When are Natural Rights and Civil Rights in Conflict?

The debate here at Bearing Drift about the House of Delegates’ failure to approve Tracy Thorne-Begland as a judge has been carried out extensively in the comments section of the two posts dealing with that. My entering that debate, thanks to Bearing Drift’s very intelligent readers and contributors, forced me to revisit my views on natural rights, civil rights, their interaction and conflict, their history, and the ethics behind them. My portion of the discussion has been called pedantic, nitpicking, or abstruse (and I tend to agree with any criticism that accuses me of being boring), so I will not rehash the arguments here.

But there was a story Saturday in the Virginian-Pilot that I believe can illustrate effectively my views on the conflict between natural rights and civil rights–when it is good and when it is bad.

Keith Carter, the owner of two sports merchandise shops, was convicted of one count of trademark infringement by retailing professional sports team paraphernalia. Out of his two shops in Chesapeake, he sold knockoff jerseys at a 75% discount to their legitimate counterparts. He claims he did not knowingly sell imitation goods, that he had received a good deal on his purchase because of minor manufacturing errors or quick-sale needs.

The judge in the case dismissed this argument, saying that if anyone could know a fake jersey, “I would think the owner of three [sic] separate stores…would be able to tell.” The Commonwealth’s Attorney echoed this in his argument. Keith Carter “should have known these were not genuine.”

So now someone in Keith Carter’s situation can be convicted of a Class 6 felony, face up to five years in prison, and will as a felon lose certain rights and liberties for the rest of his life.

Don’t infer the wrong thing; I am not arguing that Mr. Carter is innocent; nor am I arguing that it should be legal to counterfeit trademarked items. But is it in the state’s best interest to spend nearly $75,000 on keeping someone in prison while at the same time losing the tax revenue his sales provided?

In natural law, Mr. Carter would have a natural right to employ his property–his money–to acquire, possess, and relinquish whatever he wished. His liberty to do so would not be restricted to only those goods we as a society, through our laws, have determined are acceptable. In natural law, he has a natural right to imitate another person’s property, even with a deliberate intent to fraud, and sell it as his own.

But in civil law, he does not. He may not imitate another person’s property–even something as abstract as intellectual property–because of laws we have enacted as a society; not for the protection of the trademark holder’s profits, but because we wouldn’t want someone doing the same thing to us if we invented or designed something.

Generally, this is a good law. It restricts the autonomous exercise of natural liberties and property. It violates natural law. But it protects society as a whole by reducing the incentive for a cycle of personal vengeance that pervades a state of nature. It both pacifies and satisfies the natural instincts to protect what an individual thinks his and to avenge deception through violent retribution.

But specifically, to this law, it is bad. Not in its policy, but in its punishment. For by being convicted of this act, not only has Mr. Carter been deprived of his liberty and property by due process, but so has society as a whole.

By the law’s potential to imprison him for five years, the rest of society will pay for his care, education, training, health care, food, and living. And while we accept this expense for the protection of society against violent offenders, or to prevent our own property from being pilfered (not counterfeited), does our life, limbs, or property really need protection from a plagiarizer of product?

Used with permission. No IP violation here.

In Mr. Carter’s case, a representative of the sports teams, Robert Hartnett, estimated that retailing these knockoffs deprived the trademark owners of at least $149,000–and that was just in football team clothing. But is this really true?

Mr. Hartnett cannot prove his employers were deprived of that amount. He cannot show that Mr. Carter’s customers would have paid three times the amount for a similar, legal product. He cannot, nor can the state, order the confiscation of those imitations and demand the consumer instead buy the legal product at their retail price. Therefore, the trademark owners were not actually deprived of property at all; they were deprived of an opportunity to acquire property, and their logo was used fraudulently, but no one entered their warehouse and purloined their property.

In addition to the state’s expenditure on non-violent felons, they have also deprived society of tax revenue from Mr. Carter’s business. Assuming the “legitimate” clothing retail value of his imitations would have been $500,000, and he sold his imitations at a 75% discount of $125,000, that would equal $6,250 in taxes ($5,000 in state taxes and $1,250 in local taxes). In contrast, rather than the state being able to fine Mr. Carter the exact amount of illegitimate items sold ($125,000) for his illegality, they may only levy a fine of $2,500.

At maximum punishment, a $75,000 imprisonment, offset by a $2,500 fine, and yet denied as little as $6,250 in public revenue, would cost society $78,750. For one person. All to protect the abstract notion–not of physical property, but intellectual property.

Again, I am not of the libertarian bent that believes all intellectual property laws are bad; that just because no one is being physically harmed or having their physical property taken by another it should be legal. Natural law would say it should be legal; but civil law would say it could be illegal.

A bad civil law deprives the individual and society of liberty and property while really protecting nothing tangible in return; a good civil law, in this case and in my opinion, would be to provide both a disincentive for fraud and vengeance while bringing to society a net profit from those who violate it.

  • Joan

    Well, I may be in the minority here, but. He broke the law. It is that simple. If you don’t spend the $75,000+ on him, where do you draw the line? Is it when he rips off YOUR words? Is it when he stops IP theft and moves into other theft? By the way, I think his thefts are not just IP. If he sells a ‘team’ shirt to someone, he has also committed fraud and has stolen that person’s money. Just where is the line in the sand drawn?

  • Everyone when accused claims to be ignorant or stupid. If only they had known, then they would not have done it, so please extend mercy.

