The Liberal Dance with Incoherence

Scene: Claremont, California. I’m on the West Coast, trying out, as lectures, material from a new manuscript. On a bus passing by I see a large ad with a picture: a man of middle years, unshaven, evidently a working man and evidently, too, an Hispanic. The ad asserts that “Immigrants Have Rights.” The silent codicil is that immigrants have “rights” even when they happen to be illegal – even when they have no strictly legal right to be in the country. Several years ago we had the spectacle of demonstrations on behalf of illegal aliens, claiming their right to be in the country and to have the rights that flow to citizens.

The fascination here is that the motor force for this ad comes from the Left or the liberal side in our politics, the side that has benefited disproportionately so far from a distinct Latino presence in our politics. The fascination springs from the fact that the claim in the ad is so strikingly at odds with the moral doctrines of the liberal side, especially as those doctrines have been shaped by writers on the Left in the academy. Consider how the matter has long arranged itself in distinctions readily recognized by ordinary people:

A visitor from London gets off a plane in New York. We don’t think we have to look at his passport in order to protect him from a lawless assault on the street. His “right” not to suffer that kind of a lawless, unjustified assault is not a right that should depend, we think, on his citizenship. But at the same time, this visitor from abroad may not take himself over to the City College of New York and expect to be enrolled with that subsidized rate of tuition that the citizens of New York have been willing to provide to people who have made their homes, living and working as citizens, under the laws of New York.

In this vein, it has been quite common to recognize certain rights that arise out of distinct and even local associations – e.g., the right to use the squash courts at the Union League Club, or the right to vote at meetings of the American Medical Association. Those are rights, we say, of “positive” law – they are posited, set down, enacted in particular places. And in radical contrast are the laws that would arise for all persons, wherever they may be – rather like that right not to suffer an unjustified, lawless assault on the street. We have tended to think that those rights arise for all human beings, wherever humans are distinguishable from other animals. Which is to say, we regard these rights as species of “natural rights” or natural law.

With that sense of things, Aristotle would write about the law that is peculiar to any place or people and the kind of law that would be true in all places. And Cicero could write in his Republic that “there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times.”

If illegal aliens have rights, including the right to become citizens, it should be clear that the rights they are claiming here cannot be rights that flow to them through their citizenship. For they are emphatically not citizens. The people posting the ads on the bus, the immigrants earnestly asserting their “rights,” must be appealing then to some body of law quite apart from the positive laws, the laws that set forth the distinct rights that flow to citizens (such as the right to use the town library). Now what could that body of rights be if not – gasp! – a body of “natural rights”?

We insert the gasp because nothing has been more abhorrent to the Left in the academy or our politics in recent years that the notion of “natural rights.” As the line has gone these days, “natural rights” offer nothing more than an ideology to cover the patriarchal rule of white men. Natural rights imply an enduring human nature, but we know, they say, that “nature” is “socially-constructed” from one place to another, according to the vagaries of the local culture. Natural rights imply objective moral truths. But the Left claims to know that there are no moral truths that hold in all places, and so those “natural rights” are not truly rightful, you see.

This denial of moral truths has been critical to the Left in denying the ground on which the law may cast judgments, and impose restrictions, on those matters of personal freedom most dear to them: the right to sexual freedom and abortion. But stripped of the moral logic natural rights, that “right to abortion” becomes no more lofty than the right to use the squash courts at the Club. James Wilson, one of the most notable of the American Founders, raised the question: If we have natural rights, when do they begin? And his answer was: As soon as we begin to be. Which is why, he said, the law casts its protection over life “when the infant is first able to stir in the womb.”

From immigrants to the unborn, liberalism proclaims rights while falling into incoherence. And yet the logic of natural rights keeps hovering there, always present, but never quite seen.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.