America is divided, with a line that is drawn between two ideological camps. Each of these two camps perceives America radically different from the other. On the one side, there are those who see America built upon certain unchanging principles that are connected to God. That is, these people believe man to be created and endowed with certain inalienable rights. From the natural rights to life, liberty, and the pursuit of happiness come other rights that are meant to preserve these rights. For example, the right to bear arms is a tertiary right that is instrumental in preserving one’s right to life and liberty. Moreover, one’s right to the free exercise of religion is instrumental in the preserving one’s pursuit of the good and virtuous life. In other words, it is necessary for one’s pursuit of happiness. It should be noted that these types of rights do not exist because they have been posited. Instead, they have been posited because they exist.
Ultimately, these rights are dependent on the existence of God. If God does not exist, then, of course, there is no God to endow man with inalienable rights. However, if there are in fact natural rights, then there is a God who endowed man with them. For how can an inanimate thing called “Nature” endow anyone with anything? If there is a God, then there is a need to recognize that where there are God-given rights, there are also God-given duties. One of these duties is for governments to preserve these rights, and citizens must volunteer themselves to be part of this effort. This requires the possibility of laying down one’s life for those whose rights he defends.
These natural/God-given rights are unchanging, and they apply to all humans, even if the government under which they live denies this fact. This means that American slaves had the rights to life, liberty, and the pursuit of happiness even though the United States government denied that they possessed these rights. It was upon this premise that the Reverend Dr. Martin Luther King Jr. rested his conclusion that “America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked ‘insufficient funds.’” The argument is that if God created all men as equals, as the Declaration of Independence claims, and the black man is human, then the black man is equal. This fact does not change with opinions or governments. The moral treatment of humans is judged by the unchanging principles of natural law. The Declaration’s acknowledgement of the equality of all men can very well be used to justify the American Civil War and the civil rights demands of the 1960s, which rectified, at least in part, the violations of the natural rights of African-Americans.
It is from this understanding of American rights and principles that conservative moral positions emerge. The pro-life position is simply the same argument that Dr. King used. If God endowed all humans with the right to life and if the unborn are humans, then the unborn have a right to life. The claim that the government should not be used to force others to pretend that homosexuality is natural also comes from the notion that rights are endowed by God. Same-sex marriage is a violation of natural law, of God’s law, and thus governments are not obligated under natural law to enforce the acceptance of it. Moreover, traditional family advocates argue that the government should not indoctrinate their children into the moral acceptance of the homosexual life-style.
On the other hand, there are those Americans who deny at least one of these two propositions: That there is a God who endowed man with such rights; and that this God should have anything to do with governance. Instead of man being endowed with rights, this group of Americans argue that certain rights are created by man through an unspoken social contract. It is from the social contract theory that positive law emerges. Positive law states that rights and duties are created by recognized governments that have the ability to enforce the laws they legislate. Unlike natural rights, which exist independently of governments, positive rights exist solely because governments create and enforce them. Thus according to positive law, murder is wrong because the government makes it illegal. This is in contrast to the natural law theory, which states that murder is made illegal because it is a violation of one’s natural right to life. With positive law, until the government “posits” a right, there is no right.
When the positive account of laws and rights is applied, the results are quite different from those of natural law. For instance, according to positive law theory, African-Americans did not have rights prior to written laws granting them those rights. This is in contrast to the natural law that states that the black race possessed rights that were violated. In the abortion debate, even for those who believe that the unborn are part of the human species—the crowd that argues that “I am personally opposed to abortion, but I cannot impose my views on others”—there is no positive law that is currently enforceable to “create” for them the right to life. The difference is plain to see. According to the natural law, every human has the right to life, whereas, according to the positive law some humans have this right while others may not.
With positive law, rights change with governments. Moreover, positive implies that law rights are relative. What one has a right to do in one geopolitical situation one may not have the right to do in another geopolitical situation. Applying the positive law again to pre-Civil War America, the right to life, liberty, and the pursuit of happiness ended at the Mason-Dixon line for African-Americans. Applying it to the current abortion debate, the right to life has its own Mason-Dixon line: That is, depending on various countries’ current laws, the unborns’ rights may exist or not depending on where they are located. There are those who demand that the laws should be changed to allow women to terminate their pregnancy up to the point of (and in some cases even after) the child’s birth. According to positive law theory, the rights of the unborn wax and wane with ever-changing laws. If positive law is true, then one’s right to life depends on the arbitrary conditions of age and geography.
Many citizens make use of rights talk in order to argue their moral positions. For example, Hillary Clinton argued that abortion is “one of the most basic of human rights.” It is important to note that when arguing for this right Clinton did not make the claim that women have a natural right to abortion. This claim would entail that God has endowed women with the inalienable right to abort their babies. Instead, she sanitizes the claim of any religious reference by substituting the word “basic” for the word “natural.”
While the above substitution is subtle in form, it nonetheless is drastic in substance. First, “basic” rights, which are divorced from natural law, are arbitrary and lack any objective grounding. This means that the only reason one has to observe a basic right is out of fear of government reprisal. Where there is no government enforcement, there is no force behind the stated “right.” There literally is no objective reason, apart from the written law, to say that these rights “ought” to be upheld. In other words, they lack moral force.
Second, non-natural rights (as stated above) change with governments, time periods, and locations. If Mrs. Clinton is arguing that abortion is a natural right when she uses the word “basic,” then she is saying that this is part of God’s created order. However, for political reasons, she wisely sanitizes her rights talk of any theological claim. Yet, in doing so Clinton also cuts off the branch upon any robust theory of rights can stand. That is, if rights are not grounded in the unchanging nature of God, then they are grounded in the fickle minds of man.
If rights are grounded in man alone, then over time and place rights will come and go. This means that just as the government of the American Union “gave” (according to positive law) African-Americans their rights, another more powerful group may come and take these rights away. This could happen to all of the “free world.” Yet, if there is an objective moral reason to fight to defend these rights from tyrannical governments, then these rights are not merely the creation of governments; that is, these rights exist prior to any earthly government.
Furthermore, where there are natural rights, there are also correlating natural duties to defend these rights. This is why, according to the American Founding Fathers, governments are “instituted among men.” All Americans, for instance, have a moral duty to fight against the violation of African-American rights. On the other hand, where there is no natural right, there is no natural obligation. The basic right to an abortion is a foundation-less right. God did not endow women with the right to abortions; therefore, there is no moral duty to defend this basic right.
While America on the surface seems to be divided merely over current moral issues, we are really a nation divided over the first principles of what grounds our government. Are we a nation that fights to preserve the rights with which God has endowed us? Or, are we a nation that votes on what rights to confer upon ourselves? If we affirm the former, then we can expect a stable government that will endeavor to protect the unchanging rights we naturally possess. If we affirm the latter, then we can expect our government to “be changed for light and transient causes” to fit the arbitrary whims that hover above foundation-less rights.
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