    I was not a member of the jury, but I trust that the jury listened to the arguments and the accused was able to make his case. If he did not choose the trial by jury, perhaps it was because the jury would have seen through his argument based upon the evidence available.

    I was not a member of the jury, but I suspect the evidence was there and that justice is being served. Did the defendant seek to investigate why he was getting such a good deal on the goods? Did he establish a relationship where as he sold the goods he could replenish the supply and sell more? I would imagine the courts know these answers and only in the courts would these questions be answered.

    • @Joan and Little David. I never meant to imply he was innocent. He did break the law and he should be punished. My problem is the method of punishment that ends up costing Virginians. If it were up to me the punishment would read “a fine of $2,500 or up to 100% of the estimated profit made on illegal sales.”

  • And if he, without the illegal profits, was incapable of paying the fines? If he knowingly engaged in illegal conduct, then he should do the time for the crime.

    Of course I am open to arguements that too often for many crimes, too lengthy prison sentences are involved. We keep filling up the prisons and the costs of keeping people incarcerated is starting to become unaffordable.

  • Community service perhaps?

    What recourse do people have who can’t pay traffic tickets? (No, I’m not saying it’s morally the same thing.)

  • I don’t know, as a truck driver, engaged in commerce, if I get too many traffic tickets I lose my ability to make a living in my occupation. I am all in favor of doing community service for me as well. However how much community service are you going to be willing to agree to to correct the behavior of an aggressive truck driver who from the time he first got behind the wheel had no concern for safety?

    Fair is fair. Where do YOU draw the line? Are you more willing to draw the line further out when it comes to your own failings? If the line was drawn for you where it is drawn for truck drivers, you might join us truckers in howling about the injustice.

    • I’m well aware of the plights of truck drivers. My family is deeply engrained in that occupation: out in California where Virginia looks like the land of Eden!

      As far as the line though, I think it is fine where it is drawn, but I think the wisdom of current punishments for crossing that line needs to be questioned.

  • I guess I tend to agree. We keep filling up the prisons and our prison system is a horrible failure. Only a single year where we can guarantee the prison inmate freedom from being raped is a horrible sentence.

    Cruel and unusual punishment? Well I guess our incarceration system passes on the unusual part but it leaves things to be desired on that cruel part.

  • Fat Dave

    In cases like this, I agree with Andrew. We should strive towards a more reparative method of punishment. Our current model ends up costing the taxpayers way too much, sends non-violent offenders to virtual schools of criminal violence, and fails to grant anything to the victim except a vague feeling retribution.

  • Ah, but the fear of retribution motivates the offender to fear the consequences. It is called deterrent. If there is no penalty to be paid, why not just violate?

    Why have any rules in the first place if you are only going to get a slap on the hand for violating them. If that was the case, we would be encouraging rules violation. Even those who wanted to be honest would be forced to become dishonest to compete.

  • Fat Dave


    Did I ever say there wouldn’t be a punitive component? Or that we should just give non-violent offenders slaps on the wrist? No. But there are punishments other than prison.

  • Jacob Roginsky


    I believe you are mistaken about the meaning of the term “natural rights.” Please provide an authoritative definition.

  • Jacob Roginsky

    Little Dave,

    I wish the system were as good as you are imagining it. Today the criminal defendants are denied fair process more often than they receive it. Apparently you are believing that as criminal defendant invariably gets everyoppoIf you knew the criminal cases are prosecuted

  • Jacob Roginsky

    Oops, I inadvertently posted a message before it was finished.

    Little David, the criminal defendants are routinely prohibited from presenting to the jury all the relevant evidence. The judges decide what will and will not be offered to the jury, and too often prohibit the presentation of materials that would make the prosecution more difficult.

    There are all kinds of roadblocks to justice for many criminal defendants, and too often they take a plea bargain “deal” because their attorneys tell them they would likely be railroaded if they do not.

  • JayD

    Andrew, Confused … authorized punishment for Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

    Carter isn’t sentenced until August and may get off w/ a fine ~ as you suggest. If so, why/how is this bad law?

    One answer to the bigger question: Rights are ranked by order of importance.

    • He might, but this is a question about the possibilities. He CAN be sentenced for up to five years. If it were restricted to a fine, I don’t suppose under my premises it would be a bad law. But it’s not restricted.

  • Marian

    Your argument for the cost of keeping prisoners brings up one of my pet hobby horses. Why do prisoners have to live in such luxury. I am certainly not advocating unsafe or unclean living conditions. Why cannot prisoners be made to help produce some of their food? When Adam sinned, and God turned him out of the garden, God declared In the swear of thy face shalt thou eat bread (Genesis 1:19). Yes, it was a punishment, but God’s mercy also provided it as a restorative rehabilitation. A day spent doing hard physical work keeps a man from brooding on his offenses, helps him to know his need of God’s strength.

  • Interesting to compare “natural rights vs civil rights” to a guy selling knock-off trademarked T-shirts. Is it a natural right or a civil right to be born? Is it a natural right or a civil right be born black, white, brown or yellow or some misture thereof? Is it a natural or civil right to be born left-handed or right-handed? Is it a natural or civil right to be born blue-eyed or brown-eyed or green eyed? Is it a natural or civil right to breath air? Is it a natural or civil right to be born straight or gay? I am really confused about what this has to do with t-shirts or the ridiculous Thorne-Begland debacle.

