The Problem With Justice

[PoliticalChic]

1. The concept of 'Natural law', central to the founding of the United States, is based on the view that there are rights that simply accrue from being a human being. The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them."

Because of the intersection between natural law and natural rights, it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States. 'Declarationism' states that the founding of the United States is based on Natural law.

Natural law is often contrasted with the positive law of a given political community, society, or state, which is distinct from "natural law", which comprises inherent rights, conferred not by act of legislation but by "God, nature or reason."
Kelsen, Hans (2007). General Theory of Law And State.





2. The reference to natural law can be seen in the reference to ‘Divine’ in Declaration of Independence: 1)in first paragraph ‘Laws of Nature and of Nature’s God,’ 2) next paragraph ‘endowed by their Creator,” 3) Supreme Judge of the world, and 4) ‘divine’ Providence, last paragraph.

a. This is important because our historic documents memorialize a government based on individuals born with inalienable rights, by, in various references, by the Divine, or Nature’s God, or their Creator, or the Supreme Judge, or divine Providence. Since these rights are associated with each individual, they cannot be withdrawn, or subjugated to the will of a governing body.




3. The problem arises when one attempts to use the idea of natural law as the foundation for a system of law based on "justice."

In an age when citizens disagree sharply about what justice requires, courts have to question imposing contested principles by judicial fiat. The debate about whether or not the Supreme Court should enforce unenumerated principles of justice, rooted in natural law rather than explicitly codified in the Constitution, goes back to the beginning. The terms of the debate were established as early as 1798, in Calder v. Bull. Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation

a. How to find a universal definition of exactly what 'justice' is, or what God would find just, when there isn't a consensus on what God is, or even if there is a God.

4. In the case mentioned above, Justice Samuel Chase gave his view of natural law, and the limits of legislative power: He noted that while the federal government's powers were strictly defined in the enumerated powers clause, state governments had all the power that the people of the states decided that they had, except for those denied by the Constitution.

But, he said, natural law "will determine and overrule an apparent and flagrant abuse..." And "An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority,...”





5. Chase was drawing on a natural law tradition widely accepted by the American founders. Virtually all of the framers of the Constitution, led by Madison, believed in the existence of natural rights – that is, rights given by God rather than Government – that individuals retained during the transition from the state of nature to civil society. There was broad consensus during the founding period about which rights were natural:
they included the right to alter and abolish governments,
to worship God according to the dictates of conscience,
to speak freely,
and to pursue and obtain happiness and safety.



a. This is the point: who will decide whether or not state legislatures have broken the restrictions of natural law? Chase has set the stage for federal judges to substitute their individual understandings of unwritten natural law for the judgments of state legislatures.
"The Politically Incorrect Guide to the Constitution," Kevin R. C. Gutzman, p. 53-54.






6. Fellow Justice James Iredell gave the alternate argument: The anti–natural justice position in Calder v. Bull – that is, the view that natural rights exist, but courts should not enforce them – was expressed by Justice James Iredell.

“If any act of Congress, or of the Legislature of a state, violates ... constitutional provisions, it is unquestionably void,” he wrote. “If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
Justice Shalt Thou Not Pursue ? why the supreme court?s rejection of ?justice? is a good thing ? In Character, A Journal of Everyday Virtues by the John Templeton Foundation





And so, even those of us aligned with the Founders in their belief in a Creator, and in natural law, are unable to disagree with Justice Iredell..."... the ablest and the purest men have differed upon the subject..."


" Justice" cannot be the basis of our legal system unless all agree on its meaning.

 

[DGS49]

You are getting your terms all confused.

The "rights" conferred by the Creator are only tangentially releated to "justice" or "natural law."

The rights, in general terms include the right to own property, to conduct one's own affairs, to move free from place to place, and NOT to have others impose obligations or limitations without rational cause.

Natural Law is a set of moral principles that flowed down through the culture to the Founding Fathers, and upon which the original criminal laws (and some civil laws) were based. The debate in the law about the application of "Natural Law," concerns "crimes" that do not involve any overt harm to any other person or thing. For example, laws prohibiting consensual sodomy between competent adults. The Natural Law indicates that this conduct can be sanctioned and in fact criminalized, even though there is no tangible harm accruing to either of the consenting adults, or to anyone else. Those who oppose the applicability of Natural Law would argue that such laws should be expunged from the criminal codes, as inappropriate.

Justice refers to the balancing of the various interests in cases where the laws have been broken and/or people or their property has been harmed or destroyed. What is a "just" punishment for destroying a retaining wall (ignoring the tort damages)" A year in prison? What about punching someone in the face, for no apparent reason? Is 30 days in jail enough? Too much? An unintentional homicide - the death penalty, or a year in the slammer?

What sentence serves the interests of "justice"?

Except to the extent that the crime is one based on a violation of Natural Law only, Justice has nothing to do with Natural Law.

 

[PoliticalChic]

You are getting your terms all confused.

The "rights" conferred by the Creator are only tangentially releated to "justice" or "natural law."

The rights, in general terms include the right to own property, to conduct one's own affairs, to move free from place to place, and NOT to have others impose obligations or limitations without rational cause.

Natural Law is a set of moral principles that flowed down through the culture to the Founding Fathers, and upon which the original criminal laws (and some civil laws) were based. The debate in the law about the application of "Natural Law," concerns "crimes" that do not involve any overt harm to any other person or thing. For example, laws prohibiting consensual sodomy between competent adults. The Natural Law indicates that this conduct can be sanctioned and in fact criminalized, even though there is no tangible harm accruing to either of the consenting adults, or to anyone else. Those who oppose the applicability of Natural Law would argue that such laws should be expunged from the criminal codes, as inappropriate.

Justice refers to the balancing of the various interests in cases where the laws have been broken and/or people or their property has been harmed or destroyed. What is a "just" punishment for destroying a retaining wall (ignoring the tort damages)" A year in prison? What about punching someone in the face, for no apparent reason? Is 30 days in jail enough? Too much? An unintentional homicide - the death penalty, or a year in the slammer?

What sentence serves the interests of "justice"?

Except to the extent that the crime is one based on a violation of Natural Law only, Justice has nothing to do with Natural Law.

Actually, not.

This, from the OP:

Virtually all of the framers of the Constitution, led by Madison, believed in the existence of natural rights – that is, rights given by God rather than Government – that individuals retained during the transition from the state of nature to civil society. There was broad consensus during the founding period about which rights were natural:
they included the right to alter and abolish governments,
to worship God according to the dictates of conscience,
to speak freely,
and to pursue and obtain happiness and safety.



And I would like to focus on this one: they included the right to alter and abolish governments.

It forms a major difference between liberals and conservatives.