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The Review: A Journal of Undergraduate Student Research

Volume 17 The Review Article 5

2016

The Constitution and Enforceable Natural

Karl Deuble St. John Fisher College, [email protected]

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Recommended Citation Deuble, Karl. "The Constitution and Enforceable ." The Review: A Journal of Undergraduate Student Research 17 (2016): -. Web. [date of access]. .

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This article is available in The Review: A Journal of Undergraduate Student Research: https://fisherpub.sjfc.edu/ur/ vol17/iss1/5 Deuble: The Constitution and Enforceable Natural Law

The Constitution and Enforceable Natural Law

Karl Z. Deuble

In light of the untimely passing of protected absolutely. An important piece to Antonin Scalia, once again the debate over this assumption of the role of is how to best interpret and give meaning to that these three things are inherently natural the Constitution has entered the political to man. Locke claims that the of nature discourse. Contemporarily presented this is “a state of perfect freedom [that allows debate is often seen as a choice between a men] to order their actions and dispose of narrow and static interpretation as illustrated their possessions and persons as they think by the late Scalia’s or an open fit” (Locke, 1788, 2). In this passage are two ended living Constitution that appears to of Locke’s natural . When Locke says have no defining parameters. However, men have the freedom to “order their missing from this debate is a third actions” this is essential his view of . alternative which links the Constitution to It is a very negative view of liberty. the Declaration of Independence. By doing Negative in the sense that to have liberty so, it creates what Scott Gerber calls “liberal means there is an absence of restrictions on originalism” which is a method of actions. interpretation that better allows for the securing of liberty as understood by the When Locke says “possessions and persons” authors of both documents. In the cases, he is really talking about . His view Lawrence v. Texas and Obergefell, et al. v. of property is very expansive. He is not Hodges, Director, Ohio Department of talking about solely private possessions. Health, et al. Justice Kennedy’s majority Locke states: opinions accurately use this third alternative to interpret the Constitution. The labour of his body and the work of his hands we may say are properly his. I. Whatsoever, then, he removes [something] out the state that nature hath To first understand liberal originalism, one provided and left it in, he hath mixed his must understand the political philosophy of labour with it, and joined to it something . Locke’s classical liberal that is his own, and thereby makes it his helped mold American property. (Locke, 1788, 12-13) government. These principles are laid out in his essay The Second Treatise of To Locke, not only your labor but the Government. This treatise is Locke’s product of your labor is also considered your philosophy on the role of man in society and property. Whether it is wages or products his relation to government. For Locke, the that you actually create, Locke believes this only goal of government is to protect three is your property because you have invested things; these are life, liberty, and property. your time and labor in it. If man has Locke believed these three rights were removed something from its natural state it naturally instilled in men. Furthermore, the therefore belongs to him. This is crucially only reason man would give up power to a important to understand this expansive government is to make sure these rights are notation of property because it makes it