  • JayD

    Andrew, I’m with Craig on this one. The gentleman has been tried and found guilty and is now subject to penalty under Class D felony sentencing guidelines – which cover a multitude of crimes. We don’t yet know if his sentence will be ‘too harsh’ or ‘fair’. Plus, it’s not the innocent jersey being punished; it’s Mr. Carter’s theft of another’s property and fraudulent selling of said innocent knock-off as ‘the real thing’.

    But Bob Marshalll is the smart guy–let’s apply his code: Mr. Carter is a sinner – a liar, cheat, and thief. We must, therefore, go even further to protect society and deny Carter future business licenses because “we can’t trust his future judgment”.

    If your argument is $$$ cost to society should drive punishment, then by logic cost should also drive society’s determination about what is legal/illegal.
    Marijuana laws should be overturned (billions spent on locking those folks up) and we ought to jail instead obese people and smokers ~ look at what those sinners cost society.
    Hmmm, if cost determines … the list keeps growing. How ‘bout sinners that divorce and ‘choose’ to birth out-of-wedlock babes? Look at what those ‘choices’ cost society.

  • JayD,

    You are one of those hypocrites. You want to legalize smoking marijuana and criminalize smoking tobacco. They have a state for people like you, and it is called California. Move there if you want and you will be in majority there on this issue.

  • Jacob,

    Look, if you want to reform the prosecution system then how about we start with reforming the regulations truck drivers have to face. We are guilty until proven innocent and face denial of rights just to stay in our occupation. An example is the current effort to require EOBR’s (Electronic On Board Recorders) that will be watching over us like “Big Brother” recording every move that we make. It will cost me as much as $4,000 to put the device in my truck and then I will be married to paying whatever monthly subscription fee the manufacturer decides to charge (currently estimated to cost $800 a year) just so Big Brother can watch over me.

    Trucking is already the most regulated industry in our nation outside of anything having to do with nuclear materials and it just does not stop. Heck, even Doctors engaged in heart or brain surgery do not have to surrender as many rights or undergo as much scrutiny as does a truck driver.

  • JayD

    LD, please read my comment again and more carefully this time.

  • Jacob Roginsky


    Your suggestion that we begin the reform of the prosecutorial system by starting with reforming “the regulations truck drivers have to face” is unworkable. What percentage of the public do you suppose you could recruit to fight for your cause?

    The same kinds of suggestions to fight for various causes first have been made gazillions of times by thousands of causes, and as president of a formerly national legal reform organization I can’t tell you how many times I was asked to first attack the problems in the judicial system that concerned the segment of the victims to which the asking individual claimed to belong.

    This phenomenon operates not only within various governmental regulatory spheres, but across the spheres as well. The net effect is described wonderfully by the following fable of Ivan Krylov implied in it is also a suggestion for how to approach the tackling of the trucker problem:

    The Swan, the Pike, and the Crab

    One day a swan, a pike, a crab,
    Resolved a load to haul;
    All three were harnessed to the cart,
    And pulled together all.
    But though they pulled with all their might,
    The cart-load on the bank stuck tight.
    The swan pulled upward to the skies;
    The crab did backward crawl;
    The pike made for the water straight —
    It proved no use at all!

    Now, which of them was most to blame
    ’Tis not for me to say;
    But this I know: the load is there
    Unto this very day

  • JayD

    Andrew, as we now (finally) have a response from Richmond, I would love to hear your argument for/against this position as it relates to ‘rights’. Here’s the case for NOT confirming Mr. Thorne-Begland:

  • JayD

    From: House Republican Veterans Caucus May 20, 2012 00:38 am
    Bad Judgment: Not the Stuff of Would-be Judges

    A key function of the General Assembly is to elect judges. Unlike other states, this task falls squarely on the shoulders of the General Assembly and we must select judges of the highest character and ability. If either condition is lacking, we must ask “is this candidate worthy of selection?”
    Such was the case on Monday, May 14th, when the House of Delegates chose not to elect Richmond prosecutor Tracy Thorne-Begland as a District Court Judge. Advocates for Mr. Thorne-Begland point to his prosecutorial abilities, however, they ignore that as a naval officer in 1992, he violated clear military directives not to appear on television to advocate for a personal cause. Nevertheless, Mr. Thorne-Begland made that appearance, ignoring the requirements of duty that he voluntarily took an oath to uphold. We contend that Mr. Thorne-Begland exercised profoundly bad judgment in using his military office to advance a personal cause, in this case sexual orientation, on national television; an act he knew was prohibited.
    Let’s begin with the oath those of us who served the nation in war and peace took when we were commissioned. “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.” A key word here is “duties” and among them are fidelity to rules and regulations of the military and support for the chain of command. When an officer violates this fidelity for a personal cause, no matter how sincerely held, he has broken his trust with the service he has sworn to obey. An officer who does so demonstrates exceptionally bad judgment. Those who don’t think that oaths, discipline, and fidelity to the chain of command matter, fail to comprehend how the military must function if it is to be effective in combat, which is it’s raison d’être. It may be difficult for someone who has not served to understand the depth to which we hold this oath, but it is profound.
    An officer shirks his duty when he willingly and knowingly violates a lawful directive of the military and his chain of command by appearing in the media to advocate for a personal cause he believes is more important than the oath he took. The prohibition to “participate in any radio, television, or other program or group discussion as an advocate for or against a partisan political party, candidate, or cause” is unambiguous, yet Mr. Thorne-Begland violated it knowingly. Some say, “Well, what about his First Amendment right to free speech?” Simply put, when you join the military, you give up your right to free speech when it comes to good order and discipline. You can’t say anything you want about any cause, no matter how deeply held, when, in doing so, you speak publicly in contravention to the policies of your service. You can be sure that many of us who have served this nation have had times when we didn’t agree with our chain of command and in some cases may have felt the orders and requirements were misguided. But no matter what side of an issue you take, you do not, as a military member, have the right to speak publicly against your service and chain of command to advance your personal beliefs.
    A case in point was the recent discharge of a young Marine sergeant who made disparaging comments about President Barack Obama, his Commander-in-Chief. That sergeant may have felt, as Thorne-Begland did, that he was right in speaking out, but that Marine was wrong to do so and should have been discharged, as he was. And if he ever becomes a lawyer, moves to Virginia, and seeks a judgeship, he shouldn’t be surprised when we don’t support him either. In both cases, the proper course of action would have been to resign from the service, hang up the uniform, put on civilian garb, and speak to your heart’s content.
    In the military, we take oaths, duty, good order and discipline very seriously because we know the important role they play in creating an effective fighting force. We think no less of these values when selecting judges. If you exhibit bad judgment and indiscipline, you shouldn’t be a judge. Mr. Thorne-Begland’s decision to go on national television to advocate for a personal cause in violation of his sworn duties to his service indicates poor judgment and a lack of regard for the institution he swore to serve and respect. These aren’t the qualities we seek in a jurist.

