Tuesday, July 14, 2009

The Right to Do Wrong

That's the title of my most recent Positive Liberty post. Because it deals with some issues that aren't relevant to this site's mission, I am not going to reproduce all of it (you can read the whole thing over there). Rather I want to reproduce what's relevant to America's Founding & religion. Note I do not believe the FFs were "libertarians" like I am (though they were classical liberals a genus of modern day libertarianism) and I don't argue that they would have recognized the specific rights that I do. Rather I argue their system of "rights talk" necessarily means, in principle, a "right" to do what may violate the Bible and/or the natural law.

Some highlights:

[T]he Bible is a big complicated book. In a pluralistic society, (i.e., America’s) some folks don’t believe any of it is true; some believe parts of it are true; and some believe the entire good book is inerrant and infallible. And even those who fall into that later group profoundly disagree on what it teaches regarding moral and theological issues. For instance, my friend Gregg Frazer is a smart, biblically learned and intellectually capable evangelical-fundamentalist. AND he argues based on a long, rich orthodox political theological tradition that ALL rebellion against ANY government (including the Nazis and Communists) is wrong, a sin worthy of death, the moral equivalent of witchcraft.

So how could American “higher law” — and the human rights derived therefrom — be based on the inerrant, infallible Bible when Sola Scriptura can’t “settle” the issue of “America 101.” Moreover, it can’t settle the issue of slavery either. And it also does not speak to religious liberty, the most unalienable of natural rights, the right that gave birth to the concept of political liberty (folks might wonder why I, a political libertarian, spend so much time on religion & the American Founding; this is it).

The right to religious liberty necessarily means a right to break the first tablet of the Ten Commandments and MANY other parts of the Bible. Whatever their differences, every single “key American Founder” believed men had a natural right to worship false gods (that is, religious liberty extended beyond the biblical religions). And even limiting “religious liberty” to those WITHIN the “Judeo-Christian” or Abraham tradition doesn’t solve this problem.

Some of the more pious unitarians argued Trinitarianism is Idol Worship. If Jesus isn’t God, it is morally wrong to worship him as one. This is the same rationale that gets Christians executed under Sharia law (of course the unitarians weren’t arguing for that, just that Trinitarianism is immoral idol worship). Likewise many orthodox Trinitarians argue since God is Triune in nature, if you (Jews, Unitarians, Deists) don’t worship a Triune God, you don’t worship Him, but a false god and hence do what the Bible forbids. Heresy was an executable offense for most of the history of Christendom.

So, the notion that the inerrant, infallible Bible is the “higher law” from where human rights derive and that any thing the Bible forbids cannot therefore be a “right” does not accord with the idea of “rights” as posited by America’s Founders.

Let me note, there is a way out for those who DO want society to be more easily ruled by biblical norms — give up on the “rights talk” and, consequently the Declaration of Independence. The First Amendment may demand religious liberty for non-Christians. AND it may be a bad practical idea to refuse to permit non-Christians to worship as they please. But it’s NOT because the Bible teaches a God given right to religious liberty (it doesn’t) or because the Declaration is true (I’m not going to say either way) or that the Declaration’s “Truths” come from the Bible (they don’t).

Social conservatives might observe that the Constitution is unalienable “rightsless”; it recognizes a very limited concept of “rights”; and an unalienable rightsless Constitution permits religious conservatives to participate in politics and write their religious values into law.

This shouldn’t be a controversial issue for religious and Christian conservatives; Robert Bork, Lino Graglia, Robert Kraynak and many others argue exactly this. They would say to even DISCUSS the issue of a “right to do wrong” unduly gives credence to “rights talk.” “Natural rights” are a fiction. They don’t neatly line with a conservative Christian or a traditional “natural law” worldview. And they are entirely absent from the text of the US Constitution. They are central to the Declaration of Independence; but that document is NOT law and hence can be ignored.

Social conservatives are on stronger ground, intellectually, philosophically and historically when they argue the concept of “natural rights” from the “natural law,” as opposed to the Bible.

By natural law, we mean what man discovers from “reason” looking to “nature” without the Bible for help. If by “nature” you mean something written in the Bible then argue Bible and stop pretending you are arguing from a “different” channel.

I am going to skirt the very important issues of 1) whether the natural law exists, and 2) if it does exist and if Thomas Aquinas’ understanding of it is correct, whether said understanding vindicates ideas of “unalienable rights,” religious liberty, and a right to revolt against tyrants (arguably it does not).

