Jerry: I wanted to talk to you about Dr. Whatley. I have a suspicion that he’s converted to Judaism just for the jokes.
Father: And this offends you as a Jewish person.
Jerry: No, it offends me as a comedian.
To paraphrase from Jerry Seinfeld (scene above is at the 3:06 mark of the link), the new GOP obsession with “natural rights” theory doesn’t offend me as a liberal, it offends me as a lawyer. Natural rights, or “natural law,” is not a controversial legal theory, it is a hijacking and distorting of important legal concepts to score superficial political points.
Natural Rights — Not Just For the 18th Century Anymore!
This argument has developed only recently, but it has quickly taken its place as a central conservative talking point. For example, in a stump speech two weeks ago, Rick Santorum waxed psuedo-historic that secularism is creeping into America and:
“What’s left is a government that gives you rights,” he said Wednesday night. “What’s left are no unalienable rights. What’s left is a government that will tell you who you are, what you’ll do and when you’ll do it. What’s left in France became the guillotine.”
Well, OK then. I guess it’s not that the Democrats lack the stones for capital punishment, they’re just reserving it for…when we all have rights?
But this is not confined to Rick Santorum. Rep. Paul Ryan told Newsmax that “Our rights come from God and nature, they’re natural; they come before government,” and the theme was also nascent in William Tucker’s anti-Justice Ginsburg rant (reviewed here last week), when he described rights granted from the “Creator” and “surrendered” to the state.
The philosophy of natural rights developed as a protest to the excesses of European monarchs who abused the rights of citizens by arbitrary fiat. It posited that a human King cannot deprive the citizens of basic rights which are divinely granted. It represented a reversal of the dominant theory of government — the divine right of kings had justified authoritarian capriciousness, now the people are granted inalienable rights from that Creator. This conception justified the creation of elected government and ultimately placed absolute monarchy on the path to obsolescence.
This fixation is confusing to a 21st Century audience. Natural rights, the argument that government cannot infringe upon some enumeration of fundamental natural rights, is roundly accepted by almost every modern American observer. So what are these people talking about?
How Can I Say It…But Not Say It?
This is not the first episode of legal confusion where conservatism has employed anachronistic legal debates to serve in a proxy war. On October 8, 2004, then-President George W. Bush explained that in selecting Supreme Court Justices, he looks for jurists who will oppose Dred Scott. The 1857 decision in Dred Scott v. Sandford (functionally overturned by the decision of Sherman v. City of Atlanta), held that a slave brought to a state where slavery was illegal could not sue for his freedom and remained a slave regardless. This litmus test seemed ridiculous — what potential Justice is itching for a return to slavery? — but was in fact a code word for Roe v. Wade to right-wing audiences. Among the reasons that conservatives use Dred Scott as a proxy for Roe is to spin a narrative of the evils of unwarranted judicial activism. It doesn’t even matter that this is a dubious reading of the decision, since the Dred Scott had a reasonably sound basis in the Constitution of the time (remember, this version of the Constitution still listed African-Americans as 3/5 of people for the purpose of the census and specifically prevented Congress from restricting the slave trade for 20 years after ratification). But in all of this, the proxy allows the speaker to recast reality to spin a favorable narrative with the apparent weight of history and avoid walking directly into political minefields.
The Bundle of Themes Within Natural Rights Rhetoric
But what is the purpose of this latest proxy war? When conservatives take up the banner of natural rights, what are they saying? Well let’s look at the themes you can draw from this theory.
First, natural rights rhetoric brings the imprimatur of God. It’s instant street cred with the conservative electorate to explain that a political stance is inspired by God. It also dovetails with a debate against secularism and for the importance of churches (ironically, the organized Church, complicit in justifying European monarchies, was a key target of natural rights theory…this is the “Dred Scott is judicial activism” moment). The imprimatur of God, once captured, allows the speaker to (sacreligiously) occupy the role of God and define the rights that are “natural” and those that are not.
Second, the word “natural” carries baggage beyond the intention of the legal thinkers behind natural rights. “Natural” is simple — the opposite of human complexity. This theme is well-positioned for a defense of conservative jurisprudence. Using the Bill of Rights as a guide, the “conservative” rights (defined as those supported without compromise by conservatives) are simple stories:
- Freedom of speech in elections prevents any limits on espousing your politics on TV.
- The right to keep and bear arms prevents any regulation on buying a mini-nuke on demand.
- Religious freedom prevents requiring employers to provide health care that covers medical procedures objectionable to religious CEOs.
- Unreasonable search and seizure (depending on the definition of “reasonable”) requires police to proactively dictate that you have a right to remain silent and acquire warrants before searches, except when the following conditions apply…
- Religious freedom must be balanced with unfettered proselytizing that bullies those with divergent religious beliefs.
- Abortion is covered by the penumbra of Constitutional rights and is Constitutionally protected in some trimesters and not in others.
Finally, like Dred Scott, it is a wink to its audience. As natural rights targeted the divine right of kings, this new concept of natural rights extends the narrative of Obama as an arrogant usurper of executive power. Remember when this explicit argument was rampant about a month ago? It fizzled as the GOP started seeing the positive reaction of the public to Obama’s recess appointments. This natural rights rhetoric allows the speaker to evoke the “Obama is arrogant” motif by comparing him to a monarch without alienating moderates who live in “reality.” And if you don’t think comparing Obama to a monarch is a dog whistle to the right, check out “Obama King” on Google if you want to see how common that idea is among conservatives.
The Verdict and the Future
So what is this all about? Oh you’re smart readers so we can all say it together — Health Care! Sure there are other battles implied in this rhetoric, but health care is the prime target. Liberals have occasionally defined health care as a “right,” though not as often as conservatives claim. Conservatives seem obsessed with casting health care as a “right” so they can decry it as an unconstitutional extension of government power. The reason is that there is an argument, rooted in the same history as natural rights theory, that “rights” can only be “negative” — those that the government pledges not to infringe — as opposed to positive promises that a government must provide. But liberal politicians are not eager to call health care a right, but rather a policy with a rational basis to a legitimate government interest.
So with this rhetoric, conservatives are trying to rally their base against health care, which their GOP-faithful want to decry as an arrogant effort to erode the soul of the Constitution through a complex regime to provide secular human rights not enumerated by the Founders or natural rights theory.
The question I leave you with is this: Isn’t this poised to backfire on conservatives? If I were advising an attack on this rhetoric, I’d advise a gay couple, married within the religious sanctity of a congregation of the United Church of Christ, to challenge laws barring gay marriage as an affront to their religious freedom. Basically, “if God grants our right to marry, how can your human government take this away?” Far from health care, this conception is an actual affront to natural rights theory.