On natural rights

When discussing our nation’s founding creeds and Constitution, liberals find themselves caught between a rock and a hard base. Woke intellectuals and activists want to disavow America’s founding as inherently racist and flawed. This is the aim of the 1619 Project, which seeks to reset America’s foundational reference point from 1776, the year of the Declaration of Independence, to 1619, the year the first slave ships came to our shores. For these cultural elites and their activist allies, America is irredeemably defined by its original sin.

Though these views predominate among The New York Times set, they are deeply distant from the views of the American people at large. For anyone who lives outside the salons of San Francisco, people still feel a genuine and heartfelt attachment to this nation. Most Americans are patriotic citizens who love this country, are proud to be Americans, and believe that, despite its flaws, we are still the greatest nation on earth.

Typical of the first view is MSNBC legal commentator Elie Mystal, author of Allow Me to Retort: A Black Guy’s Guide to the Constitution, wherein he writes that the U.S. Constitution is “not good” and “actually trash.” Mystal says this because the Framers were “a bunch of rich, white politicians making deals with each other.” And, of course, many owned slaves.

Mystal’s book enjoyed a moment of prominence when U.S. Sen. Ted Cruz asked Judge Ketanji Brown Jackson about it during her confirmation hearing for a seat on the U.S. Supreme Court. Cruz asked whether she believes “the U.S. Constitution is illegitimate because its authors were Caucasian or some authors were slave owners.” She rejected Mystal’s view, responding, “I love our country and the Constitution and the rights that make us free.” Asked as a follow-up whether she “reject[s] any statements made by a legal commentator that the U.S. Constitution is ‘kind of trash,’” she reiterated her love for the Constitution. So far, so good.

But then, in a separate line of questioning, Cruz asked, “Please explain, in your own words, the widespread theory among members of the Founding Fathers’ generation that humans possess inherent or inalienable natural rights.” She responded not in her own words but simply by quoting the famed preamble to the declaration: “The theory that humans possess inherent or inalienable rights is reflected in the Declaration of Independence, which states, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.’”

Cruz then asked the expected follow-up: “Do you have a position on whether individuals have natural rights, yes or no?” She replied in the negative: “I don’t have a position on whether individuals have natural rights.”

Legal scholar Ed Whelan, reviewing Jackson’s response, concludes, “Jackson doesn’t embrace the basic American creed set forth in that passage from the declaration.” It may be disappointing, but it is hardly stunning—many in Justice Brown Jackson’s party find any positive reference to the Declaration of Independence inherently problematic. If you believe truth is subjective or unknowable, that there is no “Creator” but only a self-generating cosmos, that life is only worth protecting while productive, or that liberty is code for the perpetuation of capitalist exploitation, then you can’t accept the declaration and its central argument.

Of course, the root problem here is that the Declaration of Independence and the Constitution are impossible to separate, and we must continually reassert their inextricable relationship. The idea of natural rights is at the heart of our Constitutional order—the idea that individuals possess God-given rights that governments are established to protect, not redefine, invent, or deny.

Abraham Lincoln once borrowed an image from Proverbs to describe the relationship: the apple of gold set within the frame of silver (Proverbs 25:11). The natural rights principles of the Declaration of Independence are the apple of gold, and the Constitution is the picture frame of silver. “The Union, and the Constitution, are the picture of silver, subsequently framed around [the Declaration of Independence], Lincoln wrote. “The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple—not the apple for the picture.”

The Declaration of Independence may not have legal force in the same way as the Constitution, but it is no less essential to the American canon. But apparently these truths are not self-evident to everybody anymore, especially when the need to deny those natural rights to others—such as the unborn—is of political and ideological necessity to the left.