- Oct 6, 2008
- 125,093
- 60,647
1. The concept of 'Natural law', central to the founding of the United States, is based on the view that there are rights that simply accrue from being a human being. The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them."
Because of the intersection between natural law and natural rights, it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States. 'Declarationism' states that the founding of the United States is based on Natural law.
Natural law is often contrasted with the positive law of a given political community, society, or state, which is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."
Kelsen, Hans (2007). General Theory of Law And State.
2. The reference to natural law can be seen in the reference to Divine in Declaration of Independence: 1)in first paragraph Laws of Nature and of Natures God, 2) next paragraph endowed by their Creator, 3) Supreme Judge of the world, and 4) divine Providence, last paragraph.
a. This is important because our historic documents memorialize a government based on individuals born with inalienable rights, by, in various references, by the Divine, or Natures God, or their Creator, or the Supreme Judge, or divine Providence. Since these rights are associated with each individual, they cannot be withdrawn, or subjugated to the will of a governing body.
3. The problem arises when one attempts to use the idea of natural law as the foundation for a system of law based on "justice."
In an age when citizens disagree sharply about what justice requires, courts have to question imposing contested principles by judicial fiat. The debate about whether or not the Supreme Court should enforce unenumerated principles of justice, rooted in natural law rather than explicitly codified in the Constitution, goes back to the beginning. The terms of the debate were established as early as 1798, in Calder v. Bull. Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation
a. How to find a universal definition of exactly what 'justice' is, or what God would find just, when there isn't a consensus on what God is, or even if there is a God.
4. In the case mentioned above, Justice Samuel Chase gave his view of natural law, and the limits of legislative power: He noted that while the federal government's powers were strictly defined in the enumerated powers clause, state governments had all the power that the people of the states decided that they had, except for those denied by the Constitution.
But, he said, natural law "will determine and overrule an apparent and flagrant abuse..." And "An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority,...
5. Chase was drawing on a natural law tradition widely accepted by the American founders. Virtually all of the framers of the Constitution, led by Madison, believed in the existence of natural rights that is, rights given by God rather than Government that individuals retained during the transition from the state of nature to civil society. There was broad consensus during the founding period about which rights were natural:
they included the right to alter and abolish governments,
to worship God according to the dictates of conscience,
to speak freely,
and to pursue and obtain happiness and safety.
a. This is the point: who will decide whether or not state legislatures have broken the restrictions of natural law? Chase has set the stage for federal judges to substitute their individual understandings of unwritten natural law for the judgments of state legislatures.
"The Politically Incorrect Guide to the Constitution," Kevin R. C. Gutzman, p. 53-54.
6. Fellow Justice James Iredell gave the alternate argument: The antinatural justice position in Calder v. Bull that is, the view that natural rights exist, but courts should not enforce them was expressed by Justice James Iredell.
If any act of Congress, or of the Legislature of a state, violates ... constitutional provisions, it is unquestionably void, he wrote. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.
Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation
And so, even those of us aligned with the Founders in their belief in a Creator, and in natural law, are unable to disagree with Justice Iredell..."... the ablest and the purest men have differed upon the subject..."
" Justice" cannot be the basis of our legal system unless all agree on its meaning.
Because of the intersection between natural law and natural rights, it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States. 'Declarationism' states that the founding of the United States is based on Natural law.
Natural law is often contrasted with the positive law of a given political community, society, or state, which is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."
Kelsen, Hans (2007). General Theory of Law And State.
2. The reference to natural law can be seen in the reference to Divine in Declaration of Independence: 1)in first paragraph Laws of Nature and of Natures God, 2) next paragraph endowed by their Creator, 3) Supreme Judge of the world, and 4) divine Providence, last paragraph.
a. This is important because our historic documents memorialize a government based on individuals born with inalienable rights, by, in various references, by the Divine, or Natures God, or their Creator, or the Supreme Judge, or divine Providence. Since these rights are associated with each individual, they cannot be withdrawn, or subjugated to the will of a governing body.
3. The problem arises when one attempts to use the idea of natural law as the foundation for a system of law based on "justice."
In an age when citizens disagree sharply about what justice requires, courts have to question imposing contested principles by judicial fiat. The debate about whether or not the Supreme Court should enforce unenumerated principles of justice, rooted in natural law rather than explicitly codified in the Constitution, goes back to the beginning. The terms of the debate were established as early as 1798, in Calder v. Bull. Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation
a. How to find a universal definition of exactly what 'justice' is, or what God would find just, when there isn't a consensus on what God is, or even if there is a God.
4. In the case mentioned above, Justice Samuel Chase gave his view of natural law, and the limits of legislative power: He noted that while the federal government's powers were strictly defined in the enumerated powers clause, state governments had all the power that the people of the states decided that they had, except for those denied by the Constitution.
But, he said, natural law "will determine and overrule an apparent and flagrant abuse..." And "An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority,...
5. Chase was drawing on a natural law tradition widely accepted by the American founders. Virtually all of the framers of the Constitution, led by Madison, believed in the existence of natural rights that is, rights given by God rather than Government that individuals retained during the transition from the state of nature to civil society. There was broad consensus during the founding period about which rights were natural:
they included the right to alter and abolish governments,
to worship God according to the dictates of conscience,
to speak freely,
and to pursue and obtain happiness and safety.
a. This is the point: who will decide whether or not state legislatures have broken the restrictions of natural law? Chase has set the stage for federal judges to substitute their individual understandings of unwritten natural law for the judgments of state legislatures.
"The Politically Incorrect Guide to the Constitution," Kevin R. C. Gutzman, p. 53-54.
6. Fellow Justice James Iredell gave the alternate argument: The antinatural justice position in Calder v. Bull that is, the view that natural rights exist, but courts should not enforce them was expressed by Justice James Iredell.
If any act of Congress, or of the Legislature of a state, violates ... constitutional provisions, it is unquestionably void, he wrote. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.
Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation
And so, even those of us aligned with the Founders in their belief in a Creator, and in natural law, are unable to disagree with Justice Iredell..."... the ablest and the purest men have differed upon the subject..."
" Justice" cannot be the basis of our legal system unless all agree on its meaning.