Let’s Talk About Natural Law

English Philosopher John Locke

Politico reports that the State Department plans to create a Commission on Unalienable Rights, which will have the purpose of looking at international human rights and natural law.

This is surprisingly philosophical and high minded for the Trump administration, which has not much of a reputation for being either philosophical or high minded. Trump himself seems not to understand what a constitution is or anything about what our Constitution says.

It is also typically ill considered and short sighted.

Some observers worry that this will prove to be a cheap excuse for attacking the rights of women and LGBT persons.

If they are at all intellectually honest — a big if, since they are “conservatives,” who are never intellectually honest — this will be a difficult trick to pull off.

The history of Anglo-American political philosophy has a robust tradition of considering natural law. Technically, the rights of every U.S. citizen rest on natural law, with the Constitution being only the codification in what people typically call “positive law” in this context, of natural law.

These ideas come from the English philosopher John Locke, who had a huge influence on the British colonies in North America. Locke posited a state of nature, in which humans lived before the advent of government. According to Locke, in the state of nature, all humans have the right to life, liberty, and property, the phrase that Thomas Jefferson would modify to “life, liberty, and the pursuit of happiness” in the Declaration of Independence at the beginning of the American Revolution.

The problem, in the state of nature, is that, humans being human, some of your fellow humans will take any opportunity to violate your natural rights, by killing you, kidnapping you, or stealing from you, and your only defense is your own wit and physical strength. According to Locke, in the state of nature, you do have the right to defend your rights by imprisoning or enslaving, or killing, anyone who violates or tries to violate your natural rights, but this is very uncertain and poses numerous practical difficulties. If you go out and gather up a large supply of food that you keep at your domicile, you then face the difficult choice of staying home to guard the food you have, or of going out to gather more. Add in children, and the problem becomes intractable.

The solution, according to Locke, is to join with other humans and agree — choose — to enter into a social contract according to which everyone agrees to abide by a specific set of rules that a designated body creates and to pay a specific set of persons to enforce those laws as police and judges. An important implication of this idea is that any government is subsidiary to the natural rights of the governed and has as its primary responsibility the protection of their natural rights.

It obviously does not much work in practice, but in theory, our Constitution is a social contract. It begins “We the People,” which is the principle of popular sovereignty. Locke wrote his major political treatise during the Glorious Revolution in England, when the English drove James II from the throne and invited William and Mary (the same people whom the university in Virginia is named for) to become the monarchs of England. This was not just a fight over who would be the English monarch. It was a major event in the long running battle over whether the monarch or parliament would have the final say in the English government. This was a high point for the power of parliament.

Conservatives at the time claimed that the monarchs of England derived their authority directly from god and therefore should be immune to challenges against their power. Locke said that was nonsense and that all legitimate government derived its authority from the consent of the governed.

This idea in turn rests at the basis of the government of the United States. The practical obstacles are enormous, but in theory, the citizens retain always the right, in the words of the Declaration of Independence, to “alter or abolish” our existing government and start over.

The Declaration also starts with the same axiom Locke did — that all humans are foundationally equal. Jefferson incorporated this idea into the Declaration — even as he owned slaves, so he did not live up to the principle himself, but we have inched, always against the screaming opposition of conservatives, toward actually treating all persons in the United States as equals. We still have a lot of work to do, but we got rid of slavery, recognized the right of women to vote, and finally enacted statutes prohibiting the worst forms of discrimination against the descendants of the former slaves.

If Trump and his toadies now want to whip out natural law for purposes of trying to justify attacks on the rights of women and queers, they will have to fight the basic, founding philosophy of the republic, with the various practical expansions of those principles toward greater realization that have occurred since the American Revolution.

One doubts that they know this, but it is certain that many people will remind them.

Uppity gay, Buddhist, author, historian.

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