Rather I want us to take the traditional understanding of the natural law as it is (complete with its prohibitions on homosexual conduct) and ask whether THAT possibly could serve as the basis for any meaningful concept of “rights.” Like the Bible, Aquinas’ book of NATURE is complex and demanding; like the Bible it is not a politically “free” code, but rather seems the opposite. I’ve heard one prominent natural law scholar claim Aquinas’ natural law is “permissive” and thus in accord with political liberty.

I don’t think it is;...

At that point I get into how the traditional natural law is extremely strict on various sexual matters. I need not get so detailed here. I recognize the FFs may not have been personally on board in a subjective sense with the specific things I argue are "rights." I'm more interested in seeing if anyone really believes the concept of "rights" or "liberty" is meaningful if for instance we don't have a "right" to do these things in the privacy of our own homes. For instance the teenage male doing you know what.


Tom Van Dyke said...

The concept of pluralism, as understood by the Founders, referred to religious conscience, no more or less. It didn't refer to 300 million answers to the question of right and wrong.

Jeremy Waldron, a Locke scholar, does one of those philosophical explorations with a lot of "If P then Q" stuff in answer to Mr. Rowe's topic:

Link here.

His thesis is not without controversy.

I just point out that we are not "free" to torture animals, we recognize no such "right" to do so. Society legislates morality all the time.

Jonathan Rowe said...


I don't think pluralism means 300 different answers to different questions. Nor do I believe in the "right" to torture animals.

I DO believe the concept of pluralism means in principle accepting that folks have the right to do at least *some* things which many people will find immoral.

And, likewise, I agree we legislate morality because all law is legislating morality; what I argue against is the desirability in legislating a comprehensive moral system. And both the Bible AND the natural law are very comprehensive moral systems.

It seems to me a no brainer that in a pluralistic society where we disagree about morality and the "good," we'd prefer a system that legislates LESS rather than MORE morality when given the choice.

Jonathan Rowe said...

I read the Waldron piece; but my preview ended on p. 66. But it picked up again in 68.

Sometimes when I think thru these issues I wonder whether I am discovering something new; I usually realize that I am not. I think I've discovered new historical evidence re the FFs; but whenever I do philosophy I always see that someone got there first. But it's nice to see when I think along the same track as other more distinguished folks.

From what I learned: Off the bat Waldron concedes that in a small l liberal society we will by necessity have the LEGAL right to do things that some find immoral. He's more hung up on whether we have the moral right to do something that is immoral. Apparently Dworkin & Raz argue that we do and Waldron aims to rebut the proposition.

I'm not even sure if I disagree with Waldron; if what I'm doing is morally wrong, I'm not going to argue I have the moral right to do it. However I will argue for a legal right to do what may be arguably wrong.

Tom Van Dyke said...

I DO believe the concept of pluralism means in principle accepting that folks have the right to do at least *some* things which many people will find immoral.

That's a modern interpretation of pluralism, and has nothing to do with the Founding. And your reading certainly is 300 million "plural" answers to right and wrong.

This has always been my point. If were going to substitute a new set of principles for the Founders', let's be clear we're doing so, and not pretend we're standing on the Founders' shoulders.

It seems to me a no brainer that in a pluralistic society where we disagree about morality and the "good," we'd prefer a system that legislates LESS rather than MORE morality when given the choice.

In other words, surrender to the modern definition of "pluralism." How this is not "relativism," I do not know.

But if we do surrender, that's a choice born of prudence, and is an "ought." I---we---aren't talking "oughts" here. We currently ban x but permit y, both under the same principles.

As we see, once we apply the Founding principles [or simple practice and reality] to modern abstract "rights" talk, we cannot justify society's ban on torturing animals. We just do, and we don't discuss why it's right or wrong or whether society has the authority to ban it.

And this is all Bork or Scalia have ever said---that society might decide to legalize y after all, but the courts forcing the new abstract language of "rights" on society is not the way to do it.

Jonathan Rowe said...

It's not relativism because it accepts the moral legitimacy of certain baseline small l liberal values. Relativism holds that Nazism and liberalism are relative.

My answer isn't 300 million pluralism; lots of groups are excluded: Nazis, pro-genocide folks, pro-slavery folks, pro-torture animal folks.

I haven't yet demonstrated that my vision is that of the Founders as re the natural law; we'll explore that more later.