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easier to see what the role of government this on purpose. When Jefferson said "Life, should be. Government should protect the liberty, and the pursuit of happiness, he was rights to property including the right to use paraphrasing Locke's three natural rights your labor however you see fit. Naturally, which were life, liberty, and property. If one this means that the government has to understands the expansive notion of protect your liberty. In effect, the right to property discussed earlier, property and the use your property how you see fit is an pursuit of happiness are essentially the same extension of your liberty. The role of thing to Locke. government is then to protect these rights because in a state of nature these rights are Timothy Sandefur explains in his book The not protected. Man only creates a Conscience of the Constitution how the government so that he may gain protection Declaration is a legal document and how it of his natural rights. This limited view of is crucial to understanding the Constitution. government is very important because The Declaration played a prominent role in of this natural theory of law is a the early legal system of the country. huge part of our Constitution that is often Jefferson called the Declaration “the misunderstood or ignored. fundamental act of union of these states” (Sandefur, 2014, 15). According to There are many places, not only just in the Sandefur, the American legal system started Constitution, that Locke’s theory of on July 4th 1776 with the Declaration not in government is rooted. The Declaration of 1789. Every state that was admitted to the Independence, the Preamble to the Union after Nevada in 1864 had to write “a Constitution, Article 1, Article 4, the 9th constitution consistent not only with the , and the 13th amendment are just federal Constitution but also with the a few places where Lockean philosophy of Declaration of Independence” (Sandefur, government is rooted. Scholars have debated 2014, 15.) This is further that the the importance of Lockean natural law but Declaration has legal relevance and in some there is overwhelming evidence to support sense pre-exists the Constitution. If one that the framers were heavily influenced by wants to interpret the Constitution through his work. the intent of the framers one cannot ignore how vital the Declaration’s presumptions of The Declaration of Independence is often life, liberty, and the pursuit of happiness are. one of the most over looked documents in . For most people, the More evidence to show that the Constitution Declaration is not a legal document. It is creates a natural law presumption of liberty simply just a piece of paper that lists our is in the most often overlooked part of the grievances with the King of and document. Everyone reads the preamble and declares our right to be free. However, many even have memorized the words, overlooking the Declaration is a fatal however, many do not understand their true mistake when looking to find the correct meaning. The preamble reads “WE THE meaning of the Constitution. Understanding PEOPLE of the United States, in Order to the presumptions of the Declaration creates form a more perfect Union…secure the the lens through which we can interpret the Blessings of Liberty to ourselves and our Constitution. The Declaration of Posterity.” The most important part of the Independence is adherently a natural law Constitution is right there in the very first document. Its main components are pulled paragraph. The whole reason the framers are straight from Locke. did forming this government is to secure liberty

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for all citizens. This presumption of liberty liberty and property. This clause protects a in the preamble connects the Constitution to state from abridging these natural rights the Declaration and to a natural law regardless of where the individual is from. approach. Many do not understand that the Constitution is merely an ends to a mean. Also found in Article 4 of the U.S The Declaration of Independence is the Constitution is the full faith and credit reason why our country was founded. The clause. The assumptions behind this clause Constitution was how the framers best saw are also heavily rooted in Locke and natural to achieve the goals of the Declaration. To law. Article 4 Section 1 states “full faith and interpret the true meaning of the credit shall be given in each State to the Constitution, one has to understand the public acts, records, and judicial reason why it was written in the way that it proceedings of every other State.” was. The framers intent was that we look at Practically, this provision forces each state the Constitution with the view that the right to recognize the actions and of other to liberty pre-exists all government and the States. As discussed by Jeffrey Schmitt, goal of government is that liberty not be “The has held that the first portion of taken away without reason. the Clause is a substantive command requiring a state to give conclusive effect to Another example of the idea of liberty being the judgments of other states” (Schmitt, 1, ingrained in the Constitution is the 2014). According to the and privileges and immunities clause. This the Constitution, a in one state is to clause appears in slightly different forms in be recognized by all the states. On its face, both Article 4 Section 2 and the 14th this is very easier to understand and non- Amendment. The clause in the 14th controversial. However, at its heart it really amendment was stripped of all its teeth, is a provision protecting property. It protects wrongly according to a large majority of property in the expansive notion understood modern legal thinkers, by the U.S Supreme by Locke. If a person has contracted to use Court in the late . However, the his property in a specific way in New York clause in Article 4 Section 2 states “the and he chooses to move to Pennsylvania, citizens of each State shall be entitled to all that State cannot deny him the liberty he privileges and immunities of citizens in the enjoyed in New York. Again, this was added several States.” This clause still holds legal to the Constitution by the framers to protect weight and its premise is very Lockean. The individual liberty and property from goal of this clause was to promote the infringement by the government. general liberty of each citizen. In a law review article discussing the important of Up until this point the only parts of the this clause, Emily Jennings noted through Constitution that have been discussed at historical research that “Such clauses…were length have been the articles. Natural law is largely intended to ensure that a citizen not only ingrained in the articles but also in traveling to another would be the . The writers of the 9th and afforded the same local rights as the citizens 13th amendments were also greatly of that jurisdiction” (Jennings, 2013, 1807). influenced by Locke. The 13th amendment in This clause is essentially Lockean because it effect eliminates slavery and involuntary assumes that one person from one state has servitude unless as a punishment for a the same liberty as one person from another convicted . John Locke was a strong state. Each person, no matter where they are opponent of slavery because it completely from, is equal in regards to their right to takes away a person’s liberty. One of the big

