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How Rights Are Like Taffy

Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.

Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.

Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As Hamburger puts it:

If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.

The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.

Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.

I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.

On the other hand, examples of the more-is-less thesis are visible on an almost daily basis. One of the latest on the religious freedom front: churches in Massachusetts are now going to be compelled to abide by transgender discrimination regulations when they host “secular events.” I suppose this move by Massachusetts’s regulators is intended to exclude the sort of “worship” that lies at the core of the natural right of religious free exercise—an exclusion with which Professor Muñoz might agree. But it does mean that precisely what counts as “worship” will need to be closely defined (that is, litigated), lest the core of religious freedom be balanced away in favor of the government’s relentlessly swelling interests.

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on October 12, 2016 at 09:53:41 am

Now this is an interesting piece and something I have thought about a lot. I come down on the side of believing the "core" of the right should be absolute. I don't like these balancing tests, even for "strict scrutiny" that imply that if the government interest were "compelling" enough well then the government can prohibit speech even though the Constitution says that Congress cannot. In this way, I think I am close to Justice Black who said it "wholly 'beyond the reach' of federal power to abridge... I do not believe that any federal agencies, including Congress and the Court, have power or authority to subordinate speech and press to what they think are 'more important interests'"

But how to define the edge of the rights? I think you have to look to the basis for the right in natural law, specifically, the idea that the freedom of speech as a natural right was understood to not harm others. This is why libel was not considered a part of the right of freedom of speech. For this reason, also, I think government employees can be required to give up their free speech rights as a condition of employment (at least within the scope of their jobs because government rules must still be rational), as natural law pre-exists government. Incitement "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action" also seem likely to cause harm to others and make sense as not included within the right.

I think the right of free exercise of religion should be viewed the same way. Absolute at its core (regardless of the "interests" of the government), but extending only to those acts of religious exercise which are not harmful to others who have not consented. Private prayer, consuming a substance, even killing animals (that you own) do not cause harm to other people. Within a person's private property (such as a church), of which everyone participating in the ceremony has consented (explicitly or implicitly), it should be almost impossible to regulate anything that it is done. Ok, if you want to fire a cannon ball as part of your religious ceremony, it had better not leave your property (that could clearly be regulated otherwise). But where religious practice starts to interfere with school or other government activities, then it can be more significantly regulated. The government can prohibit government employees from being high on the job, even if the substance is taken as a part of your religious practice (no natural right to government employment).

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Devin Watkins
on October 12, 2016 at 12:34:06 pm

Marc DiGirolami asserts: "The constitutional right of religious freedom was intended to protect a natural right . . ." This is a passive voice construction, and as such leaves out an active subject. But from inference from the previous paragraph, the persons doing the intending were the "Founders," who themselves are a rather vague group of people. "Founders," after all, can encompass people like John Winthrop or Cotton Mather--people for whom the assertion above is, I think, demonstrably true. But it can encompass a bunch of other people too.

The people we count as "founders" can include as well people like James Otis or George Mason. These were men who after all were not present for either the debates over the Articles in the Continental Congress nor the debates in Philadelphia in 1787, but whom I still think we would wish to include as "founders." As John Philip Reid has I think authoritatively demonstrated, these men, and much of the generation of men like them whose arguments and thought provided the foundation of American political thought, did not derive their concept of rights from a robust "natural rights" grounding. In general, if we are talking about the Revolutionary period, and including the rhetoriticians, lawyers, and polticians of that discourse among the "founders," then it seems very clear from Reid's work that we must look to sources other than natural rights for their understanding of rights.

The group of persons who count as "founders" can include people like James Madison or Roger Sherman--for whom the ground of their thinking about rights is ambiguous. Madison is an especially interesting case, because so much of his writing was focused on practical politics, and not on theory. To my reading of Madison's "Memorial and Remonstrance," Madison mixes a variety of rights claims, drawing widely on a number of legal and religious traditions that do not always sit easily alongside each other. Madison's arguments, in other words, are eclectic and diverse, intended to appeal to multiple audiences ranging from advocates of liberal (that is, Arminian) Anglican rationalism to evangelical, Calvinist Baptists and Presbyterians. Madison crafted the document in large part from instrumental calculations--he was, after all, an accomplished practical poltician, as well as a first rank theorist.

