Russell and Duenes

What if Your Rights Aren’t “Deeply Rooted in This Nation’s History and Tradition?”

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What should we conceive to be “fundamental” or “unalienable” rights? The right to worship God? Any God? Or to not worship God? The right to look at porn on a public library computer? The right to shout religious or racial epithets on a busy street corner? The right to have governmental representation? The right to vote? The right to marry? To use contraceptives? To go to racially integrated schools? The right to health care? To terminate one’s pregnancy through all nine months of it? To have privacy? To educate one’s children as one sees fit? To keep the cops out of your house without a search warrant supported by probable cause? To own and be able to use a 357 Magnum? To enter freely into contracts? The list may be long, or short, I suppose, depending upon who you ask.

The issue of what constitutes a “fundamental” right for an American citizen is not something our Supreme Court justices may safely dodge, for “rights” – whether fundamental or non-fundamental – are in many ways central to our existence as human beings, and particularly crucial to our political, social, economic, and spiritual order here in the United States. Yet how does one determine which rights are “fundamental?” And can a “fundamental” right be conferred or removed? Or must such rights transcend human power and decision-making?

The Supreme Court, in its struggle to affirm our fundamental rights, has come up with various formula for finding such rights. Thus, according to the Court’s various decisions, fundamental rights must be rights that are “deeply rooted in this Nation’s history and tradition.” These rights must be “based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history.” They must “comport[] with the deepest notions of what is fair and right and just.” They must be rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” They are “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men,” and they “represent the very essence of a scheme of ordered liberty.”

But what about when a particular right is not “deeply rooted in this Nation’s history and tradition,” as the right to go to desegregated public schools was not back in 1954 when Brown v. Board of Education, was decided? Indeed, it was segregation that was “deeply rooted in this Nation’s history and tradition.” So how does this “history and tradition” factor into finding a fundamental right of equality? What about when “civilized societies,” like those of 19th century Europe, are neck-deep in anti-Semitism? Somehow they didn’t think that equality for Jews was “the very essence of a scheme of ordered liberty.” Yet one could hardly call them “uncivilized.” Or how about the long history of stigma toward homosexual behavior in “civilized societies?” What about when the “deepest notions of what is fair and right and just” include killing off virtually all of our Down’s Syndrome offspring before they are born? How many people must have this “deep[] notion of what is fair and right and just” for a right to be considered “fair and right and just?”

No human tribunal can deal with these questions easily. But we are not going to deal with them well at all by choosing standards that are malleable to human whim and caprice. Historical notions of fundamental rights change, as we have seen. Human societies come to think some things are “fair and right and just” which they would not have thought to be so in times previous, and some things we have thought to be fair and just in the past, we no longer see as such. The largest part of the problem is that we have jettisoned the idea that there is any notion of fundamental rights which stands above human decision-making and determination and which transcends all times and cultures. Thomas Jefferson, of course, thought differently when he said that “we are endowed by our Creator with certain unalienable rights.” These rights came from God, who is above all human societies, and thus, they could not rightly be denied.

I don’t know that we – or our Supreme Court justices – have given proper thought to what is lost when we reject the truth that God created us in His image, according to His likeness, conferring on us a dignity and status worthy of great respect and inherent rights and protections. Somehow the idea that God gives us rights does not seem to factor into their thinking about which rights are “fundamental,” although I would say that our Justices still smuggle in the idea. From whence do we get the notion that blacks should be treated equally with whites, and should not be subjected to forced segregation and inferiority? Do blacks get this right because our nation had a long history of affirming it? Do they get it because no “civilized society” ever thought enslaving and subjugating them was unfair or unjust? Are they equal because our culture recognized that their freedom and equality was “essential to the orderly pursuit of happiness by free men?” It would be difficult to say yes. Yet, blacks – and all others – are entitled to the fundamental right of equality and equal protection under our laws because God created them, as He created all races, in His image, according to His likeness, and they too shall become lords of the earth. (Gen. 1:26-28, Rev. 5:9-10) Thus, their claim to dignity and equality, and equal treatment under the law, can never be rightly taken away. They are endowed with equality by their Creator, our Creator.

In banishing the words of Scripture as so much “transcendental nonsense,” to borrow Felix Cohen’s term, so that our rights and dignity cease to be rooted in God’s activity of creating us and esteeming us as His image-bearers, we fall back to shifting and shadowy criteria of what makes a right “fundamental.” Unmoored from ultimate truth, such “rights,” if one may still call them that, are as easily taken away as given. The Christian capital is running out, and as Douglas Wilson aptly says, the checks are starting to bounce.


Written by Michael Duenes

October 1, 2012 at 8:36 am

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