One of the primary justifications of the Declaration of Independence is that there are fundamental human rights, and if they are violated, the government which enforces them no longer has any legitimate authority. While I myself find that is an over-simplification, there is certainly truth to this idea. There are fundamental human rights, and governments, because they are to serve the common good, are meant to protect those rights. In this way, these rights transcend political institutions, political states – they are fundamental moral laws and are to be guaranteed to all, even those who are not citizens within a particular country. But it is possible for a legitimate government to fail. History shows this. All one has to do is see that the same people who declared such right for themselves often procured slaves for themselves. The Holy Scriptures also show us this. Just look at the situation of the early Christians. The authority of Rome was recognized despite the abuses Christians received at the hands of Roman magistrates.
Nonetheless, the American Revolution was founded upon Enlightenment ideals, such as the social contract.[1] The consent of the governed can be lost, and a revolution can be justified, once certain fundamental rights have been undermined:
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.
Now, over two centuries later, there is a debate about human rights and whether or not certain fundamental rights should be given to non-American citizens. One prime example of this is in the issue of torture. While the moral ramifications of torture has not always been understood, and so Christians at one time thought it possible to use torture on others, now that we have explored the moral consequences of torture, we see it is contrary to the dignity of the human person and is intrinsically evil. It is not just intrinsically evil, it is also a grave evil. To torture someone is to go against their fundamental human right. Even if they have themselves done some grave evil, they do not forfeit their fundamental human dignity; it is not theirs to give up. But some people say enemy combatants, because they are not American citizens, can be tortured because “the rights given to American citizens from the Constitution are not given to them.” The issue, however, is not whether or not they are to be given Constitutional protections, but whether or not they are to be given human rights; and the whole foundation of the American system is based upon the notion that human rights transcend political states. To argue that enemy combatants are not to be given the same rights as the positive law of the Constitution is beside the point – and indeed, to ignore the greater fundamental issue is to reject the very justification given to the American Revolution.
This same question, however, is not just found in the issue of torture, but in the issue of abortion. The Constitution, as it has been interpreted and so as it is to be followed, does not give rights to the unborn because they are not “citizens.” They are not even given the rights of immigrants. They are, nonetheless, human persons. They must be given the same human rights as all humans, whether or not they are citizens of the United States.
In either case, the argument lies not with the rights and dignity of the human person, but how those rights can be ignored because positive law does not seem them as bearing such rights. This is what ties the issue of torture and abortion together. What is sad is that a critic of one such abuse ignores the other, and does not see the fundamental unity between both issues. We have ignored greater moral rules, and only look to the accidental progress of positive law as the means by which we defend inhumane activity. Other debates, such as the issue of immigration, and the kind of freedom which should be accorded in immigration, also fall under this category. We need to understand that positive law serves a proper function, but we must not confuse positive law as the moral law, nor that positive law is to trump moral law when positive law allows for, or requires, evil.
Nationalism, it seems, develops into a great evil when the reverse is what happens – that is, when moral law is judged by political Constitutions. This, I fear, is what is happening in the United States today. Instead of concerns for the common good as required by moral law, political good and the good of the nation-state is propped up over and above the common good. The end result of this nightmare is not one I can predict.
[1] Now, I am not saying I agree with the Enlightenment on the social contract, because I do not. This is at least hinted at in the body of the this text. However, I do think the issue of human rights is one which is authentic even to the most pre-enlightenment traditions; they might have used a different means of expressing this, but it is clear that the concern was there, because the common good was desired by the state.
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