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Natural Law Is More Inspiring Than Natural Rights

Readers of Law and Liberty have heard—and perhaps even used—the famous phrase about free speech that is often misattributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” One wonders, though, whether this formulation actually makes much sense.

After the events now collectively referred to as “Charlottesville,” the American Left is running away from such Voltairean sentiments. Of course, they were at least walking away well before that, especially on college campuses. In asking whether that truism is true, I would put a question to Americans on the Left and the Right, and all points in between: Is it really possible to get too worked up about something as abstract as a natural right?

Mind you, I am not questioning whether there are such things as natural rights, but whether we can really care about such things as much as the “defend to the death” slogan claims.

In a similar vein, terrible events that keep coming, most recently this weekend in Sutherland Springs, Texas, have made it hard for politicians of any persuasion to embrace with much enthusiasm a natural right to bear arms in self-defense. Such a right is considered essential in many classical natural rights arguments, and it’s easy enough for many of us to grant the point in the abstract. My heart, however, doesn’t exactly swell to the idea of sacrificing myself to an ethereal principle that permits my unstable neighbor to stockpile weapons. Again, I am not asking whether the right exists somewhere, but I’m wondering whether it is possible to become enthused about such a thing.

Certainly I appreciate having the right to free expression; it makes it possible, among other things, to publish this essay I am writing right now. And when one of my students or colleagues grabs a podium and jumps up to say something foolish, I readily concede that the right of free expression means I cannot interfere with his or her speech. I’m really not too interested, however, in dying so that my student or colleague can say something foolish.

In a similar manner, I definitely appreciate the right to property. Among other things, it makes it possible for me to own the microprocessor I am using to write this essay. But the same property right makes it possible for my neighbor to buy an enormous flat screen television, collapse onto his new leather couch, and spend his weekend mindlessly watching football and drinking beer. Yes, it’s his property, after all, but I’m not going to risk my life if I see a thief enter his house and hurray off with his television before the police are able to arrive. So, I ask once more: although we Americans are all supportive of natural rights, do we really love them?

At certain moments in history, there have indeed been people willing to sacrifice for natural rights. One wonders to what extent it is natural rights themselves that inspired such sacrifice, however. When I read the extraordinary story of the life of Aleksandr Solzhenitsyn, I certainly agree that he ought to have been granted all the liberties that natural rights confer. I grow positively indignant when I consider his account of all of the human beings whose rights were taken away in the Soviet penal camps. What I grow passionate about, though, is not that somewhere somebody’s right was denied, but that this great human being, the thoughtful, courageous, sensitive soul who was the author of these remarkable books, was made to suffer, and that the people he makes us care about were made to suffer likewise. It’s not their ethereal, abstracted rights I care about; it’s them.

In the American experience, the most egregious violation of natural rights occurred within the practice of race-based slavery. Most Americans hang their heads in shame at this. It is appropriate that we do so, but why? I don’t think it is so much about the violation of natural rights as it is about the realization that these hardworking, long-suffering, eminently decent human beings were denied the most basic joys of being human. We care about them, and we don’t need an abstract argument about natural rights to justify our feelings.

What can the defenders of natural rights do to put some zeal into their position? For starters, they need to humanize rights. To my mind, the most rhetorically effective defense of a natural right I have seen in a long time was a National Rifle Association television spot that aired last year depicting a young mother who looked right into the camera, described how she was sexually assaulted as a college student, and stated that she now carried a gun so that she would never be a victim of such a crime again. Watching the ad, who could not help but be on the woman’s side? I was for her. As to her natural right of self defense, I cared about it only because she obviously did.

Another, more sophisticated yet more human public morality that appeals to nature is the position known as “natural law.” The phrase is not attractive to modern ears, but what it denotes is not abstract and bloodless at all. Natural law argues that human beings are ordered to natural ends. These ends are higher than we are; to obtain them we have to become better than we are presently. Natural law tells us that there is something great that we should try to obtain, and by showing us what this greatness is, it inspires us to seek it. It gives us, in short, something to love and something to long for. It displays for us something that we might even be willing to die for.

