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"Limited By What?"

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This essay was written as a response to personal frustration that while everyone seems to be calling for limited government, nobody seems to fully understand what government should be limited by. The essay was also printed at my blog, Opinion-Forum

“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.

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