The United States is currently detaining many people, who are not US citizens, based on an accusation of terrorist related activities. And unfortunately it is not at all uncommon to hear outraged cries that these people are not deserving of even the most basic of human rights of justice (and just treatment) – based on a combination of the vileness of the crime of which they are accused (terrorism) and the fact that they are not US citizens (and so supposedly not due the ‘benefit’ of the rights of US citizens). This is further based on the idea that the rights of justice and just treatment are ‘granted’ to us by our Constitution, and the government established by that Constitution.
Now I strenuously maintain that this is an extremely flawed viewpoint. As Alexander Hamilton wrote in 1775: “The fundamental source of all your errors, sophisms and false reasonings is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator to the whole human race, and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice”– The Farmer Refuted, February 23, 1775. Or, quoting Mr. Hamilton again: “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam in the whole volume of human nature by the hand of Divinity itself, and can never be erased or obscured by mortal power” –1775 (Quoted from Thomas Paine’s Dissertation on First Principles of Government).
It is this principle of natural law and natural rights, written in plain and ‘self evident’ language within nature itself by the hand of the Creator, which is the foundation of our Constitution and government. It demands that we look beyond the laws written by human legislators, to the Higher Law of God Himself as written in nature. All human government is established to acknowledge, secure, and protect the natural rights of mankind, and the laws of human government are valid only insofar as they serve this end. When any government fails to secure and protect the natural human rights of anyone coming under its jurisdiction, it fails in its duty to God and men and is not valid. This is true even for those who are accused of being the enemies of our country and its government, as Thomas Paine pointed out: “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself”– Dissertation on First Principles of Government, December 23, 1791.
That this was the basic principle in the founding of our nation can be seen from our ‘founding documents’: the Declaration of Independence, and the Constitution of the United States of America. Here is what the Declaration says:
“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
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…”
It is unequivocally stated here that the principles and rights in which our founders believed, and because of which they felt it necessary to sever their ties with the British government and establish a new government, were Divinely given rights inherent in nature, and belonging to all men, not just those who were to be citizens of the new nation and government. The new government which would be established (and which was established under the Constitution after the war ended) was formed to secure and protect the God given natural rights, not to grant previously non existent rights. This new government would protect those rights for its citizens, and for anyone else who might come under its jurisdiction. When the Constitution was written, the new form of government was defined, powers were granted to the government, and it was made clear that the powers of the government were strictly limited to what was granted in the Constitution itself. The rights of men were not limited by this Constitution, however; and it was made clear that the government defined by the Constitution did not have the authority to deprive anyone of the natural rights being protected by the Constitution and the government it established. The “Bill of Rights” which was added to the Constitution specifically mentioned certain rights which the government could not abrogate, but in the ninth and tenth Amendments it plainly stated that the protected rights were in no way to be construed to be limited to the ones enumerated in those Amendments. The Constitution is NOT designed to define and limit the rights it protects (because those are ‘self evident’ in nature), nor those to whom the rights belong (because they belong to all men). It is only the government and its powers which are defined and limited.
It is obvious, of course, that the US government cannot protect the rights of people in other countries – whether England, France, Spain, Germany, Iraq or Iran, for instance. But it does maintain that those same rights belong by nature to people in every other country; and when citizens of other countries come under US jurisdiction for any reason, the US has an obligation to protect their rights also. As Thomas Paine put it: “When we speak of right we ought always to unite with it the idea of duties: rights become duties by reciprocity. The right which I enjoy becomes my duty to guarantee it to another, and he to me; and those who violate the duty justly incur a forfeiture of the right”–Dissertation on First Principles of Government, 1795. That is precisely the case with the people (non US citizens) who have been detained by the agents of our government and accused of the crime of terrorism against the US and its citizens. Being detained by the agents of our government, they are now under our jurisdiction, and their rights must be protected as long as they remain so and have not been convicted of the crimes of which they’re accused. The right to be considered innocent until proven guilty beyond a reasonable doubt; the right to be informed of the charges being brought against them; and the right to defend themselves against the charges – including calling witnesses and having legal counsel – are all ‘self evident’ human rights, Divinely granted and inherent in human nature; and we have an obligation to honor and protect their rights as long as we’re holding them as prisoners. We are the worst of hypocrites if we deprive them of those rights. Anyone who claims to be a Christian should especially be ashamed, since he or she claims to be a follower of the messenger of God who taught us to love our neighbor and our enemy, and to do unto others as we would want them to do to us. He taught that the second of the two great commandments was to love our neighbor as we love ourselves. Jesus was certainly not the only messenger who came in the name of God proclaiming that great commandment, but he was definitely one of them – and Christians claim to be his followers, and to be ‘saved’ by him. So act like his followers, and act like ‘saved’ people!