According to Thomas Aquinas, the classic spokesman for the natural law position, the natural law commands the acts of all of the virtues. This doesn’t sound too “sexy” at first, but what Thomas means is that human beings, by their very nature, are the sort of beings who should want to develop fine and noble qualities in their souls. These fine and noble qualities are actually characteristics—permanent or at least semi-permanent qualities of the soul. These characteristics are what are called “virtues.” Thus, the approach of the natural law is to show human beings what kind of noble creatures they can become and then to demand that they become just that.

Thomas the philosopher gives us beautiful goals: courage, prudence, magnanimity, and so forth. After he shows us what they are, we don’t really even need to be reminded that we are obligated to attain them. We want them just because they are fine, noble, and beautiful. If that isn’t enough, Thomas the theologian then gives us even more beautiful goals: faith, hope, and charity. The philosophical side of Thomas inspires us to want to be just; the Christian side might even inspire us to want to be holy.

Virtue is, moreover, something that can be pointed to in certain people—heroes or heroines. An exercise I sometimes use in teaching the Nicomachean Ethics is to put the list of Aristotle’s virtues on the board and ask students to come up with a corresponding list of names of famous people from history or literature who especially exhibit or even embody each of the virtues on the list. Who has shown prudence? Magnanimity? Courage? Generosity?

It would not be possible to do this for a list of natural rights. Human beings claim or assert their natural rights; they don’t embody them.

Of course, it is not obvious that natural law thinking can easily be grafted into natural rights thinking. Still, the advocates of natural rights might find their arguments would have more bite if, taking a clue from the older natural law position, they told us more persuasively why natural rights are good by explaining to us how natural rights would enable us to live well, or at least better than we might without them. As it is, arguing abstractly for the right to behave wrongly is not going to inspire many flesh-and-blood human beings.

Reader Discussion

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on November 07, 2017 at 09:28:10 am

Professor Kries, I appreciate your concerns but do not agree with your claims and want share my opinions.

First, "Americans are all supportive of natural rights" seems a fallacy with three controversies in three words: all support rights.

The fact that there are dissidents to civic morality---civic justice---disputes the "all." The fact that the civic agreement offered in the preamble to the constitution for the USA is not publicly promoted disputes the "support." There remains "rights."

The problem with rights is that each human being has the potential---the latent psychological power---to not believe anyone. The civic citizen develops fidelity by personal experience and by observing, perhaps in other people, misery and loss from erroneous choices and habits, often by dissidence toward justice. Fortunate is the person who, before death, discovers the-objective-truth and develops fidelity to the discoveries. For example, the earth is not the center of the universe. Also, civic citizens do not lie so they can communicate.

In reality, Aristotelian beliefs may fall under definitions, first from Merriam-Webster online (MW): vague speculation: a belief without sound basis: a theory postulating the possibility of direct and intuitive acquisition of ineffable knowledge or power. Continuing with MW to include theism: the belief that direct knowledge of God, spiritual truth, or ultimate reality can be attained through subjective experience (such as intuition or insight). Continuing to Google, powered by Oxford Dictionary: belief characterized by self-delusion or dreamy confusion of thought, especially when based on the assumption of occult qualities or mysterious agencies. The word I looked up to find these usages is "mysticism." I did not expect the definitions, and do not claim they express the-objective-truth.

There is nothing wrong with people dealing with the uncertainties in life using personal religion, such as one of the factions of Christianity, factional Judaism, factional Islam, other theism, non-theism. However, it is incumbent on believers as well as non-believers to observe that inhabitants of the earth are in two groups---civic citizens versus dissidents---and to choose the civic side.

Which brings me to the possible Aristotelian fallacy labeled "natural law." Is it a vain substitute for the-objective-truth?

Humankind has imagined a question: Does God control the unfolding of events in the universe? The-objective-truth informs us that we don't know. Yet there is nothing wrong with hoping God exists and is in control, as long as the hope does not motivate civic injustice.

