Dred Scott's Revenge

By applying positivism instead of natural law, 19th century courts burdened American racial history to this day.

Andrew Napolitano | May 14, 2009

When Thomas Jefferson wrote in the Declaration of Independence that "all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness," he could not have meant then what we understand these words to mean today.

When the framers of the government wrote in the Constitution that "No person shall be...deprived of life, liberty, or property, without due process of law," and that the Constitution is "the supreme Law of the Land," they conveniently omitted a definition of the word person. When presidents from Abraham Lincoln to Woodrow Wilson to Franklin Delano Roosevelt enforced two sets of laws themselves—one that treated whites fairly and one that treated blacks unfairly—or permitted the government to conduct gruesome medical experiments on black men, what did they think of their oaths to uphold the Constitution?

Jefferson's immortal words in the Declaration attached the new nation's soul to what lawyers and judges call the natural law. But when he bought and sold slaves, Jefferson rejected the natural law for himself, in favor of what lawyers and judges call positivism.

Natural law teaches that our rights come from our humanity. Since we are created by God in His image and likeness, and since He is perfectly free—or, if you prefer, since we are creatures of nature born biologically dependent but morally free—freedom is our birthright. Liberty comes from our humanity, not from an outside source such as the government.

Had the framers and their successors adhered to these beliefs for all persons, there could have been no slavery, no Jim Crow, no public segregation, and none of the evils they spawned.

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Comments

|5.14.09 @ 10:47AM|#

Damn. That's just plain good.

I'm thinking that this has some bearing on the legality of same-sex marriage...

Joel|5.14.09 @ 11:14AM|#

The real culprit throughout our racial history has been the government. The government-local, state, and federal-at virtually every turn, in every generation, and in innumerable ways, selectively chose to enact and enforce laws based on the natural law or on positivism, depending on race. Relying on the laws of positivism, the government permitted, condoned, and protected the most horrific abuse imaginable to blacks, and to some of the whites who protested.

How very odd to hear this, coming from a federal judge. It would be more refreshing if I believed he was prepared to act on it, but still. How odd.

|5.14.09 @ 11:22AM|#

Say, Dred is a cool name. How come you never about anyone else called Dred?

Mike T|5.14.09 @ 11:25AM|#

I'm thinking that this has some bearing on the legality of same-sex marriage...

As a conservative Christian, I support the right of homosexuals to get married in private ceremonies. My chief concern, and I think this underlies the concerns of many conservative Christians (we are not a monolithic block) is that the antidiscrimination laws will not allow us to run our businesses and churches in ways consistent with our consciences.

Marriage, especially gay marriage, exists as a positive right in modern America since it forces a certain set of legal rights to be recognized by an employer. As such, it's inherently problematic for libertarians to support gay marriage legalization because it gives freedom to one group, while laying the foundation for others to lose their freedom.

The only consistent, natural law-friendly way of fixing the marriage issue is to make it a private social institution regulated by non-government bodies on the moral side, and have property and custody issues resolved through normal contractual mechanisms.

(As an aside, I give gays 10 years of exposure to the family law courts before marriage rights are something that is no longer an issue for the gay community.)

|5.14.09 @ 11:26AM|#

Cue postmodernist philosophy majors demonstrating that they're so much more clever than Thomas Jefferson and MLK because they don't believe in natural law ....

Barry Loberfeld|5.14.09 @ 11:29AM|#

Robert Bork doesn't believe in natural law, but neither is he a positivist, an "originalist":


Equally corrupt, however, is this fiction that majoritarian democracy embodies the "manifest tenor" of the Constitution. Progressives and conservatives alike peddle this ideology (again, when it serves their respective purposes) for the same reason that, as Madison explained, the Constitution rejects it: "[T]here is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies ... have ever been found incompatible with personal security, or the rights of property...." But contrast this with Bork, who begins by concurringly quoting G.K. Chesterton, a previously underappreciated touchstone of American constitutional exegesis: "What is the good of telling a community that it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." Now there is no way to miss the parallels between this statement and those of Breyer and Dionne, but Bork himself comments, "The makers of our Constitution thought so too, for they provided wide powers to representative assemblies and ruled only a few subjects off limits by the Constitution." Indeed, they did? Observe how Bork, unable to find an echo of Chesterton in the words of either the Framers or the Constitution itself, hears it in what he believes to be the structure of the Constitution. But does that structure sound that note?



To answer these questions, let us turn to, not Madison, but the Framer who may be considered the most congenial to Bork and the Bork Left: Hamilton. Bork here is claiming that the body of the Constitution says GOVERNMENT CAN DO ANYTHING, with the Bill of Rights adding EXCEPT THESE THINGS. Yet recall Hamilton's objection to the Bill of Rights: It "would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" In other words, we didn't need the EXCEPT THESE THINGS because the Constitution doesn't say GOVERNMENT CAN DO ANYTHING. With the inclusion of the Bill of Rights -- more a reinforcement than a redundancy -- our Constitution doubly protects individual liberties from majoritarian ("representative") violation. The Bork-Breyer disinterpretation of the Constitution is the very "colourable pretext" Hamilton feared. It is the macabre transformation of Madisonian liberal republicanism into Rousseauian totalitarian democracy.