Someone objected to all of this that our government has the right to limit those who come under its protection; otherwise why would we have borders, and deport those who come here ‘illegally’? That is no true objection, though. Governments, and the boundaries of the areas over which a government has jurisdiction, are not part of ‘natural law’; rather they are formed by people as a means of securing and protecting the laws of nature. We certainly have the right to define who are the citizens of our national ‘community’, and who has the right to live within our community and vote for its governing representatives. But as pointed out above, we have the obligation to protect the natural rights of everyone who comes under the jurisdiction of our laws. A person who is detained for being here ‘illegally’ has the right to either acknowledge his/her guilt, or produce evidence that he/she is not here illegally. If such evidence cannot be produced, then our government agents can either charge the person with a crime, or deport him/her. But we do not have the right to deprive such a person of his rights by nature as long as he/she remains under our jurisdiction. Once that person has been deported, our obligation to him/her has ended.
Another objection, though, is raised concerning the right of government to place restrictions on the rights it ‘allows’ and protects. The first Amendment says that Congress shall not pass any law abridging the freedom of speech; and yet we have laws against seditious speech! But the fact is that such laws, although they do exist, are almost never enforced because of the difficulty of defining seditious speech in such a way that it doesn’t conflict with the protected, unalienable right of free speech. The very first ‘sedition law’ in our country was passed by the John Adams administration in 1798, and pretty much defined sedition as any criticism of the actions and policies of the President or Congress! This was so obviously a direct violation of the first Amendment that John Adams lost his next bid for the Presidency to Thomas Jefferson, the law was nullified after Jefferson took office, and everyone who had been found guilty of ‘sedition’ was pardoned by Jefferson. In our history, people have been arrested for ‘seditious speech’ for criticizing wars in which we are engaged (think of how this would affect those who criticize the war in Iraq and Afghanistan today), and for criticizing the military draft as being contrary to the 13th Amendment (against slavery and involuntary servitude). Isn’t the quotation from our Declaration of Independence given earlier “seditious speech” by pretty much any definition? The Declaration affirms the right of the people to abolish a government they consider bad, and establish a new one! Sedition laws are pretty much unenforceable; and well they ought to be! I mean, what part of “no law” don’t you understand?! (“Congress shall make no law … abridging the freedom of speech”.) Any law which abridges the freedom of speech is a clear violation of that Amendment! The authority of government has only to do with actions, not opinions and speech. Consider these two statements of Thomas Jefferson: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg”– Notes on the State of Virginia, Query 17, 1782; and “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make ‘no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State” — letter to a Committee of the Danbury Baptist Association, Connecticut, January 1, 1802. So I maintain that laws against ‘seditious speech’ are indeed contrary to ‘the laws of Nature and of Nature’s God’ and should be abolished by the American people. Having said that, though, it still remains true that whatever rights are recognized, secured, and enforced by our Constitution and government are valid not only for the citizens of this country, but for everyone who falls under the jurisdiction of our government (they actually belong to everyone everywhere, but are protected by our government for everyone under its jurisdiction). If (erroneously, in my opinion) the people of the USA do not believe that certain ‘kinds’ of speech are protected by the first Amendment, that speech which is protected is a right of nature belonging to all people everywhere, and which our government is obligated to protect for everyone within its jurisdiction (including citizens of other countries who are arrested and imprisoned by agents of our government).