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problems with the original Constitution was are not given to them and cannot be taken that it did not outlaw slavery. Joseph Mark away from them. Madison shares his views eloquently states how the ideas of Locke and on a of Rights in a letter to Thomas the Declaration are connected to the 13th Jefferson. Part of it reads “I have not viewed Amendment: it in an important light because I conceive that in a certain degree ... the rights in …some Americans considered that the question are reserved by the manner in Constitution’s protection of liberty which the federal powers are granted” embodied protections sufficient to rid (Madison, 1788). Madison believed that the the of slavery. However, it is rest of the Constitution already protected the well-understood that the original rights for which Jefferson wanted to write Constitution failed to live up to the down. Madison viewed the role of Declaration’s promise of liberty and government through a natural law lens and equality in one major way—its treatment by doing so he deeply ingrained Lockean of slavery. It was not until adoption of principles in the Constitution. the Thirteenth Amendment that the Constitution came more closely in line II. with the Declaration. (Mark, 4, 2014) Viewing the Constitution through a natural The writers of the 13th amendment, like law prospective has increasingly become Mark, realized the importance of Lockean unpopular. Many Supreme Court liberty and created an amendment that have failed to recognize the connection brought the Constitution closer to its original between the intent of the framers and Locke. intent. Understanding Locke is very important because it makes it much easier to determine Finally, the 9th amendment, and the history if a law is unconstitutional. Scott Gerber has behind its existence, continues to prove that developed a comprehensive natural law the protection of liberty is the main goal of theory of interpretation that is line with the U.S Constitution. The 9th amendment Locke. If a law or government action reads “The enumeration in the Constitution, violates the spirit of the Constitution by of certain rights, shall not be construed to unnecessarily taking away personal liberty, deny or disparage other retained by the life, or property then it is contrary to Locke people.” This amendment was very and the intent of the framers. However, important to Madison because he wanted to many justices have not taken this view. They stick to a government that adhered to have taken a more positivist position when Lockean natural law. He was afraid of a Bill interpreting the Constitution. This has of Rights because he thought if the framers caused many problems and has created case listed specific rights, future people would law that in many instances is contrary to the assume that those are the only rights they are preservation of liberty. Justice Kennedy has given. If understood correctly, citizens are been the justice who, more than any other, not given rights under natural law; they are has written opinions in the spirit of natural inherent to all citizens. Those rights not law. His majority opinions in Lawrence v. listed in the first ten amendments are Texas and Obergefell, et al. v. Hodges, “retained by the people.” The use of the Director, Ohio Department of Health, et al word retained is very important. If rights are are most closely in line with that of liberal retained that means they are held onto which originalism. assumes citizens already have them. They

