During the past three months, the Trump administration has sought to withhold the delivery of governmental benefits in order to punish or reform its perceived political opponents. These opponents — in the understanding of the White House — are colleges and universities that permit speech the White House claims is hateful, law firms who represent clients or employ lawyers who have been vocally critical of the administration, and even one of the 50 states because of language used in a statute and words articulated by its governor.

Can the federal government condition the acceptance of benefits upon the non-assertion of a fundamental liberty? Asked differently, can the feds withhold privileges to those lawfully entitled to them because it disapproves of the speech of the recipients of the privileges? In a word: No.

Here is the backstory.

Under the natural law, embraced by the Declaration of Independence and the Constitution, our rights come from our humanity. These are the rights to live, worship or not, associate or not, say what one thinks and publish what one says, defend yourself using the same means as the government, to be left alone, to travel, and to fairness and due process. These natural rights are basically the rights protected from governmental interference by the Bill of Rights.

The Constitution doesn't purport to grant fundamental rights. Rather, since the rights pre-existed the nation, the Constitution essentially prohibits the government from interfering with the rights.

The classic example is the First Amendment, which reads in part "Congress shall make no law … abridging the freedom of speech, or of the press." James Madison, who drafted the amendment, insisted upon referring to "speech" as "the" freedom of speech, in order to emphasize the understanding of the Framers that free speech came before the government. When did it come? It came to all humans at the age of reason.

The rights that come from our humanity are claims against the whole world. Thus, to exercise them, one doesn't need a government permission slip. To paraphrase John Stuart Mill, if all the world but one were of like mind on an issue and only one person disagreed, because the freedom of speech is a natural right and thus a claim against the whole world — meaning it may be exercised with impunity — the world would have no more right to silence the one dissenter than would he, if he had the power, have the right to silence the world.

This Madisonian/Millian understanding of human rights is the modern articulation of the Natural Law, codified 775 years ago by St. Thomas Aquinas.