    Delegate (Colonel) Rich Anderson (R-51 and US Air Force Retired), Delegate (Commander) Mark Cole (R-88 and USNR Retired), Delegate (Lt. Commander) John Cosgrove (R-78 and USNR, Delegate (Colonel) Mark Dudenhefer (R-2 and US Marine Corps Retired, Delegate (Sergeant) Tim Hugo (R-40 and US Army Reserve), Delegate (Colonel) L. Scott Lingamfelter (R-31 and US Army Retired) and Delegate (Commander) Chris Stolle (R-83 and US Navy, Retired) all serve in the Virginia House of Delegates of the General Assembly.

  • Jacob Roginsky

    An economic calculus on the cost of prosecuting and jailing a criminal cannot be correct if the cost of not prosecuting or prosecuting in a lesser degree is not considered. Would there be a cost to the tax payer of not prosecuting copyright infringement? Obviously yes. Infringements would become rampant and innovation would suffer greatly. Would there be an increased economic cost to the tax payer if the punishment is significantly reduced, i.e. per Andrew’s suggestion? This can be evaluated only with the specific punishment in mind.

    All that said, I would accept Andrews suggestion in favor of the current prosecutorial modalities, because the criminal system is criminal, it deprives people of liberty and property without due process of law. Everyone deserves a fair day in court, especially when facing long incarceration, because people’s circumstances are very different, and some may have extenuating circumstances (e.g. being forced to transgress the law in the face of egregious government abuses), which a jury could find sufficient to rule in favor of the defendant, yet today’s assembly line trial of criminal defendants does not allow most ofg such evidence to come in.

  • Jay D,

    I read it again. Your very clearly spoke for legalizing smoking marijuana and making smoking tobacco illegal. I think you also spoke to making being obese illegal.

    I will qoute you:

    “If your argument is $$$ cost to society should drive punishment, then by logic cost should also drive society’s determination about what is legal/illegal.
    Marijuana laws should be overturned (billions spent on locking those folks up) and we ought to jail instead obese people and smokers ~ look at what those sinners cost society.”

    Let your words speak for themselves and point out how you are starting to argue against yourself.

  • Jacob Roginsky,

    Before you object to the injustice that is visited upon your segment of society, I am only offering up the injustices already suffered by my segment. I will be willing to take up your cause when you are willing to listen to mine. I suffer more greatly, and when your ears listen to my cry, my ears will be more open to your screams.

  • Jacob Roginsky


    You misconstrued what I said. I am in no way advocating that we first take care of the suffering of those for whom I used to advocate the most, namely victims of the judicial system. To the contrary, what I had hoped you would carry away from my preceding posting is that we get nowhere when every cause spun by government abuses expects everyone to help them, instead of all causes getting together and demanding an end to government tyranny and respect and protection of our rights. You are suffering from a facet of government tyranny, I am suffering from another facet of the same government tyranny. Our core causes are the same.

    Let me assure you in conclusion, however, that you could not be more wrong in your assertion that the abuses you are suffering are greater than those of the victims of the judicial system. You cannot claim this knowledgeably and intelligently. The outrages some folks suffer at the hands of judges and prosecutors go far beyond total economic ruination, which is commonplace for such victims. Innocent people get convicted of heinous crimes and serve long sentences or even executed because their prosecutors hid exculpatory evidence or judges refused to allow exculpatory evidence in; kids are stripped from loving parents and end up in foster care, often to be neglected, abused, and finally end up mental cased, ruined for life, because the state feels they are not being educated properly by the loving parents; a man spends 14 years in jail on civil contempt, without a trial, without any due process, because he fails to comply with the judicial order to deposit one million dollars in an escrow account, which the man does not have, and even after the Court’s own investigator tells the Court ten years the man has no money, the victim, who is then stricken with cancer, still spends four more years in jail.

    BTW, let me make clear, that my beef with the criminal justice system is not a result of any personal grievances, as I was never convicted of any crime whatsoever. I condemn that vile system on the basis of what I had .
    learned as president of a legal reform organization.

  • JayD

    LD, read again please. IF ….(x)is true… THEN by logic …(y) is true. And IF (x) AND (y) are true, THEN (z) must also be true.
    I was not advocating we all party down or jail folks with weight problems.