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Gerber’s use of the phrase liberal rights have to be protected. No one person’s originalism to describe his view of rights can trump another’s. Adhering to constitutional interpretation can be a little these principles laid out by Locke is how to confusing. This phrase is slightly puzzling in correctly interpret the Constitution using a contemporary setting because when the liberal originalism. word liberal is used it creates a connection to the modern day liberal ideology most Lawrence v. Texas specifically deals with a often adopted by Democrats. This is a homosexual couple who were caught, in a problem because Gerber’s philosophy of legal execution of a search warrant, having interpreting the Constitution is far from the sex. Under Texas Penal Code 21.06(a), it is philosophy modern liberals adhere too. To illegal for two individuals of the same sex to get a better understanding of what liberal engage in “deviate sexual intercourse.” originalism really means, Gerber would There is no denying, by either party, that have been better off calling it classical Lawrence committed this act. However, liberal originalism. Classical as an Lawrence is arguing against the right of the ideology has a strong belief in natural law. State of Texas to pass such a law banning Specifically, it is based in the natural law private behavior. understood by John Locke. This is an important distinction because classical The first sentence in Kennedy’s opinion in liberalism is the philosophy that was Lawrence is the presumption he works off of adopted by many, if not all, of the Founding in the rest of the opinion. It reads, “Liberty Fathers when they wrote the Constitution. protects the person from unwarranted According to Gerber, “To secure natural government intrusions…” (Lawrence v. rights is, therefore, why the Constitution was Texas, 2003, 562). This presumption seems enacted, and to secure natural rights is how so simple and so in line with the aims of the the Constitution should be interpreted. That Constitution it is frightening that many of is the ‘’ of the Founders” the justices do not agree with it. To (Gerber, 1995, 6). This is the role Jefferson, positivists, liberty is not inherent in citizens. Madison, and many others thought to be the Certain are given to them by the correct role of government. Liberal government while others are not. Justice originalism is a method of interpretation Kennedy rejects this notion in the very first whose primary purpose is to protect the sentence of his opinion. He recognizes natural rights of the people. The question correctly the links between Locke and the then becomes how one interprets the Constitution. Justice Kennedy believes it is Constitution by using liberal originalism. To the Court’s role to guard the all liberties of interpret the Constitution through liberal the people against “unwarranted government originalism, it is crucial to have not only an intrusions.” Therefore, Kennedy is understanding of the role of government (to defending Lawrence’s liberty to do what he secure natural rights) but also what those wishes in a private setting. natural rights are. According to Lockean natural law, those rights are life, liberty, and Secondly, Justice Kennedy looks at the property. Another important concept in goals of the statue in question. It is Lockean natural law is equality. Now, reasonable to assume that the aim of the Lockean equality is equality of opportunity statue is to discourage homosexual behavior not equality of outcome. Everyone in our and to try to “correctly” define the society is equal in the fact that their natural relationships between citizens. However, Justice Kennedy does not believe this is

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within the role of the government to do. He 574). The right to liberty and control of states “The statues do seek to control a one’s life is a central tenant of natural law. personal relationship that…is within the The goals of the 14th Amendment are to liberty of persons to choose without being insure this liberty is not taken away. Without punished…” (Lawrence v. Texas, 2003, this natural law lens through which to view 567). Nowhere in the Constitution does it the Constitution finding this right would be specifically protect private homosexual very hard. But, when one takes a liberal behavior. However, Kennedy takes a originalist approach and has the goals of the Lockean notion of liberty and protects this framers in mind, it is clear to see how the act as an expression of liberty that cannot be liberty inherent in Lawrence is violated by taken away by the State. This becomes the State of Texas through Penal Code clearer when he states later “The liberty 21.06(a). protected by the Constitution allows homosexual persons the right to make this The Supreme Court case Obergefell v. choice” (Lawrence v. Texas, 2003, 567). Hodges is similar to that of Lawrence. Justice Kennedy again writes the majority Now, Justice Kennedy recognized the need opinion and uses liberal originalism to for laws similar to this Texas . Many interpret the Constitution. Obergefell is a states have sodomy laws similar to Texas case dealing with the of same-sex but they are valid because of one key couples and their right to be legally married. distinction. There is a limit to liberty and it The States from which the petitioners are is noted by Kennedy in this passage. “A from each define marriage as the union substantial number of sodomy...convictions between one man and one woman. Justice for which there are surviving records were Kennedy is writing for the majority when he for predatory acts against those who could declares that these laws are unconstitutional not or did not consent” (Lawrence v. Texas, and the petitioners have the right to marry. 2003, 569). These sodomy laws referenced Just like in Lawrence, the first sentence of by Kennedy are not under questioned for Justice Kennedy’s opinion sets the tone. It one reason. To Locke and Gerber, this is reads “The Constitution promises liberty to known as the harm . Liberty can be all within its reach, a liberty that includes limited by the state if the use of one’s liberty certain specific rights that allow persons, harms another person. Kennedy draws this within a lawful realm, to define and express distinction because in the case in question their identity” (Obergefell v. Hodges, 2015, the harm principle does not apply and the 2). In the previous case, Kennedy’s view of government should have no right to infringe natural law was only focused on liberty. In on this liberty. Obergefell, he extends this view to include not only liberty but Locke’s notion of Finally, Kennedy cites a previous case property too. The right to express personal where the court used the 14th amendment, identity can be viewed as a right to property and its clause, to uphold this because expressing one’s identity is notion of liberty. The court ruled in Planned essentially the same thing as one’s property. Parenthood of Southeastern Pa. v. Casey This broad Lockean notion of the right to that “intimate and personal choices a person property is founded in the Declaration and it may make in a lifetime, choices central to the driving force behind the rest of personal dignity and autonomy, are central Kennedy’s opinion. to the liberty protected by the Fourteenth Amendment” (Lawrence v. Texas, 2003,

