Category Archives: Natural Law

Positive-Law Arguments For The Anthony Outcome

Crime, Criminal Injustice, Justice, Law, libertarianism, Natural Law

Of course, “Caylee’s Law,” Radley Balko points out, is a horrible idea. Stupid too. However, to neglect real evidence because one is against the death penalty is as horrible and stupid, if not more so. These are separate issues.

Alan Dershowitz has been arguing that the Casey Anthony verdict is an embodiment of “our legal system.” In making this case, Dershowitz alludes, curiously, to the positive law, not to any natural-law aspect of the American legal system, or to this woman’s prosecution.

To support his view of the impetus of America’s legal system, Dershowitz (on Huckabee), for example, touted the Exclusionary Rule as exemplifying his view of the impetus of America’s legal system. (I say “curiously,” because libertarians seem not to be distinguishing positive- from negative-law arguments in support of the jury’s innocent ruling.)

The Exclusionary Rule is a technicality tarted up as a real right. Hardly libertarian—at least not if one is a proponent of the natural law.

In the same vein, a procedural violation of the Fourth Amendment, say, an improper search, can get evidence of guilt—-a bloodied knife or a smoking gun—-barred from being presented at trial. Fail to Mirandize a murderer properly, and his confession will be tossed out. Such procedural defaults are very often used to suppress immutable physical facts, thus serving to subvert the spirit of the law and natural justice.

More minted “rights” are “consular rights.” A procedural default such as the failure to apprise a defendant of his consular contacts is never a violation of a natural right. “Consular rights” are of a piece with Miranda rights and the Exclusionary Rule. Again, these are technicalities tarted up as real rights.

Might these gaps of understanding between libertarians touch on the distinction, in our multi-factioned movement, between the hardcore, life-liberty-property classical liberal, and civil libertarianism and “libertarianism lite”?

Dershowitz is a civil libertarian who once conflated the natural law with the law of the jungle.

The Father Or The Son?

Government, Healthcare, Individual Rights, libertarianism, Natural Law, Political Philosophy, Regulation, Republicans, Ron Paul, Socialism

Ron Paul is the elder statesman, Rand Paul is scrappy and fit for a fight. And you do know that breaking free from the moochers and the looters, if at all possible, is going to necessitate a fight. I used to wonder about Rand’s deadpan delivery. But a poker face is just what the doctor ordered together with those revolutionary statements.

“SEN. RAND PAUL (R-KY): ‘With regard to the idea of whether you have a right to health care, you have realize what that implies. It’s not an abstraction. I’m a physician. That means you have a right to come to my house and conscript me. It means you believe in slavery.'” (RealClearPolitics)

Read the entire statement; it’s beautifully put.

To libertarians what Rand Paul said is real clear. We often describe the fabricated (positive) right to health care as a right to conscript doctors in the service of humanity. For what else does it mean? (“Protesters for a public plan have the right to seek out a doctor and pay him for his services; they have no claim to the products of his labor, and no right to enlist the State to compel third parties to pay for those products.”) But to hear a man who sits in the ossified Senate echo the natural law is just wonderful.

The other day, Rand Paul was quizzed about the absence of entitlement reform in his five-year budget plan. Without flinching, Rand replied that he chose to do away with whole departments, instead.

Natural Law Vs. The War Powers Resolution

Constitution, Foreign Policy, Just War, libertarianism, Natural Law, Neoconservatism, War

Modern statutes like the War Powers Resolution, the Iraq Resolution, and the Use of Force Act do not displace the constitutional text and the framers’ intent. But even if the Constitution approved of Barack Obama’s subterfuge in the matter of war powers—the natural law does not. Because it is rational and rooted in the very nature of man, natural justice is immutably true; it is the ultimate guide to what is right or wrong. And it certainly informs the work of historian Tom Woods and the mission of the King Dude (aka Mike Church).

Woods and Church (against the Imperial Presidency) are sparring with talker Mark Levin (in support of it). Woods has repeatedly deferred to the work of Louis Fisher, senior specialist in separation of powers at the Congressional Research Service of the Library of Congress, whose work I too galvanized during the Bush era war-powers abuse, in “UNNATURAL LAWLESSNESS” (here).

Tom Woods, The King Dude, and Fisher follow the framers and are thus formidable forces for liberty. To the debate between Messrs. Woods and Levin, I would add—and emphasize—only this point:

To the extent that the Constitution comports with natural law, to that extent it is good. To the extent that it does not jibe with natural justice, to that extent the Constitution is flawed. Even if the Constitution could be shown to support the many naturally illicit military forays conducted by successive American governments—it does not mean that these wars are/were just; only that they are/were legal. Contra classical natural law theory, legal positivism equates justice with the law of the state. However, while it may no longer guide most Americans, natural law must never cease to inform libertarians.

UPDATED: Healthscare Halted?

Constitution, Democrats, Healthcare, Individual Rights, Individualism Vs. Collectivism, Justice, Law, Natural Law

“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate,” Judge Roger Vinson writes. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.” (http://www.campaignforliberty.com/blog.php?view=40520) District Judge Roger Vinson hails form in Pensacola, Florida. He sided with 26 suing states.

Will those Senators who’re up for re-election in 2012 bring themselves to vote with their lower-chamber colleagues to repeal the thing? Will the same representatives admit that forcing an individual to purchase a product is wrong, and certainly beyond their mandate?

I doubt it. They’ll tell us that the (Rousseauist) common good, as defined by the state, takes precedent over the common man. We have not heard the last from Obama’s advancing Politburo Of Proctologists.

UPDATE: Vinson’s is really a beautifully written and reasoned Decision. It cleaves to the Constitution. Keith Olbermann’s proxies have begun to tarnish Judge Vinson as a judicial activist, whatever that means. Do these sound like unfair proceedings?

Both sides have filed strong and well researched memoranda in support of their motions for summary judgment (“Mem.”), responses in opposition (“Opp.”), and replies (“Reply”) in further support. I held a lengthy hearing and oral argument on the motions December 16, 2010 (“Tr.”). In addition to this extensive briefing by the parties, numerous organizations and individuals were granted leave to, and did, file amicus curiae briefs (sixteen total) in support of the arguments and claims at issue.

“… I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law….”

AND:
The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional. Accordingly, summary judgment must be
granted in favor of the plaintiffs… ”

Also adjudicated was the state plaintiffs objection “to the fundamental and ‘massive’
changes in the nature and scope of the Medicaid program that the Act will bring about. They contend that the Act violates the Spending Clause [U.S. Const. art. I, § 8, cl. 1] as it significantly expands and alters the Medicaid program to such an extent they cannot afford the newly-imposed costs and burdens. They insist that they have no choice but to remain in Medicaid as amended by the Act, which will eventually require them to ‘run their budgets off a cliff.’ This is alleged to violate the Constitutional spending principles set forth in South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases.5 Under Dole, there are four restrictions on Congress’ Constitutional spending
power: (1) the spending must be for the general welfare; (2) the conditions must be stated clearly and unambiguously; (3) the conditions must bear a relationship to the purpose of the program; and 4) the conditions imposed may not require states ‘to engage in activities that would themselves be unconstitutional.’ Supra, 483 U.S. at 207-10. In addition, a spending condition cannot be ‘coercive.’ This conceptional requirement is also from Dole, where the Supreme Court speculated (in dicta at the end of that opinion) that ‘in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ … If that line is crossed, the Spending Clause is violated.”

[SNIP]

Left-liberals believe a judicial activist is someone who reverses precedent. Republicans think a judicial activist is someone who disobeys the President. That’s the sum total of how the two parties relate to the law.