Sunday, February 19, 2012

Natural Law and the Constitution:

With this blog and all my writings, I have only ever attempted to uphold, praise and politely demand what nature demands of all mankind, that of liberty, justice, and equality before the law, here in America at the very least, but I would prefer these to be recognized throughout the world, as nature recognizes them throughout the entire world.  For nature works itself upon all mankind, no matter the nation or section of the globe. 

1.) Liberty:
The law of nature, requires the upmost liberty of the individual possible in a state of society; The liberty of the individual in a state of society, where a social compact has been freely entered into by the members of that society and a government erected, will be a slightly manipulated liberty than there will be in a state of nature.  An example of this is man giving up his natural right to be, himself, judge of himself and others in a state of nature, putting this right into the common stock of society, thus becoming a civil right, to be judged by society, or those appointed by society to judge.  And in America’s case these judges are either our peers, in the form of  a jury or elected or appoint judges, appointed by  our elected officials.  Thus, the liberty of the individual in America, though it remains the same quantity as in a state of nature, is slightly manipulated in a state of society, practiced in a different way, through civil rights of the individual instead of natural rights of the individual to be practice by every single individual living in the society, where such is impracticable in a state of society, as in judicial matters.  Thus, nature demands we have the same quantity and type of liberty in a state of society as we do in a state of nature, except that that liberty will be manipulated and will be practiced in slightly different ways, so as to adapt to the necessities of living in a state of society.

2.) Justice:
The law of nature requires natural justice, and justice in a state of society will be the same as justice in a state of nature.  It is this simple.  There will be no diminution of either liberty or justice when individuals decide to form a social compact and government.  For no man in a state of nature can invade and violate the natural rights of others in a state of nature (such puts men into a state of war instead of peace), and because this is not allowed in a state of nature, how can man be allowed to invade and violate the rights of others in a state of society?  Simply, the answer is that they can’t.  If nature forbids an action, man cannot perform that action and be justified in performing it.  Thus, natural justice remains the same in a state of nature.

3.) Equality Before the Law:
All men and women are equal before the law of nature, or rather, the laws of nature apply to them equally and guarantee them their rights equally.  And thus, men and women must also be equal before the laws of mankind in a state of society, or rather, have those laws apply to them equally and guarantee to them and protect their natural and civil rights.  For if all mankind is equal before the law of nature, and this is good enough for the Creator of nature and nature’s law, so why then has man arrogantly and pridefully assumed he/she can make his fellow human beings unequal before the laws of man, if the laws of man must be governed by, rely upon, and cannot contradict the laws of nature?  Now, it must not be assumed that to say mankind is found to be equal before the law of both nature and mankind, that mankind is equal in everything, including faculties, talents, skills, desires, abilities, likes and dislikes, and material goods.  The very nature of individuals and individuality means that such qualities as these will never be equal and never can be equal.  Elsewise, individuals and individuality would cease to exist.  Rather, equality before the law means to be treated equally by the laws, having them apply equally to everyone, and the people having their rights, both natural and civil, guaranteed and protected by the law equally.  Equality before the law also means there are to be no individuals put artificially above others by the law, such a king or aristocracy.  This is what it means to be found equal before the law.  The law treats each person equally, favoring no one over any other, and the law applies to each person equally, meaning no one escapes the application of the law to them.  No one has special privileges to escape the application of the law due to their birth, race, skin color, gender, age, wealth, or any other outward characteristic.  The law also protects each person and his/her rights equally as well, and does not favor one person or his/her rights over others and the rights of others.  This is equality before the law, both before the law of nature and the laws of mankind established in societies under social contracts/compacts.  

Now, all this being said, these very ideas and laws were known to and espoused by the Founding Fathers of the U.S., and even by the Tories and Loyalists of England and America, as well as by the rest of enlightened Western Europe.  But in no place was it more known and espoused by the general population than in America.  Our first law and act as a nation, the one that established us as an independent nation, declared these very principles outlined above; “[w]e 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. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”  And it was the same men, who espoused and wrote such things that drafter and ratified our Constitution.  Thus, these same principles are represented in the Constitution, if not word for word, than by the ideas being present in the way our government was set up and in the debates in the actual framing and then the ratification of the Constitution.  Thus, these laws and principles are very much in the Constitution, but perhaps not word for word.

Natural rights and law theorist Lysander Spooner, also an 19th century lawyer, wrote a pamphlet titled “The Unconstitutionality of the Constitution,” which describes the very thoings I have written above, concerning this higher law of nature not only being present in the Constitution, but also concerning how all the laws of mankind owe obedience to and cannot justifiably contradict the the higher law, the law of nature.  Spooner writes:

‎"It is obvious that legislation can have, in this country, no higher or other authority, than that which results from natural law, and the obligation of contracts, for our constitutions are but contracts, and the legislation they authorize can of course have no other or higher authority than the constitutions themselves. The idea, therefore...of any inherent right in the majority to restrain individuals, by arbitrary enactments, from the exercise of any of their natural rights, is a sheer an imposture as the idea of the divine right of kings to reign, or any other of the doctrines on which arbitrary governments have been

-Lysander Spooner, "The Unconstitutionality of Slavery," 1860.

And can legislation be inconsistent or contrary to natural law and natural justice? No, because Constitutions themselves cannot be valid and be contrary or inconsistent with natural law and natural justice, thus, neither can legislation because legislation can't violate or contradict the constitutions, which can't violate or contradict natural law and natural justice. It's as simple as that. If only our courts would base our Constitution off of natural law instead of assuming its the highest law there ever was in America. Our constitution is the highest MAN-MADE LAW, but it owes its allegiance to an even higher, universal law, the law of nature, or as Spooner calls it, natural justice. Our courts practice invalid law if they don't recognize natural law in their rulings and thus their rulings are invalid and void.

So, what do you, my readers (again, if there be any) think?  Is there a higher law present in the Constitution by means of the Declaration of Independence, and does our Constitution owe obedience to this higher law, the natural law?  Or is the democratic principles of the will of majority the highest principle and law mankind must obey, to which if the will of the democratic majority wills it, the natural and civil rights may be violated in order to achieve the public good?  Before you answer this question though, I leave you with the principle that whatever we do to one man or portion of society, will establish a precedent that will reach even unto yourself, or if not yourself due to the shortness of life, then to your posterity.  This absolute is portrayed in the following quotes, one by Thomas Paine, and another by the 17th century English Civil War Leveller, Richard Overton.

"For sir, look: what bondage, thraldom, or tyranny soever you settle upon us, you certainly, or your posterity will taste of the dregs. If by your present policy and (abused) might, you chance to ward it from yourselves in particular, yet your posterity — do what you can — will be liable to the hazard thereof."

-Richard Overton, English Civil War/Revolution Leveller, 1640's

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

-Thomas Paine, 1792, speech to the French National Convention.

1 comment:

  1. I think natural law should be what is followed, because killings in the name of Religion has become the worlds legacy and it doesn't seem like it will ever end soon.