READ THE ENTIRE ARTICLE.

The Angry Optimist|5.14.09 @ 11:32AM|#

In October 2007, Judge Andrew Napolitano told a Reason audience that "George W. Bush has shown less fidelity to the Constitution than any president since Abraham Lincoln."

Due respect to Hizzoner, but is he retarded? Did he skip over FDR somehow?

|5.14.09 @ 11:33AM|#

I think this shows how important it is to keep a constitution foundational and as pure as possible when it comes to things directly or indirectly affecting natural rights. By building slavery into the Constitution, the inevitable conflict was made very difficult to resolve in any legal way.

I think the trend towards making constitutions "superlegislation" at the state level is bad for a similar reason.

BakedPenguin|5.14.09 @ 11:49AM|#

Say, Dred is a cool name. How come you never about anyone else called Dred?

Only in the movies.

Alan Vanneman|5.14.09 @ 11:53AM|#

I'm sorry, but I find in this article nothing more than than a trivial exercise in disingenuous casuistry. Slavery was a part of Western Civilization during both the classical and Christian eras. Judge Napolitano's quotations from St. Thomas to the contrary notwithstanding, slavery was well-accepted in Catholic countries, and survived in Brazil and the Spanish Empire (Cuba)even after the U.S. finally abolished it. A few "natural law" theorists, like Hobbes, claimed that slavery was against Nature, but less radical thinkers, like Locke, managed to find room for it.

It is "interesting" to note that everyone's least favorite Chief Justice, Chief Justice Taney, was the first Catholic to serve on the U.S. Supreme Court. It is likely that Taney's attitudes were more a result of geography than religion, but that only indicates that men's interests and prejudices shape their religion more than the other way around.

"Natural law" provides no guidance in human affairs, because everyone defines natural law to his own satisfaction.

T|5.14.09 @ 11:53AM|#

How very odd to hear this, coming from a federal judge. It would be more refreshing if I believed he was prepared to act on it, but still.

Napolitano was a state judge, not federal, and is no longer on the bench. I'm just waiting for the self-righteous posts denouncing him because he appears on Fox News or isn't libertarian enough.

Mike T|5.14.09 @ 11:57AM|#

Due respect to Hizzoner, but is he retarded? Did he skip over FDR somehow?

No, he's not retarded. You're just wildly ignorant of the changes that came to this country through Lincoln vs FDR.

1) Lincoln laid the foundation for the US military to be based on an all professional force versus a small corps of professionals supported by militias that get mustered into full military readiness.

2) Lincoln brutalized habeus corpus and freedom of speech, and even revoked a politician's citizenship over vehement disagreement with the Civil War.

3) Lincoln instituted the first income tax and fiat currency.

4) Most importantly, Lincoln was the one who oversaw the fundamental legal change from the Constitution being a legal treaty of free association into one in which the right to no longer associate was revoked by the threat of having one's state razed to the ground.

By contrast, all FDR did was build on the foundation that Lincoln created. Everything changed when the federal government grew so powerful that it had the means to violently force the Confederacy back into the Union.

|5.14.09 @ 12:04PM|#

Where can I get a list of these "natural laws"?

Oh, its a pure fabrication?

Got it.

Mike T|5.14.09 @ 12:04PM|#

"Natural law" provides no guidance in human affairs, because everyone defines natural law to his own satisfaction.

Natural law is not complicated like the federal law books. All sane people know that murder is wrong. We know this through reason and an inner je ne sais quoi that just tells us that it is offensive to our fundamental nature. An atheist, Muslim, pagan, evangelical and Buddhist could shake hands in perfect agreement that it is unacceptably wrong to walk into a school with an assault rifle and shoot up a class of kids that were just minding their own business. That's an example of natural law.

What you are confusing is the human tendency to rationalize pre-existing desires with an inability to know what is right and wrong. We are rationalizing, not rational, beings. As such, we use reason merely as a tool, just like we use fire and computers. People who support slavery because they like the idea of slavery will use their powers of reason to rationalize an argument in defense of that. That does not make it right, nor does it make it the view that most people know to be inherently wrong.

Nihixul|5.14.09 @ 12:04PM|#

@MikeT:

I think TAO's point was questioning whether *Bush* was worse than FDR. If he wasn't, as I think TAO is implying, then it doesn't matter what Lincoln did: the statement "worst since Lincoln" would be incorrect.

