On Bill of Rights Day: Is the Source of Our Rights Government or God?

Today marks the 230^th anniversary of the ratification of the Bill of Rights, the foundational document that guarantees basic liberties—like freedom of religion, speech, and association—to all American citizens. Never has it been more important for us to reflect on those rights, for never before have those rights been more threatened than they are right now.

Our nation is fixated on the idea of “rights.” But even as we throw the word around constantly, we’re in danger of forgetting what rights actually are: who grants them, who has them, and what they really mean. If we lose sight of the truth about our rights, we risk losing the rights themselves.

The basis of the American understanding of rights derives from our founding documents: the Declaration of Independence, the Constitution, and the Bill of Rights. In those documents, the Founders recognized that the source of these rights is God; indeed, the Declaration describes humanity as being “endowed” with “certain unalienable rights” by our Creator. Divorce humanity from God, and it’s only a matter of time before our understanding of rights collapses.

That is precisely what we’re seeing today: a crisis of “rights,” in which many people do not recognize rights as the precious, God-given gifts that they are. Instead, people have begun to think of “rights” as dispensations from the government, things that can be given and withheld based on whatever is popular at that particular moment.

This misunderstanding has serious consequences. If God is the source of our rights, then no person and no government has the authority to deprive someone of those rights. But if our rights are bestowed by our government, then our government can take them away.

And that is exactly what we are facing today—a grave threat to our rights by the government and other powerful entities.

For example, many in America—including many elected officials—no longer tolerate diverse religious beliefs in the public square. In fact, many Americans no longer tolerate religion at all. Instead of viewing it as a positive influence on society, they see it as a harmful phenomenon that needs to be stamped out. Some leading voices—in media, academia, and the business community—regularly treat religion as an antiquated vehicle for discrimination and even openly advocate for government restrictions on religious exercise.

This certainly does not bode well for religious people, but it also poses grave problems for secular people, because without religious freedom we have no other freedoms. Those who aren’t religious benefit just as much from the Bill of Rights’ protections as those who are.

Freedom of religion—premised on the idea that everyone should be free to live in alignment with their conscience—lays the groundwork for freedom of speech, freedom of association, freedom of the press, and a host of other freedoms that we take for granted today. Once we permit the government to restrict or punish people on the basis of religion, we have opened the door to all kinds of restrictions that will eventually bring the end of our free society.

A second danger to freedom in America today is a fundamental misunderstanding about freedom of speech. Today, many government authorities and entities with monopolistic power treat free speech as a vice, not as the virtue it is. They believe that the only way to create a “tolerant” society is to silence, restrict, and punish speech with which they disagree. And they are willing to use their levers of power to achieve those ends.

They preach an ironic impossibility: that tolerance requires intolerance, and that freedom requires us to give up our free speech or allow it to be censored.

The truth is quite different. The answer to an idea we don’t like is not to stifle that idea, but to respond to it with an idea we think is better. The idea that speech we disagree with should be punished is dangerous, not just to the people being silenced today, but to everyone. Once we allow the government to decide what is acceptable speech and what is not, anyone’s speech can be targeted. The “acceptable” speech of today may be unacceptable tomorrow.

That’s why it is in the best interest of every American—religious or secular, conservative or progressive—to uphold and strengthen the freedoms protected in the Bill of Rights. Those rights, which include the right to hold unpopular beliefs and to say unpopular things, are vital to protecting those who hold minority views. Societies change; the majority of today may be the minority of tomorrow.

It is one of our nation’s great virtues that its founders recognized the true source of these rights, and from the beginning enshrined protections for our basic freedoms … protections that have weathered cultural changes and persist to this day.

But it is up to each of us today to preserve those protections for tomorrow—for all of us.

No one would have risked fighting the crown without a transcendent rationale, which is what the Declaration of Independence articulated with its reference “endowed by the Creator with certain inalienable rights.”
Recognition of rights, OTOH, fundamentally emerges from court cases or legislation. One example of a right is compensation for libel -legislation enforcing which existed in the states prior to the ratification of the Constitution and Bill of Rights.
Of course, at the time of the composition of the Constitution the Federalists who composed it recognized that rights were matters of law - especially common law - which were nowhere comprehensively compiled and enumerated. And any attempt to compile such exhaustive list was not only a fool’s errand - court cases still refine the boundaries of rights today - but would inevitably create more controversy than the absence of a bill of rights in a constitution occasioned in the ratification battles leading up to the Constitution’s adoption.
Ratification was attained subject to the adoption of a bill of rights by amendment, and the BoR was adopted. But the Federalists were still - rightly - concerned that any enumeration of rights threatened the recognition of any right not enumerated. Thus, they included the ninth and tenth amendments.
Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
and
Amendment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
But notice the wording of the First Amendment.
Amendment 1:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
1A does not refer simply to “freedom of the press” but to “the freedom of the press.” As Antonin Scalia once noted, freedom of the press existed at the time of the composition of the Constitution - and so did the right to sue for compensation for libel.
Had the First Amendment referred broadly to " freedom of the press” in the abstract, it would arguably have extinguished both the right of the people to sue for libel and the rights of governments to enforce anti pornography laws. And that would have been controversial - could have been the poison pill which would have subverted the intent of the Federalists' entire Bill of Rights project to solidify consensus around the new Constitution. Instead 1A refers to “the” freedom - freedom within limits - of the press as traditionally understood.
The conclusion, Scalia asserted, is that the First Amendment was crafted to not touch the law of libel. In the 1964 New York Times Co. v. Sullivan the entire Warren Court unanimously declared that
". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”
Sullivan (unanimously, with enthusiastic concurrences) held that public officials (including judges) presumptively could not sue for libel. And that has unleashed the untrammeled propaganda machine we know as “the media.”
SCOTUS must be brought a case which will enable it to recognize that the associated and united (think, AP and UPI) press and its membership jointly and severally have (as Adam Smith once coined the phrase) been able to engage in “a conspiracy against the public” via their ability to systematically and continuously “meet together.”

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.--

That to secure these rights, Governments are instituted among Men,

deriving their just powers from the consent of the governed, --

That whenever any Form of Government becomes destructive of these ends,

it is the Right of the People to alter or to abolish it, and to institute new Government,

laying its foundation on such principles and organizing its powers in such form,

as to them shall seem most likely to effect their Safety and Happiness.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes;

and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable,

than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design

to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government,

and to provide new Guards for their future security.--

Such has been the patient sufferance of these Colonies;

and such is now the necessity which constrains them to alter their former Systems of Government.

The history of the present King of Great Britain is a history of repeated injuries and usurpations,

all having in direct object the establishment of an absolute Tyranny over these States.

To prove this, let Facts be submitted to a candid world...

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