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. 

11 comments:

Elise said...

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.

I almost started blogging again in the period between the November 2020 election and the 2021 inauguration. The post I drafted was about what a relief it was to have, in Donald Trump, a President who didn't feel compelled to muck around in other countries' business and instead focused on United States. It was partly inspired by the President of Mexico saying he appreciated President Trump not telling Mexico what it should and should not be doing.

... they are doing it anyway, because who cares what the Supreme Court says about the constitutional rights of people like landlords?

How many divisions has the Supreme Court?

Christopher B said...

Re Cuomo ...

Andrew McCarthy has an explanation in this analysis of the report why NY AG James established at the outset that no prosecution from her office would result from the investigation. In the normal course of such work the AG should only publicly release information about a case via court filings and testimony, and then only such information as is likely to stand up in court. By declining to prosecute her office could give a fuller account of Cuomo's activities without those restrictions. Yes, it's convenient for her to do this but she did have a justification for the decision, and I believe that a state DA has announced he will be using the information gathered in the investigation to at least explore bringing charges, and the NY State Legislature can use it as well.

J Melcher said...

why NY AG James established at the outset that no prosecution from her office would result from the investigation. ... By declining to prosecute her office could give a fuller account of Cuomo's activities without those restrictions.

Dare we suppose a fair, equitable, parallel and similar "immunity deal" was or will be offered Donald Trump regarding the investigation into his taxes?



Narr said...

One of the first things Prez Thomas Jefferson did was make war against the Barbary pirates. Outside of balancing the Brits against the French, that was THE foreign policy challenge of those early administrations, almost completely forgotten today. Just sayin'.

As for our laws today, what did Andrew Jackson say--"he has made his rule, now let him enforce it"?

Cousin Eddie

Grim said...

Jefferson did indeed wage war on the Barbary Pirates, though that does meet the test West argues for here. They were attacking American shipping, and thus it was a defensive action.

Elise said...

Here's a thread which asserts that SCOTUS has not ever said the moratorium is unconstitutional. Make of it what you will:

https://twitter.com/alexthechick/status/142294742923041178

On the other hand, as I understand it, Biden himself said very recently that there was no legal avenue for him to do what his Administration just did.

J Melcher said...

One of the first things Prez Thomas Jefferson did was make war against the Barbary pirates.

Deploying frigates from a Navy, created under John Adams, that Jefferson as VP had vociferously argued were unnecessary. TJ supported a force more like the Coast Guard; small ships that would run down smugglers etc.

Well, until TJ needed a Navy. To his credit, he did later credit "the previous administration" with the correct policy in funding and building those frigates.

Grim said...

Biden himself said yesterday that there was little chance it would survive review, but he was doing it anyway.

That tweet doesn't seem to exist anymore -- at least not for me. I tried on my phone and also my laptop. Can you still read it?

Elise said...

No, I can't use that link either but the thread is still there. Try this:

https://twitter.com/alexthechick/status/1422947429230411780

I have no idea what happened but I am sorry for the confusion. I can believe I posted the wrong link but not sure how I could have posted a non-existent one.

Grim said...

Twitter is often difficult. It’s probably not your fault.

So if she’s right, it’s only unconstitutional in the Sixth Circuit for now — but it is still unconstitutional there, and Kavanaugh has said SCOTUS will likely affirm at the national level. The stay expired with the old order.

Hopefully the courts dispose of this quickly, because it’s deeply offensive to our constitutional order.

Narr said...

The USG (Organs of State Security) is/are not bound by law. The sooner we realize that the better.

*****

TJ's war-- I was just making an observation, not condemning or challenging his actions.

After the Revolution, American ships lost the protection of the Royal Navy. For about a decade, the US depended on -Portuguese- or -Danish- warships to police the Atlantic and Med sealanes on our behalf.

The % of the USG budget devoted to paying the pirates for protection was very high (on the order of 30% IIRC). A fine heavy frigate was built and turned over to one of the North African beys, who in turn gifted it to the Sultan in Constantinople--just one of many humiliations inflicted on the US. Other powers did the same--the pirates often operated in Christian-built and armed vessels extorted earlier. (Sounds familiar, don't it?)

Jefferson did everyone a favor, since the result was a pledge to stop the piracy against everybody--which held, after centuries of the practice.

Cousin Eddie