Monday, February 20, 2012

Liberty, Part XXXIV

This is not what I would consider to be one of the right answers (as excellent as he and his work generally seem to have been), but here is Henry Campbell Black's idea of the "police power" of a state, which is often understood and treated in such a way as to make it a major threat to the right to liberty, instead of the protection that it was meant to be:

“It has sometimes been held that if a statute, in the judgment of the court, was contrary to the principles of natural justice, or the general spirit of the constitution, or the maxims of republican government, or the principles of right and liberty supposed to lie at the base of all institutions in a free country, it was the duty of the court to pronounce it invalid. But the prevailing opinion at the present day is that there is no such power in the courts. The legislature of a state possesses the power to pass any and every law, on any and every subject, which does not amount to an encroachment upon the province of either of the other departments and is not in conflict with the express terms of either the federal or state constitution. Consequently, one who objects to the validity of an act of the legislature must be able to point out the specific prohibition, requirement, or guaranty which it violates. If this cannot be done, the act is valid. Natural justice, the principles of republican government, and the equal rights of men are supposed to be adequately guarantied, in this country, by the express provisions of the constitutions. If they are not, the constitutions are at fault ; but that is no limitation upon the legislative power.”

However, the following tends to demonstrate that natural law (which has nothing to do with a state of nature, other than in that it would have existed even in a state of nature) was not one of Black's areas of expertise:

“It was formerly the custom to use this term as designating certain rights which were supposed to belong to man by the ‘law of nature’ or ‘in a state of nature.’ But clearer modern thought has shown that the ‘state of nature’ assumed by the older writers is historically unverifiable and inadequate to account for the origin of rights. Even in savagery there is a rudimentary state. The law of physical nature recognizes no equality of rights; its rule is the survival of the fittest. In a state of nature, such as was once supposed, there could be no right but might, no liberty but the superiority of force and cunning. In reality, the only true state of nature is a civil state, or at least a social state. But it is permissible to use the phrase ‘natural rights’ as descriptive of those rights which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law and depend upon civilized society. Examples of these natural rights are the right to life, which includes not merely the right to exist, but also the right to all such things as are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual, and the right of liberty, which includes not only freedom from physical restraint, but also the unhindered enjoyment of all his faculties in all lawful ways.”

Presumably, his law dictionary is more reliable.

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