But I have demonstrated the FFs believed in an arguable right to do wrong re the Bible. Religious freedom for all -- what they believed in -- necessarily means a right to break lots of parts of the Bible.

Jonathan Rowe said...

As we see, once we apply the Founding principles [or simple practice and reality] to modern abstract "rights" talk, we cannot justify society's ban on torturing animals. We just do, and we don't discuss why it's right or wrong or whether society has the authority to ban it.

I don't see this as that hard of a case. If we using our reason recognize that animals feel pain, that's reason enough to ban torturing animals.

What's a harder case is banning the eating of certain meats (dogs, cats, horses) but permitting others (cows, pigs, lamb).

Jonathan Rowe said...

Two other things about Bork & Scalia. I didn't inject the issue of courts and the slippery slope; you did and there is something to it. However, what got my goat was the legal scholar's assertion that there could be no "right" to do wrong -- she doesn't distinguish between moral and legal rights, but given the context I think I can assume she meant both -- in the context of arguing AGAINST the legislature's repeal of a law that criminalized consenting adult behavior. In other words the change was happening in the right place, as Scalia and Bork argue.

And Bork to a greater extent and Scalia to a lesser, reject the DOI and its "rights talk" precisely because such is -- in their opinion -- so amenable to the slippery slope of expanding liberty and equality rights by judicial fiat.

Tom Van Dyke said...

The Singapore gal seems to have bad arguments. I prefer to defend my own. As for Bork and Scalia, perhaps. All I know is that they're frequently misunderstood, and what they say about proper judicial philosophy is frequently taken as their worldview.


You're conflating "pluralism" as the Founders understood it [did they even use the word?} as a sui generis, religious belief, for action which you handily call "disobeying the Bible."

But I'm not arguing the Bible or even natural law. I'm simply arguing that once we use modern "rights" talk as an overarching principle---which the Founders did not do---then to legalize "x" means legalizing all other "x's" like torturing animals.

If we do not, and ban some "x's" and not others, we're drawing an arbitrary line, and not adhering to principle.

I freely admit that we ban the torturing of animals out of cultural prejudice. But to argue that cultural prejudices should not be incorporated into law leaves the door open to the "right" to torture animals.

After all, that little puppy is MY private property, and doing what I want to her hurts nobody else. That's the formulation of modern "rights" talk in a nutshell.

[BTW, I somewhat agree with the scholar who said Aquinas was "permissive," although I'd say "latitudinarian." He did not think the prupose of law was to eradicate all evil.

I took a look here at his views on prostitution in my scholarly and eloquently titled monograph "St. Thomas and the Ho's".]

Jonathan Rowe said...

I know less about Scalia and the DOI; I know he doesn't think it's justiciable. He also claims to believe in the natural law but wants legislatures to be the ones with the ultimate control over those issues.

Bork -- now a conservative natural law believing Romans Catholic -- nonetheless categorically rejects the DOI and holds its rhetoric to be subversive.

The permissive natural law comment was made by Tierney. Much of what I wrote here is discussed in detail at that symposium that I will get to shortly. One commenter asked the worship false gods question and I seriously wondered whether he was reading my blogs. Probably not.

Tom Van Dyke said...

Well, again the "false gods" comes under the sui generis religious conscience heading.

I'm with Scalia as a judicial philosophy, but it doesn't apply to legislating and I think he says so too. If you want to argue Bork go ahead, but I think my arguments above are more relevant. [It's only somewhat relevant, but the St. Thomas and the Ho's post was pretty good, and so were the commenters. Ah, the good ole days.]

Lindsey Shuman said...

Good post, Jon. For me this is just more evidence of how SOLA SCRIPTURA makes about as much sense as a politician explaining his extramarital affair.

King of Ireland said...

Jon Stated:

"But it’s NOT because the Bible teaches a God given right to religious liberty (it doesn’t) or because the Declaration is true (I’m not going to say either way) or that the Declaration’s “Truths” come from the Bible (they don’t). "

Says who? Frazer? Just because one guy says something does not mean that this is fact. Let turn around the whole Barton argument around here for a second like I did in the comments section in another post.

Ed and others say that he should not be listened to in part, at least, because he is not a Historican and an expert in the field. He says the same thing about pastors who cannot pass the state biology exam wanting to tell the state what needs to be in a Biology class. I agree and always have.

But how many people who have no real understanding of the Bible go around telling people what it says? It is the same and if the tables are turned they are liars right? Now I do believe you have a decent understanding of the Bible and some doctrines so I give you a pass more often than not. Ed seems to have some understanding or at least has read a lot of it.