Mad Max|5.14.09 @ 12:11PM|#

With some slight tweaking:

'["Liberty"] provides no guidance in human affairs, because everyone defines [liberty] to his own satisfaction.'

bubba|5.14.09 @ 12:23PM|#

Does this article skip over the detail of *whom* we empower to enforce natural law?

Isn't that the responsibility of the people, through their elected representatives?

What are the downsides of letting 9 people do whatever they want, in the name of natural law?

Sean W. Malone|5.14.09 @ 12:25PM|#

Shrike:

"Where can I get a list of these "natural laws"?

Oh, its a pure fabrication?

Got it."


Do you, or do you not believe that you are an autonomous creature? A self-owner? Are you best suited to know your needs and desires or is there someone else - perhaps a thousand miles away even, who knows you better?

Natural rights come, not from "God" as Napolitano puts it, but from the principle of self-ownership.

It follows directly from that that if you are a sovereign being, best fit to make your own decisions that natural rights - that is, the right to be free from harm in matters of your life, liberty, property (the fruits of your ideas & labor) - are crucial to your survival.

Further, I think all humans do have an innate drive for those things. If someone tries to harm you or murder you - will you not protest? If they put you in chains - would you not try to escape? If someone takes your food, your shelter or your inventions - would you not attempt to recover those things?


It's hardly arbitrary Shrike, et al. These are the most important things that we can enshrine as a prosperous and civilized people.

|5.14.09 @ 12:30PM|#

Hey - if Natural Law = Autonomy then I'm all for it.

I just don't trust theocrats like Napolitano when they brandish vague terms when interpreting written law.

T|5.14.09 @ 12:32PM|#

'["Liberty"] provides no guidance in human affairs, because everyone defines [liberty] to his own satisfaction.'

I know you've heard the ignuts arguing that true freedom includes freedom from want and need. Your hypothetical has already been broken by the positive rights crowd. How can they have liberty to do as they wish when they have to earn a living?

Mike T|5.14.09 @ 12:50PM|#

I just don't trust theocrats like Napolitano when they brandish vague terms when interpreting written law.

The very fact that you think that Napolitano is a theocrat says all that needs to be said about how incredibly ignorant you are of politics and religion.

Mike T|5.14.09 @ 12:54PM|#

Isn't that the responsibility of the people, through their elected representatives?

It's the responsibility of all people when in a position to do something. It's a key part of why claiming "I was just following orders" is never an excuse for doing evil. If the courts make a bad ruling, it's up to the police to not enforce it. If the police brainlessly enforce it anyway, it's up to the people to elect representatives who campaign on changing it. If they betray them, then it's the duty of the people who encounter the police to not abide by the enforcement of evil in their presence.

Government is just the first line of enforcement.

|5.14.09 @ 12:56PM|#

An interesting article, but I'm not sure I agree with Judge Napolitano's over all theory of Positivism vs. Natural law.

Considering slavery has existed since, I dunno...THE DAWN OF CIVILIZATION, I think he's over-simplifying the motivations of the pro-slavery crowd. The sad fact is, things like the Southern Succession from the Union make total legal sense, so long as you view slaves as property and not human beings. Luckily this isn't the Sudan, so that's not our moral quandary any longer.



..or perhaps it's the fact that Napolitano believes women who've had an abortion in their first trimester should be charged with murder that I can only take his view of objective "God given natural rights" so seriously...

Still, it's a good historical lesson of how a nation built on natural rights has to reconcile itself legally with the fact that half of its economy was based on slave labor.

Sean W. Malone|5.14.09 @ 12:57PM|#

"I know you've heard the ignuts arguing that true freedom includes freedom from want and need."


So you mean... the freedom to abandon reality? Gotcha.

|5.14.09 @ 12:58PM|#

The very fact that you think that Napolitano is a theocrat says all that needs to be said about how incredibly ignorant you are of politics and religion.

Horseshit.

Napolitano was highly critical of the 'Dover' ruling. He wants to subject captive students to religious brainwashing under the guise of ID. And in a science class, for crying out loud.

The guy is unfit as a judge.

|5.14.09 @ 1:00PM|#

There is no question that the natural rights philosophy dominated the founding era. The Declaration of Independence is a document extolling the superiority of natural rights over legal positivism.

Does anybody know much about James Otis? Do you recall that he argued, in 1761, in the Writs of Assistance cases, that the statutes were void "because they violated the natural rights of Englishmen." Who observed this? None other than one John Admas who stated "British liberties are not the grants of princes or parliament."

Admas, of course, penned the Massachusetts constitution in 1780. Article I of the Declaration of Rights specifies "all people are born free and equal and have certain natural, essential and unalienable rights."

Elections were just an additional check on power. They were "not meant to authorize new powers of government-rather they are meant merely to authorize certain people to exercise the enumerated powers that have already been authorized-and limited-through constitutional ratification." Shankman and Pilon, 3 Texas Rev. of Law and Policy at 18 (1998)

|5.14.09 @ 1:03PM|#

You know, if Obama had something like "concern for a person's natural rights" in mind when he used the word "empathy" as a criterion for Supreme Court nominee, then the idea is not half bad.

