animating purpose of this whole project, as the Declaration said, was to “secure these rights,” the rights flowing by nature to ordinary men and women to govern themselves.
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

  2. The Following 2 Users Say Thank You to Chris For This Useful Post:

    Collateral Damage (04-27-2023),MisterVeritis (04-28-2023)

  3. #2
    Original Ranter
    Points: 859,042, Level: 100
    Level completed: 0%, Points required for next Level: 0
    Overall activity: 90.0%
    Achievements:
    SocialCreated Album picturesOverdrive50000 Experience PointsVeteran
    Awards:
    Posting Award
    Peter1469's Avatar Advisor
    Karma
    496580
    Join Date
    Jun 2011
    Location
    NOVA
    Posts
    241,693
    Points
    859,042
    Level
    100
    Thanks Given
    153,218
    Thanked 147,590x in 94,419 Posts
    Mentioned
    2552 Post(s)
    Tagged
    0 Thread(s)
    Inquiry was required reading in a political philosophy class that I took.
    ΜOΛΩΝ ΛΑΒΕ


  4. #3
    Points: 665,303, Level: 100
    Level completed: 0%, Points required for next Level: 0
    Overall activity: 84.0%
    Achievements:
    SocialRecommendation Second ClassYour first GroupOverdrive50000 Experience PointsTagger First ClassVeteran
    Awards:
    Discussion Ender
    Chris's Avatar Senior Member
    Karma
    433316
    Join Date
    Feb 2012
    Posts
    197,554
    Points
    665,303
    Level
    100
    Thanks Given
    31,984
    Thanked 80,905x in 54,720 Posts
    Mentioned
    2011 Post(s)
    Tagged
    2 Thread(s)
    ‘Mere Natural Law’ and the Anchoring Truths of Constitutional Order

    ...What if there were another way? What if we could recover a true constitutional consensus that was not only more faithful to America’s Founders, but also consonant with the pre-Enlightenment classical legal tradition? Can we imagine our political class, once more able to fulfill their oaths to the Constitution, exercising power not for the private good of some but for the common good of the whole political community?

    In Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, political philosopher Hadley Arkes argues persuasively that America’s constitutional past, our once-robust practice of the classical law, offers a better guide for restoring our constitutional order than the false binaries of left-positivism or right-positivism that have made our present debates so tiresome. In effect, Arkes wants to emphasize that the classical legal tradition is at once more capable of delivering the justice purportedly sought by living constitutionalists and more faithful than originalists to original public meaning, the letter of the text, and the legitimacy of the regime. Mere Natural Law is Arkes’s appeal to a rising generation of American lawyers, judges, and political theorists to discover that our classical legal tradition makes true political order possible through the harmonious unity of moral reason and the positive law....
    In the Bannon thread I quote The Anti-Democratic Worldview of Steve Bannon and Peter Thiel: "The lesson of World War II and the struggle against totalitarianism, Bannon explains, is that the great and singular achievement of the West is 'an enlightened form of capitalism.' It is, he says, a specifically 'Christian' or 'Judeo-Christian' version of capitalism that produces wealth for the good of the community, in which 'divine providence' empowers its favored people 'to actually be a creator of jobs and a creator of wealth.'" The Christian stuff probably scares you lefties but the main point here is a 'capitalism that produces wealth for the good of the community.'"
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

  5. #4
    Points: 665,303, Level: 100
    Level completed: 0%, Points required for next Level: 0
    Overall activity: 84.0%
    Achievements:
    SocialRecommendation Second ClassYour first GroupOverdrive50000 Experience PointsTagger First ClassVeteran
    Awards:
    Discussion Ender
    Chris's Avatar Senior Member
    Karma
    433316
    Join Date
    Feb 2012
    Posts
    197,554
    Points
    665,303
    Level
    100
    Thanks Given
    31,984
    Thanked 80,905x in 54,720 Posts
    Mentioned
    2011 Post(s)
    Tagged
    2 Thread(s)
    This is a very readable book. His long, complex arguments in his other books are boiled down to simpler, more straightforward, common-sense arguments.

    His main thesis is a challenge to orginalism. The nation was founded on natural law principles, what he calls anchoring truths about man's nature. He argues these reasonable truths should be the basis of law, not just the Constitution itself, but what the Constitution is founded on. His friend, Antonin Scalia, was a great advocate of natural law but also advocated an originalism that excluded it for fear of what liberals who invent rights would do. Arkes trust right reason.

    That. in much greater detail and deeper argument, is chapter 1.
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

+ Reply to Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts