West's Founding VII: Natural Rights and Public Policy

This will be the last section on Part I of West's book, which is a description of the political theory of the Founders as he understands it. Part II, "The Moral Considerations of Freedom," follows after. 

Both foreign and domestic policy can be derived in a few short strokes once the principle is accepted that government's sole purpose is to secure the natural rights of the citizenry. In West's formulation, the Declaration lays out foreign policy succinctly when it speaks of "one people [dissolving] the political bands which have connected them with another, and [assuming] 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 people have a right to do that; but because it is only a 'free and equal' station to which they are entitled, their new government has no right to interfere with any other except in cases of self-defense. (141)

West does not like the term "isolationism," which he describes as pejorative. Nevertheless he approves both of Hamilton's and Jefferson's refusal to join the French Revolution's attempt to export its ideology, and their criticisms of France for shifting into an ideology-exporting mode. (145) Washington's discussion of 'entangling alliances' (especially referring to France) was repeated by Jefferson in his own day, in spite of his pro-French leanings. (ibid) West's basic idea is that the natural rights theory requires America to mind its own business, leaving other nations to do whatever they do -- be they tyrannies or principalities -- so long as they do not threaten the citizens of the United States and their natural rights. 

On domestic policy, West points out that the modern conception of law enforcement that focuses on police is a great departure from the Founding approach. In early America, there were no police departments. Law enforcement was a whole of government approach, but much more limited in what exactly it tried to regulate. The legislature passed laws, the executive brought indictments, the judiciary tried the case and if guilt was proved assigned back to the executive the execution of sentences. Yet only a very few things were taken to be matters of law requiring government action (and this mostly at the state level). Murder, robbery, and the like required the government to step in and protect the natural rights of citizens to be free of such things. In more minor cases, the legislature passed laws giving citizens access to the courts to sue each other for damages related to natural rights like property or reputation. Most of life did not involve the government. (150-1)

Nevertheless, West adds, "limited government did not mean weak government. Instead, government was to be strong in its proper sphere and not involved at all anywhere else." (153)

West is sharply critical of the contemporary approach to using laws to regulate every aspect of life, to try to prevent injury in advance (as e.g. via building codes). This ends up being destructive to the natural right of liberty by constraining people's every action in the course of their employment, and requiring them to submit proofs of their obedience to the government just from day to day. The Founders rejected this approach, he says, and only allowed harms that have already occurred to be treated at law. This served as an important limit on government power. (154)

The most important aspect of the rule of law, and the one we are seeing lost today, is equality of the enforcement of the law. Just yesterday we were treated to the spectacle of a Democratic governor in the state of New York being found by the Attorney General to have violated numerous laws yet being charged with violating none of them. This is a double failure: on the one hand he is entitled to a presumption of innocence which she denied him in her press conference declaring his guilt; on the other, he will not face the hazard to liberty and property before the courts that his  (alleged) violation of his victims rights entitled them to see him run. Likewise we see people who have attacked Federal buildings in Portland released without charges, night after night, while people involved in the Capitol incursion on 6 January held without bail for many months, while Congressional hearings declaring their guilt are held and new powers are granted to police to pursue such people. Likewise, too, we have seen how the DOJ handles cases against Clintons and their allies versus Trumps and theirs. 

What is to confine the government here? West points out that the idea of separation of powers and federalism were meant to be functional. Natural law theory does not actually require either one, but having the powers separated was supposed to make violations of equality before the law less likely. Federalism was supposed to restrain both states and more importantly the Federal power by decreasing its sphere. Concentration of power makes abuse of power more likely. (160-1)

How about the Bill of Rights? Madison mocked what he called 'parchment protections,' and Hamilton according to West agreed. (161) However, West says, these guarantees were 'not totally ineffectual' for as long as the political theory of the Founders prevailed. (162) Only once it was lost among the elite as a guiding light did these statements of immunities and rights become things that the courts would not enforce, and that other officials would ignore at their pleasure. 

Just yesterday, Joe Biden announced he was extending a program limiting the property rights of landlords in spite of the fact that the Supreme Court had said that was unconstitutional without further action from Congress; they are doing it anyway, because who cares what the Supreme Court says about the constitutional rights of people like landlords? The Court may come back and say it again, but until they get around to it power to limit the natural right to property is unconstrained; and it may just be violated again after a second ruling as easily as after a first. This shows both that the Founding political theory has been rejected by the government, but also that Madison and Hamilton were right that these 'parchment protections' do not by themselves secure any of our rights. They must be enforced by living men.