Contracts and Natural Law Fundamental Rights (Part II)

Free will choices are first order decisions that are made prior to any moral choice. At times free will choices will conflict and leads humans to their second order decision-making process. When this happens, the morality, decision-making process takes priority over deciding tasks based on moral rules such as the “golden rule” (treat others as you expect to be treated) or the Pauline Principle (evil cannot be done even if good may come from the action). The first principle of morality guides citizens to make decisions which strive for the fulfillment of humanity. Free will decisions are not natural (or controlled by nature), but the natural law fundamental rights and moral decisions are controlled by nature or some higher being (God).

Society creates what is known as positive law which is derived from natural law. Positive law consists of community laws and statutes which guide citizens to make correct moral decisions such as laws against crime like murder or theft. It is also the belief of this text that judges can enforce natural law when legislative laws diverge from natural law even though many scholars believe that judges have no Constitutional authority to do so. This is false. Judicial review and the original intent of the Ninth Amendment, the privileges and immunities clause, and due process clause of the Constitution are the reasons why this characterization is false (discussed in detail later).

Natural law is an excellent guide to protect individual rights. However, natural law theory gets very complex and asserts things such as sodomy, pre-marital sex, adultery, fornication, masturbation, contraception, sex toys, pornography, addictive behavior, gambling, and homosexuality are morally wrong. Natural law explains there is a difference between certain types of pleasure. For example, sitting in a rocking chair would be considered an innocent pleasure whereas viewing pornography would be an evil pleasure. But this is a fine line: for example, where do you draw the line between art and pornography? Where do you draw the line between art and obscenity? Which historical novels do we ban for political correctness in the name of protecting youths from obscene language? The problem these questions creates is obvious: It means legislative and judicial opinions and biases will develop balancing tests to define what is pornography and what is not. Where natural law theorists stray away from common sense is when they treat individual action or behavior that does not violate the rights others as violations of natural law principles. Action or behavior that does not affect others (non-consenting persons) should be acceptable since it does not violate the common good. Even if doing drugs or masturbation are considered morally unacceptable actions, but should these actions be considered a crime or as violating natural law if the behavior does not violate the rights of others? Strict natural law theorists would say yes. But this creates conservative legislators and judges whose laws end up violating individual rights. For instance, Supreme Court morality precedent insists growing medical marijuana is not allowed to relieve chronic pain (even with a doctor’s prescription) does not violate anyone’s rights. Nor does anyone see how the right to work is severed by laws that make selling sex toys or pornography illegal. When this happens, judges and legislators are taking morality too far. After all, if it were a crime to limit all types of individual behavior based on natural law morality, a large percentage of the populous would be in prison.

And let’s not forget the hypothesis of this writing: to elevate freedom of contract as one of our natural law fundamental rights. In order to accomplish this task, it is imperative to understand how Supreme Court elevates fundamental rights which are not enumerated in the Constitution. There are three methods: The Ninth Amendment, the privileges and immunities clause of the Fourteenth Amendment, and the Supreme Court doctrine known as substantive due process. Each method will be evaluated in detail.

Social Contract Theory

This text will adhere to the social contract theory written in the preamble of Declaration of Independence (the text is not trying to reinstate the doctrine, but only adhere to it). United States social contract theory is a contract between the government and the people and it has three main parts. First, there is a contract to form a government to protect the higher law natural rights of consenting citizens. Secondly, if the government fails to protect the rights of its citizens then it is the duty of citizens to overthrow the government. Thirdly, it provides less governance is best to maintain a desired state of nature.

The Declaration of Independence says: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” This social contract theory written by Thomas Jefferson closely follows the theories set forth by John Locke. In Locke’s view no government or law was above the sovereignty of people (popular sovereignty). Locke was a master in defining the “principles” of government. Thus, the American Revolution became a movement over principles rather than over the form of government. Many liberal reformers like to downplay the social contract aspect found within the preamble of Declaration of Independence by focusing on the other parts of document or by incorrectly comparing it to the English Declaration of Rights which provided sovereignty to government (Parliament). The Declaration provides a perpetual contract where the people can change government whenever it is not properly protecting the rights of citizens. However, Jefferson writes “government long established should not be changed for light and transient causes”. In other words, there must be a legitimate reason for changing government, it cannot be merely for political and ideological difference. The French Declaration of the Rights of Man and of the Citizen of 1789 basically endorses the Declaration of Independence’s use of Lockean social contract theory giving credence to the document.