OPINION:
The Declaration of Independence of July 4, 1776, embraces two value sets. The first is natural rights, and the second is limited government. After 250 years, neither value has survived, and the opposite of each currently prevails in America.
Thomas Jefferson drafted the Declaration in three days while staying at a rooming house in Philadelphia. He had been greatly influenced by the British philosopher John Locke.
Locke is the godfather of the theory of natural rights, which he extrapolated from the natural law teachings of Aristotle, Augustine and Aquinas.
Aristotle (384-322 B.C.) did not argue that humans have inherent natural rights, but rather that the concept of justice demanded by human nature should be “naturally just” when addressing claims for protection of persons and property, whether those protections were legislated or not.
The “whether legislated or not” is the first known articulation of a higher civil law, higher than the government’s own laws.
St. Augustine (A.D. 354-430) also did not explicitly define the existence of natural rights, but he argued that norms of human behavior are knowable through the exercise of reason aided by revelation.
He is the seminal thinker to express the view that right and wrong are knowable to all persons, whether legislated or not; and this knowledge — because it is common to all — is itself a higher law. He called this universal knowledge “natural law.”
St. Thomas Aquinas (A.D. 1225-1274) did not articulate natural rights, but he did proceed deep into the ideas of Aristotle and Augustine and taught that all human beings possess innate moral claims and innate moral obligations to honor the moral claims of other persons; and these claims and obligations are knowable by the exercise of reason.
John Locke (1632-1704), whose writings Jefferson read at the College of William & Mary, and James Madison read at Princeton, drew upon all three philosophers to argue that Aquinas’ moral natural law claims are really natural rights, and these, too, just like knowing right from wrong, are inherent in our humanity and are superior to the government.
Locke further argued that rights are claims against the whole world. Thus, your right to be alive, to think as you wish, to say what you think, to publish what you say; to worship as you wish or not to worship; your right to associate with others; your right to protect yourself and your property; your right to be left alone; your right to own and possess and control property; your right to travel; and your right to fairness from the government are all natural rights, and the exercise of these rights does not require government permission.
From all this, Jefferson wrote that our rights are divinely gifted, individually possessed and inalienable. This is the first value we celebrate on July Fourth.
The second value also stems from human nature. Locke taught, and Jefferson believed, that the ownership of property is absolute. That is, the owner can use his property as he wishes — without harming others; he can sell or lease it; and he can exclude anyone he wishes for any unstated reason, including the government.
From that view, Jefferson recognized that the only morally licit government was one affirmatively consented to by the governed. Eleven years later, Madison was the scrivener at the Constitutional Convention, and two years after that, he crafted the Bill of Rights. Jefferson, Madison and their colleagues recognized the divine hand in the human origin of personal freedom, the natural rights of all persons and the limited nature of the republic they created.
Then, along came war — the great scourge of natural rights and limited government.
The extraconstitutional growth of government comes during war and warlike crises, from the never-declared war with France in the 1790s that spawned the Alien and Sedition Acts, which punished speech critical of the government; to the arrest of journalists without charge or trial during the Civil War; to the prosecution of pamphleteers against the draft during World War I; to incarceration of Americans in American concentration camps based on race during World War II; to the war on terror, which spawned the Patriot Act and its warrantless spying; to the present era’s undeclared wars on presidential whim, and the expansion of America’s 750 foreign military bases into 80 countries.
To Jefferson and Madison, a natural right was truly inalienable and exercisable against the whole world. It may be curtailed morally and legally only after a jury trial and upon conviction for violating another person’s natural rights. Any law or executive order that impairs natural rights is invalid, and there is no obligation to comply with it. On this, Aristotle, Augustine, Aquinas, Locke, Jefferson and Madison all agreed.
In a constitutional republic, government may take liberty and property only pursuant to law and only from those who have consented by granting those powers to the government in the constitution that created it; and any exercise of any powers not consented to by the governed is assaultive of natural rights, is beyond the government’s moral and constitutional authority, is morally illicit and of no legal validity.
In an empire, the government has no limits. It does whatever the head of state wants. It denies the enforceability of international norms, enriches itself at the people’s expense, takes property without the consent of the governed, violates natural rights, starts wars to please constituent groups, murders people without trial who it claims have violated its laws, suppresses foreign people and tells them how to live and even kidnaps their leaders.
It floods the money supply with cash, thereby devaluing all private property; it monitors all communications and builds hundreds of military bases around the globe. Its legislature is weak and bullied by the head of state, who imposes his own taxes, promotes blood sport and builds garish monuments to himself.
Which form of government are we celebrating next month?
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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