It seems self evident that I do not claim to know the-objective-truth. I write hoping for iterative collaboration for comprehensive peace. In other words, I offer my views as a matter of discourse rather than alienation, controversial as these topics may be. I write to learn rather than teach.

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Phil Beaver
on November 07, 2017 at 09:29:07 am

Sorry: that's "want to share."

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Phil Beaver
on November 07, 2017 at 09:56:00 am

Nicely said!

" We want them just because they are fine, noble, and beautiful."

Question: How can one WANT that which they are unable to apprehend, having never been instructed to recognize or appreciate such noble attributes? Indeed, many are exposed to nothing more than a opprobrious, deprecatory summation of natural law.

Hmmmm! Why? Perhaps because:

"Of course, it is not obvious that natural law thinking can easily be grafted into natural rights thinking. Still, the advocates of natural rights might find their arguments would have more bite if, taking a clue from the older natural law position, they told us more persuasively why natural rights are good by explaining to us how natural rights would enable us to live well, or at least better than we might without them"

It may very well be that the advocates of natural rights (in all it's penumbras and emanations) DO NOT want any code, any ethos that would enable us to live better - as that *better* implies conformance to an ideal higher than the single individual.

I am currently reading Randy Barnett's "Restoring the Lost constitution......" A fine read, insightful, etc.
Yet, Barnett specifically disavows natural law as a possible justification for the legitimacy of the US Constitution and limits his (rather fine) legitimization of the US constitution exclusively to natural *rights* inferring that to recognize natural law, and it's inherent strictures, would be to severely limit the sphere of action of the individual, (More complex than this, but "shorthand" is proper here), would place far too much power in the government, and thus reduce liberty.

I have not finished the book - but I would hope that Barnett would acknowledge that the Founders themselves recognized, and argued for, that a higher mediating principle WAS required IF the republic was to survive - they often stated that this republic required a Christian ethos / citizenry, or, for those of the alleged Deistic persuasion, one that at a minimum would be guided by natural law.

It strikes me that the panoply of natural rights is inexhaustible, and many proponents, including Barnett admit this, and quote some Founders as also recognizing this. If (almost) all claims based upon individual preference ought to be recognized - how then is this to be moderated?, to be made "in-offensive" to the rights / preferences of others? If it is not in the proper domain of government to so moderate, what then will effect such temperance.

A candidate could be "natural rights" - but first, we need to instruct the citizenry.

(BTW: Comments not intended as a critique of Barnett's book - only read one-third of it so far)

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gabe
on November 07, 2017 at 10:11:00 am

In the mind of one of the leading founders, James Wilson, "natural rights" is a synonym for liberty.

It is disappointing that Douglas Kries does not mention Cicero, the progenitor of the western natural law tradition, which regards virtue (emphasizing benevolence) as the perfection (mature development) of human nature. Aristotle does not include benevolence (active concern for the well-being of our fellow humans) in his discussion of virtue -- this is glaringly absent from Aristotle's thought. Cicero, on the other hand, considers "love of our fellow-humans" to be at the foundation of justice, the "mistress and queen of all the virtues." The study of Cicero was a fundamental part of the Founders' education throughout the colonies, and followers of Cicero who both emphasized benevolence as the essence of virtue and influenced the American Founders include Francis Hutcheson and Emer de Vattel, author of the era's leading treatise on international law, the first chapter of which served as a gentleman's introduction to natural law.