  • louexis


    This discussion should be held after we find out what the punishment is. If Mr Carter gets off with a slap on the wrist fine for selling $149,000 worth of illegal goods then in my opinion the system is flawed. White collar felony crime seems to be treated differently than other felony crimes. If someone broke into a bank and stole $149,000 and did not harm anyone physically would you be talking about a slap on the wrist fine or would you be asking for 20 years in prison? One of the problems with our criminal system among other problems is white collar crime is tolerated more than blue collar crime. Blue collar crime is based on condition caused by a lack what other people have. I am not talking about violent crime. White collar crime is usually based on improving ones financial position at a cost to someone else. They both accomplish the same thing but they are not treated the same way by the law. Corporations and CEO’s that commit fraud and similar crimes many times plead “No Contest” and pay a fine. Tell me the last time you heard of a bank robber getting off like that. I find your attempt to bring in Natural Law has no merit.

  • Jacob Jowinsky,

    Let me quote you:

    “Your suggestion that we begin the reform of the prosecutorial system by starting with reforming “the regulations truck drivers have to face” is unworkable. What percentage of the public do you suppose you could recruit to fight for your cause?”

    And again:

    “Let me assure you in conclusion, however, that you could not be more wrong in your assertion that the abuses you are suffering are greater than those of the victims of the judicial system. You cannot claim this knowledgeably and intelligently.”

    I am intelligently going to assert that you are unaware of the abuses the trucking industry faces. I am going to state that you can not claim to know otherwise “knowledgeably and intelligently”. My explanation is that the portion of law you were involved in had nothing to do with the trucking industry.

    You do not need a fancy law degree to understand truckers are over regulated and over prosecuted.

  • louexis


    Mr. Thorne-Begland committed what amounts to an act of “Civil Disobedience” in coming out in public about being Gay. He paid the price for it in being discharged from the military for doing it. You can call it what ever you want but I call it an act of Bravery and his life after the incidence shows that he moved on and provided many good acts for society. All I can say about you and the Gentlemen legislators who wrote that diatribe, is you are just “Bigots” And by the way I am not Gay.

  • JayD

    OK LD, let me try and answer your situation in a vein that at least acknowledges appreciation to Andrew for his time in preparing this post.

    You have a RIGHT to earn a living. You CHOOSE to earn that living w/in a regulated industry. In doing so, you implicitly agree to follow all rules, regulations, and laws applicable to that industry. You may, at any point, CHOOSE to leave the industry. You may also CHOOSE to speak out against rules you believe are wrong AND encourage others to join you. You may also CHOOSE to ignore or disobey the rules. And if you are caught, there will likely be a penalty that you MUST pay, and one possible penalty might be getting tossed out of the industry.

    What you will NOT lose is your RIGHT to earn a living in a different industry. For instance, you will still be granted a restaurant license, even though you broke trucking industry rules by not installing a EOBR.

    Of course, if you’re gay, the rules are different. Then you get tossed out of the trucking industry AND risk being barred from advancement in other professions.

  • JayD
  • louexis


    I apologize about calling you a bigot. I misread your comment about Mr. Thorne-Begland. Yes we both seem to agree on this point. The legislators that wrote that rationalization for their vote are still bigots in my opinion. Years ago they would have used the color of a mans skin to vote against him being a judge.

  • Jay D,

    OK the fellah in question then also chose to engage in commerce in the method he chose to engage it.

    I do not see why he deserves special consideration considering what I have to deal with.

    By the way, the trucking industry is amongst those most favorable for gay citizens. If you can get the freight from point A to point B on-time without bumping into anything in the mean time you got the job. Of course, you also have to deal with the government over regulation that is not discriminating while it is being over burdensome.

  • JayD

    LD, Poor poor pitiful you.

  • Jacob Roginsky

    Little Dravit,

    In fact your claim is neither intelligent nor knowledgeable, whereas mine is both. I was in the midst of a large grassroots movement focused on the judicial, prosecutorial, and other abuses in the legal system, where my area of concentration was the federal courts, which are the principal forum for the adjudication of constitutional grievances over burdensome law and regulations, falling under the rubric of violation of substantive due process. Your complaint has been that the overregulation of your industry makes staying in business as a tracker extremely difficult, and I have no problems accepting it, as I had seen these kinds of complaints from various business quarters. On the other hand, your education in the abuses in the family courts, probate courts, foster care, the Article III federal courts and Article I Tax Court, the criminal divisions of the district and superior courts, the appellate courts, etc. is obviously non-existent. So you truly are above your head trying to make any kind of independent comparisons of your industry with these areas.

    However, the fact that you would claim that the economic hardships you suffer as a tracker can be worse than the suffering I described, particularly that which involves children is sufficient for me to ignore you henceforth, as a rational conversation with you is impossible.

  • Andrew Schwartz

    Gonna try to get to these comments/questions one at a time. @Jacob, I have not forgotten your request for a definition or clarification of natural rights. I’ll be back with that (it’s not as simple as giving a dictionary-style definition), and I hope that will in turn answer Craig’s questions.

    @JayD re May 20, 2012 09:21 am. This is not about the sentence, but about the law. That he CAN be punished with prison is much different than that he CAN’T. A just sentence or a merciful judge or jury does not make a bad law good. Re marijuana laws, you said it not I. Re smoking costs and obesity costs, the question must be WHY does this cost society, and is it in society’s best interest to preserve and subsidize self-destructive individuals?

