Posted by Lex, on December 22, 2010
Proponents claim that the concept is derived from the philosophical structure contained in the Declaration of Independence and assertion that it was the Declaration that created the nation, the Constitution creating only the federal government. According to this view, the authority to create the Constitution derives from the prior act of nation-creation accomplished by the Declaration. The Declaration declares that the people have a right to alter or abolish any government once it becomes destructive of their natural rights. The turn away from the Articles of Confederation with the ratification of the Constitution was an action of this sort and so the Constitution’s authority exists within the legal framework established by the Declaration. The Constitution cannot, then, be interpreted as though it were the foundation of constitutional law, in the absence of principles derived from the Declaration.
Aristotle is thought to be the father of natural law, and though it had many guardians over the years, Thomas Hobbes – he of the “solitary, poor nasty, brutish and short” philosophy of human existence – found reason to criticize in favor of what is known as “positive law“:
Positive law is the term generally used to describe man-made laws which bestow or remove specific privileges upon an individual or group. Contrast this with natural law which are inherent rights, not conferred by act of legislation.
Hobbes’ contention was that, “the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign’s decisions need not be grounded in morality, legal positivism is born.”
What do any of these dead white men have to do with us, and – perhaps – our recent discussions?
Well, there’s this, from John Zmirak at Inside Catholic:
The event that’s tempting me to make like Tertullian and pop myself some popcorn while I watch the souls in hell is the very public scandal of Columbia professor (and Huffington Post blogger) David Epstein. First, let me lay out why I’m inclined to detest the man: He is the icon of leftist academic self-righteousness, the kind of Ivy League teacher who sneers at the Bible readers, homeschoolers, gun owners, and pro-lifers who keep this country livable. And he does so in the language of high moral dudgeon. Witness his response when Sarah Palin — who’s certainly flawed, and I’ve criticized her myself — decided to resign as Alaska governor: “Palin has done what weak, self-centered people do when the going gets tough — they quit and blame someone else.” (Hat tip to Robert Stacy McCain.) Epstein elsewhere accused conservatives of “taking hypocrisy in their personal lives to new levels of self-indulgent weirdness.”
This week, we have learned just a little of what Professor Epstein means by “self-indulgent weirdness,” as news came outthat Epstein has for three years been having an affair with his own daughter — his biological daughter, whom he raised himself. The young woman’s mother is also a professor at Columbia. I am relieved to report that she is not standing by her man.
Now facing a jail term for his actions, Epstein hired an attorney who made the kind of arguments we should by now realize are obvious: The young woman was over 18, she wasn’t coerced, so what’s the harm? What right does the state have to interfere? As Epstein’s lawyer told the Huffington Post, “What goes on between consenting adults in private should not be legislated. That is not the proper domain of our law . . . . If we assume for a moment that both parties are consenting, then why are we prosecuting this?”
In an era of positive law uninformed by the laws of nature, or nature’s God, where men are advised to submit to the will of the sovereign, that’s a very good question.
We’ve come a long way, baby. With a distance yet to go, I fear.
The essence of conservatism, to paraphrase William F. Buckley, is to “stand athwart history, yelling ‘Stop!’”
Add my voice to the chorus.