It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [9]
The proper role, then, for human law is to extend those natural rights into workable legal standards. After all, we live in an extraordinarily complex world, and it is not always obvious how natural rights, such as the right to order one’s personal life, apply to new and controversial questions, such as euthanasia or net neutrality. Moreover, although there may be a natural right to enter into contracts on one’s own terms, there is an important role for laws which require that contracts take a certain form before they can be enforced (so as to minimize the possibility of fraud). Although one may intuit that the right to enter into contracts protects the ability of parties to enter into contracts without their signatures, legislatures are well justified in promulgating a law that such agreements will not be enforced. Thus, we can see that man-made law must not only respect, but preserve, protect, defend, and actually serve our Natural Rights.
Because human suffering results when man-made laws conflict with the Natural Law, and the very purpose of man-made law is to enforce Natural Rights, human laws are only valid to the extent that they uphold the Natural Law. Aquinas noted that “every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”6 As we shall discuss below, one Supreme Court justice even saw fit to distinguish between acts and laws: Acts are commands which come from our politicians, and cannot be considered laws unless they comport with the Natural Law.
One might well question what is meant by valid. After all, we will most likely obey a law regardless of whether it comports with the natural law, so long as the consequence of disobeying that law is punishment. By imposing a requirement of validity, we ensure that our government is constrained by the Natural Law. Could our politicians, practically speaking, pass laws which violate the Constitution? Of course, as is frequently the case. But central to the Natural Law and to the Constitution itself is the belief, held by the people and our judges, that such laws are not valid and should be struck down. So, too, the Natural Law, like the Constitution, will only constrain our government if there are those among us who hold it accountable to the Natural Law.
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If there is any message that I hope to communicate in this book, it is that all of us should be constantly questioning the validity of our officials’ commands. If they violate the Natural Law, then we must do everything in our power to right their wrongs and restore our freedom; at the simplest, it will entail voting them out of office; at the most extreme, it will mean abolishing that government altogether.
The importance of questioning the validity of Human Law can be seen in the American civil rights movement. Racially discriminatory laws were, of course, often obeyed, because the consequences of not doing so was imprisonment and police brutality. However, civil rights activists, including the Reverend Dr. Martin Luther King Jr., knew that those laws did not comport with the Natural Law, and thus if African Americans were ever truly to be free, they must do everything in their power to have those laws repealed:
When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness. . . . Instead of