Wednesday, November 25, 2009

Rights, God and the Fundamentalist Fallacy

There's an interesting breakout between Ed Brayton and Joe Farah on Farah's committing what I have termed the "fundamentalist fallacy" regarding rights and God and Brayton's terming Farah's vision "theocracy."

The fundamentalist fallacy as it pertains to the notion of "rights" goes something like this: 1. The Declaration of Independence holds that God grants unalienable rights. 2. God has written in the Bible what behavior is proper. 3. If God forbids a particular behavior in the Bible, then we cannot have a “right” to it.

Read Farah's article for a textbook example of the fallacy as well as one of Brayton's commenters (who was probably directed there from WND's link to Brayton's post in today's WND Commentary section) from someone named Stephen Ray Hale who ends up concluding that the Founders' concept of "rights" was "to protect the right of the Christian to do that which is right and for the non-Christian to have sufficient mercy to allow them to reform in their own or God’s time." And of course the fundamentalist divine command proof texting of verses and chapters of scripture is the test of what is "right" v. "sin."

The problem with Mr. Hale's and (Farah's) idea is that it misreads the historical and political philosophy of the American Founding. And yes, I blame the David Barton types for leading folks to such error.

America's Founders put their imprimatur on a right to sin (according to the fundamentalist proof texting method) when they recognized religious liberty for all, thereby granting men an unalienable "right" to break the first half of the ten commandments and many other parts of the Bible, even that for which the Bible demands the death penalty. (Check out what Deuteronomy instructs about those who encourage you to worship false gods.)

And it's not just about religious liberty issues either. In case anyone has noticed, the Bible is a thick, complicated book complete with lots of dos and dont's. While one could argue Christians are under a new covenant with Jesus and therefore don't have to institute OT style stonings, sacrifices and rituals, one can't argue that Jesus lowered the bar for what constitutes sin. To the contrary, Jesus raised the bar. He equated lust with adultery. Therefore there could be no right to think lustful thoughts according to such a fundamentalist fallacious standard that holds we only have "rights" to do what the Bible says is not "sin." Such a standard means there is no such thing as God given liberty rights at all.

I'm don't argue the American Founders were "libertarians" (they were classical liberals and in a sense Democrats, Republicans and Libertarians are all classical liberals/liberal democrats to some degree); but I do assert the notion of liberty rights, God given or not, is libertarian, that is, these are demands of space from government intrusion. Libertarians tend to max out that space; but everyone wants some degree of "space." The more rights talk, at least in the liberty, as opposed to equality, sense of the term, the more libertarian space you are going to get.

That's why much of the "rights of man" speak from the Founding Fathers (in the Declaration of Independence and debates over the necessity of the Bill of Rights, especially the 9th Amendment) is quite useful for libertarian rhetoric. As future Supreme Court Justice James Iredell put it:

“Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it.”

-- See Randy Barnett's Restoring the Lost Constitution, p. 57.

Even "key Founder" James Wilson engaged in similar rhetoric:

“a complete enumeration of rights appertaining to the people as men and citizens….Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.”

-- See Ibid., p. 56.

This of course leads to an idea of a general natural liberty right to "space" against government that includes innumerable specific rights. And for reasons I've demonstrated, proof texting the Bible for what is "sin" cannot be the "test" for when said rights end. And the Founding Fathers didn't think so either.

And further, the idea of natural political liberty rights isn't contained in the Bible. Therefore if one desires a political system that makes it easier to write traditional or biblical notions of "sin" into civil law, one should get rid of the idea of "rights talk" altogether.

Social conservatives from Roberts Bork and Kraynak to Walter Berns and the late Irving Kristol recognized this and argue for constitutionalism without the rights rhetoric of the Declaration of Independence for this very reason.

Finally, I realize a breakout will occur in the comments section about the natural law. According to America's Founding theory and rhetoric, if there was a metaphysical mechanism for imposing limits on "rights," it didn't come from biblical prooftexting but from natural reason. The natural law and the Bible are two distinct concepts. Though Christian natural lawyers will say reason and revelation, properly understood, don't contradict one another because they ultimately come from the same source -- the biblical God. The natural law, like the Bible forbids murder, theft, certain forms of sexual immorality. But, the natural law doesn't concern itself with biblical issues that lead to sectarian breakouts like the first tablet of the Ten Commandments or with what goes on in our thoughts like lusting. In short worshipping false gods and idols may violate the Bible, but it doesn't violate the natural law.

