During his first speech as the presumptive Republican nominee for vice president, Paul Ryan stated that America was founded on an idea:
But America is more than just a place…it’s an idea. It’s the only country founded on an idea. Our rights come from nature and God, not government.
Ryan here states the essence of natural law’s distinction with positive law. (“Positive” law is law posited by government.) Natural law has been most helpful when a government has sought to circumscribe a people’s rights. Under John Locke’s version of natural law, if a ruler denies his people’s inalienable rights and refuses his people’s appeals, the people may “appeal to heaven” — i.e., recognize the state of war that exists between the ruler and his people. We did that in 1776.
Ryan is correct when he states that our rights come from natural law. He and others who have recently made this assertion imply, though, that the government cannot create rights, such as a “right” to health insurance despite preexisting conditions. This limited notion of rights makes a mockery of natural law. Many positive laws create rights — rights of action (i.e., the right to access courts to enforce legislative remedies), if nothing else. Locke and the Founders never said or implied that natural law precludes positive law. Positive law must not be inconsistent with natural law, to be sure, but our early Supreme Court cases, some of which considered positive law in light of natural law, rarely found them to be in conflict.
Obamacare is not exactly Nazi Germany’s positive law. During the Nuremberg Trials, the Allies were forced to resurrect a natural law concept of human rights in order to prosecute Nazi war criminals, who had done nothing wrong under German law.
However, while America’s philosophical foundation rests on a Lockean understanding of natural law, I prefer Lincoln’s formulation of the idea (or “proposition”) America was founded on:
Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.
The concept that all men are created equal reflects the same Christian cosmology that Locke employs to affirm that our rights come from Nature and Nature’s God. In other words, in Locke’s state of nature, the individual precedes society, and the individual and society precede government. Individuals form legitimate governments and entrust certain rights to it, e.g., the right to defend themselves in many situations.
The transfer of these rights is not complete, however; they are inalienable rights. Equality presupposes a hierarchy of God, Mankind, and Nature: no man — no king, even — can act as an arbitrary god over his fellow men. Equality also means that no authority — not even a majority — can define a minority’s rights. It implies a right of revolution (e.g., the Revolutionary War), and it defends a people against rebellions by those who, for petty or unjust reasons, would overturn a duly elected government (e.g., the Civil War).
But the proposition of equality goes further than the underlying notion of the source of rights: equality makes sense of our past and challenges our present. Lincoln found that the Declaration of Independence’s “all men are created equal” was the philosophical seed that would grow to choke out slavery. Equality means that the American story is progressive, gradually including the poorer white men, then blacks, then women into the voting public. And today, the proposition of equality to which the Founders dedicated our nation challenges abortion, anti-immigrant legislation, bigotry, homophobia, indefinite detentions without trials at Guantanimo Bay, and even the needless government bureaucracy required by recent voter fraud legislation.
The proposition that “all men are created equal” is the political version of the Golden Rule and a celebration of our common humanity. Equality before God, if accepted, values the divinity in everyone and provokes us toward maturity.
To understand the founding idea behind the United States, I think I’ll stick with the Gettysburg Address.