Here's a quote from Book 1, Chapter 11 of Vattel's "The Law of Nations":

"Whatever may enable mankind to enjoy a true and solid felicity, is a second object that deserves the most serious attention of the government. Happiness is the point where center all those duties which individuals and nations owe to themselves; and this is the great end of the law of nature. The desire of happiness is the powerful spring that puts man in motion: felicity is the end they all have in view, and it ought to be the grand object of the public will (Prelim. § 5). It is then the duty of those who form this public will, or of those who represent it — the rulers of the nation — to labor for the happiness of the people, to watch continually over it, and to promote it to the utmost of their power. To succeed in this, it is necessary to instruct the people to seek felicity where it is to be found; that is, in their own perfection, — and to teach them the means of obtaining it. The sovereign cannot, then, take too much pains in instructing and enlightening his people, and in forming them to useful knowledge and wise discipline." See this link: https://lonang.com/library/reference/vattel-law-of-nations/vatt-111/

According to this way of thinking, which was fundamental to the collective mind of both the signers of the Declaration of Independence and the framers of the Constitution, pornography (for example) should be banned. Whether that position should be maintained in our day and age is of course a different question, but a relevant question for readers of this website is how closely Supreme Court justices should adhere to the original mindset of the founders when protecting pornography under the mantle of free speech.

By the way, Vattel's "true and solid felicity" is an implicit rebuttal of John Locke's view of happiness as something that humans can never attain. It is also a bow in the direction of Vattel's professor at the University of Geneva, Jean-Jacques Burlamaqui, who wote of "true and solid happiness" in the first paragraph of his treatise on natural law, which (together with Vattel's work) was re-printed over and over in the USA throughout the 19th century.

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John Schmeeckle
on November 07, 2017 at 10:45:38 am

John:

Thanks for that info. You have convinced to finally follow up and read Cicero. would you be kind enough to offer a recommendation - something concise as both the eyes and time are an issue.

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gabe
on November 07, 2017 at 17:26:46 pm

"How can one WANT that which they are unable to apprehend"

biological desires.

I hunger before I've ever eaten my first meal. I crave sex before I've ever had it.

vicariously.

I see someone else perform great acrobatics and I want to. I see someone else feel successful and I want to feel it.

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Psychologist
on November 07, 2017 at 22:32:08 pm

Gabe, De legibus isn't too long and has a lot about natural law. On a first reading, you might want to just skip the commentary on religious laws in Rome.

If you have time for something a bit longer, Cicero's De officiis was required reading (in Latin) for every 18th-century colonial American teenager who aspired to a college education.

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John Schmeeckle
on November 07, 2017 at 23:41:38 pm

In the end, it's the same question: Athens or Jerusalem? Adams said if we want freedom, then it must be Jerusalem. The older I get, the smarter he looks.

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MPB
on November 08, 2017 at 02:43:58 am

I am wondering why you say the quote is often misattributed to Voltaire. It is true that it is often attributed to him; indeed the Oxford Dictionary of Quotations notes this. To positively state that it is misattributed needs either a demonstrated correct source, evidence that the quote circulated before Voltaire or a reliable contemporary of Voltaire's denying it.

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Peter Kintominas
on November 08, 2017 at 10:25:48 am
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gabe
on November 08, 2017 at 10:32:09 am

"vicariously" - funny, isn't it?

There does not appear to be anyone / group, and certainly not in the political sphere, the observations of which or whom would engender this *vicarious* impulse to seek a "life well lived."

Thus, one is still unable to "apprehend" what is proper.

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gabe
on November 08, 2017 at 12:30:14 pm

l don't know how you reconcile "natural law" with the dictates of an interventionist supernatural being. By definition, natural law must be observable in nature, and many of the classic virtues really aren't.

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Trevor Chase
on November 08, 2017 at 12:43:10 pm

Depends upon what "is" is, I suppose.

Is nature, to your mind, the old man on a desert island scenario. If so, then Yep, they ain;t observable simply because they are "not possible", nor required by that solitary man on an island.

If however, nature is defined as humans in some manner of relationship to each other, even pre-society, than Yep, they may be both observable and apprehended by humans. I would suspect that even Neanderthal groupings provided examples of physical courage, sacrifice and love of fellow humans (even if only for other tribe members).

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gabe
on November 08, 2017 at 15:10:15 pm

The problem with the "natural law" of Cicero and Aquinas is that it isn't. lt is an effectively religious construct, which cannot be proven out by observation.

