It Is Dangerous to Be Right When the Government Is Wrong Read Online Free Page A

recognize the ability of one to do business and freely contract with others. Moreover, it declares government initiatives such as taxation and the Federal Reserve’s inflationary policies as illegitimate and in contravention of the Natural Law. And, as we shall see, some government initiatives, such as war, violate this property right in nearly every single form it can take. Thus, although one may fairly say that libertarians share general principles such as nonaggression and “free markets,” among others, the common denominator within this philosophical movement is simply that there are certain spheres of this world which belong exclusively to the individual. We have dominion over these spheres by virtue of being human, and for that reason, they are natural rights which do not rest on any government for their existence.
    Human Law
    The key difference between the Eternal Law, the Natural Law, Natural Rights, and Human Law, is that the last of these is not implicit in the order of things, but is actually promulgated by humans. Nonetheless, if lawmakers are to create the best society, they must be informed by human nature. Professor Barnett notes the role that man-made law plays in the scheme of Natural Law:
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    Once these [natural] rights are identified, it is a somewhat, but not entirely, separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well-being of others. . . . Natural rights, therefore, do not enforce themselves. They are rather a mode of normative analysis used to evaluate and critique the positive law that is needed to reinforce them. 5
    The proper role, then, for human law is to extend those natural rights into workable legal standards. After all, we live in an extraordinarily complex world, and it is not always obvious how natural rights, such as the right to order one’s personal life, apply to new and controversial questions, such as euthanasia or net neutrality. Moreover, although there may be a natural right to enter into contracts on one’s own terms, there is an important role for laws which require that contracts take a certain form before they can be enforced (so as to minimize the possibility of fraud). Although one may intuit that the right to enter into contracts protects the ability of parties to enter into contracts without their signatures, legislatures are well justified in promulgating a law that such agreements will not be enforced. Thus, we can see that man-made law must not only respect, but preserve, protect, defend, and actually serve our Natural Rights.
    Because human suffering results when man-made laws conflict with the Natural Law, and the very purpose of man-made law is to enforce Natural Rights, human laws are only valid to the extent that they uphold the Natural Law. Aquinas noted that “every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.” 6 As we shall discuss below, one Supreme Court justice even saw fit to distinguish between acts and laws : Acts are commands which come from our politicians, and cannot be considered laws unless they comport with the Natural Law.
    One might well question what is meant by valid . After all, we will most likely obey a law regardless of whether it comports with the natural law, so long as the consequence of disobeying that law is punishment. By imposing a requirement of validity, we ensure that our government is constrained by the Natural Law. Could our politicians, practically speaking, pass laws which violate the Constitution? Of course, as is frequently the case. But central to the Natural Law and to the Constitution itself is the belief, held by the people and our judges, that such laws are not valid and should be struck down. So, too, the Natural Law,