But someone maintains that the Constitution can’t be talking about ‘laws of Nature and of Nature’s God’, because the Constitution itself declares the separation of Church and State: “Congress shall make no law respecting an establishment of religion”, and provides that there shall be no religious test for public office. The Constitution also does not mention God anywhere. So what about the Atheist? How could Divinely given law be applicable to someone who doesn’t believe in God? And doesn’t calling our laws “God given” violate the separation of Church and State? Well , the fact of the matter is that the ‘founding fathers’ plainly did believe that the laws and rights they promulgated were derived from nature and God, and they were not at all hesitant about saying so! While many more quotes to this effect could be given, the ones I have already given should be sufficient. There was, to the best of my knowledge, not one Atheist among the signers of the Declaration or the Constitution. There were Deists and Theists, Trinitarians and Unitarians, but no Atheists. The existence of God was ‘self evident’ to those men, and I doubt they were much concerned as to how an Atheist would reconcile ‘natural law’ with Atheism. Presumably American Atheists do have some way of fitting ‘natural law’ into their beliefs without acknowledging God; certainly any Atheist who becomes a member of Congress, or President, would have to swear to uphold the Constitution. Rather ironically, according to the principles of the founding fathers, the right to be an Atheist is a God given right!
The separation of Church and State was intended to be the separation of civil government from ecclesiastical government. One might say that in their viewpoint, civil government had to do with the laws inherent in the second of the two great commandments: “you shall love your neighbor as you love yourself”. Ecclesiastical government would be concerned with the first of the two commandments: “you shall love the Lord your God…” Civil government has as its source ‘natural revelation’ – the laws of God and man that can be derived by reason from nature. Theology, Christology, and Ecclesiology, which have as their source ‘special revelation’ in ‘holy scriptures’ are the domain of church governments. The choice to associate with any church or no church is totally a personal decision; civil government has no say at all in the matter, and church governments can govern only those who voluntarily associate with them. Civil and ecclesiastical governments do not interfere with each other in their separate spheres. But civil government, and the individuals who take part in it, do not have to pretend to be atheists if they are not actually atheists. Atheists who take part in government must uphold the Constitution, and find some way to acknowledge natural law which supersedes Constitutional civil law and upon which Constitutional civil law is based, but they don’t have to pretend to be believers in God. Religious believers who take part in civil government must also uphold the Constitution, and be willing to refrain from trying to impose ‘scriptural’ teaching on the government and people. Only ‘natural law’ is relevant to civil government. If ‘scriptural’ law is consistent with ‘natural’ law, that is of course fine. But the basis for civil law is nature, not scripture. ‘Believers’ who find their ‘scriptures’ to be the same as natural law should have no problem with this, and neither should the person who does not believe in ‘scriptural revelation’. But if you believe that God has revealed things in your ‘scriptures’ which are distinct from what can be derived from nature, you need to leave those things to the individual conscience and ecclesiastical law. Civil government has nothing to do with promulgating or enforcing it. It can only protect your right to believe and practice such ‘special revelation’ (so long as you do not interfere with someone else’s rights to do the same thing, either from a different ‘scripture’, or a different interpretation of the same ‘scripture’).
To sum up: our Constitution in the USA is based on laws and rights given by God and found in nature; they are ‘self evident’ and discerned by reason, and these laws are universal – belonging to all humans. Our government is pledged to secure these rights and laws for all of its citizens, and everyone else who comes under its jurisdiction. To refuse to fulfill this obligation for anyone under its authority (however temporarily) is a violation of the ‘laws of nature and of nature’s God’, and invalidates government authority. The laws of God (meaning natural laws here) supersede any other laws.