Barnett's approach can be traced to Hobbes and the notion of a "social contract," which can be derived from objective observations. Socialization precipitates "natural law" -- which may vary from society to society. As there is scarcely a hint of soteriology in the deist worldview, the "natural law" they generate will differ, but any temperance you see in a society must come from there.

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Trevor Chase
on November 08, 2017 at 15:34:20 pm

Human Life is sacred, thus we have the inherent right to protect ourselves from those who desire to do us harm.

An assault rifle is a weapon that exists for the purpose of assaulting numerous persons at one time. Unless one is on the battle field, the desire to possess one, would be a disordered desire that should serve as a red flag that the person desiring to possess one, has a mindset that is not consistent with desiring to protect someone from harm.

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Nancy
on November 08, 2017 at 15:44:54 pm

Dawg:

Some thoughts, etc:

1) Barnett "appears" to be somewhat dismissive, or at least would seem to want to limit the influence of "natural law" upon governance as it may tend to limit certain *liberty* behaviors of the citizenry AND effectively impose an *ought* where. perhaps, a "may" would be more consistent with a free people. To my mind, this is consistent with his mild critique of Locke and contract / consent as it is deemed both impermissible (generally speaking) and impossible to achieve unanimous consent. And it is legitimacy that Barnett appears to value most highly when considering a constitutional regime. Thus, neither natural law, nor contract, nor consent is sufficient, albeit perhaps necessary, to sustain / legitimate a constitutional regime.

2) so i find it curious (although not surprising) that you concede that "temperance' invariably arises out of natural law.

3) Aside from temperance, however, is not the thrust of the essayists argument that something more than simple temperance or civic comity is derivative of natural law. Are we not also concerned with the "noble" attributes, often remarked upon by the ancients, such as courage, virtue, etc? I do not see these as necessarily dependent for their expression, or even mere recognition, upon a religious disposition or epistemology - although, properly professed such an epistemology may be said to engender those attributes.
Yes, socialization may produce such a tendency - then again, dependent upon the particular social order, they may not arise. In a sense, the issue we confront today is the transformation of this particular social construct, America, from one that ostensibly promoted the "noble" attributes to one that has, if not forsaken such a quest, a) failed to recognize their importance or b) has sublimated them under the rubric of "individual *self-realization* as the cardinal attribute of human beings.

4) I, myself, am partial to the Athens - Jerusalem dichotomy BUT only because I DO NOT view it as dichotomy - rather as a continuum. Substitute "natural law" for Jerusalem and you arrive at the same point.
Recently had occasion to re-read an old essay on Law & Liberty: (try it, you'll like it, as the old add advised).

http://www.libertylawsite.org/2014/07/17/when-friedrich-hayek-met-bruno-leoni/

in which it is asserted that "Law is to be discovered - not something to be made"
To me this implies that law arises out of social interaction / conflict, etc and that traditions, habits, mores, etc are what (should) drive the Law - rather than it being created ex-nihilo from the mental dyspepsia of social utopians and this is, to my mind, an indication that "natural law" (whatever it may truly be) is being cast aside.

Anyway, thx for the Barnett recommendation. Rather sensible so far.

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gabe
on November 08, 2017 at 15:48:35 pm

Hmmm!

You do know that the private citizen who confronted the bloody madman at the Texas Church used an AR-15, commonly yet incorrectly called an assault rifle.

What do you suppose was the intent of the citizen who shot the madman and helped to end the slaughter of innocents?

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gabe
on November 08, 2017 at 16:54:38 pm

I did not know that "the private citizen who confronted the bloody madman at the Texas Church used an AR-15, commonly yet incorrectly called an assault rifle". Why is an AR-15, commonly yet incorrectly called an assault rifle?

