Joshua Karstendick: I hold these truths to be self-evident

I told Kayla I might let her see my first paper for The Constitution and the Judicial Process, PSCI 360, if I received a good grade for it. Well, I've gotten an A, so I think I'll share it with everyone. The prompt was the following:

Most of the selections you read in chapter one (Winthrop, Madison, Plato, Aristotle, Jefferson, Cicero, Bracton, Locke) presume the existence of natural law. What is natural law? How do we know what is right and wrong under natural law? Are you convinced natural law exists?
Then consider the "Problem" on page 4. If God gave the Ten Commandments to Moses on Mount Sinai, they establish law superior to natural law because they are found not in human reason but commanded directly by God to humankind. Would John Winthrop or John Adams object to what Judge Moore did? Do you?

In case you don't know who Judge Moore is, he's the guy in Alabama who thought it was a great idea to post the Ten Commandments in his courtroom. I hope you enjoy the paper.

Among the authors in the first assignment, all believed in a god and most believed in natural law, reasoning it to be a consequence of all humans' position as children of God. Bracton, Milton, Hobbes and Locke reached essentially the same conclusion: All humans are created equal. This, whether the consequence of God or other reasons, is the basis of all natural law. That which is wrong under natural law is that which seeks to treat humans unequally. Judge Moore's displays, as they did seek to elevate Christians over all others, are thus wrong according to natural law.

Winthrop believed that differences among humans are the result of God's “most holy and wise providence” (2). As such, he gladly would have a government provide preferential treatment to Christians over all others; indeed, he was on his way to establishing just such a government when he delivered “A Model of Christian Charity.” His characterization of that government as a “citty upon a hill,” although that term has in recent decades taken on a more uplifting sense, is elitist; those who are not Christians, Winthrop does not want on his hill.

Winthrop's elitism and self-righteousness is also seen in St. Augustine. He assumes that the best object of the love of a people is God and thus reasons that the best people are those who love God, but he doesn't stop there. He goes on to say that for any city where God does not rule, “it is devoid of true justice” (15).

Winthrop and Augustine's reasoning is fallacious for it assumes an entire religion to be true. Proving the existence or non-existence of the Christian God or any other god, if such is even possible, is outside the scope of jurisprudence. Fortunately, such assumptions are unnecessary, i.e. one can reason about natural law while assuming far less, indeed without assuming any god at all. Winthrop and Augustine would surely have supported Judge Moore's displays as “obeying His voyce and cleaveing to Him” (3) and loving God “as God ought to be loved” (15). Such opinions are irrelevant, however, as they are not supported by reason.

Aristotle and Cicero mentioned natural law, but only went so far to say that is universal. Aristotle said that natural law “has the same validity everywhere and does not depend upon acceptance” (7). Cicero echoes this, saying “I find that it has been the opinion of the wisest men that Law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition” (11). Although they describe natural law as universal and above the law of humans, they do not go so far as to define what is natural law. As such, it is difficult to decide their opinions on Judge Moore's displays, but as they lived in ancient Greece and Rome, respectively, it is even more difficult to argue that they thought religious idols to be wrong. Because they believed in deities, they likely believed that honoring them publicly was a just action of a government. Such a belief in deities, however, renders such a conclusion invalid.

On the subject of natural law, Bracton states “that natural law is a certain due which nature allows each man” (24). He says that it is that which “God himself, taught all living things” (24). Although it is not explicit, there is an underlying theme of equality here, for each man is due natural law. This equality is conducive with Bracton's aim to codify English common law. Bracton would not, however, go so far as to condemn Judge Moore's displays, for he was a man of God, but such a decision is biased and not founded on reason.

Milton is more explicit than Bracton regarding man's natural state of equality. He says, “No man who knows aught, can be so stupid to deny that all men naturally were born free, being the image and resemblance of God himself, and were, by privilege above all creatures, born to command and not to obey” (59). Milton, like Bracton, was deeply religious and likely would have supported Judge Moore. England had then and to this day has a national religion established by the government, which Milton likely favored. Like Bracton, his view is biased and unfounded on this issue.

Hobbes believed that humans without government would be in a state of nature, which one today might rightfully call a state of anarchy. Hobbes reasons that “because the condition of man ... is a condition of war of every one against every one – in which case everyone is governed by his own reason and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies – it follows that in such a condition every man has a right to everything, even to one another's body” (62). Although life in such a state is “solitary, poor, nasty, brutish and short” (67), it is completely equal. Hobbes explains this equality in the opening of “Leviathan” when he says, “Nature has made men so equal in the faculties of the body and mind as that ... when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he” (61).

Hobbes discusses civil laws and liberties but lists very few prohibitions on legitimate government actions. “As for other liberties,” Hobbes says, “they depend on the silence of the law” (66). He gives the example of forcible entry, saying that there was a time when it was legal, but now after a statute, it is illegal. Hobbes here places too much trust in governments to uphold the rights of citizens. He should have recognized that as a consequence of his own statement regarding the natural equality of all men, there spring forth many inalienable rights. But since he did not, it is likely that Hobbes would have supported Judge Moore's displays or any other establishment of religion that was not explicitly forbidden by statute. Fortunately for Americans, we have such a prohibition in the First Amendment.

Locke also believed in a state of nature common to all men, “a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man.” He goes on to explicitly call it “a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another” (79). Locke arrived at the logical conclusion of this, that humans possess certain inalienable rights. Foremost among them, he listed the rights to life, liberty and property. When Jefferson wrote the Declaration of Independence, he borrowed from Locke, listing some of those inalienable rights to be “Life, Liberty, and the pursuit of Happiness” (94). Although they disagreed on property, the most important idea is there, that as a result of natural law, i.e. all humans are created equal, we all have certain rights that cannot be violated. Because of this recognition, Locke and Jefferson and other Founding Fathers such as Adams would side against Judge Moore's displays, for they violate the right to liberty, to be free from government establishments of religion.

We see here a progression of Western thought. Aristotle and Cicero recognized that natural law existed. St. Augustine, Bracton, Milton and Hobbes defined it as equality of all humans in their natural state. Locke and Jefferson logically extended this to mean that all humans have certain inalienable rights. These rights include the right to be free from government establishments of religion, because they are unequal for they seek to place one class of people, in this case Christians, above all others. Therefore, Judge Moore's displays are wrong under natural law.

The professor said it was "well-done and thoughtful. You have grasped an important point: the existence of natural law is not dependent on one’s recognition of a God or supreme being Since natural law is by definition discernable in nature through reason, one need not be a believer in God to recognize it. On the other hand, a believer would identify God as the creator of all things and thus of natural law as well."

Of course, the real reason I came to that conclusion is through sheer determination. I would never allow something as important as natural law to have its basis in religion.

I have that class again tonight, and in the next essay, I get to explain how Justice Scalia is all wrong about natural law. Good times.

I'm interested in what other people think about natural law. Does it exist? What is it? How should it be applied?