It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [10]
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Dr. King recognized that those laws were not just bad or unwise, but illegitimate because they violated the fundamental truths of the Natural Law. Civil rights were not mere political rights which could be granted or taken away as government saw fit; rather, since they come from our humanity, they relied upon nothing from the government for their existence. As we shall now explore, and as noted by Dr. King, this scheme of Natural Law was adopted by our Founders and enshrined in the Declaration of Independence and the Constitution.
The Promise of Freedom
Although our rights would exist even if they were not recognized by the Constitution, a scheme of Natural Rights nonetheless is enshrined in the Declaration of Independence and Constitution, and forms the basis for our entire legal system (or what our Founders intended to be our legal system). As previously noted, Jefferson specifically characterized our rights to life, liberty, and the pursuit of happiness as inalienable and self-evident. Moreover, he justified the entire American Revolutionary War as an effort to restore the protection of our Natural Rights:
When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.8
Thus, the entire basis for our independence as a nation is the recognition and protection of our Natural Rights. The Founders did not believe that the tyranny of King George III was merely imprudent or unwise but, like Dr. King, found it to be illegitimate.
In 1798, Justice Samuel Chase acknowledged the idea that government behaviors contrary to the Natural Law are invalid when he proclaimed in the famous Supreme Court case of Calder v. Bull, which addressed the applicability to state legislatures of the Constitution’s prohibition of ex post facto laws, that
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there are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.
Thus, government is always constrained in principle by the Natural Law— which Justice Chase called “the great first principles of the social compact.”
Natural rights are also referenced in and protected by the Constitution. The Ninth Amendment states that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” What would constitute the “rights . . . retained by the people,” if not Natural Rights? By proclaiming that those rights are retained, the text of the Constitution expressly rejects the philosophy of Positivism: Because those unenumerated rights remain with individual human beings, Congress and the president cannot take them away by enacting a law or issuing a command to that effect.
Moreover, since the Bill of Rights constrains the federal government, the Fourteenth Amendment protects individuals from similar encroachments of our Natural Rights by the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” What would be the privileges or immunities of American citizens, if not our Natural Rights? After all, the amendment does not say, “The enumerated rights in the