    Re the HRVC’s response. The delegates have a Civil Right not to elect that judge. TTB does not have a Civil Right to be a judge. The electors DO have a Civil Right to elect new delegates if they disagree with their current delegates. Neither party has a civil obligation to do or be the opposite. I see no conflict.

    @louexis: A bank robber pilfers property; a trademark infringer uses his own property and someone else’s idea. A bank robber deprives the bank of actual tangible assets and property; a trademark infringer only deprives the trademark owner of an OPPORTUNITY for actual tangible assets and property.

  • Jacob Roginsky

    Andrew, do not trouble yourself too much on the natural rights definition and go with one — there are varying definitions — that is both authoritative and closest to your own. Blackstone may be an excellent (super-authoritative) source, or maybe one of the Founders’ definition.

    Another quick comment: You may want to consider re-wording personal description on BD. The current one contains a sentence that seems to imply that Samuel Adams was a constitutionalist in the US Constitutional sense. Of course as a historian you know that Sam Adams was one of the great anti-federalists, who opposed the US Constitution.

    • See, if I go with Hobbes, I have to explain why. And then I have to explain why I didn’t go with Grotius and Luther, but then how Puffendorf fits into Hobbes and Cicero, and how Locke fits into Puffendorf, Hobbes, and Grotius–with a little bit of Aquinas (who gave an unwilling Aristotle his version of natural law) for good measure. It’s a complicated issue, but I stand by my original assertion that “Natural Rights” are rights that exist fully ONLY in a state of nature (again, with the exception of a right to self-preservation). If you’re interested in why that assertion makes the most logical sense to me, I am glad to explain it, but it’ll have to wait. But if you don’t care why, I offer this: “The Right of Nature…is the Liberty each man hath to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto.”

      As for Samuel Adams, you are correct, and I deliberately left it worded that way because his brand of constitutionalism is how the revolution was started. The Revolution was a conservative movement, founded on the tenets of the British constitution and the charters of the colonies. It was a fight to preserve liberties, not to gain them. It was at its outset a battle to return to founding principles, not to advance new ones.

  • Jacob Roginsky

    Your references to Samuel Adams’constitutionalism and to the “natural rights” suffer from, among other, the absence of proper context.

    In the context of post-1788 America, unless specified to the contrary, “constitutional” refers to the US Constitution and the state constitutions, not the Articles of Confederation or constitutions in the abstract. In the pre-Revolutionary context, your reference to S. Adams’ constitutionalism would have been interpreted as you intended. However, today, in the default, modern context it suggests that S. Adams was a principal contributor to the US Constitution and that he embraced the document, rather than rejected it.

    While in the sociopolitical and legal discourses of the mid part of the Seventeenth Century your usage of the term “natural rights” would have been acceptable and understood as Hobbesian, in today’s sociopolitical an legal parlances it is confusing and thoroughly misleading. The American founding documents and all the law built on and around them rely on the enlightened definitions of “natural rights” — closer in meaning to those of the ancient Greeks than Hobbes. If you want to use the Hobbesian terminology on the natural law and natural rights, it is fine, but you must confine its application to the times and places where it was an integral part of the language of law and jurisprudence. Today we speak the language of John Locke, the Founders, and the Framers when it comes to the terms “natural law” and “natural rights.” In such usage, the terms are tied to wisdom, justice, permanence (in meaning), divine rule, and, most importantly to law and jurisprudence, a standard of legitimacy by which to measure man-made law. To suggest the relegation of the concepts of natural rights and natural law to a secondary place in law and jurisprudence is like suggesting the relegation of the gold and silver standards to obscurity in the financial system — we see where that has lead us.

    I am providing you with a link to a very relevant 2003 article on the subject, American Legal System Is Corrupt Beyond Recognition, Judge Tells Harvard Law School. The reporter quotes Edith Jones, then Chief Judge of the U.S. Court of Appeals for the Fifth Circuit, faulting the reign of abuses and depravity in the legal system on the abandonment of the gold standard, the natural law, as a standard against which to measure man-made law.

  • Jacob Roginsky
  • Jacob, this is becoming unconstructive. “Constitutionalism,” to those who care, refers to an idea founded upon a constitution. It does not mean an idea founded upon the United States Constitution. Infer what you wish, but don’t suggest that “modern context” means constitutionalism is tautologically referent of the US Constitution. That is absurd.

    Likewise, you speak of context for natural rights, saying that in natural rights we speak the language of Locke, and that our understanding of natural rights is based on our Founders. But are these consistent? Did our founders base their understanding of natural rights solely on Locke or the Ancient Greeks (which are NOT the same, by the way)? Or was Hooker consulted along with Locke? Did their concept of Natural Rights have as much to do with Hobbes’s definition? (The answer is yes to both, and Hobbes and Locke are not in as much disagreement as you might think.) You say we speak the language of Locke, but we do not. We speak the language of modern Americans reading Locke. To fully understand what Locke, Hobbes, Puffendorf, Hooker, De Vattel, and then Jefferson, Adams, Madison, Adams, Sargent, Dickinson, Burke, Hutchinson, Tucker, Otis, Wilson, and a host of others were talking about it is necessary to understand that the language of the 17th and 18th century is quite different from today’s English. Context IS everything, but your context seems to be anachronistic, since you seem to say that the influence of Locke is the only source of enlightenment. And I did not relegate natural rights to a secondary status. They are in the primary, and always have been (even Hobbes thought so). They just cannot be exclusive in a legal context for the same reason Americans today (and Britons in the 18th century) would not respond to a legal statute whose only reason for enactment was, “because God said so.” This is why I didn’t want to give a brief answer, because so many inferences are made on this subject by a simplistic approach.

