Do We Still Have Unalienable Rights?

Unalienable rights are rights the government cannot take away.  But in order for the principle to work, government cannot be the highest authority.

If no consensus of higher authority exists, then government is on its own to determine right and wrong.  If no consensus exists, then the central government's capricious authority becomes absolute.

Someone recently asked the Kentucky clerk refusing to issue a same sex marriage license: "Under whose authority can you deny the license?"

Kim Davis, the clerk in Rowan County, answered, "Under God's authority."  Ridicule and derision have been spewing from the tolerant left continuously since the shocking statement was made.

But the issue raises fundamental questions relating to American liberty.

Can the state force a citizen to do something against her religious conscience?

In the Davis matter, because the clerk works for the local government, the most relevant issue is whether the federal government actually has jurisdiction over the family law decisions of the states and localities in the first place.  Why should the federal government be allowed to force the states and localities to act against their collective moral conscience?  Should it matter that 30 states (including Kentucky) went through an arduous legal process to amend their constitutions to affirm the time-honored definition of marriage?

But whether considering instances of private individuals who refuse to provide services for same-sex marriages or the Davis matter, the issue comes down to opposing paradigms of right and wrong.

Sanctioning homosexual marriage is ostensibly required by the federal courts because a new liberty interest was curiously discovered in the U.S. Constitution.  As such, a number of state legislatures must write new laws expanding the traditional definition of marriage to accommodate the new morality (or they must get legally creative to protect the religious conscience of the people).

One side believes that homosexual behavior is malum in se activity, under which understanding changing the definition of marriage sanctions wrongful conduct and is thus unconscionable.  The other side views it in terms of freedom and equality, asserting that denying non-traditional marriage is wrong.

When the courts find a new right hidden in the Constitution, should the newly discovered right trump the unalienable rights of citizens if these rights collide?

In 1973, the U.S. Supreme Court found a constitutional right to abortion.  But government has not tried to force anyone to have an abortion.

The same-sex marriage issue is both alarming and unique in American history.

The American experiment is based upon a firm public consensus of faith in a discernible God.  Without the consensus, the entire system of liberty from central control cannot work.  There was a common understanding at the time of our founding as to who God is and where our moral compass is found.

The God of our Declaration of Independence makes liberty possible.  "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

If that amazing statement from the Declaration is to have any meaning, it must have a workable context.  If the Creator is subjective and unknowable, liberty and happiness cannot reasonably be limited or even commonly defined.

The state can take life and liberty legitimately only within a moral context of right and wrong.  So far as happiness, not every pursuit that makes one happy is right, or even legal.

We should be able to see that without context, happiness has no limits.  What makes me happy is right for me, and what makes you happy is right for you.  Is our foundational document, the Declaration, saying that God gives us an unrestricted right to pursue happiness irrespective of right and wrong?  And that that right, unanchored from any moral code, is unalienable?

If so, then we have the unalienable right to do whatever we want (if we have a big enough political lobby).

Of course, that's absurd and can lead only to chaos and tyranny.

Right and wrong have to be based on absolute, self-evident truths, and the only way the concept works to limit government authority is to have consensus on a source of higher authority.

The Kentucky clerk is a two-headed alien monster to those who have reached a consensus on right and wrong based on moral relativism, in fundamental opposition to what has been embraced by every prior generation of Americans.

The statement of Kim Davis is profound in that it encapsulates the safeguard that has kept Americans free from government abuse and tyranny until now.

Unfortunately, much of the current generation has yet to grasp the profundity in the concept of unalienable rights by divine authority being over the authority of government.  If we have no unalienable rights from God, we are left with the shifting sentiment of public opinion as orchestrated by dominant media forces, and the capriciousness of the state.

If we have no common understanding of the God of the Bible we have no moral compass as understood by Americans since the first landing. The true genius of the American experiment is the prevention of tyranny by acknowledgement that the state is not the highest authority.

Of course, there must be consensus that the Bible is our moral compass and that its precepts of right and wrong cannot be contradicted by the state.  And most fundamentally, that the state cannot force a citizen to do something in violation of religious conscience as understood within the perimeters of America's historic context.

But since the Bible is not mentioned in the Declaration, who can say it was ever the source of knowing right and wrong and self-evident truths?

When the patriots who signed the Declaration of Independence "appeal[ed] to the Supreme Judge of the world … with a firm reliance on the protection of divine Providence [and] mutually pledge[d] to each other [their] Lives … Fortunes and … sacred Honor," they knew to Whom they were appealing and relying upon for protection as they defied the Crown and prepared for war.

The fact that Benjamin Franklin quoted the Bible to the Christian delegates who had reached an impasse at the Constitutional Convention in 1787 and requested that members of the Christian clergy from Philadelphia begin opening the Convention sessions in prayer each morning speaks a library of volumes on understanding American liberty.

The founders did not create a Christian nation; the delegates who drafted the U.S. Constitution created a government for the already existing Christian nation.

The Constitution is marked "in the Year of our Lord," and there is no doubt that "our Lord" is Christ.  Was that merely a standard 18th-century way of referencing the date without any meaning?  It's not used today because it has no relevance and meaning for many.  But back then, the language was used precisely because of its relevance and meaning.  The delegates certainly did not have to add the language.

Virginia's Statute of Religious Liberty, written by Thomas Jefferson, drives that point home.  The document's reference to Christ is made with fundamental relevance and meaning.

The law was written to end forced financial support of the clergy.  Jefferson uses Christ as the example of how religion should be supported: without compulsion.  But truly remarkable is the acknowledgement in Virginia law of the common religion (general Christianity) of Virginians and of the consensus regarding the holiness and power of Christ:

[Forced support of clergy] tend[s] only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone[.]

The crisis we now face is that our former consensus that the Almighty is the Judeo-Christian God of the Bible is gone.  Without a common understanding of who God is and what His precepts are, we have no source for right and wrong and consequently no basis for unalienable rights.  We no longer have the foundation of American liberty – the understanding that our essential rights are from God.

When relying upon higher authority to claim an unalienable right becomes cause for contempt, American liberty may already be lost.

Monte Kuligowski is a Virginia attorney.

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