But then, maybe I'm just doing what everybody else does with Obama and attributing to him the things I wish a president to be.

T|5.14.09 @ 1:07PM|#

So you mean... the freedom to abandon reality? Gotcha.

Well, personally, I won't consider myself free until I can slip the bonds of these pesky laws of physics and flap my arms and fly to the moon. However, I'm making alternate plans just in case it doesn't work out for me.

|5.14.09 @ 1:21PM|#

Shrike-

Ad hominem attack on Napolitano. Weak. And, at that, you fail to set forth the nature of Napolitano's criticism of the Dover ruling.

Your assertion that Napolitano "wants to subject captive students to religious brainwashing" is hysterical non-sense, which, BTW, you failed to support with citation.

Sean W. Malone|5.14.09 @ 1:22PM|#

suggested alternate plans for T

|5.14.09 @ 1:28PM|#

Do you, or do you not believe that you are an autonomous creature? A self-owner? Are you best suited to know your needs and desires or is there someone else - perhaps a thousand miles away even, who knows you better?

Lots of kids believe they are autonomous creatures, self-ownder, best suited to kow their own needs and desires, and even their parents don't know them better than they know themselves.

What do you natural law advocates say to those children?

engineer|5.14.09 @ 1:41PM|#

"A few "natural law" theorists, like Hobbes, claimed that slavery was against Nature"

Citation, please? I'd like to see where the advocate of the Leviathan state was a natural law theorist.

|5.14.09 @ 1:41PM|#

Citing instances of First Amendment neglect on Napolitano's part is hardly "ad hominem". Declaring him unfit as a (federal) judge is a result of his disdain for the Establishment Clause.

I suspect you are of like mind, Liberty Mike, so lets not go into his defense. "Liberty" is a vague term too these days - thanks to the theocons who kill in order to "liberate".

He also wants the police there in a doctors office when a woman visits.

A friend of liberty he is not.

Durka Durka Mohummad Jihad|5.14.09 @ 1:48PM|#

"An atheist, Muslim, pagan, evangelical and Buddhist could shake hands in perfect agreement that it is unacceptably wrong to walk into a school with an assault rifle and shoot up a class of kids that were just minding their own business."

I respectfully disagree.

Sean W. Malone|5.14.09 @ 1:50PM|#

"What do you natural law advocates say to those children?

C'mon... really? That's the argument against natural rights you're gonna go with?

Kids?

Ok, umm, well... it's pretty simple, parents are responsible for their children until such a time as the children can demonstrate to be responsible actors capable of understanding the consequences of their choices.

They can prove this implicitly and incrementally by growing up and taking on more responsibilities and demonstrating that they take those responsibilities seriously over time. They can prove it through the courts if they wish to be emancipated from their parents and can show self-sufficience. And/or... they can reach a (more or less arbitrary) age of consent by law where they are assumed to be adult and capable of agreeing to contracts and understanding the implications of their actions.

My vote on said age of consent is 17.


Children as an argument against natural rights is a non-starter. Further - all the basic rights apply anyway it's only a more nebulous issue of responsibility and stewardship for parents. You are just as much a murderer (possibly more?) if you kill a child. You are the biggest asshole on the planet if you steal from a child. And if you enslave a child for some purpose... Well, fuck you.

The only difference is that as a child is not yet or necessarily capable of fully understanding the consequences of his or her actions, the responsibility lies with the adult guardian.

|5.14.09 @ 1:50PM|#

It's easy to attack concepts like Natural Law and Natural Rights as being a bit intangible and subjective.

But keep in mind the legal concept came as reaction to The Divine Right of Kings to tell you what to do. Nothing intangible about THAT theory: God made ME your earthly ruler, do MY will.

So what are we actually trying to deconstruct here? What's the point? Unless you want to tell everyone else how to live their lives?

It's like reasoning eloquently that there is no such thing as "free will". It might be interesting on a psychological plane, but on a legal and political level what good does that do anybody? (unless you want to live in an ant colony?)

Our founding documents are most definitely based on Natural Law, and while we can debate the subjective particulars until the Sun implodes, the concept that (legally) the government exists as a framework to protect our ability to live the way we choose so long as we do not harm and infringe on the rights of others to do the same seems fairly straight forward to me.

Thomas Jefferson|5.14.09 @ 1:54PM|#

"Where can I get a list of these "natural laws"?

Oh, its a pure fabrication?

Got it."

Oh I don't know...

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.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Many Americans still felt a kinship with the people of Great Britain, and had appealed in vain to the prominent among them, as well as to Parliament, to convince the King to relax his more objectionable policies toward the colonies. The next section represents disappointment that these attempts had been unsuccessful.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

Barack Obama|5.14.09 @ 1:58PM|#

Oh I like these ideas!

