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.

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