Nonsense Upon Stilts
Universal Rights as Heresy [July 18, 2024]
In what was probably his most ambitious piece, Anarchical Fallacies; being an Examination of the Declarations of Rights issued during the French Revolution (abbreviated as Anarchical Fallacies and sometimes referred to as Nonsense Upon Stilts), Jeremy Bentham sought to dismantle the idea of Natural Law/Rights.1 Specifically, this essay was a response to the The Declaration of the Rights of Man and of the Citizen (1789), although it was really an attempted refutation of most of The Enlightenment.
Bentham’s fundamental contention with the French National Assembly (and every single Enlightenment thinker) was that Natural Law/Rights came from God and, in Bentham’s opinion, God did not exist. So, if Natural Law/Rights stem from God and God does not exist, then neither does Natural Law/Rights. Instead, Natural Law does not exist at all and Rights are instead agreed upon and enforced by the State. According to Bentham, Human/Universal/Natural Rights do not exist. For example, according to Bentham the United States is not bound to protect the Rights of non-citizens, because non-citizens do not actually have any Rights (at least in the United States).
This is fundamentally at odds with the assertions of the Founding Fathers and the United States Constitution. The Founding Fathers, being overwhelmingly Christian2 Enlightenment thinkers, were very fond of the idea of God-given human Rights. The Founding Fathers were, at the time, engaging in a century long discourse on the nature of Rights, which is probably best illustrated (in this context) by John Locke’s Two Treatises of Government, particularly the Second Treatise (Civil Government) Chapter V “Of Property” where Locke argues that God established property rights.3
We’re going to come back to the theological line of reasoning later, but for now you just need to understand that the Founding Fathers believed God—not the Constitution or US government—gave people rights, and that it is the job of the government to protect these rights. This is in contrast with Bentham and Co. who believed that God doesn’t exist, therefore He cannot give anyone Rights and so the government provides Rights to its people. This was his main objection to The Declaration of the Rights of Man and of the Citizen, because it alleged Universal Rights which can only come from a Universal source like God.
Practical Problems
Many liberal academics today will literally squirm (I have personally experienced this many times) with joy at the opportunity to inform you that the hecking bigoted Enlightenment Thinkers did an unwholesome and left out BIPOC homo drag queens from human rights. They love to say “Well these Enlightenment Thinkers sure didn’t think things through since they were talking all about these ideas of universal Rights and freedom while practicing slavery.” Pretty much any informative source on Enlightenment discourse on freedom and Rights will include some sort disclaimer saying this. Liberals treat this as a very profound revelation.
This idea, that the US Bill of Rights is actually UNIVERSAL and not exclusive to US Citizens, is also the legal foundation and moral motivation for a lot of these very awful immigration reforms and things like that. It is really starting to become more and more problematic as courts are starting to rule things like allowing illegals to own guns under the Second Amendment.4 In this case specifically, part of the defense’s argument was:
“Lifetime disarmament of an individual based on alienage or nationality alone does not have roots in the history and tradition of the United States”
Obviously it is not exactly true that there is no historical precedent for this. The US has never really bothered to protect the Second Amendment Rights of non-citizens (until now anyways). More worrying is the increasing demands for voting rights for non-citizens and attempts to circumvent federal law in order to achieve this.5 It probably won’t be long until we get some sort of court case about this as well.
Unfortunately, liberals are sort of correct.
If we are to assume that these Rights are in fact Universal and that they apply to everyone, the United States is obligated to protect them. Now, one could argue that the United States is only obligated to protect the Rights of its own citizens in the same way that it is only obligated to offer military protection to its own citizens. This line of reasoning was de jure for most of US history. However there is a slight problem in the modern day.
America claims to be the “World Police” and has used “human rights violations” as a casus belli countless times in the past century.