    • Jacob, there is a very good series of books that explains both of my arguments better than I can if you are interested. Though his arguments differ slightly from mine, his emphasis on proper context (linguistic, intellectual, and political) is quite consistent. The books are John Phillip Reid, “Constitutional History of the American Revolution” (Madison, WI: University of Wisconsin, 1986), 4 vols. The volume, “The Authority of Rights” deals primarily with how the question of rights was interpreted in the 18th and 17th centuries, but his other volumes, “The Authority to Tax,” “The Authority of Law,” and “The Authority to Legislate” also touch on the subject. Also good by the same author are the books, “The Concept of Liberty in the Age of the American Revolution,” and its sister “The Concept of Representation in the Age of the American Revolution.” Bernard Bailyn also provides some valuable insight on the intellectual history of that age in “The Ideological Origins of the American Revolution.” Richard Beale Davis’s “Intellectual Life in the Colonial South,” (3 vols.) is a great study of just how influenced American colonists were by European thinkers and how married they remained up to the outset of the Revolution, though his study is confined to the south.

  • Jacob Roginsky


    I was being constructive, clear, and dug the subject to the appropriate depth. On the other hand, you started with a simplistic, narrow, and anachronistic usage of the term “natural rights,” and are now doing nothing but muddying the waters in order to obfuscate that.

    I was the one to point out from the beginning and then again that the term has not meant the same thing to all people in all times, so throwing in a ton of names who may or may not have differed significantly from each of the rest on the subject adds nothing of value to the conversation, and in fact appears to be used by you to change the subject.

    Devoid of any specifics, your allegation that Hobbes and Locke aren’t as different in their views on the natural rights as I hold them to be is also not a specie of tools that should be used in intellectual argumentation.

    Neither is it very meaningful to argue that the Founders were influenced by more than John Locke — I know this probably as well as you — and were themselves not of an entirely single mind on the subject — I know this probably as well as you also — but not to state in what way the most influential of the Founders differed from Locke on the subject and whether such differences are critical in the context of our disagreement.

    Finally, if all the historical and personal differences in the views on the substance of natural rights must lead us to conflicting interpretations of what are the natural rights today, you should not be claiming that your position in the conflicting areas is correct. Judge Edith Jones, as others, believes that the natural rights are the highest rights, as applicable and clear today as ever, and that they must be at the forefront of our consideration, as the clearest and most important standard by which to measure and judge all other law. If you disagree, you ought to make a much better case than throw a thousand names up in the air and then claim the subject to be too obscured for clear delineation.

    • Jacob, I am beginning to think we are saying the same thing. Yes, “natural rights” are muddy. Which is why we may speak philosophically of their sufficiency, but legally only of their efficiency — since philosophy has the luxury of not demanding application while law necessitates it. I thought that describing natural rights as those rights that exist autonomously only in a state of nature was sufficiently broad, much broader than enumerating them, but I suppose we interpret that differently. I had planned to make my case, but you insisted on a much more simplistic approach.

      I agree with you that “natural rights” has meant different things to different people in different times, so I am perplexed as to how you can say that my definition is incorrect. Saying that Hobbes is incorrect because you agree with Locke doesn’t follow, and forcing someone to confine their argument for Hobbes to Hobbes’s time while at the same time arguing for Locke 300 years after his time doesn’t follow either. Maybe we should use Durant’s definition since he is much more contemporary. That nature “knows no rights other than cunning and strength; [rights] are privileges assured to individuals by the community as advantageous to the common good.” That “liberty is a luxury of security; the free individual is a product and a mark of civilization,” not inherently born so. If I may not say my definition is correct, you may not equally say that mine is incorrect. I have repeated my definition over and over again–the autonomous employment of faculties endowed to any given individual without external interference or reprisal, i.e., rights that exist without any government–yet I cannot find your own definition. All I can find is a de-transcendental approach, saying that “The natural rights of men exist nowhere but on earth, and only as long as men exist,” as if the law of gravity exists only where matter is present (the law exists universally, but is only applied where a subject may receive it).

      Nevertheless, I do agree with you that natural rights may be limited, but can never be extinguished.

  • Jacob Roginsky

    Sir William Blackstone (1723 – 1780) was the most influential interpreter of law in the Founders’ times. Here is his view of the natural rights.

    “Good and wise men, in all ages…have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever.”

    “This is what is called the law of nature, which, being coeval with mankind, and dictated by God himself, is, of course superior in obligation to any other. It is binding over all the globe, in all countries at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately or immediately, from this original.”

    • Re Blackstone: You are correct, and this is consistent with Hobbes and Locke’s view on Natural LAW. But this is hardly the same as Natural RIGHTS. They are not interchangeable. “Right and Law…ought to be distinguished; because RIGHT, consisteth in liberty to do or to forebeare; Whereas Law, determineth, and bindeth to one of them: so that Law and Right, differ as much, as Obligation and Liberty; which in one and the same matter are inconsistent.”

      Re constitutionalism: please extend that line of argument further and ask whether or not our justice system is in general protective of its citizens. I would venture to say that you would disagree with the majority on that question and call it absurd as well, and shudder at being called insincere for supposing as such. I hope if you are willing to accept the majority opinion on one subject as factual, you will do so for others.