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

|5.14.09 @ 2:01PM|#

At least you didn't copy and paste the Bible.


Of course, Thomas J., you would have snipped the miracles and divinity bits out first and just left the Beatitudes.

Kane|5.14.09 @ 2:05PM|#

"thanks to the theocons who kill in order to "liberate"."

replace thecons with abortionists.

Thomas Jefferson|5.14.09 @ 2:07PM|#

"At least you didn't copy and paste the Bible."

Are you illiterate? I just did.

Thomas Jefferson|5.14.09 @ 2:07PM|#

"He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance."

hmmmmm.....

Thomas Jefferson|5.14.09 @ 2:09PM|#

"He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."

Double-hmmmmm.....

|5.14.09 @ 2:11PM|#

Shrike-

I share your leeriness of Napolitano, but is your ultimate dispute with the concept of Natural Law because the word "God" and "God given" are used to justify it?

I'm an atheist. I interpret "God given" as "born with". Problem solved. Give it a try.

Sean W. Malone|5.14.09 @ 2:26PM|#

Thomas Jefferson FTW!

Sean W. Malone|5.14.09 @ 2:26PM|#

(as usual)

Mike T|5.14.09 @ 2:27PM|#

Horseshit.

Napolitano was highly critical of the 'Dover' ruling. He wants to subject captive students to religious brainwashing under the guise of ID. And in a science class, for crying out loud.

God forbid that the matter be resolved by the teachers using it as an opportunity to teach their students and encourage them to weigh evidence on both sides. That exercise in challenging two theories attempting to explain a phenomenon might actually help them later on with more complicated scientific subjects!

People like you, who froth at the mouth at the mere suggestion of examining all major ideas, are why your side is automatically considered suspect.

|5.14.09 @ 2:38PM|#

shrike-

I'm a natural rights kind of chap. Is that incompatible with being an anarcho-free enterprise-individualist?

Do I support anti-abortion laws? No.
Do I want the state establishing/endorsing ANY kind of religion? NO. Any was capitalized for a reason because there are many "scientists" who seek to impose their religion upon the children. Like the religion of the big bang theory. Or global warming.

You still did not set forth Napolitano's criticim(s) of Dover which offend you. I might agree-but I can't determine that until you lay it on the table.

|5.14.09 @ 2:53PM|#

I apologize then, Liberty Mike. For real. Bad guess on my part.

I have no objection to the concept of Natural Law. Its akin to the Platonic Ideal to me - I concept I embrace.

I see no value in it as a legal framework. None. Remember how quick the judge is to say our rights come from a god too (as opposed to the consent of the governed).

NOTE: the latter actually is in the Constitution and "god" is not.

I am just wary when its wielded by someone with a social agenda like this judge.

Thats it.

|5.14.09 @ 2:57PM|#

I saw an interview on Dover, LM. The same one that Ed Brayton here saw--

http://scienceblogs.com/dispatches/2005/12/legal_scholars_on_dover_ruling.php

|5.14.09 @ 3:03PM|#

shrike,

I'm coming into this reading nothing, knowing nothing, but one thing that sometimes drops off the radar in this state vs. religion debate is that the Establishment Clause and the Free Exercise Clause are co-equal. Meaning that the government can't do anything to "establish" or sanction religion, and it also can't do anything to stop individuals from practicing their religions.

While I'm pretty firm about keeping the government out of religion (Creationism has no place in schools (except in a theology or philosophy class); prayer shouldn't be mandated or even "mandated"), I think the courts have gone too far. For instance, if a graduate wants to mention his god in a speech, the public school has no business stopping him, because that impinges on his free exercise rights.

Napolitano may not be approaching this issue from that angle--I have no idea--but it's a valid concern, even for those of us who aren't at all or aren't overtly religious.

|5.14.09 @ 3:08PM|#

shrike-

Thank you for the cite. I will go to it later-must attend to some business right now-actually have a guy on hold. Please do not be offended if I respond both on this thread and one in the following days (personally, I am not bothered by that-but some here think its not kosher).

Sean W. Malone|5.14.09 @ 3:45PM|#

I don't understand the "conservatives" like Napolitano. I mean, he seems like a fine judge. He's certainly knowledgeable of the Constitution, and he obviously believes its ideas... To some extent, provided that he generally keeps the separation of religion away from the state intact, he's fine with me, regardless of whether or not he thinks that natural rights were granted by "god" or simply by product of being a sentient individual.

But I just can't understand why these guys go in the god direction to begin with. It's unnecessary and it obscures the issue. If man's rights are intrinsic to being a human being, as I believe, then they are immutable. No other men, no groups of men with funny hats, then it's *never* ok to murder, steal, enslave, etc.