“We must undertake now to be the Good Samaritan of the entire world. It is the manifest duty of this country to undertake to feed all the people of the world who as a result of this worldwide collapse of civilization are hungry and destitute”6
This idea is a very noble—Anglo—idea and I don’t mean to say that it is necessarily a bad thing. However, combined with the notion that Rights are given to all people and it is the job of the government to protect them, this becomes problematic. You being to lose justification for only protecting citizen Rights when the last century has been full of military actions nominally seeking to “end human Rights violations” in the Middle East or what have you. It seems like people are beginning to pick up on this idea and the DNC has eagerly applied it to latinx immigrants in an attempt to curry their favor.
So the United States is essentially left with these options:
Change nothing and deal with the growing tide of calls for Constitutional Rights for non-citizens.
Abandon our post as “the World Police” and return to only protecting US citizens.
Slightly tweak Constitutional legal theory to presume that Rights are not in fact universal.
Each of these has its own problems. In theory, we could change nothing and still stamp out calls for non-citizen Rights, however this will only become more difficult as more hordes of latinx flood our border and the DNC further embeds itself in the Justice System.
Abandoning our post as “the World Police” is also not really a good idea, contrary to what many American Isolationists like to think. Doing so would remove our ability to engage in military actions anywhere with no real consequence, and it would also likely diminish our international standing with most of our allies. It would also actually probably disrupt trade as we no longer provide pirate suppression across the globe, which would hurt both imports and exports in the US. Frankly this is probably the worst option.
Tweaking Constitutional legal theory is probably the safest bet, however it is also very tricky. It is going to be difficult to justify this deceptively important aspect of Constitutional law for a few reasons. First is the simple fact that there is no historical precedent for this, since this has been the understanding of Constitutional law since our founding. Just from a legal perspective it would be hard to do. Second, many Americans really like the idea that God gave us these Rights, even if it isn’t true (we will talk about this momentarily). Finally, the practical side of having God-given Rights means that the government can’t just remove them if they feel like it (at least in most cases, sigh), which is a very good idea. So something must be put in place such that Rights still do not come from the government, but also only apply to citizens.
The first issue is probably not that hard to manage. There have been plenty of times where the Supreme Court just goes way beyond its jurisdiction in its interpretation of the Constituion.7 It could be pretty easily done if you used the same tactics.
The second problem requires a reframing of our understanding of “God-given Rights” which I will outline in the next section.
The final problem is a little tricky, but actually not that hard. In fact, it can probably be solved with Enlightenment philosophy itself. If we were to re-popularize the idea of a “social contract” among mainstream audiences, we could then reframe the Constitution as an agreement between the people and the government. In this scenario, it would be most useful to revisit the Realist Nigga of The Enlightenment: Thomas Hobbes.
Hobbes has a much more realistic view of Natural Rights. According to Hobbes, the only true Natural (or God-given, since Hobbes was still a Deist) Right is that of self preservation or self defense:
“The Right of Nature which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto.”8
Unlike Locke, who argues that God gave Man the Rights of “Life, Liberty, and Property” (and the Right to defend them),9 Hobbes keeps it much more simple. In doing so, Hobbes effectively accomplishes the same thing without also opening up the issue of other Rights which might “naturally follow” from Locke’s. Unfortunately the Found Fathers were more fond of Locke than Hobbes so we got stuck with all this nonsense about how Moses came down from Mount Rushmore to hand the Founding Fathers the Bill of Rights, authored by God Himself.
Anyways, Hobbes goes on to say that all Rights beyond self-defense are instead agreed upon during the signing of the Social Contract. To Hobbes (who believes that the States of Nature is lawless anarchy and should be avoided at all costs [so real btw]), the Social Contract is a negotiation between people seeking to escape the State of Nature, wherein all parties (generally divided into Sovereign and the People [or Body] which combined form the Leviathan) agree to limit their own abilities to establish peace.10 In practice, this is best illustrated by the example of local serfs agreeing to give a local noble a set tax of their crop, and the noble agreeing to protect them in turn.