      • I have fixed your Blackstone for you: “By the absolute [natural] rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound to perform, considered as a mere individual, it is not to be expected that any human or municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other than social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the public peace or against the rules of public decency and decorum, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, they may then become, by the bad example they set, of pernicious effect to society; and therefore it may then be the business of human laws to correct them…Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

        “For the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

        “The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives up a part of his natural liberty, as the price of is valuable a purchase ; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish.”

        With this in mind consider the more oft-quoted: “Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually inverted in every man than they are; neither do they receive any additional Strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture…

        “Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation, in nature ; but are merely created by the law, for the purposes of civil society.”

        Thank you for proving my point.

  • Jacob Roginsky

    I claimed that Andrew’s reference in his personal BD sketch to Samuel Adams as a “great constitutional conservative” is likely to make folks unfamiliar with Adams’ political philosophy conclude that the reference is made to the US Constitution. Andrew say the supposition is absurd. Please judge for yourself whether in fact my supposition is absurd or Andrew’s outright rejection of it is absurd (and maybe a tad insincere?).

  • Jacob Roginsky


    You insist on misrepresenting of what I say and then call the straw man simplistic, whereas in reality I insist on consistency, rigor, and depth, while you argue simplistically and, I should add, sloppily.

    1. I do not confuse “natural law” and “natural rights,” and the two, as your quote from Hobbes states, are distinct, one being in the nature of mandate and the other of liberty. My preceding posts attest to my distinguishing between the two, but not treating them separately, as they are intimately related in the Lockean school of thought, having the same source and prevailing in a state of justice. Furthermore, they are compliments of each other; every natural right implies a natural law against its violation, and the ends of every natural law are to protect natural rights. \

    2. My justification of support for one school of thought and against supporting another bears no relationship to the age of the source, but rather contingent on its content and a chain of authority to the present. The Founders and the Framers intended to implement what is largely the Lockean scheme, each of the State’s constitutions being a significant reflection of the George Mason’s template, which is not only largely Lockean, but goes further than Lock in its emphatic declarations on the unalienable rights and the right of the people to throw out governments that do not serve them. Had we the Founders been guided largely by the Hobbesian philosophy, we would be subjects of a powerful monarch, and our rights would be fewer and weaker. I doubt that is what you want.

    3. Your final point, namely that ” if [I am] willing to accept the majority opinion on one subject as factual, [I should do the same] for others” is a straw man, yet too strong for the simplistic logic you threw at it. Nowhere did I justify anything as being true based on a majority opinion, and even then some things may be justifiable based on the majority opinion, e.g. that the temperature outside is well over 40 degrees Fahrenheit, when a minority claims it to be below 0 degrees. But, I would not even listen to the majority opinion on the validity of quantum mechanics, because 99.9 % of the public is clueless in that area.
    Your point is too sloppy at best.

    • Jacob, I am sorry that you have fallen for the popular notion that Hobbes was an absolute monarchist. I would implore you to look once more at the political situation in England of Hobbes’s time, and then read his very weak arguments for an absolute monarchy. Hobbes was an opportunist with a monarch who desired to be absolute on the throne, and a divided country on how it should be governed. Despite his being on the wrong side of the Civil War, he still set the stage very well for Puffendorf and Locke in England. I would argue that because of Hobbes the monarchy was never the same again.

  • Jacob Roginsky

    My apologies for a few typos in the above. For example, “we the Founders” should have been “the Founders.” 🙂 I had very little time to respond.

  • Jacob Roginsky

    I had not noticed earlier that you provided additional posting on Blackwell before my response. Well, that one is just another bunch of straw men, concluded with a bogus claim that I proved your point.

    A victory at all costs is a game I do not play.

    • Jacob, I do not play a victory at all costs either, but I have greatly enjoyed this discussion. I will let *Blackstone speak for himself and the voice of the 18th century.

  • Jacob Roginsky

    I had not noticed earlier that you provided additional posting on Blackwell before my response. Well, that one is just another bunch of straw men, concluded with a bogus claim that I proved your point.

    A victory at all costs is a game I do not play.

  • Jacob Roginsky


    I have not fallen for a “popular notion” on Hobbes advocacy for a strong ruler. When it comes to Hobbes there are no popular notions, as most ordinary folks do not know one thing about him, and even folks like you do not know enough. A strong leader, whether actually a monarch or not is immaterial, is central to Hobbes’ political philosophy, which holds the people in the lowest esteem a thinking creature may be accorded, and which sees a powerful central authority as the only means to keep the wretched beings from cutting each other’s throats. If you read Leviathan or about it, how could you have possibly missed this?

    I am well aware of the great tumults in England in Hobbes’ lifetime, including the Revolution and execution in 1649 of King Charles I. I have a 1699 French translation of a book on the trial and execution of the king. Those were not great times for opportunistic royalism. In fact, Leviathan was completed not long after the execution.

    If you have evidence that Hobbes was not genuinely in favor of a strong monarch as a means of saving the people from their own wild nature, please provide it. Quotes with citations would be best.

    • I’m glad you know so much about what I know about Hobbes.

      Since you won’t believe me, please see J. Judd Owen, “The Tolerant Leviathan: Thomas Hobbes and the Paradox of Liberalism,” in Polity, 37, no. 1 (January 2005), 130-148.

  • Jacob Roginsky

    > I’m glad you know so much about what I know about Hobbes.
    Andrew, I track the knowledge of those who claim to know how I arrive at my conclusions. 🙂

    The citation you provided can only be accessed for a fee. Would you kindly forward to us just a few pertinent excerpts?


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