2009 October 28
No doubt different people use the term “natural law” as a catchall for several different concepts (much like Guy DeWhitney’s recent observation about “Religious Right”), but from my understanding of the Founding Fathers, I don’t think they’d necessarily posit natural law as a comprehensive guide to the right conclusion on any given question. I think that, if we look at natural law as something with a narrower focus, we may be able to resolve David’s objection and shed light on just why it was so central to the Founding.
The key is the mental experiment John Locke proposes about how men would be without government, left to the state of nature (for those unfamiliar, it’s available online here: http://www.constitution.org/jl/2ndtreat.htm). There is one conclusion about such a state that no reasonable person can deny: no man comes with a discernible mandate or entitlement to rule over the lives or affairs of any other man. Everybody is completely equal in this regard, and any such authority must be some sort of artificial construct. The Founders inferred from this that basic individual rights are natural, that the violation of said rights is unnatural, and that consent can be the only natural basis for governing people who have a natural right to govern themselves.
To be sure, most of the Founders thought they owed this “natural law” their allegiance because it reflected a divine order (though they differed on the divine’s precise nature), which brings us to the age-old question of whether or not there can be an objective basis for societal morality without religion (the Founders would say no). But regardless about whether or not somebody thinks there’s something bigger behind natural law, or thinks of it strictly as the determination of pure reason, there’s nothing arbitrary about it. It may not tell us what to do about everything that comes our way (though much of modern progressive policy & dogma can be traced directly back to a rejection of consent of the governed), but when applied to its proper place – the basis for governing free men – it’s indispensable.