In America, this would look like the people agreeing to give taxes to the government in exchange for the protection of their Rights (and other government services like the Interstate system). If one side were to void their end of the Contract, for example if someone did not pay taxes or if the government failed to protect a citizen’s Rights, then the Contract would be void (until debts were settled, so to speak). In this sense, society (the Leviathan) is a constant negotiation between Sovereign and people that keeps the other in check (ideally, anyways). This is, as you may have noticed, functionally identical to the way our current system works. The only difference, and this is crucial, is that Rights are explicitly only given by active participants of the Social Contract. In America, only citizens could be true participants in the Social Contract, and so only citizens would be privy to Constitutional Rights, which avoids the aforementioned problem of affording Rights to non-Citizens under a more Lockean framework like what we currently have.
Theological Problems
As I mentioned before, the average American is going to have a hard time turning their back on the idea of God-given Rights outlined in the Constitution. It’s just good optics to say that. It’s a Beautiful Lie if ever there was one. But it is still a lie, or at least untrue.
Locke makes decent arguments in the aforementioned passages of his Two Treatises of Government for the existence of these God-given Rights, and the Founding Fathers came up with equally decent extrapolations on them in the Bill of Rights. Unfortunately the simple fact of the matter is that God doesn’t really give you Rights. That’s not really His concern, and frankly it is beneath Him.
God gives Commandments. God gives you “true Libertarian freedom” (unless you’re a Calvinist LOL) as William Lane Craig puts it, which allows you to chose whether or not to follow these commandments (to sin or not to sin; ultimately to accept God or reject Him). But He does not offer “the Right to bear arms” or anything like that.
Basically, when a NeoCon is talking about God-given Rights, just ask them where in the Bible these Rights are mentioned. They probably can’t even come up with the arguments laid out by Locke, but even if they can it still isn’t hard to point out where Locke stretches scripture quite a bit to fit his notions of property laws.
Anyways, I think an even better argument against this is that the idea of God-given Rights is sacrilegious. God is not exactly interested in the temporal powers of Earth, being that He is King of Kings after all. Providing Rights to people is not of any real concern to Him, what matters is the fate of their eternal soul. As ingratiated as I am to the US legal system, it pales in comparison to the fate of the eternal soul and I don’t imagine God thinks any different.
15 which he will make known in his own time, the blessed and only Sovereign, the King of those who reign as kings and Lord of those who rule as lords,
W. Hall Harris III et al., eds., The Lexham English Bible (Bellingham, WA: Lexham Press, 2012), 1 Ti 6:15.
36 Jesus replied, “My kingdom is not of this world. If my kingdom were of this world, my servants would be fighting so that I would not be handed over to the Jews. But now my kingdom is not from here.”
W. Hall Harris III et al., eds., The Lexham English Bible (Bellingham, WA: Lexham Press, 2012), Jn 18:36.
I think this debate is also similar to the debate over “In God We Trust” being printed on coinage (which has gone on since the Civil War). Right from the start, people were put off by the idea of sullying God’s name with money. As Teddy Roosevelt put it:
“My own feeling in the matter is due to my very firm conviction that to put such a motto on coins, or to use it in any kindred manner, not only does no good, but does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege. A beautiful and solemn sentence such as the one in question should be treated and uttered only with that fine reverence which necessarily implies a certain exaltation of spirit.”11
There are plenty of other similar quotes, and even a few polls on this topic, that you could use in place of this one, but people tend to have a boner for Teddy so I usually just use this one.
Anyways, the basic gist is that temporal power is so far beneath God that it is of no real concern to Him how they operate. Generally speaking, anyways. Sometimes God explodes your entire city for being degenerate. And, if you have properly established the fact that Rights are not, in fact, God-given then it also follows that it would be rather sacrilegious to invoke God in establishing them.
If you succeed here, then you have thoroughly refuted the notion of Universal Rights which, as mentioned above, is an important step in repairing that pernicious loophole in the Constitution, without having to throw the baby out with the bathwater.
Henry Luce. “The American Century” in The World in Flames: A World War II Sourcebook, edited by Frans Coetzee. (Oxford: Oxford University Press, 2011), 384-385.