But making emphatic statement about what the Bible says is a no no if we want to play by the same rules that you guys make up for Barton. It should be stated, "Frazer's opinion about the Bible says". That is all it is. One guy who is smart and has a PHD for sure but still one guy. One opinion.

You do cite him a lot and I think you may imply that he said these things but you have to state it each time.

I might add that his refusal to debate the Romans 13 topic in the depth it needs to for his theory to stand up and his excuse that he does not have the time(though I understand now he is with his Dad I totally understand but the time excuse was given to babka too many months ago) diminishes further the weight of anything he says because he seems to get frustrated and angry when challenged and just stomps off without defending his claims.

Anyway, I challenge the Rowe's, Rodda's, and Brayton's of the world to practice what they preach as far as knowing the text of the Bible, the doctrines, the theology, and the History of the Church..... before making this definitive statement. Ed made it too last week in a post. I caught it late so I did not call him on it.


This is not so much about you. You do a real good job of be informed and are very fair I think but the others need to stop this "liar" motif that I addressed here and at Dispatches.

King of Ireland said...


I used to believe it and now cannot believe I ever did. How in the world can it be sola scriptura when Paul did not have a New Testament when he went out to teach about Christ? Romans 2 clearly states that God can be known by what is made. It is clear as a bell to me anyway.

King of Ireland said...


The statement I am talking about it the one that the Bible does not teach rights. Also that the DOI has nothing to do with the Bible.

Jonathan Rowe said...


I think the issue is I actually agree with Gregg's assessment of the Bible. It's more than just one guy. Gregg speaks for a great deal of orthodox biblical scholarship.

Though, I'll note, when I make statements like "the Bible says X" I'm playing a bit with the divine command theory. A lot of Christian Nation culture warriors are fond of "settling" the issue with "the Bible says X." And I've likewise seen orthodox Christians argue with one another with statements like "the Bible says X" v. "the Bible does not say X." For instance, "the Bible teaches TULIP" v. "the Bible does not teach TULIP."

It seems to me that if one can justify their claim of X with a good argument which I think I, Gregg and others can, we are entitled to make assertions like "The Bible teaches X" and others are entitled to disagree with our assertions with arguments of their own.

For the record I don't see the concept of political liberty or unalienable rights in the Bible at all. I see the Bible as a book of salvation and how to live one's life, one that is almost entirely a-political. And that, in large part stems from the fact that Jesus wanted His followers to get the good word out while still managing to work within the confines of pagan Rome.

King of Ireland said...


I nailed Frazer for doing it harder than anyone more than once because as a scholar he should know better.
So I see where you are coming from and why you did it.

As far as political liberty and and inalienable rights I do see it. Once I get done answering Frazer's questions to be a man of my word, I am going to tackle this issue.

I am glad you did not take my last comments the wrong way. I do not think you are that much of an offender. I really like Ed so I seldom criticize him but to be honest he is guilty of this at times. I am not saying that everyone needs a PHD but one should have a deep understanding of the subject before one makes declarative statements.

I think the thread of discussion that we have been on the last few months is key to gaining a deeper understanding of the complexities of this time period. I have been challenged for sure.

Pinky said...

As I read the post, I wondered if Jonathon was thinking about Barry Shain's work.
Shain goes very deep into these questions that deal with what I would call the unfolding of the right to do wrong.

Founding Era Americans--according to Shain--were deepest into the idea of liberty and licentiousness. They talked about, wrote about, and the preachers preached about it. They were strong in their beliefs that liberty had definite limits--especially religious, Christian, political or spiritual liberty. They were concerned that some people might over step the bounds of liberty and take license even though such activity might be legal. Laws were written to keep the condemned in line as well as the saved.

What they meant by the word, liberty, is almost the exact opposite of what we mean in the twenty-first century.
Here is a quote from Shain’s book, bottom paragraph page 201:

"Early Americans' understanding of liberty followed that of their ministers; 'every freedom which is freedom for something, every freedom which is justified by a reference to something higher than the individual or than man as mere man, necessesarily restricts freedom or, which is the same thing, enables a tenable license between freedom and license' (41) This distinction between the freedom to act in ways that might be legal though morally unacceptable (defined as license) and the freedom to act in rationally or religiously responsible ways (defined as liberty), although often implied rather than explicit, was the fundamental distinction that Americans, following their ministers' teaching, maintained between liberty and license. It was spiritual liberty writ large."