For libertarians who don't believe government has just power to limit our rights according to a Thomistic conception of the natural law, this is a harder nut to crack because the argument is far closer to the truth of the American Founding than what we have seen from Joe Farah and other fundamentalist prooftexters.

I won't recount the argument in detail, but Randy Barnett has noted in this law review article, the differences between the natural law and natural rights and how government, by the America's Founders' design, was more concerned with protecting the latter, not making sure individuals refrain from violating the former.


Phil Johnson said...

I wonder how some of these people come up with their ideas that America was created to protect Christian rights.
I'm working on a short essay that deals with Gordon S. Wood's focus on the mind set of Revolutionary Era Americans.
I hope I can do it justice.

Angie Van De Merwe said...

Go for it Pinky.

Tom Van Dyke said...

"Fallacy," Jon?

Theological, yes, and Farah's definitely not to my taste, but expressing religious sentiments that bring cries of "theocracy" today, wouldn't have been out of place at the Founding, and indeed might have represented the majority opinion and been arguably normative.

The irony being that under our modern new "anti-theocratic" regime, the only normative moral judgments we can enshrine in law are those that can't be found explicitly in the Bible, not torturing animals, for instance.

Now, I'm not taking Farah's side here, or as Chesterton put it, not particularly anxious to touch it with a barge-pole, but from barge-pole length, this turn of events seems backwards to me, if not perverse.

As for the Barnett essay, I'm enjoying it very much, especially the difference between jus and lex, but I'm not sure he's got his finger on it.

For one thing, in grounding rights as endowed by or creator, the D of I moves past Grotius and Suarez into a greater link of natural law and God. [Grotius wrote they could still exist independently.]

Neither do I think James Wilson can be quoted for your "side:"

All [laws], however, may be arranged in two different classes. 1) Divine. 2) Human. . . . But it should always be remembered that this law, natural or revealed, made for men or for nations, flows from the same Divine source: it is the law of God . . . . Human law must rest its authority ultimately upon the authority of that law which is Divine.

I suggest this was the normative understanding at the Founding.

Now, I don't argue that we must hold to the Founding's normative understanding in 2009---certainly not. But if Farah's argument is theocratic, then so was the Founding.

And I don't think that it was.

Further, I think the first tablet of the 10 Commandments is "special" revelation and doesn't count. [Freedom of religious conscience as "Freedom to sin" does not obtain.]

Natural law arguments, "general" revelation, don't need the Bible be derived. When the Bible agrees with reason in natural law arguments [James Wilson and many or most in the Founding era believed they were always in harmony], that doesn't make the arguments "theocratic," i.e., beyond reason, and rejected out of hand.

Jonathan Rowe said...

Well Tom,

I think perhaps we have one point of agreement: Whereas the Founding doesn't stand for the proposition that men necessarily have a right to sin according to general revelation (the natural law that all good men of all religious faiths could determine from reason) it does stand for the proposition that men have a right to sin according to special revelation. It has to; you cannot get religious liberty for all or even between trinitarians and non non-Trinitarians without it.

As has been pointed out on this site, not every, perhaps not even most unitarians of that era were free wheeling Jeffersonian Epicurians; some were quite pious and they thought Trinitarianism a grave sin -- a violation of the First Commandment, taking glory away from the Father.

Whether we have a right to break general revelation (the natural law) is a separate issue. But I'm still working on the OFTs of the world who think "the laws of nature and nature's God" means biblical prooftexting, and equate the entire Ten Commandments, as opposed to the second tablet with said phrase.

Jonathan Rowe said...

I wonder Tom, how Wilson's comments that law traces upward necessarily doesn't put him on the side of a presumption of liberty.

I see Wilson's thoughts as entirely consistent with for instance, the libertarian orthodox Christianity of Jim Babka or perhaps even KOI. It could be that Wilson's concept of rights being unenumerable is limited to do only those things that would pass Aristotelian-Thomistic test of naturalness. I am not convinced. Philip Hamburger probably best makes that case (in a law review article I haven't linked to yet) that this is how the founding generation understood natural rights. Barnett differs.

Angie Van De Merwe said...

Thanks all.