The interesting thing is that natural rights arguments do in fact appear in Madison's writings on religious liberty. The authoritative scholar here is Thomas Buckley--to whom I am entirely willing to defer if he is inclined to weigh in. So I do not think it is wrong to say that natural rights thinking was in the air, and that it at times provided an explicit focus for American political thought.

But I would hesitate to dismiss Reid's claims too easily, either. Even more so than Jack P. Greene or Bernard Bailyn, Reid is the foremost authority on the legal and constitutional thought of the American Revolution. The first volume of his four volume Constitutional History of the American Revolution is especially on point here--and in it, Reid goes to some explicit length to reject the claim that Americans in the arguments of the 1760s and 1770s placed all that much emphasis or derived all that much authority from the notion of natural rights.

The question of the status of natural rights claims as the foundation of American rights thinking strikes me as something that we can not just assume--which is what I take the author in this instance to be doing. At the very least, Professor DiGirlami must acknowledge that a serious and substantive body of scholarship from a leading authority argues against what is for him a core assumption, at least in the argument presented in this essay.

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Kevin R. Hardwick
on October 12, 2016 at 12:44:04 pm

Ugh. I see that in writing with undue haste, I have managed in my opening paragraph to make a truly idiotic statement. Here is the misleading sentence: "“Founders,” after all, can encompass people like John Winthrop or Cotton Mather–people for whom the assertion above is, I think, demonstrably true." This statement is deeply problematic, when read to be about specifically religious liberty. What I was really after is the larger claim that the Founders like Winthrop and Cotton derived their rights thinking from natural law. Read that way, what I wrote is, I hope, a bit more responsible. I think it is much more reasonable to argue that for both Winthrop and Cotton, and other Puritian divines and legal thinkers like them, natural law thinking was an important foundation for their thought about the meaning and nature of rights.

Apologies for the error.

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Kevin R. Hardwick
on October 12, 2016 at 12:45:58 pm

The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As a matter of principle, I reject this. As a matter of practice, I suspect it’s accurate.

Indeed, this is the nature of civil rights litigation strategy: No, if you start by asking the court to desegregate public K-12 schools, they’ll balk. But if you ask the court to recognize the injustice of small instances of government discrimination, they’ll bite. And you can build up a body of precedent and principles that will eventually make even longstanding discriminatory practices untenable.

I’m also reminded of the 1964 Civil Rights Act. The authors boldly opposed discrimination on the basis of race, religion, or national origin, and defied the bill’s opponents to show their racist colors. Instead, Virginia Congressman Howard Smith sought to kill the bill by calling the proponents’ bluff: Rather than oppose the bill overtly, he amended it to also bar discrimination on the basis of sex. This was thought to be a poison pill, especially for northern Democrats who needed the backing of union men. That is, Smith sought to kill an extension of rights by extending those rights “too far.” (In fairness, Smith’s motives in amending the bill are disputed.)

In a more contemporary context, I sense that many people recoil in horror at the idea that a businessman would discriminate on the basis of race, yet regard discrimination on the basis of sexual orientation as a harmless manifestation of the businessman’s religious freedom and autonomy. I generally favor adopting a uniform policy. In particular, I’ve proposed creating an affirmative defense that would, under certain circumstances, permit a businessman to discriminate on any basis he chooses. But if we’re unwilling to countenance discrimination on the basis of race, it is unclear to me why we would adopt a different policy regarding sexual orientation.

In short, the law should apply equally to Catholics and Klansmen. The least supportable form of government discrimination is discrimination among prejudices on the basis of their popularity. That’s just discriminating on the basis of religion.

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nobody.really
on October 12, 2016 at 12:47:18 pm

That said, the Massachusetts law does seem to open a can of worms. I want to draw a clear line, but where should we draw it?

Under the 1964 Act, private clubs get to discriminate on pretty much any basis they choose. But churches typically hold themselves open to the public, as part of their mission. (I understand this is less true of many synagogues, which have a dues-paying membership model.)
If secular public halls must provide bathroom accommodations for transgender people, and religious institutions might be opposed to providing such accommodations (or be opposed to allocating funds for building separate accommodations), what then?

