Scholar: America's Constitution isn't about "Inventing New Rights"

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Don’t expect the Senate hearings on prospective Supreme Court nominee Neil Gorsuch to get into the question of natural law, not because it isn’t worth it but because it is.

Really relevant questions are anathema to politicians and pedagogues alike and the question of whether our rights come from God or government is one of them, particularly since most people working in either sphere would like you to think your liberties are the product of a benevolent state. At his nomination hearings, sitting Supreme Court Justice Clarence Thomas was pilloried by Senate Democrats because of his interest in natural law. Johnny Carson, then the king of late night television, took sharp aim at one of them.

Noting that the hearings hinged on the question of natural law and that it is “a dicey thing to explain,” Carson said, “To Ted Kennedy it means that part of the cocktail waitress that hangs over the table is yours.” Scholar Hadley Arkes offered a more rarefied description in a speech delivered six years ago, but then, he actually entered academia, where he served for many years as a professor at Penn, in search of truth.

“We announce here nothing new to the world, much in the way that James Wilson, at the origin of the Constitution, proclaimed that we were not, under this Constitution, inventing new rights,” Arkes said in a speech which has been reprinted by the James Wilson Institute that he founded. Wilson was one of the early Supreme Court Justices, who signed both the Declaration of Independence and the U. S. Constitution.

“The object of the Constitution, he said, was ‘to acquire new security for the possession or the recovery of those rights’ we already possess by nature,” Arkes argued. “The great Blackstone had famously said that, on entering civil society, we give up those unqualified rights we had in the State of nature, including the liberty of ‘doing mischief.’”

“To which James Wilson asked, in a Talmudic question, ‘Is it part of natural liberty to do mischief to anyone?’ In other words, as Abraham Lincoln and Thomas Aquinas had it, we never had a ‘right to do wrong.’”