If those rights are granted by a god, then they can be removed, and more unfortunately - although in principle the rights would only be able to be altered by that god, in reality they're always obliterated by whatever Pope, Mullah, or cult-leader is around at the time. It's one of the major reasons I never trust conservatives to be stewards of any rights at all - they're ALWAYS subject to whatever other religious issue is important to them.

But honestly - it comes down to the difference between Rights: something which is intrinsic and inalienable, and Privileges: something granted by a higher authority.

Conservatives derive privileges from God, liberals from committees of "experts" or from charismatic leaders... I'm so sick of both. My life and happiness are not subject to someone else's discretion and anyone who believes otherwise can fuck off.

Sean W. Malone|5.14.09 @ 3:47PM|#

sorry, I even "previewed" that...

"No other men, no groups of men with funny hats, then it's *never* ok to murder, steal, enslave, etc."

No other men, no groups of men with funny hat have any say on the matter and then...

|5.14.09 @ 3:49PM|#

PL -

I agree. I am a free speech absolutist. A commencement speaker is not a paid agent of the government.

A difficult issue for me is a prayer before a high school football game. I really don't care if this occurs - although some of my fellow Science bloggers do.

But ID/Creationism? No way - its blatant prostletizing (sp?).

|5.14.09 @ 3:55PM|#

Yeah, Creationism in science classes makes me mad. I even got annoyed when one of our kids, who was going to a Baptist school at the time (I know, I know), was dealing with that nonsense. What really irked me was when he told me that he had said that he was a theistic evolutionist to his teacher, who told him to "keep an open mind." Bah. Still, that's okay, because it's a private school. Doing that in public school is wrong, and it is teaching religion.

On the whole natural rights issue, I recall that Locke said (in part) that natural rights were what we individually thought they were, and that some of those have really broad consensuses--like murder being wrong. Viewed in that way, it's not so fuzzy, though it remains hard to define.

Granite|5.14.09 @ 4:06PM|#

I get nervous about using 'natural law' or anything else to advocate judicial fiat. We're a nation of laws, and those laws should be enumerated and clearly defined, not subject to the (loose) interpretation of politically appointed lawyers.

Of course, part of the original stated intent of the Constitution was to define what the Feds could do and specifically deny everything else.

From that perspective, you could strike down just about any law you wanted to.

Sean W. Malone|5.14.09 @ 4:21PM|#

Granite, you may be confused on what natural law is. There's very little about it that would or should lead to judicial fiat.

robc|5.14.09 @ 4:40PM|#

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

Are you trying to draw LoneWacko to this thread?

Dred Locks|5.14.09 @ 5:17PM|#

How come you never [hear] about anyone else called Dred?

You never heard of me? Damn, I am depressed.

Phil Dwith Dred|5.14.09 @ 5:42PM|#

How come you never [hear] about anyone else called Dred?

Me too!

|5.14.09 @ 5:45PM|#

Only Dred as a first name counts.

Dred Ed Whippin|5.14.09 @ 5:50PM|#

Thanks for sticking up for me, PL.

|5.14.09 @ 5:56PM|#

shrike-

Just spent about 20 minutes trying to access the link you cited. Could not find it. I did find some interesting items in Scienceblogs and will return to it. It seems like it might be a good site for those interested in the intersection of law and science-do you agree?

I will also hunt down what, if anything, Napolitano has said about Dover-

|5.14.09 @ 6:02PM|#

When the framers of the government wrote in the Constitution that "No person shall be...deprived of life, liberty, or property, without due process of law," and that the Constitution is "the supreme Law of the Land," they conveniently omitted a definition of the word person.

That's not the way to interpret it because the Constitution also said that "Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

So it considered slaves to be persons.

I'm supposing that when it says "No person shall be...deprived of life, liberty, or property, without due process of law," it means that slaves had been deprived of liberty through due process of law.

Or, the constitution contradicts itself from the very beginning and isn't worth the paper it was written on (which is quite fancy paper).

|5.14.09 @ 6:02PM|#

Hey, it's a great name!

|5.14.09 @ 6:17PM|#

Widely considered to be the chief pro-slavery clause in the Constitution, it epitomized the racism of the document-as it reduced each slave to three-fifths of a person

No, it did not.

It considered them to be whole persons. It's just that the compromise would only count 3/5 of the total number to figure out the apportionment.

|5.14.09 @ 6:19PM|#

the slaves themselves, of course, had no say whatsoever in their constitutional standing.

Neither did most of the people.

Sean W. Malone|5.14.09 @ 6:25PM|#

"Or, the constitution contradicts itself from the very beginning and isn't worth the paper it was written on (which is quite fancy paper)."

Or.... Option C. You are viewing history through a contemporary lens and failing to extract the core principles of the Constitution which clearly spelled the death of slavery in the US and other parts of the world. But hey, way to throw out all the awesome freedom-supporting parts just because of the one not-awesome part.