On the other hand, if we establish a policy (putatively) for the benefit of the public, do we tip the scales of justice by letting some people evade the policy’s burdens?

The Death of Common Sense (1994) begins by describing how an order of nuns had sought to begin providing social services out of an abandoned two-story urban storefront. But the building lacked an elevator, and new regulations would require anyone opening themselves to the public to have an elevator installed. Due to their vows, these nuns did not take elevators; they always took stairs. Yet the rule was unyielding, and the nuns eventually had to abandon their plans due to the cost of the elevator. The author regarded this as a travesty—and perhaps it was. But the author failed to acknowledge that the purpose of the elevator was not to serve the proprietors but to serve the public. Yes, the law may have created a regulatory hurdle that was too high for the nuns to cross—but it also established a policy that benefitted disabled people throughout the jurisdiction. In short, the policy had costs and benefits, and the author was disingenuous in describing the policy solely on the basis of its costs.

But then, who is to say what constitutes the practice of religion? If a church buys a movie theater, should the church be exempt from nondiscrimination laws that apply to other theaters? And taking this to its logical conclusion, should every shopkeeper be able to evade antidiscrimination laws (and some tax laws!) simply by declaring his business a “church”?

These lines will be hard to draw.

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nobody.really
on October 12, 2016 at 13:36:11 pm

John Philip Reid rejected the lockean view as holding great influence on the Founders, but not the basic idea behind the lockean view. According to Reid, Locke was just expressing what was already the commonly held view embraced by the English common law. While “social compact” theory was not widely held, according to Reid, “original contract” theory was. Rather than seeing government as holding in trust our rights as we agreed in a social compact when exiting the state of nature, Reid saw instead a contract on the nature and scope of the proper legislative power. In this way, he was Locke as rather insignificant of a figure who held idiosyncratic views not shared by wider society.

I disagree with him, but even under his view the idea’s expressed by Locke of natural rights and the limit of proper government power were still quite real. As Reid said in the Constitutional History of the American Revolution: The Authority of Rights page 134: “the original contract was a legal theory limiting the legitimate power of the state. This also explains why it has some bearing on the question of the authority of rights. Rights exists not only as positive possessions, but as restraints on government. ” Reid quotes John Dickinson (a founder who was then quoting Blackstone) to say that the prerogative could “not intrench any further on our natural liberties, than is expedient for the maintenance of our civil.”
I think Reid discounts natural rights more than I would, but then goes around an embeds the very idea of natural rights in his concept of the original contract. Even if you believe Reid’s account, there is a limit to the proper scope of governmental power based on the purpose for which government was created.

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Devin Watkins
on October 12, 2016 at 13:58:19 pm

Devin--

Thank you for taking my argument seriously, and for taking the time to compose a thoughtful reply. It is nice to see that people still read Reid and have his work sufficiently conveniently to hand as to be able to cite from it readily. With the diminishment both of Political Theory and Intellectual and Constitutional History, the torch is increasingly carried mostly by law professors--themselves an endangered species.

My larger point is two fold. First, I do think it matters whether you ground rights in the enlightenment project to know God's revelation by applying human right reason to the study of God's creation, or rather in the customary practices of the English people, dating back to time immemorial. In the grandest scheme, of course, one can argue that the two are asymptotic, and that in the end customary practices are a kind of revelation of God's will. But even so, the one project is mostly deductive and abstract; the other inductive and grounded in practical experience. To my eye, that is a profound difference, in the actual lived reality of the people who argued and interpreted the political events that culminated in American independence--and who devoted serious attention as a consequence to the crafting of republican governments.

Second, though, I simply wanted to point out that premises assumed by author are contested--and whatever may be the case, one must acknowledge first that contemporary scholarship contests the issue, and second, that for thinkers like Madison, natural rights was one of a panopoly of grounds for rights thinking, and perhaps not the most important. So the importance of natural law is contested by modern historians, and it was hardly the only grounding employed by thinkers at the time either.

