THE HUMAN NATURE OF FREEDOM AND IDENTITY
THE HUMAN NATURE OF
FREEDOM AND IDENTITY—
WE HOLD MORE THAN RANDOM THOUGHTS
DOUGLAS W. KMIEC*
In contemplating the relation of freedom and identity, the
Latin maxim libertas non datur sine veritate aptly reminds us that there can be no freedom without truth. While certain aspects of who we are, such as nationality or ethnic ancestry, may be cul‐ turally or serendipitously determined, there is a truth to hu‐ man nature which, if not observed, corrupts or destroys life and any exercise of freedom dependent upon it. Human nature and the natural law it reflects are inescapable, and, insofar as the Constitution of the United States was consciously fashioned with an outline of human nature in mind, natural law is an in‐ dispensable aid to proper constitutional interpretation.
This essay explores the founding conception of liberty and its interrelationship with human nature. It then addresses how the
Constitution reflects these aspects of human nature. Finally, it contains some concluding perspectives on aspects of human nature understated in the constitutional design and what ought to be done when there are disputing conceptions of human na‐ ture. I.
LIBERTY
The founding view of liberty was taken up directly by Ham‐ ilton. In Federalist 15, Hamilton asks “why,” if man1 is naturally * Caruso Family Chair and Professor of Constitutional Law, Pepperdine Uni‐ versity; Dean and St. Thomas More Professor, The Catholic University of America
Columbus School of Law, 2001–2003; Professor and Director of the Center on Law
& Government at the University of Notre Dame, 1980–1999; Assistant Attorney
General and Head of the Office of Legal Counsel, Department of Justice, 1985–
1989.
1. The use of the masculine in this
FREEDOM AND IDENTITY—
WE HOLD MORE THAN RANDOM THOUGHTS
DOUGLAS W. KMIEC*
In contemplating the relation of freedom and identity, the
Latin maxim libertas non datur sine veritate aptly reminds us that there can be no freedom without truth. While certain aspects of who we are, such as nationality or ethnic ancestry, may be cul‐ turally or serendipitously determined, there is a truth to hu‐ man nature which, if not observed, corrupts or destroys life and any exercise of freedom dependent upon it. Human nature and the natural law it reflects are inescapable, and, insofar as the Constitution of the United States was consciously fashioned with an outline of human nature in mind, natural law is an in‐ dispensable aid to proper constitutional interpretation.
This essay explores the founding conception of liberty and its interrelationship with human nature. It then addresses how the
Constitution reflects these aspects of human nature. Finally, it contains some concluding perspectives on aspects of human nature understated in the constitutional design and what ought to be done when there are disputing conceptions of human na‐ ture. I.
LIBERTY
The founding view of liberty was taken up directly by Ham‐ ilton. In Federalist 15, Hamilton asks “why,” if man1 is naturally * Caruso Family Chair and Professor of Constitutional Law, Pepperdine Uni‐ versity; Dean and St. Thomas More Professor, The Catholic University of America
Columbus School of Law, 2001–2003; Professor and Director of the Center on Law
& Government at the University of Notre Dame, 1980–1999; Assistant Attorney
General and Head of the Office of Legal Counsel, Department of Justice, 1985–
1989.
1. The use of the masculine in this