I mean honestly - please find me a government document predating the US constitution that was even remotely that good.

|5.14.09 @ 6:31PM|#

You are viewing history through a contemporary lens and failing to extract the core principles of the Constitution which clearly spelled the death of slavery in the US and other parts of the world.

How did it spell the death of slavery? It had no provisions for ending slavery before the Civil War. In fact it provided protections and enforcement of slavery.

Sean W. Malone|5.14.09 @ 6:45PM|#

"How did it spell the death of slavery?"

I'm curious - are you unfamiliar with the philosophy that was established by the US Constitution?

There is absolutely no way to justify slavery under the vast majority of that document, the fact that some of the people within the 1st & 2nd Continental Congresses were slave-owners, and that that was relatively common practice all over the world - and, notably, has been standard practice throughout human history up until that point - meant that provisions were left in as "necessary" for compromise and ratification - but the overall principles of natural rights inherently mean the end of slavery in practice no matter what.

The ideas that were enshrined in that document; that all men have an inalienable right to life, liberty & the pursuit of happiness and are guaranteed against invasions of those rights by the limitation of government power inevitably extended to slaves eventually. The question was always that of definitions, if a slave isn't a "man", he doesn't count, but as you yourself noted, they *were* counted as men even then... Also, go back and read the article from the other day on Fredrick Douglass' interpretation of the Constitution.

|5.14.09 @ 7:01PM|#

The Constitution introduced the contradiction--all men have fundamental rights; slavery is legal. By its very broad extension of liberty (at the time), it set the stage for blacks (and later, women) being recognized as having the full range of liberties.

On the flip side, by including slavery, it became hard to attack the institution through the courts. Which helped to ensure a civil war.

|5.14.09 @ 7:22PM|#

There is absolutely no way to justify slavery under the vast majority of that document

Which is why I said it was contradictory and a crappy document.

The ideas that were enshrined in that document; that all men have an inalienable right to life, liberty & the pursuit of happiness.

Well, that idea didn't come about until the 5th amendment, which also stated that the government had the right to take your property if they gave you "just" compensation.

Yeah, great document.

Also, go back and read the article from the other day on Fredrick Douglass' interpretation of the Constitution.

Ok.

"I defy the presentation of a single pro-slavery clause in it."

Well, Fred, how about this?

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

Sounds pretty pro-slavery to me.

In fact, Douglass argued, the U.S. Constitution was both the founding generation's greatest achievement and the abolitionists' greatest weapon.

Yeah, it was also a weapon of the slaveholders because of pro-slavery provisions. It contradicted itself. Crappy document.

"if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it?"

It didn't have to be. "Held to service" works. It's synonymous to slavery. Douglas and Spooner were deluding themselves.

For Spooner, that was not enough to sanction the practice legally. The phrase "other persons," he argued, is open to both an innocent interpretation ("partial citizens," i.e., resident aliens) and a malevolent one (slaves).

But Spooner is out and out wrong. You have "free persons" and "other persons." The "other persons" were not free. What else could that mean?

CRAPPY DOCUMENT.

Sean W. Malone|5.14.09 @ 7:58PM|#

Dude... AGAIN... find a better one that predates it!

You can find all the obvious faults and compromises in it you want - they're all there and a result of a large committee of competing interests writing the thing and having to come to an agreement. But the fact is, without putting it into a historical context you kind of miss the point.

You look at doctors of the 19th Century using leeches and think "well that's all they knew how to do at the time", you don't go "wow, they were retarded." At least, I don't.

Viewing history and human progress through the lens of the present forces you into a position of deciding that every single thing in the past was just not good enough, and in doing so you gloss right over all of the amazing leaps forward we've made. The US constitution was one of the single greatest leaps forward mankind has ever accomplished.

It wasn't perfect.

It was contradictory in parts.

It's not all "right".

So?

Sean W. Malone|5.14.09 @ 7:59PM|#

If the choice is US Constitution, or no constitution, or even, Magna Carta... I know which one I'm going to pick... and frankly, that *was* the choice.

|5.14.09 @ 8:34PM|#

Oatwhore-

Hard to disagree. So, let me take a stab at appealing to your intellectual curiosity and willingness to at least consider viewing the facts in a different light:

Douglas and Spooner. The facts support the proposition that their arguments were not frivolous nor without substantial basis. Given the their familiarity with the natural rights philosophy that undergirded the revolution, would not one expect them to submit that in order to properly interpret the constituion, one must look to the declaration of independence without which there would be no constitution? And that the constitution must be read in harmony with the Declaration of Independence? That being so, would you not expect them to then argue that, given the grand assertions in THE ORIGINAL DOCUMENT, i.e., all men are born with certain inalienable rights, any question as to whether the state had the power to tax everybody in order to finance the enforcement of a regime permitting a small percentage of Europeans to enslavve Africans must be examined and considered in light of the dictates of July 4, 1776?