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Kevin R. Hardwick
on October 12, 2016 at 15:15:36 pm

"These lines will be hard to draw."

AND in the process of drawing these lines, we devolve *natural rights* into positive rights. There is no escaping that conclusion or outcome.

Let us put aside whether "natural right" is derivative of a divine source. If I recall properly, Hadley Arkes makes (or at least allows for) compelling argument for a "natural right" derived from the nature of human beings.

Kevin Hardwick, I think is correct in noting that the founders DID NOT strictly adhere to, or adopt, the notion of divinely issued natural rights (NR); however, it is, to my mind, clear that a) Reid and Greene both acknowledge the influence of NR on the thinking of the Founders and b) that the founders themselves, to varying degrees, subscribed and sought justification for their new polity in NR.

So clearly, it was and is a major stream of intellectual / political thought / action in American History.
The question, after recognizing it's presence, then becomes "What are we to do with this"? or perhaps, more practically, "What have we done to the conception of NR"?

I have argued in simpler form that the transformation of a civic good into a public good will, of necessity, impose certain costs. First, is the imposition of additional obligations upon those who may find the new obligation either burdensome or unwelcome. More importantly, however, this transformation from civic (community, personal AND moral good) to public good (employing the force of the State) has the (intended, perhaps?) effect of transforming a *natural right* into a "positive" right. As DeGirolami notes these rights are now subject to *negotiation*:
"The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes."

In effect, and whether we hold a view of NR as "divinely" issued or of a more anthropomorphic generation, these core liberties, previously held to be (somewhat) inviolate and cabined off from State interference, are now clearly open to restriction, re-definition or negation by the State authorities.

The Massachusetts "gender" mandate is a clear example of this. Heretofore, a "Church" was a Church; one could speak, preach, proselytize etc to one's own delight. Not only was the content of the preaching to be FREE from State interference, it was not to be questioned by any other than the adherents of that particular faith (and, yep, you couldn't go around killing folks, as part of that sermon (except, of course for Muslims, nowadays)).

Would we not agree, that a religious sentiment / disposition and it's admonitions upon the populace to do good deeds, etc, is a public good? Yet, now, we encounter a State that in its Progressive righteousness, has taken on not only the charitable tasks of,say, Catholic Charities, etc, but also has seen fit to impose obligations upon its citizenry TO DO GOOD DEEDS (via taxation, etc) and to speak in a certain fashion. This is now a PUBLIC good. Can we not see the pernicious effects of this PUBLIC goodness. In transforming the religious or civic morality that inspires citizens or adherents to care for the poor, minister to the ill, etc etc, into a STATE imposed and ENFORCED obligation, we have now effectively permitted the State to not only censor and redefine *sermonizing" but to practically negate it.

And all this (and this is funny or *punny*) because we now assert that a Church is not a Church because, now get this, "It is open to the Public."

Are you fucking kidding me?
Are not all churches tasked (admittedly, self-tasked) with spreading their word / gospel?
Is there a purpose to a church that does not involve ministry to the public?
Are all Catholic Hospitals (religious hospitals, in general) to be deemed PUBLIC and thus must now perform abortions, etc simply by virtue of the fact that the religious hospital will accept and care for members of the PUBLIC?
(I could go on in this vein - but I won't)

Simply put: We allow ourselves, our *natural rights* to be severely diminished and / or negated when we permit State interference and subject ourselves to the rather perilous process of negotiation with a PUBLIC (re: State) mechanism.

rights are now solely based upon Positive Law. They may be Positive but they ain't *natural* anymore, kiddies!

Nobody. really makes what is a seemingly sensible argument above. It is REASON-able.
YET, that is the precise problem. Using Reason, any or all of us can make a case that would allow for (negotiate) the "exceptions" special cases, etc that would militate against a more fuller expression of religious liberties (or even ir-religious ones). Once one allows the State to interpose itself, and compel compliance with its own vision of a *good life* / society (THE Public Goods of which I spoke), you have effectively destroyed any grounding of rights in a *natural* order, whether divinely inspired or not.

