The Senate will hit Supreme Court nominee Samuel Alito with a lot of questions about "rights," including the right to privacy, to abortion, etc. Before the hearing begins, it might be a good idea to get our own act together on "rights."
The index of the Compendium of the Social Doctrine of the Catholic Church lists 197 separate "rights," including the "right to freedom in religious matters," the "right to a just wage" and many more. Where did we get all those rights? Who can take them away? According to historian, Arthur Schlesinger, Jr., "Human rights is not a religious idea. It is a secular idea, the product of the last four centuries of Western history." Or did the Declaration of Independence get it right when it said that "all men are created equal," and "are endowed by their Creator with certain Unalienable Rights"?
Does the Constitution give you the freedom of speech? Or does it merely guarantee that freedom which you got somewhere else? Professor Iredell Jenkins, in the American Journal of Jurisprudence three decades ago, described the "two broad views which have disputed the field for centuries." One view holds that "rights have a real metaphysical and moral status. ... Rights derive directly from God or Nature ... and they belong to man as part of his intrinsic nature ... Law merely recognizes these rights and enforces respect for them ... The other view holds that rights ... owe their being and their nature exclusively to law ... whose creatures they are. ... [T]he legislative or judicial act ... brings the rights into being and constitutes its content." Under this second view, the state gives rights and can take them away.
Whether the person has any absolute rights depends on his origin, nature and destiny. "I see no reason for attributing to man," wrote Justice Oliver Wendell Holmes, a patron saint of American jurisprudence, "a significance different in kind from that which belongs to a baboon or a grain of sand." What claim to immunity could such an insignificant entity have against the power of the majority or of the state to subject him to slavery or death at the discretion of others? "[T]he sacredness of human life," Holmes said, "is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio." He defined truth as "the majority vote of the nation that could lick all others."
If Holmes is right, if there is no objective truth and no God, the Creator, how can we offer any reason why the human person has more intrinsic rights than "a baboon or a grain of sand"? As Pope John Paul II said, "the eclipse of the sense of God and of man ... leads to a practical materialism, which breeds individualism, utilitarianism and hedonism ... The first to be harmed are women, children, the sick or suffering and the elderly. The criterion of personal dignity ... is replaced by the criterion of efficiency ... [O]thers are considered not for what they 'are,' but for what they 'have, do and produce.' This is the supremacy of the strong over the weak." After the experience of the Godless regimes of the 20th century and today, can we doubt the truth of John Paul's assessment?
"We are not," said Pope Benedict XVI at the start of his pontificate, "some casual and meaningless product of evolution. Each of us is the result of a thought of God. Each of us is willed, each of us is loved, each of us is necessary." That is why, as John Paul put it in Veritatis Splendor, "civil authorities and ... individuals never have authority to violate the fundamental and inalienable rights of the human person ... [O]nly a morality which acknowledges certain norms as valid always and for everyone, with no exception, can guarantee the ethical foundation of social coexistence."
The only coherent basis for asserting those exceptionless moral norms and the transcendent rights of the human person is his creation in the image and likeness of God with an immortal destiny. As you read these lines, some child is being born in a hospital somewhere in Indiana. That child's life began some nine months before his birth. There will come a time when there will be no Indiana, no Washington, no Ireland, no Paris, no Rome. Maybe not even a Notre Dame Stadium. It will all be gone. But that child will still be alive. The human person, because of that immortal destiny, has rights that the state, and everyone else, is absolutely bound to respect because those rights come from God.
The bottom line? Let's stop being apologetic about bringing God into "rights talk." Without God, our very existence makes no sense and we have no absolute, inalienable rights. With God, it all makes sense. It might even make sense to the United States Senate.
Professor Emeritus Charles Rice is on the Law School Faculty. His column appears every other Thursday. He can be contacted at plawecki@nd.edu
The views expressed in this column are those of the author and not necessarily those of The Observer.
