It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [7]
By inalienable it is meant that these rights cannot be taken away from us under any circumstances, although we can give them up. Thus, even if we desired to do so, we could never sell ourselves into slavery and relinquish all claims on liberty. Such a transaction would be void as contrary to the Natural Law. But one may argue, can’t we sell our property, thus making it alienable? Although we can alienate our property, we can never alienate our right to acquire, possess, alter, and trade property. Thus when we exchange one good for another, we are merely converting the subject of that right into something else; we are not adversely affecting the right itself. If we grew corn and donated it to a local charity, the fact of that donation does not change that we always have a right to claim future corn production for ourselves.
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The cornerstone of a libertarian understanding of Natural Rights, and how social interactions should be structured so as to maximize the pursuit of our fundamental human yearnings, is the nonaggression principle. This states that we are free to do as we choose, but only to the extent that our actions do not infringe upon the freedoms of others. Thus, my freedom to swing my arms ends a few inches in front of your nose. In addition to individuals, governments must also obey the nonaggression principle, as governments are merely the constructs of individuals, deriving their just powers from what the governed have consensually given them, and are thus temporal “things” secondary to the Natural Law.
In modern society, where the natural law has been perverted, we have permitted the government to monopolize violence and coercion. This has resulted in our sheep-like acceptance of theft of property, liberty, and dignity by the government. We have also permitted the perversion of the principle of subsidiarity. Subsidiarity encompasses von Mises’ assertion that government is the negation of liberty, Aquinas’s view that the government’s use of force should be as little as possible, and Jefferson’s mantra that that government is best which governs least. To comply with the doctrine of subsidiarity, governmental tasks should be performed by the lowest level of government possible, so as to disturb the least individual freedom, absorb the fewest public resources, and endure for the briefest time period. I know what you are probably thinking. . . . This doesn’t sound like anything in American government today. You’re right.
Elsewhere in this book, we explore a number of different natural rights which embody the nonaggression principle, such as the right to free speech and the right to property. However, whenever we attempt to discuss Natural Rights, the same “problem” that we encountered with the Natural Law arises: What exactly are those rights? As noted above, those who criticize the philosophy of Natural Rights typically do so because they are frustrated by what they perceive to be an inherent subjectivity in the method of identifying those rights. After all, the law prides itself on being objective and determinable. And sadly, the ambiguity of the Natural Law has been abused from time to time so as to disparage our natural rights.
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Such was the case in Justice Joseph P. Bradley’s concurrence in Bradwell v. Illinois, an 1873 Supreme Court case that upheld Illinois’ refusal to license a woman as a lawyer. He famously stated that “the constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.” Just as geography was once plagued by the belief that the world is flat, so, too, has the practice of discerning the Natural Law fallen victim to ignorance, stereotyping, and invidious discrimination by the government.
The problem with this criticism is that it entirely misconceives the character of natural rights. Rather than be turned off by any sort