by Bob Wheeler


Thomas Jefferson

Today, of course, marks the 239th anniversary of the signing of the Declaration of Independence. The Declaration, in some ways, forms our national creed, and contains the ringing affirmation that “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.”

But how literally did Jefferson intend these lines to be taken? While Jefferson certainly was not what we would call a biblically orthodox evangelical Christian, he was not an atheist either. He did believe in the existence of God, and that God was the Creator.

Jefferson was a man of the 18th Century Enlightenment. He believed that reason was able to ascertain truth because he believed that we live in a rationally ordered universe created by an intelligent Supreme Being. The men of the 18th Century believed in “natural law.” The English philosopher John Locke could state that “the law of nature stands as an eternal rule on all men, legislators as well as others’ (Second Treatise of Civil Government, sec. 135). And Sir William Blackstone, the famous 18th Century jurist, said that “Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is an entirely dependent being.” “These are the eternal, immutable laws of good and evil, to which the Creator Himself in all His dispensations conforms: and which He has enabled human reason to discover, so far as they are necessary for the conduct of human actions” (Commentaries, The Nature of Laws in General). And thus Jefferson could argue that American independence was something “to which the laws of nature and of nature’s God entitle them.”

Alas! How very different it is today! Just last week we were treated to a spectacle of raw judicial power by the Supreme Court of the United States. In Obergefell v. Hodges they presumed to rewrite not only the U.S. Constitution, but even morality itself. In the Court’s decision legalizing same sex marriage throughout the United States, Justice Anthony Kennedy resorted to a dubious constitutional doctrine known as “substantive due process.” The Due Process Clause of the 14th Amendment, it will be recalled, simply states that no state shall “deprive any person of life, liberty, or property, without due process of law.” What the clause does not specify is what rights a person might possess. It simply states that due process must be followed before any of them can be restricted or taken away. Under the doctrine of “substantive due process,” however, the existence of certain fundamental rights is implied, and it is left to the Supreme Court to determine what they are. For Justice Kennedy this provides a golden opportunity to legislate from the bench. “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution,” he writes (opinion, p. 10). Moreover the Court, he says, in “identifying these rights, is not necessarily bound by history and tradition.” According to him, as time goes on we gain “new insights” and see rights that escaped the notice of previous generations. And thus the Court is free discover new “rights” in the Constitution previously unknown.

What is striking about the Court’s decision is the complete absence of any moral point of reference. Thus Justice Kennedy could say that the liberties presumably protected by the Due Process Clause “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Whereas Blackstone could say that “man . . . must necessarily be subject to the laws of his Creator,” Justice Kennedy sees autonomous individuals choosing their own identities and beliefs. We detect here a kind of Post-Modern sensibility that rejects the very idea of universal truth. Thus Justice Kennedy has rejected not just Christianity, but the Enlightenment as well. Any though of natural law, or of any other kind of transcendent divine law, has completely vanished. We exist as autonomous beings in an essentially amoral universe.

At first glance we might be tempted to celebrate our newly discovered freedom.

“It matters not how straight the gate,

How charged with punishments the scroll,

I am the master of my fate:

I am the captain of my soul.”   (Henley)

But then enters a disconcerting thought. If we live in an amoral universe, where do rights come from? Jefferson had said that men “are endowed by their Creator with certain unalienable rights.” But if there is no Creator, what makes a right “unalienable”? A 5-4 decision on a human court? The same Court that once said that black people have no rights that white people were bound to respect? The same Court that has reversed itself on more than one occasion?

But more to the point, how can human society function if there is no universally binding moral code? When “justice” depends on whoever happens to be in power at the time? When ultimately there is no “right” or “wrong”? When might makes right, and it all comes down to what you can get away with? Is this the kind of society the Founding Fathers sought to create?

But what if God actually exists?