And you engender an ever increasing number of "collisions" - that, (how curious, isn't it?) will require FURTHER State interpositions.

As for me, I would prefer that those *collisions* be Oakeshottian in nature, not Lockean or Wilsonian!

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gabe
on October 12, 2016 at 16:35:03 pm

"By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes."

The danger lies when we fail to recognize that, only The True God can endow us with our inherent unalienable Rights at the moment we are created and brought into being at conception, equal in Dignity, while being complementary as a beloved son or daughter.

To deny that God, The Most Holy And Undivided Blessed Trinity, Is The Author of Love, of Life, and of Marriage, and is thus The Author of our inherent unalenable Rights, is to render unto Caesar, what belongs to God.

You can't bend inherent unalienable Rights like taffy, because inherent unalienable Rights are not pliable; you cannot render onto Caesar, what has always belonged to God.

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Nancy D.
on October 12, 2016 at 19:57:20 pm

So well stated, Mr. Gabe; and I love any Hadley Arkes reference. Furthermore, you are quite right, the strong argument for natural rights need not contain any reference to religion or God.

Progressive Statism is rapidly becoming an established religion the nature of which, the Constitution specifically prohibits.

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Paul Binotto
on October 14, 2016 at 08:33:53 am

Let me suggest a possible way to address the very interesting question raised by Mr. Hardwick regarding the status of natural rights (in general) and the natural right of religious liberty (in particular) in the founders’ political thought.

Wouldn’t one way to understand the common thought of the founders be to investigate how the they address religious liberty in their original state constitutions, especially those “first wave” constitutions and declarations of rights drafted between 1776-1786? If state after state recognized the natural right of religious free exercise in their founding charters, would this demonstrate that the founders held religious liberty to be a natural right?

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Vincent Phillip Muñoz
on October 14, 2016 at 14:11:25 pm

Professor Munoz--

You raise a completely valid point--but one that supports my larger claim. If we restrict those whom we count as Founders to a particular group of people and a particular time--the framers of the original state constitutions, then it is entirely reasonable to suggest that natural rights thought played an important role in those framer's understanding of the origins of rights.

I did not write as clearly as I could have, so shame on me. Allow me, though, to draw your attention to the following paragraph in my original post: "The interesting thing is that natural rights arguments do in fact appear in Madison’s writings on religious liberty. The authoritative scholar here is Thomas Buckley–to whom I am entirely willing to defer if he is inclined to weigh in. So I do not think it is wrong to say that natural rights thinking was in the air, and that it at times provided an explicit focus for American political thought." I was writing there specifically about Madison's Memorial and Remonstrance, but the final point speaks more broadly to our discussion. At times, natural rights thinking *did* provide an explicit focus for American political thought. At other times it competed with other understandings of the origin of rights, and on occasion those other understandings were more salient and more important.

As an academic historian (I teach Constitutional History at James Madison University), my disciplinary focus is on change over time. What I find striking here is that the focus on natural rights, and on their specific application to religious liberty, received different emphasis at different times, and in different political and constitutional settings. So the interesting question, so it seems to me anyway, is not to ask a question like "did or did not American thinkers premise their thinking about rights on natural law?' The correct answer to that question is "Yes." The more interesting historical question is "why did American political theorists focus on natural law as the basis for rights at certain times and certain situations, and not others?"

All best wishes,
Kevin

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Kevin R. Hardwick
on October 14, 2016 at 14:51:01 pm

Professor Munoz--

Indulge me, if you would, in a follow-up comment that will, I hope, illuminate my argument further.

When George Mason presented his original draft of what ultimately became the Virginia Declaration of Rights, it contained explicit provision for religious toleration. You, of course, know this episode every bit as well as I do, since you have written about it in your excellent study of the thought of Jefferson, Madison, and Washington with regard to religious liberty. It is hard to pin down the precise origin of Mason's thinking--we have to tease that our from fragmentary evidence. But I think it is plausible to read Mason's original language as an extension to the nascent Virginia commonwealth of the 1688 English Act of Toleration, I would have to look it up--I can't recall precisely from memory--but the British government extended that act explicitly to Virginia, I believe in the 1730s. So what Mason was proposing was, it seems plausible, to continue in the Virginia Commonwealth what was by 1776 the customary practice of the Virginia polity. This strikes me as consonant with the kind of argument that Reid makes for the revolutionary period more broadly.