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Kennedy sided in favor of same-sex challenge future generations. But, their key marriage because he believed the petitioners foundation to solving problems of in Obergefell have the liberty to express government power would never change. their identity how they see fit. However, this Defending liberty against government action specific liberty is not listed anywhere in the must fall on the Supreme Court. Kennedy Constitution. The dissenters in Obergefell recognizes this in Obergefell and he does so use this as their argument. Justice John correctly by sticking to using Gerber’s Roberts states in his dissenting opinion that liberal originalism to interpret the “This [decision] is an act of will, not legal Constitution. .” Justice Kennedy strongly resists this accusation because the Court does have Constitutional is a very hotly the legal authority to make this judgment. debated issue among legal scholars and it Not simply because they are Justices of the seems that this debate will creep into the Supreme Court and they have the final say political arena because of the recent vacancy but because the protection of liberty is in the Court. Many say it is impossible to rooted deep in the Constitution. The 14th know what the true intent of the framers amendment reads, no State shall “deprive was. However, it is very clear to see the any person of life, liberty, or property, connection between Locke, the Declaration, without due process of law.” The liberty for and then finally the Constitution. The same-sex couples to marry had not framers did this on purpose because they previously been considered to be protected believed Locke’s notion of liberty and how by this clause. This is why Justice Roberts it is inherent in every man. They formed a and his fellow dissenters are so angry. government system around the goal of However, Justice Kennedy believes “the creating a where it was not identification and protection of fundamental possible for the State to intrude on this rights is an enduring part of the judicial duty liberty. Many modern thinkers do not to interpret the Constitution.” (Obergefell v. subscribe to the notion of Lockean natural Hodges, 2015, 10). Kennedy believes it is law but it is still strongly supported by the role of the Justices’ to continually define some. Gerber is one of those scholars who liberty in a changing society. The framers has developed a convincing argument for could not see the issue of same-sex marriage this type of interpretation. Justice Kennedy in the 18th century. They accepted that as is a great example of how a justice can use time went on different issues would liberal originalism to decide cases.

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Madison, James. Letter to Thomas Jefferson. Sandefur, Timothy. The Conscience of the 17 Oct. 1788. Constitution Society. Web. 8 Constitution. Washington DC: Cato Oct. 2015. . Institute, 2014. Print.

Mark, Joeseph. "United States V. Hatch: Schmitt, Jeffrey. "A Historical The Significant of the Thirteenth Reassessment of Full Faith and Credit. ." Amendment in Contemporary American George Mason Law Review 20.2 (2013): Jurisprudence. ." Denver University Law 485-544. Academic Search Complete. Web. Review 91.3 (2014): 693-713. Academic 8 Oct. 2015. Search Complete. Web. 8 Oct. 2015.

Obergefell v. Hodges. 576 US. Supreme Court of the US. 2015. Print.

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