"What Thomas Jefferson would say about the Ten Commandments today"
Web-Exclusive Commentary @ NEWSWEEK by Marc Gellman
March 2 – The Supreme Court is hearing arguments this week about whether public displays of the Ten Commandments violate the Establishment Clause of the First Amendment to the American Constitution. I wish Thomas Jefferson, who wrote the amendment, were able to testify from Heaven or Boca Raton, whichever happens to be our appointed destination after death. (I’m betting on Boca.) I think he would have a few things to say.
He might teach the court that there are only three ways human rights
are accorded to citizens. Either they are the rational construct of
people trying to avoid “the war of each against all” in what Rousseau
called the "State of Nature." This way sees civil rights as a rational
outgrowth of our fear of those who want to hurt us or steal our iPods.
Thomas Hobbes stated the view of human nature underlying such theories
of the social contract, homo homini lupis: “Each man is the
wolf of his neighbor.” Freedom in this theory is merely protection from
the guy down the street. The problems with this theory are severe
despite its appealing claim on human reason. In this view, some people
can easily be excluded from rights because of some rational argument
claiming to prove that it is not rational to protect them. Such
perversions of human reason to oppress human beings include denying
rights to patients in a vegetative state because they are not
conscious; denying the right to live for unwanted fetuses because they
are not yet living outside the womb; denying rights to mentally
challenged people because they can’t get into Harvard; or to blacks in
the antebellum South because they were rationally intended to be
property and not people, or denying women the right to vote until 1920
because of the rational fact of their lack of capacity. We must
remember that the majority of professors in Nazi Germany supported the
Third Reich on rational grounds. The deepest flaw in this view was,
ironically, stated by Marx in an 1844 essay against Bruno Bauer who
rationally argued that Jews should not be accorded civil rights in
Germany. Marx wrote that the flaw in this idea of civil society is that
it perniciously teaches us “to see in our fellow man the source of our
limitation rather than the source of our fulfillment.” All that reason
can produce is the notion that freedom is a good high fence for
healthy, smart and politically well-connected people, and this is not
The second possibility for the origin of our rights is that they are gifts from the state to all or to some selected inhabitants of the state. This view sees rights as like a driver’s license. They are a privilege bestowed by the author of privilege, which is the government. This was not the communist theory, the theory was that the workers ran the state, but it was definitely the communist reality in which the state decided who had rights and that decision did not reach beyond the Politburo. It is also the present view of every dictatorship in the world—and the Department of Motor Vehicles.
The third theory of how and why we have rights is the one Jefferson authored, the one I revere, and the one I hope the high court affirms without too many subjunctive clauses. This is the theory that our rights come from God through the state, which is created by the consent of the governed to protect the dignity of all its citizens, who are all made in the image of God. The state, in this view of rights, is always subject to critique based on its success or failure to respect the God-given freedoms of its citizens. This critique is why we can judge the democratically elected Hitler government of Germany as immoral, illegitimate and sinful. We are judged not on the purity of our democratic processes but on the actual result of our efforts to secure freedom for all. What people forget, Jefferson might remind the court if he still had a larynx, is that our rights do not derive from the beliefs of any one religion. They derive from a nonsectarian national religious belief that our rights are secured by our being created in the image of God. Even though all Americans do not believe this, it is the reason why the rights of all Americans are secure. They are beyond the perversions of reason or the vagaries of political power. These rights are not achievements. They are endowments from God. How that God is variously conceived and worshiped by religions, or even if that God is worshipped at all, is of no concern to the state. What is of concern is that neither unaided human reason nor the whims of the government are sufficient to establish and guarantee freedom. Only a national belief that we are created beings can do the job. Now that job is on trial by morons (and I say that without any negative connotation) who want to set adrift our God-given freedoms, represented perfectly but not exclusively by the Ten Commandments.
Perhaps Jefferson would say all that, or perhaps he would do something more dramatic and more profound. I bet he would approach the justices and place before them a yellowing piece of paper upon which was written his first version of the Declaration of Independence, the one that does not begin with, “We hold these rights to be self-evident, that all men are created equal and endowed by their Creator with certain inalienable Rights …” At first, Jefferson did not write “self-evident” because he knew that such rights as he imagined were absolutely not self-evident to reason or to the state. The rights that created America are the result of a spiritual/political leap of faith that grounds our rights in a formative national religious belief that we are all made in the image of God. From this belief has grown an exceedingly great and tolerant nation where people with different faiths and no faith at all have flourished.
The words on that yellowing paper, the words Jefferson’s wanted to open the Declaration of Independence contain no contradictions. They are made of whole cloth and they are woven on the loom of faith and freedom. This is what Thomas Jefferson wrote: “We hold these truths to be sacred …”
Maybe he would just put this paper down and then float over to Monticello to see if the fruit trees are awakening from their long winter’s slumber.
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