Natural Rights, II

(continued from just below...these shots are still from the hip, mind you)

In his comment on FindLaw, Leland writes that our Constitution is premised on Natural Law, that body of ethereal jurisprudence that breeds natural rights...those certain inalienable rights referred to by Jefferson. "Thus," he writes, "'under God' does nothing more than affirm the foundation of the very individual liberties we enjoy today."

The argument, as Rehnquist argued, is that this is not religious. It is a recognition. Then, I say, some recognitions are religious. Moreover, some affirmations coerce our beliefs.

I can hear the potential readers' dissent right now:

If I believe that the importance of a strong establishment clause is in protecting our freedom to dictate our own conscious, and to follow our religious pursuits without coercion from the state, from where does this liberty arise?
In other words, when we speak in favor of a "freedom" of speech, a right to privacy, and a right to control your body's reproduction, what is it that establishes these rights? If the rights are merely the product of some early amendments and the judicial interpretations, how can these rights be, dare we say it, sacred?

The dissenter asks, don't you really believe in natural rights?
I'm not sure the collective response. My honest response is yes, I think.

But this is where Mr Leland and C.J. Rehnquist stop short of answering our establishment clause question. "Under God" might well establish the real foundations of our liberty. Of course, it might not. God might be the creator not only of our world and lives, but of our governmental systems that afford various liberties. God might like the Court's ruling today in support of free speech despite the dangers of porn. God might have allowed for the ruling yesterday giving terror suspects some due process. God might not exist.

The state is not to tell us the answer. This is not to say we cannot have our conclusions; indeed, we ought to seek them and act on those conclusions. The state, though, cannot coerce, endorse, demand, or entangle itself with our search.

Some affirmations are safe enough via generality and the abstract. What are the "Blessings of Liberty" in the Preamble? If there is a civic religion, it might be something of a celebration of principles we must cherish as a country but cannot collectively point the same direction when identifying the source of such principles.

When the state points to the source, the state points unconstitutionally.

Rehnquist writes that, if we are to get rid of 'under God,' must we also strike 'with Liberty and Justice for all?' No. The former points to the source- and the first amendment prohibits that. The latter points to the foundational liberties- and with those, state coercion is not only appropriate, it is needed.