Rights? I Don’t See No Stinkin’ Rights!

The Consequences of Natural Law Run Amok

by Patrick J. Shanahan
03/16/04

One of the most interesting aspects of the debate over “gay marriage” is the almost-unchallenged positioning of marriage as a civil right. In fact, the entire pro-“gay-marriage” argument hinges on the acceptance of marriage as a civil right. If marriage is a civil right, and if we deny marriage to homosexuals, then by definition we are depriving homosexuals of their civil rights. And that is clearly unconstitutional. What better recipe could an activist liberal judge wish for?

In classic conservative form we are letting the opposition frame the terms of the debate. We will respond by sputtering furiously, and will end up trapped in a corner by our own logic, all because we accepted a bogus premise. So, fellow conservatives, here is a word of advice: KNOCK IT OFF! The next time you hear someone describe marriage as a right, stop them in their tracks. Challenge them to explain in what way marriage is a right. Beyond replying “but of course it is a right” they will probably have great difficulty.

Because marriage is not a right, and it is not a civil right. Marriage is a convention. It is an institution, a civil prerogative, a fundamentally important societal building block. But none of these things make it a “right.” If “gay marriage” were to be defined in the context of social convention rather than as “civil rights," the debate would quickly end up exactly where it belongs: in the realm of informal social evolution and the democratic process.

I tend to prefer a fairly narrow view of rights, and an even narrower view of civil rights. The great majority of things that we dump into the civil rights bucket have nothing to do with rights at all. They have to do with the clash between individual preference and social convention. My own definition of civil rights would include those characteristics and actions required to function as a full member of our democracy. They are the things without which one cannot be a functioning citizen. This definition makes it easy to weed out the true civil rights (the right to vote, for instance) from social desires and preferences (the right to abort one’s child, for example). Unfortunately, when the civil rights movement ran out of legitimate civil rights issues to amend, it began to lend its power to all sorts of assorted social causes. By permitting the term civil rights to be used to define everything from sodomy to Affirmative Action, the left has destroyed a useful and meaningful term and fed into the activist genius of leftist judicial oligarchs.

The genius of the left for the past thirty years or so has been to meld an ever-expanding definition of rights with a modified natural law doctrine. Natural law, of course, is a school of thought regarding rights, government and power relationships. Flowing primarily from Anglo-Scottish political philosophy of the 17th and 18th Centuries, natural law profoundly influenced the founding of America. The Declaration of Independence stands as perhaps the preeminent document of natural law principles. Natural law asserts that governmental power flows from God to individual citizens. (“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.”) The people in turn lend some their power to organized government (“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”). Folks who take natural law overly seriously have always between viewed by the right with just a bit of suspicion, as they tend to view “natural law” as superceding governmental law - indeed even the Constitution itself - whenever the two clash, a view generally associated with tax avoiding, dope smoking libertarianism.

Interpreted properly (i.e., narrowly), natural law represents the very philosophical core of modern conservatism. It views democracy as primarily individual self-governance. Government is there only to stop other people from robbing us and killing us. But when interpreted broadly, it becomes the perfect liberal tool. If one accepts the premise that the primary role of government is to actively secure rights for the people (as opposed to creating an environment in which citizens’ rights are secure - a huge difference), then all one need do is define a desired policy goal to be a “right,” and government has no choice but to enforce it.

Want abortion to be legal? Declare it a right and government must enforce it. Want “gay marriage”? Get the Massachusetts Supreme Judicial Court to declare it one, and bingo, it’s a done deal.

We talk a lot about “judicial activism” and what to do about it. This is the core problem, the defining of things to be rights that are not rights. And perhaps this fact hints at a solution. If the “just powers” of government are derived from the “consent of the governed,”then clearly the definition of what are and are not rights resides with the people. We the people are the ultimate arbiters of our rights, not the judiciary.

I believe that both the natural law underpinnings of the Declaration, as well as the “checks and balances” of the Constitution, provide all the justification needed for the Legislative branches of state and federal governments to assert their pre-eminence in determining what is and is not to be considered a “right.” Legislatures have not only the right, but the obligation to rein in judicial overstep.

Now all we need is legislators with the guts to make it happen.