Judge Napolitano, an eloquent advocate of liberty, is in fine form here, in his discussion of the relevance of natural law theory to immigration. I was especially pleased with his observation that politicians are at most fair-weather friends of natural law: “This view of the natural law is sweet to the heart and pleasing to the ear when politicians praise it at patriotic events, but it is also a bane to them when it restrains their exercise of the coercive powers of the government.” This is correct- the idea of natural rights, moral rights that are not created by governments, is (for them) a convenient rhetorical device, to be discarded as soon as they perceive that it would be more popular to frame an issue in terms of “practical solutions,” “being realistic,” or “the compromises necessary in a democracy.” Politicians and pundits both left and right do this: on positions they favor, it’s wrong for the government to interfere with the exercise of natural rights, but when the subject is something they oppose, positivism rules. Judge Napolitano surprised a “conservative” talk show host recently by invoking natural rights as a trump against nativist sentiment. Specifically, he argues that “Our fundamental human rights are not conditioned or even conditionable on the laws or traditions of the place where our mothers were physically located when we were born. They are not attenuated because our mothers were not in the United States at the moment of our births. Stated differently, we all possess natural rights, no more and no less than any others. All humans have the full panoply of freedom of choice in areas of personal behavior protected from governmental interference by the natural law, no matter where they were born. Americans are not possessed of more natural rights than non-Americans….” He goes on to show why the government has no right to interfere with freedom of movement. (It furthermore has no right to prevent you or me from hiring whomever we want or selling/renting land to them.) Politicians and pundits on the right aren’t comfortable with the language of natural rights when it comes to issues like marriage or immigration. Their counterparts on the left aren’t comfortable with such language when it comes to issues like self-defense or trading. The Judge gets it. I wonder how the national discussion of rights would go if he had the audience of Paul Krugman, Rachel Maddow, Pat Buchanan.
6 thoughts on “Natural rights are more than a rhetorical device”
People do have a natural right of SOME movement (anyone that chained a baby to a table for the day is wronging the baby). But I find it hard to believe that there is a natural right to travel, such that sovereign nations are duty-bound to permit me (a non-citizen) entering their country. For starters, if that were the case, it’s hard to see how ANYONE could restrict another person from trespassing on his/her own property if we follow Napolitano’s reasoning.
Surely there is no right that I have in virtue of having a human nature that creates a duty for you to step aside if I want to be in your nice, piece of shade. Surely there is no right hat I have in virtue of having a human nature to travel on land owned by another nation.
“Surely there is no right that I have in virtue of having a human nature that creates a duty for you to step aside if I want to be in your nice, piece of shade.”
Correct. The key word there is “your.” You don’t have a right to live on my property without my consent. But the corrolary to this is that I _do_ have the right to lease or sell my property to whomever I like. Anti-immigration is _that_. “Surely there is no right hat I have in virtue of having a human nature to travel on land owned by another nation.” Not sure what it means for a nation to own. On my view, individuals can own property. If you mean that as shorthand for government stewardship of land owned by – what? everyone? no one? – then the Judge’s argument works just fine,but even on consequentialist grounds it wouldn’t make sense to prohibit something that is a net _benefit_ to the economy.
Actually it is the left that has it wrong on natural rights and marriage. According to natural law marriage between persons of the same sex is impossible. This country rejected natural rights with Roe vs. Wade
I just don’t see much of an argument by Napolitano. He simply asserts that there is a natural right to travel–a right such that sovereign states must permit non-citizens into the state.
And what does this right amount to? A right to be on public land? A right to be on any individual’s land? A right to be on land when someone gives prior consent to be on the land?
That’s what your last comment sounds like, Aeon. The “right to travel” is a right that I have only if you consent to my traveling on your land. But then that’s hardly a natural human right; it’s neither a right that I have in virtue of being a human nor a right that I have inherently. It’s a right that’s conferred on me by your consenting to allow me to be on your land.
Understanding a right to travel as permission from the sovereign is the pre-liberal, monarchist way of understanding things. Free people should not need permission to travel. If traveling on unowned land, no problem, If traveling on someone’s privately held property, you still don’t need permission from a sovereign, only from the owner. Mixing a sovereignty model and a private property model together has the net result of interfering with consensual arrangments – I am no longer free to hire the workers I choose to hire, no longer free to sell or rent land to to whomever I choose, no longer free to trade with trading partners of my choice. That’s completely illiberal. That’s why the Judge was tying freedom of movement so closely to other key aspects of classical liberalism.