The footnote (41) Strauss, Natural Rights and History oage 294.

Pinky said...

And, more to the point and even though it may seem as though it is off topic as far as this site is concerned, it is all about who we are as Americans today.

We were not founded to be a Christian nation, we already were a Christian Nation and our religion was Reformed Protestantism which, just happens to be experiencing a strong resurgence among Fundamentalist Evangelical Christians today. And, the teachings of Reformed Protestantism are pandemic in our society.
Think about the way we want to legislate certain moral concepts.
We are continuing to evolve as Americans.

Tom Van Dyke said...

"Pandemic" sound pretty pejorative to me.

My POV is that America was careening towards licentiousness, but saw the social destruction and halted it in its tracks.

But I doubt we'll ever go back to 1950 again, let alone get more religious [or restore conventional "morality"] anywhere near that point. Genie's out of the bottle, toothpaste's out of the tube, the jack is out of the box, the turkey's out of the pen, the monkey is...

Pinky said...

Right. I fussed over the word, pandemic, as it sounded a little ominous; but, after reading a few of the definitions it seemed to fit.

I meant to imply that something similar to the influence Reformed Protestantism had on Founding Era is having its way today. That is that you don't have to be a Calvinist to promote much of what it preaches. And, I meant to say that it is pervasive in our society. Is that a better word--pervasive?
A lot of people buy the TULIP.

Tom Van Dyke said...

I dunno how many. That's hardcore Calvinist doctrine. There are a lotta Catholics in this country, the mainline Protestant churches don't seem to buy into much of any doctrine anymore, and if the evangelicals are into it, they keep it off TV. The megachurches like Rick Warren's don't seem to be there, but mebbe I'm wrong.

I'll hold with the proposition that if America is getting more religious, it'll never swing back even as far as 1950, and that's the Religious Right's best real goal, and despite what you hear, that's all they really argue for.

Pinky said...

I dunno where you get your information about the 1950s; but, I turned 21 in 1952, and got married in 1953, and we had four children by 1961.
Our nation is far more religious today than it was then. This is not to say that there weren't some very strong voices back then--there were. But, on the main the kind of religosity that's around today wouldn't have been tolerated except by extremists like Carl McIntyre and Schaeffer who was almost an unheard of person in the dominant media.

Many good Catholics buy the TULIP model as do other denominations and even people that are not believers. That's what I meant by pervasive or pandemic.

Tom Van Dyke said...

I had to look up TULIP. The "U" is Calvin's notion of "the elect," and runs through several of the other letters of TULIP.

I'll grab this quick for you, haven't read it, but TULIP isn't Catholic atall.


As for the 1950s, I'm speaking religio-politically here. I don't accept the charge that the Religious Right wants theocracy. In fact, even Francis Schaeffer explicitly said he didn't, and Francis Schaeffer was a bigass evangelical.


Pinky said...

Certainly "... TULIP isn't Catholic atall" and that's my point.

It isn't secular and it isn't Baptist nor is it Methodist; but, it is pervasive to one degree more or less of another in each of its aspects just as Reformed Protestantism was during the Founding Era. And TULIP is one hundred percent Calvinism.
Most all people GET the ideas of TULIP:

T -- total depravity. This doesn't mean people are as bad as they can be. It means that sin is in every part of one's being, including the mind and will, so that a man cannot save himself.

U -- unconditional election. God chooses to save people unconditionally; that is, they are not chosen on the basis of their own merit.

L -- limited atonement. The sacrifice of Christ on the cross was for the purpose of saving the elect.

I -- irresistible grace. When God has chosen to save someone, He will.

P -- perseverance of the saints. Those people God chooses cannot lose their salvation; they will continue to believe. If they fall away, it will be only for a time.

And Reformed Protestantism comes across as the most rational of all denominations.

Tom Van Dyke said...

You could be right about how many people today accept TULIP. I have no idea.

I'm just catching up on my Protestantism, and as for the subject itself, I make it that it's up to God who goes to heaven.

This may be of interest, a Catholic take on TULIP.


On the surface, since Aquinas allows for predestination, he seems compatible with Calvin. However, there are nuances.

But one thing I see is that the issues of TULIP were under heavy consideration by Augustine, the church fathers, the medieval theologians, and of course, Calvin.

But like my little cousin answered when they asked him about how he felt about receiving Baby Jesus at First Communion, "I ain't gave it much thought."