In keeping with their command of the framers reliance on natural rights philosophy, particularly the propositions that the state could only act if it was in furtherance of protecting the primacy of the individual, and that the burden was always upon the state to demonstrate that there was an unequivocal, unambiguous grant of power in the constitution authorizing its actions, wouldn't you expect them to contend that there is no specific authorizations in either Jefferson's Manifesto or the illegal creation of 1787 for the state to permit involuntary servitude? Therefore, absent an unambiguous declaration that the state has such powers, the matter must be resovled in favor of the individual and his liberty.

Another such feature of the natural rights philosophy was the duty of the judiciary to void legislative enactments that even hinted at fucking with one's liberties. Given that command, why wouldn't you expect them to advance the position that judges had an obligation to strike down fugitive slave laws?

At least you should acknowledge that they were not frivolous or without merit. I would have made the same arguments. Judge Napolitano would have as well.

|5.14.09 @ 8:43PM|#

Please. Find me another written constitution that has lasted this long. It may be in trouble, but it's not dead just yet.

|5.14.09 @ 10:52PM|#

You really got my hopes up there for a second, when I saw this:

"Judge Andrew Napolitano on the Supreme Court"

Oh, if only, if only...

|5.14.09 @ 10:54PM|#

>>How come you never about anyone else called Dred?

|5.14.09 @ 10:55PM|#

"How come you never about anyone else called Dred?"

Drederick Tatum?

(sorry about the failage on the last post...)

Natural Law Theorist|5.15.09 @ 2:45PM|#

Why the need for reference to God? Very simple. Did you notice the reference to it being "self-evident" that our Creator has endowed us with these rights? Originally, that read "We hold these truths to be sacred and inviolable." Benjamin Franklin recommended that Jefferson change it to "self-evident" to reflect the broader consensus among our Founding Fathers concerning the nature of humanity.

Before Judaism and Christianity, absolutely nobody considered equality "self-evident" at all. The master was above the slave just as the king was above his subjects, the emperor was above the kings, and the gods were above all humanity. (Some rulers, such as the Caesars of Rome, were thought to have a shot at divinity through deification, but only after death.)

If we do not have God, then you are NOT born equal to anyone else. Nature has NOT endowed you with any rights. Justice is only a matter of concern between those of equal power to enforce their will, whereas in all other situations the strong do what they can and the weak suffer what they must. If we do not have God, the Constitution is an utterly worthless piece of paper and your faith in it, religiously inspired or otherwise, is deluded.

Napolitano, therefore, is merely being consistent with his own beliefs, although in his case I would say he believes in Constitutional authority because he believes in God, not the other way around. If there really is no God, then the Constitution has no authority whatsoever. All your "rights" are derived entirely from how much power you have to enforce your will on others and keep them from enforcing their will on you.

|5.16.09 @ 4:41PM|#

Napolitano was highly critical of the 'Dover' ruling. He wants to subject captive students to religious brainwashing under the guise of ID. And in a science class, for crying out loud. The guy is unfit as a judge.

Shrike,

How right you are! It is far better to subject a captive student to secular brainwashing under the guise of "Evolution." How dare this crazy judge consider that critical and independent thinking belongs in a "science" class!

princeofdorkness|5.17.09 @ 7:12AM|#

This is called "Reason" magazine, and it sports an article saying we should apply a quaint concept like "natural law" to the Constitution?

BTW Mr. Napolitano, you said the framers of the COnstitution said "No person shall be...deprived of life, liberty or property without due process of the law". That is the 14th Amendment's due process clause, which was adopted in 1868.

Perhaps "Reason" should change its name? Just a thought....

JC|5.17.09 @ 3:42PM|#

Princeofdorkness wrote:

"This is called "Reason" magazine, and it sports an article saying we should apply a quaint concept like "natural law" to the Constitution?
BTW Mr. Napolitano, you said the framers of the COnstitution said "No person shall be...deprived of life, liberty or property without due process of the law". That is the 14th Amendment's due process clause, which was adopted in 1868.
Perhaps "Reason" should change its name? Just a thought...."

Actually, the Fifth Amendment, which was ratified effective December 15, 1791, states that, "No person shall be . . . deprived of life, liberty or property without due process of the law." The framers adopted this language, along with the rest of the Bill of Rights. Perhaps, princeofdarkness should be more reasoned.

mark|5.20.09 @ 5:28PM|#

Don't forget Jefferson's rough draft Declaration, which specifically mentioned slavery:

He has waged cruel war against human nature itself, violating it's most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidels powers, is the warfare of the Christian king of Great Britain. He has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce determining to keep open a market where MEN should be bought and sold: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

ABC|5.22.09 @ 6:23AM|#

I´m surprised Spooner wasn´t mentioned by him.

¨This is called "Reason" magazine, and it sports an article saying we should apply a quaint concept like "natural law" to the Constitution?¨

Legal concepts based upon the idea of ´because I said so´ or ´do it because I have a big stick´ are just as old fashioned.