It Is Dangerous to Be Right When the Government Is Wrong (31 page)

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Chapter 11
When the Devil Turns Round on You:
The Right to Fairness from the Government

Consider the following hypothetical, taking place in Danistan, a country with no courts to hear disputes. Recently elected Governor N'ameyore Price decides that there is a pressing public need to convert your land into a reserve for the rare Saharan penguin. After doing some research, you discover that your state constitution grants each individual a right to be secure in his property, which can only be abridged if there is (1) an exceptional public necessity, and (2) the government provides fair and just compensation. Despite your pleadings that the high school nearby would make this an unsuitable location (Saharan penguins are terrified of Danistanian teenagers, and refuse to eat or reproduce on the same continent as them), Governor Price decides to go ahead with his plan. To make matters worse, the governor refuses to pay anything more than the market value of the property as of 1908, insisting, “If I have to suffer as a Cubs fan, then it is only fair and just that we all do.” Two days after taking the property, Governor Price announces that, on second thought, the land would better serve the public interest if it was auctioned off to the pharmaceutical industry (not surprisingly, a key contributor to his political campaign).

Outraged, you do some more research and discover that your state constitution also grants a right to free speech, “except for speech tending to promote hatred against an identifiable group.” Consequently, you try to oust Price from political office by holding up signs outside voting booths which say “no land for penguins.” Governor Price orders you off the premises, insisting that your protest is not protected since it constitutes hate speech, as it incites public resentment toward “a discrete and insular minority of Saharan penguins, seriously curtailing the operation of those political processes ordinarily to be relied upon to protect minorities.” (The governor is a disbarred lawyer.)

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Think for a moment: What exactly is
legally
wrong in the hypothetical above? In other words, if you were a legislator, what laws would you want to pass to prevent such future transgressions of natural rights? Although it is undeniable that you have robust rights to property and speech, the law extends only as far as the government desires if the government does not need to follow certain procedures in applying those laws to you. In short, substantive rights become no more than an instrument of propaganda intended to convince the public that we live in a free society.

This chapter discusses those procedural requirements which are most essential for the protection of individual liberties and their origins in the Natural Law. We can think of due process as those procedures which government must follow before life, liberty, or property can be taken away by law. Although we typically think of these as juries, neutral judges, and warrant requirements, there are other procedures which government must follow as well. For example, no one can be deprived of liberty by an
ex post facto
law, that is, a law that was passed after the commission of the act which it condemns. In such a case, the law itself, rather than just its application to a particular case, violates due process.

There are two components to due process: Requirements which ensure that the essence of a law is just, and can therefore be called legitimate (called
substantive due process
), and procedures which ensure that the application of a law is just (called
procedural due process
). As we shall see, it is the Natural Law which is the source of these substantive and procedural constraints on government. Moreover, in no other area of law has the Natural Law played a more important role; the Due Process Clauses of the Fifth and Fourteenth Amendments have been, as noted by the late UCLA professor, Charles Grove Haines, “the main provision[s] through which natural law theories were made a part of current constitutional law.” Although due process may at times seem abstract and removed from the realities of our modern world, such as terrorism and immigration, as we shall see, its subversion is the single biggest threat to our natural rights today.

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“Laws Must Be Fair to Be Just and Enforceable”

It should be clear from the hypothetical above that certain fundamental principles are necessary in order to protect all of those substantive rights discussed elsewhere in this book. However, before we discuss what those protections are, it is necessary to examine how they are derived from the Natural Law. The need for due process arises out of the fact that there are circumstances where the government can, and should, lawfully deprive the people of their liberty. After all, if one does harm to another, that is, “an intentional physical invasion or aggression of another person's body or rights or property,” then, under those limited circumstances, the government is right in prosecuting that individual.

This is known as the concept of “waiver” of rights: The thief or invader, by his theft or aggression, waives the permanency and inalienability of his natural rights by violating the natural rights of another. As stated elsewhere, my right to swing my arms ends several inches from your nose. Beyond these “contours” (i.e., on your side of your nose), I voluntarily surrender possession of those rights. In this sense, the government can never deprive one of his rights to life, liberty, and property; when the government prosecutes a genuinely guilty individual, these rights were already waived by him, and him alone. Although this may sound abstract, it is simply an application of the principle of personal responsibility. Only
you
can waive
your
rights.

The specific problem highlighted by the hypothetical at the beginning of this chapter is that the government can use this power to prosecute improperly, punishing the wrong individuals and thereby eviscerating any meaningful protection of substantive rights. In short, there must also be some scheme of procedural constraints which ensures that our natural rights are actually enforced, and liberty is only deprived when its possessor has given it up.

There are several ways in which due process is based in the Natural Law. First, due process is comprised of those principles of justice prescribed by the Natural Law itself. Could anyone doubt that there is a fundamental human yearning to be treated fairly and justly under the law? Why else is it that we are outraged at the punishment of the obviously innocent, or government theft of property, or any government classifications based on an immutable characteristic inherited at birth? Take public school segregation. Just because separate treatment might be technically equal, we nonetheless recognize the manifest injustice in a scheme of forced segregation. After all, it is a central precept of the Natural Law that all humans are to be treated the same, since no temporal being could be treated as “higher” than another; the Natural Law commands that the government and its laws be applied fairly and justly to all, and devoid of any racial classifications whatsoever. Thus, we can say that there is a procedural requirement, dictated by the Natural Law, that politicians and judges draft and apply the law to individuals in a fair manner. In this sense, a procedural right to be treated fairly under the law is not only a protection of other natural rights, but also is its own fundamental right implicit in the natural order of things.

