(RNS) — When Virginia ratified 10 of the 12 proposed amendments to the Constitution on December 15, 1791, it became the 10th state to do so and gifted America with an enduring legacy, the Bill of Rights. We celebrate that heritage today.
But for President Trump and many religious Americans, those rights are not secured by the Constitution or “We the People.” Instead, they are a gift from God.
Trump is marking Bill of Rights Day and Human Rights Week with a proclamation that invoked our “God-given rights” three times. Trump has made similar claims many times, but so have other presidents, including President Obama. Roy Moore’s entire career is based on his idea that “Our rights are given by God.” He even argues that religious liberty “comes from God, not from the Constitution.” Premising our rights on some supernatural benevolence is dangerous.
The danger of God-given rights
History has shown us that what is given by a god can be taken away by those who speak with or for that god. Slavery was God’s will, until it wasn’t. Segregation and anti-miscegenation laws were meant to keep the races separate, as God intended. The opposition to same-sex marriage was largely based in religion: “God made Adam and Eve, not Adam and Steve.” Progress in many important areas of human rights has long been opposed by those claiming to know God’s mind and executing God’s will. True, religion helped in some of these causes, but the opposing justifications were nearly always situated in divine law.
Human rights are absolute and universal; not susceptible to religious whim and fancy. Simply by virtue of being human — just because you were born — you have certain inherent, inalienable rights.
God-given rights depend on geography. Do you live in Indiana, India, or Iran? They depend on those who claim to know God’s will. Do your leaders think Muhammad's, Martin Luther's, or Martin Luther King Jr.’s interpretation of God’s will is correct?
God-given rights are so problematic because they depend solely on a particular individual’s interpretation of his god’s word. Perhaps the interpreter adheres to some higher authority, such as a pope or an author of the Bible. But at the end of that line of spiritual authority, a human being is claiming to know “God’s will.” One person’s belief is suddenly given the weight of divine law. A fallible human is claiming divine sanction.
This is moral relativism, which is often maligned by religious leaders, masquerading as moral absolutism. It is far better to premise human rights on the simple fact of being human, than to put them into the hands of one person claiming to speak for a supernatural being that may or may not exist.
The founders enshrined a social contract in our Constitution. We agree on the rights we keep and the rights we give away to the state, and, if one breaks the social contract, we agree on which rights of theirs we can take away. John Jay, the first chief justice of the Supreme Court, wrote, “Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers.” He penned that sentiment in the second of the Federalist Papers, those letters written to the citizens of New York by Jay, James Madison, and Alexander Hamilton to convince the people to ratify the recently proposed Constitution.
The godless Constitution and the Declaration of Independence
One of the major objections some had to the new Constitution was its “cold indifference towards religion.” Curiously, Trump’s proclamation relies on that indifferent Constitution to support the “God-given rights” claim. The proclamation's second sentence proclaims that: “From the Declaration of Independence, to the Constitution, and through the Bill of Rights, our country and our people have always known the true, God-given nature of liberty and the ability of law to safeguard it against the state.”
The Constitution, which the Bill of Rights amends, is not really indifferent; it’s simply godless. The Constitution’s three mentions of religion are exclusionary: banning religious tests for public office, prohibiting the government from aligning with one religion over another and religion over nonreligion, and guaranteeing the freedom of thought and belief. In other words, the Constitution keeps God out of the business of government and government out of the business of worshipping God.
Trump’s reliance on Thomas Jefferson’s Declaration of Independence is also curious. Jefferson did not cite a god as the source of our rights and even the “endowed by their Creator” phrase did not appear in his draft of the declaration. It was added later by Ben Franklin or John Adams. Elsewhere in the declaration — relying on “the Laws of Nature and of Nature’s God”— and in writings penned both before and after the declaration, Jefferson rejected the idea of God-given rights.
Much of the declaration consists of a list of King George’s crimes. Two years earlier, in 1774, Jefferson published a precursor to that list in "A Summary View of the Rights of British America." Jefferson explained that he wrote the list “with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate.”
He eschewed honeyed phrases and undue deference: “Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people. Open your breast, sire, to liberal and expanded thought.”
As secretary of state, Jefferson wrote an "Opinion on the French Treaties" in 1793 and espoused a view of human rights founded on human nature: “Questions of natural right are triable by their conformity with the moral sense & reason of man. Those who write treatises of natural law, can only declare what their own moral sense & reason dictate in the several cases they state.” Our rights, even those based in natural law, are the product of “liberal and expanded thought,” not divine revelation. Those rights are discoverable by human reason and our innate moral sense.
Jefferson also seemed to recognize that God-given rights can be taken away by the men claiming to speak for god when he wrote that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.”
Rights are not bestowed, not by magistrates, kings, or even by gods. Rights are asserted. Once they are asserted they must be defended.
I’ve dedicated my career to defending the wall of separation between state and church, to defending the rights protected in the religion clauses of our First Amendment. On the 226th anniversary of that amendment and our Bill of Rights, I’ll celebrate the rights We the People have, and then I’ll get back to work defending those rights.
(Andrew L. Seidel is a constitutional attorney and director of strategic response at the Freedom From Religion Foundation, a national state-church watchdog and nonprofit with 30,000 members. The views expressed in this opinion piece do not necessarily reflect those of Religion News Service.)