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Nancy
on November 08, 2017 at 17:42:00 pm

It is a semi-automatic rifle - the functional equivalent of any hunting rifle. It means it fires ONLY one round at a time. A typical assault rifle is generally considered to be a fully automatic rifle, that is by depressing the trigger once and holding it back, you may fire multiple rounds. The automatic rifles have a very high cyclic rate of fire - hundreds of rounds per minute in theory but not practically.

the confusion may stem from the similarity in appearance with the old M-16 rifle used by soldiers of my generation but there are substantial and substantive differences in operation. Then again, those who wish to abridge one's 2nd Amendment rights probably will ignore the differences and highlight the superficial commonalities.

This is, of course, not to deny the *lethality* of the AR-15 type rifles; what matters most is, as you say, the intent of the human being (such as this monster was) behind the buttstock.

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gabe
on November 08, 2017 at 21:42:57 pm

On Leoni: We have legislation because what you do often affects others. This curtails our freedom of action, in ways that help and hinder you. Say that you invented a widget. Patent law--a creature of statute--prevents me from stealing it.

While they make intriguing theoretical points, a society cannot run on the musings of Hayek and von Mises.

The rules of a society are separated into the thou shalt (not)s and the thou should (not)s. Both temperance and comity are imposed by the raw pressures of society (e.g., you should put a dollar into the kettle). Call these the noble virtues, if you will. But law says what you must (and must not) do.

Barnett's equation is essentially that you have the right to do what you will, except for those things that you have agreed to forego, as evidenced by the law as established. ln Germany, you agree to forego "hate speech," and can't march in Nazi gear. Here, you can march in that garb through Skokie, by virtue of our 1Am.

Should you choose to march under a Nazi banner, society will exact its own punishments, even if they are not legal in nature.

l don't argue against (arguably, mislabeled) "natural law" or Aristotle's "virtues," but merely argue that they do not carry the force of law.

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Trevor Chase
on November 08, 2017 at 21:49:41 pm

Dale Carnegie came up with a unified field theory of human behavior. We give $100 to charity because we want that feeling more than we do the $100.

A pregnant woman can pop RU-486 like M&Ms on the island, if she so chose. Ergo, it is a natural right. As for the observational aspect, see CCTV.

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Trevor Chase
on November 08, 2017 at 21:51:35 pm

Google "mutually assured destruction."

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Trevor Chase
on November 08, 2017 at 22:22:34 pm

Agreed. Civilians should be banned from possessing any weapon banned to the police, and vice versa, civilians have a right to possess any weapon allowed to the police--since by definition, any weapon used by the police is a "weapon of law-enforcement", not a "weapon of war".

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Police aren't an aristocracy
on November 09, 2017 at 10:42:45 am

"but merely argue that they do not carry the force of law."

Heck, I never said that it did; nor that it should but only that it may serve as a tempering instrument against license while at the same time offering a glimpse, to those so inclined to observe, of a higher nature.

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gabe
on November 09, 2017 at 10:45:41 am

Then again, a *pregnant woman* on an island populated only by herself is a contradiction in terms. If, as your earlier analogy suggests, the island is inhabited by only "one [wo]man on the desert island, she cannot conceive of either a child or RU-486.
Why posit a *right* which is itself an impossibility?

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gabe
on November 09, 2017 at 12:04:00 pm

And here is a potential Supreme Court case in which, once again, the gun controllers, conflate appearance with function:

http://thefederalist.com/2017/11/09/supreme-court-takes-gun-control-case-decision-will-huge/

What else is new?

BTW: One of the three decisions by a Circuit Court revolves around the *proper* level of *scrutiny* to be applied by the Black Robes.

Does anyone really believe that rights, i.e. supposedly constitutionally SECURED rights are to be subject to the whimsical mental gymnastics of the Courts.
A "constitutionally secured" right is a right - no matter how you wish to scrutinize it!

Give me a break, here, boyos!

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gabe
on November 09, 2017 at 15:12:46 pm

Not at all. All it takes is a plane crash.

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Trevor Chase
on November 09, 2017 at 16:06:23 pm

OMG:

We are not going there, are we.

Remember how "LOST" turned out - Ha!

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gabe

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