As you know, Patrick Henry and James Madison, working together, objected to the language Mason proposed. Because we know Madison's and Henry's respective roles during the debates over religious liberty in the mid-1780s, we tend to forget Henry's role in revising the language of the 1776 Declaration of Rights. But it is entirely plausible that Henry was the driving force behind the suggested revision--Henry, after all, had been an advocate for the rights of Protestant Dissent in the colony from at least the preceding decade, and Henry was by far the more established political figure in 1776. At any rate, the revision substituted the language of religious liberty for the customary language of religious toleration.

What the episode teaches, at least to my reading, is that the language of customary rights and the language of natural rights were both very much in play in Virginia in 1776. In this particular episode, the natural rights language prevailed. I have not, however, read these early provisions for American rights more thoroughly, with an eye towards the importance of customary rights--what Whigs at the time referred to as the "Ancient Constitution"--rather than natural rights. A priori, I would guess that in at least some instances, we can find provisions and language in the original constitutions of 1776 and 1777 that derives from custom and from the Ancient Constitution. If that is correct, then even in these early constitutions we can find multiple grounds for American thinking about rights.

As Devin Watkins suggested above, this may not matter all that much. I suggested grounds for which it might, in my reply to Watkins. But that's just a supposition--to test it, I would have to give the evidentiary record a great deal more attention than I have time at the present, Alas, I have mid-terms to grade, so that will have to wait for another conversation and another time.

Well wishes,
Kevin

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Kevin R. Hardwick
on October 14, 2016 at 14:52:01 pm

Kevin:

You sum it up quite well:

“why did American political theorists focus on natural law as the basis for rights at certain times and certain situations, and not others?”

And a question, the answer to which would appear to have particular applicability to our present circumstance

It is interesting that you focus on "change over time." If i may be so bold as to suggest to the Editors of this site that you have an opportunity to present your thinking on this topic. I, for one, would be interested in hearing it and perhaps seeing how the varied political, philosophical and religious influences play out as each respective one recedes or predominates in a given time frame.

Of course, easy for me to suggest it - You have to write it!!!

take care
gabe

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gabe
on October 14, 2016 at 15:51:35 pm

AND just in case we all lose sight of what is at issue here, that is, what are the observable effects, of this diminution of rights, specifically religious liberty (or given today's milieu -even toleration) here is something just in from the illustrious Begowned Jurists of the Ninth Circuit wherein a religious organization is REQUIRED to provide information on how and where to get an abortion; Such is the state of religious liberty / toleration today:

http://thefederalist.com/2016/10/14/federal-court-christian-pregnancy-centers-must-tell-patients-can-get-abortions/

Oh, How things Change.

BTW: this is why, whether *natural rights* whether they be real or not, serve as a far better guardian of the rights of the citizenry than any positivist justification of rights / liberty.

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gabe
on October 14, 2016 at 16:43:34 pm

I can't begin to articulate just how angering I find this ruling, so I won't try. You know, Mr. Gabe, I can't help wondering if it mightn't be better for Kamala Harris to win the election and be sent to Washington. Washington may well be just the place where she would least be able to do more harm, especially if Republicans can maintain the majority. Just a containment theory...

There are indeed other options to be considered prior to, perhaps in addition to, appealing to the Supreme Court and I would encourage every option be considered.

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on October 14, 2016 at 17:13:22 pm

And since it came up, here is another example of the effects of a theory of rights not grounded in natural right wherein the entire religion is deemed to possess a fraudulent attachment to it's most venerated and sacred sites:

http://townhall.com/tipsheet/mattvespa/2016/10/14/un-the-temple-mount-is-only-sacred-to-muslims-not-jews-n2232062

In other words, even your religious history is now subject to the whims of an International Committee AND "We will decide WHAT is sacred and TO WHOM it is sacred.

How is that for *tolerance.*
Yep, we don't need no stinkin' natrual rights.

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gabe

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