Where Do Human Rights Come From?
Do our rights come from the Constitution? The Constitution with its Bill of Rights mentions many freedoms like the First Amendment freedoms (religion, speech, press, assembly, and petition) as well as other freedoms that are stated in the form of protections (like no cruel and unusual punishment). But it’s one thing to say that the Constitution mentions such rights; it’s quite another to say that the Constitution is the source of those rights. So, do we get our rights from the Constitution?
The short answer is “yes” and “no.” Some of our rights come from the Constitution while others do not. This essay is devoted to helping you to better make the distinction between the two.
Human Rights Granted by the Constitution
What rights are given to us by the Constitution? It's those rights that define our relationship to the government. Rights such as the right to petition the government, no double jeopardy, and warrants being issued on the basis of “probable cause” come from the Constitution and define how we are related to the government. These rights are a means to an end, that end being greater protection from arbitrary governmental power and fairer treatment to all citizens under our government.
An example of this first type of right is the right to vote. The right to vote would be a "civil" right in that it has to do with our relationship to our government and depends upon the form of government that we have. While we possess a "right to vote" in many western nations, we don't normally think that we have the right to vote for every government office. In fact, even in the United States, we don't get to vote for most government positions. There are several countries in which there is no voting at all by citizens.
The emphasis on the right to vote tends to be this: If voting is the means by which an official comes to his office, then every citizen should have a right to participate in that vote and there should be no discrimination of that right.
Human Rights Not Granted by the Constitution
That brings me to the second type of right. Some rights do not emanate from the Constitution. Such rights are outside the orbit of the Constitution and are sometimes referred to as natural rights.
The Constitution does not say that you have a right to practice your religion, speak publicly, own a firearm, or write and publish a book. What it does say is that Congress cannot prohibit or abridge those freedoms. Now, in order for the Constitution to place a prohibition on Congress, we can assume that you are in possession of those rights that Congress cannot obstruct. Historically, our founders have said that such rights are “unalienable” which implies that these rights cannot be taken from the citizen. If they came from the Constitution or from government, they could not be “unalienable.”
But, what is the source of these “unalienable rights”? In the Declaration of Independence, Thomas Jefferson said that these unalienable rights are “endowed by their Creator.” So these rights do come from authority, but not human authority. They are the bestowments of Divine authority. The role that the government plays with regard to these rights is to “secure” them.
This is one reason why the ACLU’s interpretation of the separation of church and state is a perversion of American ideals. Neither the government nor the people in their collective capacity are the source of our most basic rights. Rather such rights are the deliverances of our Creator. Consider these quotes which reflect this basic understanding of the source of our rights:
- "The rights of the colonists as Christians...may be best understood by reading and carefully studying the institution of the great Law Giver and Head of the Christian Church, which are to be found clearly written and promulgated in the New Testament." ~ Samuel Adams
- "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a Gift of God"? ~ Thomas Jefferson
- "Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God." ~ Benjamin Franklin
- "Our government rests upon religion. It is from that source that we derive our reverence for truth and justice, for equality and liberty, and for the rights of mankind. Unless the people believe in these principles they cannot believe in our government." ~ Alexander Hamilton
- "Natural liberty is a gift of the beneficent Creator, to the whole human race; and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of injustice." ~ Calvin Coolidge
- "The rights of man come not from the generosity of the state, but from the hand of God." ~ John F. Kennedy
- "History comes and goes, but principles endure and ensure future generations to defend liberty - not a gift of government, but a blessing from our Creator." ~ Ronald Reagan
From these quotes, we can make the reasonable inference that our Constitution is predicated upon a belief in God. As the liberal justice William O. Douglas once remarked “We are a religious people whose institutions presuppose a Supreme Being “ (Zorach v. Clauson ). In his dissent in McGowan v. Maryland (1961) Douglas highlighted the transcendent nature of some of our rights by saying that
"The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the state is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect."
Atheistic views like those advanced by the ACLU undermine this first principle and would have our freedoms predicated upon the benevolence of the government.
But how do we know that such rights are a grant of the Creator? After all, we could make up anything and say we have a right to it, correct? The problem is that such contrivances can be as equally revoked as they are created. The inescapable problem is that they are arbitrary, and America’s founders recognized that problem. We can’t just say “rights come from nature” because even those that disagree with this view will at least have to agree that rights must have some agency as their source. “Nature” does not have a mind to grant rights. We are talking about “rights as laws,” as mandates, but not like the “law of gravity” which is more of a description of nature than it is a rule of nature.
Furthermore, we may have come to believe that we have such rights because we engaged in some sort of natural reasoning. But that only addresses how we came to know how we have such rights; it does not address the origin of such rights or my standing to claim that I possess them. Rights imply agency but if the agents are men, then men can take them. This might be OK: the right to vote for a particular official might be rescinded. Back in 2002 the state of Florida changed its constitution so that the state's secretary of state is now appointed instead of elected. This type of change in "voting rights" happens all the time.
But if we say, “No, there are some rights that can’t be taken,” then they can’t have as their origin our collective will, as if they emerged as a result of some social contract.
In short, our most cherished liberties—including the freedom to write and publish this paper—are recognized by the Constitution, but they are not the product of it. Such freedoms are the deliverances of our Creator; they come from God.
© 2010 William R Bowen Jr