Natural rights. What are they? They belong
to everybody!
They are the rights that every
human is born with regardless of one’s nationality, sex, skin color, religious beliefs,
or income level.
They are the rights that this
nation’s Founding Fathers referred to as ‘self-evident’ ‘truths’ in our Declaration of
Independence.
When they created the U.S.
Constitution they failed to incorporate this fundamental principle into
it. That error resulted in more American
deaths than both World War I and WW II combined.
Today’s US law makers failure to
incorporate this same fundamental principle into our foreign policy and
military operations -- creates or contributes to much of the violence,
infectious diseases, border problems, environmental concerns, and other
security threats that could have been prevented if human rights globally were
more important than short term US interests.
Below is an opinion piece by a
highly respected Conservative columnist George Will that makes a fool proof
case that human rights are not just American rights. He’s making a case for what our nation and
government should stand for. Bless our
nation’s founders for the 9th Amendment. But most importantly, the Declaration of
Independence. We must forgive them for
the grave mistake early on. Now it’s up
to us to correct it for those who come after us.
“Life, liberty, and Justice for
all” or security and sustainability for none.
Achieving the SDGs is the best
shot we have at maximizing freedom and security for all -- for generations to
come. Be the one that makes sure your
own Member of Congress can never forgets this.
***************************************
“Gorsuch’s chance to correct
Scalia on the Constitution”
With an asperity born of exasperation,
Justice Antonin Scalia once wrote, “If you want aspirations, you can
read the Declaration of Independence,” but “there is no such philosophizing in
our Constitution,” which is “a practical and pragmatic charter of government.”
Scalia was wrong, and much depends on Neil Gorsuch not resembling Scalia in
this regard. Gorsuch can endorse Scalia’s originalism, construing the
Constitution’s text and structure as it was understood by its framers and
ratifiers, without embracing Scalia’s misunderstanding of this:
There is no philosophizing in the
Constitution — until the Founders’ philosophy is infused into it by construing
the document as a charter of government for a nation that is, in Lincoln’s formulation,
dedicated to a proposition that Scalia implicitly disparaged as impractical and
unpragmatic. The proposition is that all persons are created equal in their
possession of natural rights, which the government is instituted to “secure” — the Declaration’s word. In Lincoln’s formulation, the Constitution is the
“frame of silver” for the “apple of gold” that is the Declaration. Silver is valuable and frames are important,
but gold is more precious and frames derive their importance from what they
frame.
The drama of American democracy derives from the tension between
the natural rights of the individual and the constructed right of the community
to make such laws as the majority desires. Natural rights are affirmed by the
Declaration; majority rule,
circumscribed and modulated, is constructed by the Constitution, and a properly
engaged judiciary is duty-bound to declare majority acts invalid when they
abridge natural rights.
In Elena Kagan’s confirmation hearing
to be a justice, she was asked if she believes there are natural rights that
are not among the rights the Constitution enumerates. She replied:
“I don’t have a view of what are natural rights, independent of the
Constitution.” Using a foggy double negative, she added: “I’m not saying I do not believe
that there are rights preexisting the Constitution and the laws, but my job as
a justice is to enforce the Constitution and the laws.” And: “I think that the
question of what I believe as to what people’s rights are outside the
Constitution and the laws — that you should not want me to act in any way on
the basis of such a belief.”
Well.
Natural rights, which are grounded in nature, are thus “independent of” the
Constitution. They are not, however, “outside” of it because its paramount
purpose is the protection of those rights.
The
Ninth Amendment says: “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by
the people.” If you believe, as Robert Bork did, that this amendment is a
meaningless “inkblot,”
you must believe that the framers were slapdash draftsmen about this, and only
this, provision. Scalia believed that “the whole theory of democracy . . .
is that the majority rules. . . . You protect minorities only because the
majority determines that there are certain minority positions that deserve
protection. . . . The minority loses, except to the extent that the majority,
in its document of government, has agreed to accord the minority rights.”
If that is the
“whole theory” of democracy, then democratic theory is uninteresting. What is
interesting begins with the institutional and cultural measures necessary to
increase the likelihood that majorities will be reasonable and respectful of
the natural rights of those in the minority. It is the judiciary’s job to
construe the “document of government” — the frame of silver — in the light cast
by the apple of gold.
With the Declaration, Americans
ceased claiming the rights of aggrieved Englishmen and began asserting rights
that are universal because they are natural, meaning necessary for the
flourishing of human nature. The Constitution is America’s fundamental law but
not its first law. The Declaration appears on Page 1 of Volume 1 of the U.S.
Statutes at Large and it is at the head of the United States Code under the
caption “The Organic Laws of the United States.” Since the 1864 admission of
Nevada to statehood, every state’s admission has
been conditioned on adoption
of a constitution consistent with the U.S. Constitution — and the Declaration.
The Constitutional
Convention met in the room where the Declaration was debated and endorsed, and
the Constitution implements what the Declaration initiated. Gorsuch will occupy
much of the jurisprudential space Scalia so admirably did. But having earned a
doctorate in philosophy and jurisprudence at Oxford studying under John Finnis,
author of the book “Natural Law and
Natural Rights,” perhaps Gorsuch will effect a philosophic
correction.
***********
Dear Editor,
George
Will’s assertion that “Scalia was wrong” (“Gorsuch’s
chance to correct Scalia on the Constitution” 2-2-17) has profound implications at
both the national and global levels.
Early on, our nation’s founding father’s failure to incorporate into the
US Constitution the “proposition” (and ‘self-evident truth’) that all people
are created equal’ -- ended up costing more American lives than World War I and
WW II combined.
Looking at
the world today, it seems self-evident that most threats to our freedom, security
and prosperity (war, terrorism, pandemics, economic instability, climate
disruptions, border insecurity…) are caused by that same proposition being
excluded in both our foreign policy and military adventures since WW II.
After the
horrors of that world war, the Universal Declaration of Human Rights was
created with that proposition in mind, with the intent to prevent future
generations from war and other scourges.
Unfortunately, any real protection of human rights was overridden by the
creation of a rigged system with national sovereignty (government interests)
put far above the protection of universal inalienable human rights. It remains so today. No wonder ‘we the people’ have lost trust in
institutions at both the national and global level, and now fear what populist
powers might do.
Without the
rapid transformation of both the US Constitution and the UN Charter to correct
this flaw no one’s freedom or security will remain secure.
CW
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