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To cite an example of the natural right to be treated fairly, why is it that the government is prohibited from passing an
ex post facto
law? This is clearly not an outgrowth of another substantive right, such as a right to property. By contrast, it should be clear that as a matter of principle and without more, it is manifestly unfair to punish someone for behavior that wasn't a crime when he engaged in that behavior. In other words, an
ex post facto
law does not need actually to deprive you of property or liberty before it can be considered unfair, and thus in violation of fundamental human yearnings; it is a
per se
transgression of the Natural Law. Stated differently, its wrongness is self-evident.

This notion that the Due Process Clause of the Constitution imposes unenumerated principles of fairness and justice on all branches of government has been adopted by the Supreme Court; specifically, the federal government via the Fifth Amendment and the state governments via the Fourteenth Amendment. For example, when deciding if a state court can hear a dispute involving a particular defendant, it must be shown that he has personal dealings with that State, such that requiring him to defend himself there “does not offend traditional notions of fair play and substantial justice.” Otherwise, a plaintiff could sue you in a faraway State, and force you to settle simply because the cost of defending yourself there could be greater than what the plaintiff is seeking. Thus, the Supreme Court itself has recognized that the Due Process Clause imposes a requirement of fairness and justice in how laws are applied.

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Second, due process comprises those implied procedures which are necessary to protect our immutable natural rights (and other political rights guaranteed by the Constitution) from unwarranted encroachments. In this sense, when we enter into the social contract with government for the protection of our natural rights, there are certain procedures implied in the contract which ensure that the government will execute that duty with good faith. As an example, juries and burdens of proof ensure that if someone is found guilty, then it is an accurate finding and therefore genuinely just to deprive him of his freedoms by imprisoning him. By contrast, without these procedures we could have no assurance that deprivations of liberty are in fact just, and there would be no such thing as a government which respects natural rights; judges could determine guilt by flipping a coin, or worse, on the basis of the defendant's race or political ideology.

In thinking about how rules of procedure can be implied by the need to protect our natural rights, it is helpful to think of a rule deemed so fundamental that we often forget its existence: The accused is innocent until proven guilty. As a purely practical matter, our natural rights would be meaningless if we could only avoid their deprivation by “proving otherwise.” First, in many, if not most, cases there will be a lack of clear and convincing evidence that we did not in fact commit a crime. Thus if we could not prove via security camera footage that we were at home on Friday at 11:00 p.m. instead of at the scene of the crime, then we will summarily lose our liberty. Second, it is simply unfair to make an individual prove why he should be free; the government should always be forced to prove why he should not be free. If anything should be clear from this book, it is that inherent in a scheme of Natural Rights is the notion that liberty is the rule and not the exception. Thus “guilty until proven innocent” cannot be reconciled with the Natural Law. Liberty is the presumption.

Thus, we can think of procedural requirements not as the Natural Law itself, but as being implied by the Natural Law. To be fair, if human beings could be trusted to apply the Natural Law, then many rules of procedure would be superfluous; as James Madison once said, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Our politicians would only ever pass just laws, and prosecutors would only charge criminals who had so much evidence against them that a jury would certainly find them guilty. However because governments are run by individuals just like Governor N'ameyore Price, there must be this additional set of procedural laws to safeguard our liberties.

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Having discussed the basis for due process in the Natural Law, we turn to ask: How do we then determine what that process is? The best answer is to look at history, and determine which procedures have, over time, proven themselves to be necessary for the protection of our natural rights. They are those restrictions on government which the people, having lived under the yoke of oppression and tyranny, have crafted for their own protection. For the duration of this chapter, we shall turn our attention to just such an examination.

The Requirement of Expediency and Public Necessity

Regardless of whether a law infringed upon your natural rights or not, can the government pass a law for absolutely any reason it chooses? Before you answer that question, consider the following laws. In Maine, it is illegal to keep up Christmas decorations after January 14th. In Connecticut, the only thing worse than jaywalking is doing so upside down on one's hands. In North Dakota, you had better not order beer and pretzels at a bar, because doing so just might make you guilty of soliciting a crime. In New Jersey, the state government posted signs saying “Bear Free Zone” as if to warn the bears to stay out. And, being a dog lover, my personal favorite: In Denver, dogcatchers are required to post notices of impoundment for stray dogs to see.

As noble as giving dogs an opportunity to avoid the kennel might be, according to Positivism, such laws are perfectly valid merely by virtue of being the pronouncement of the government. But, you might ask, “Isn't the government supposed to pass laws only for certain purposes?” William Blackstone, the eminent English jurist, proclaimed that laws are only permissible where “
necessary and expedient
for the general advantage of the public.” By
necessary
, it is meant that the law is a sort of “last resort” in solving whatever problem the government is seeking to remedy; surely, there are more effective ways of keeping our streets free of stray dogs than to post signs threatening them with time on the inside. By
expedient
, it is meant that those laws are in direct furtherance of the good of innocent individuals. Thus, according to Blackstone, a law which criminalized consuming beer and pretzels together would not be expedient, whereas a law which criminalized consuming beer while driving a car that caused human injury could be.