JEFFERSON AND THE CREATOR OF RIGHTS

Christians, at least those who are political conservative, often cite the words “endowed by their Creator” in The Declaration of Independence in support for their contention that our nation was founded on Christian principles. To them, the Declaration serves as something of an imprimatur and guarantee of God’s sanction and protection of our nation.

Everyone knows Thomas Jefferson was charged with writing the Declaration and was its primary author. But some are surprised to learn he did not consider himself a Christian. That he was not a Christian, of course, does not mean he was an atheist.

During the election of 1800, a misguided newspaper writer who opposed Jefferson’s election called him a Muslim. Had the writer read Jefferson’s writings, he would have seen he was a Deist. He believed that some deity created the world, and then stepped back to see what happens next; or maybe turned away and never gave it another thought, just as a child puts away as stale a day-old Christmas toy.

Whatever the case, Jefferson’s god is not one who intervenes in the business of the world. If he hears prayers, he ignores them. He is not the God of Abraham, Isaac, and Jacob; nor, even, of Jesus. He is, instead, the god of Aristotle and, maybe, of Epicurus.

He may be the author of Being but he is not its director. Nor is he the author of the Good or the Bad. Or, if he is, he doesn’t care how things turn out. In short, Jefferson’s God is not a personal god.

Jefferson, a good politician, sometimes had positive things to say about religion. When he did, he may have had only a political purpose; or he may have had a sincere belief they were true. At the least, there is evidence that Jefferson believed the moral values preached by Jesus play an important part in social stability, even though Jefferson did not personally believe in the Resurrection.

Granted, we may never know Jefferson’s true motivation for using the word ‘Creator’ in the Declaration. Reasonable people can disagree about that. It is not even clear that the word was Jefferson’s. His original draft read, “We hold these truths to be sacred and undeniable, that all men are created equal and independent…”. He left the agency of creation unspoken. The draft passed through several hands, including Benjamin Franklin’s, before its adoption by Congress. Any one of those hands may had a part in changing the wording to “Creator”.

But let’s suppose the idea was Jefferson’s, or at least that he ratified it. Let us assume, for the sake of the discussion, Jefferson wrote or approved the final version. So the question remains, Why?

Based on what we know about Jefferson’s theology, there is no reason to infer that Christianity is implicit in his reference to a deity. A deist god is more likely the creator he had in mind. And, even at that, it’s somewhat questionable that a hands-off god would have been a creator of rights.

Still, it is a fact that Jefferson ratified a Creator as the origin of human rights; we presume, as we must, that the words chosen were well considered.

We also know Jefferson was a fervant proponent of the separation of religion and government, the first premise of secular policy. So, could Jefferson had a secular motivation in his selection of a religious cast for the endowment clause? If so, what could it be?

I argue that considering Jefferson’s anti-Christian proclivities, one can easily see how he could have chosen the word “Creator” more for its power as a rhetorical trope than as an assertion of some transcendental truth.

Note, that in Jefferson’s original endowment clause, he did not assert those truths were sacred. He wrote “we hold” those truths sacred. That is, we hold these truths ‘as if’ they were sacred. In short, the sacredness of the truths could be considered a national fiction.

Thus, he understood the word ‘Creator’ the way courts of law understand a legal fiction. Jefferson, a lawyer, would have been well aware of the law’s use of fictions as a handy tool to smooth over embarrassing bumps in legal doctrine.

For example, the Supreme Court is fully aware a corporation is a creation of the law, and not of nature. So when it declares a corporation is a person, a natural entity, it is creating a fiction in order to reach a particular result; for example, that a corporation is entitled to First Amendment free speech rights. This, of course, is the Court’s tactic in the recent Citizens United case.

So why did Jefferson think it desirable to employ a fiction? What result did he want to reach? He knew, of course, the Declaration would have a major place in the historical archives of the new nation.

But he also had a present objective, a short term goal: He meant to show to the world a justification for America’s breaking away from British rule. So, it was important that he make as strong a case as possible to justify the bloodshed he knew succession would provoke.

He had options. He could have declared that rights were the creature of the State, a position also consistent with secular policy. However, such a declaration would put him in a box. What is within the State’s jurisdiction to create, is within its jurisdiction to deny. It would have made no rhetorical sense for him to say the rights he championed were rights that exist solely by the prerogatives of the same king whose rule he is seeking to overthrow.

It’s significant that in the catalog of grievances following the endowment clause, Jefferson makes no allegation of impiety or of sacrilege against the King.

Also, Jefferson knew if he ascribed to the king the right to create rights, he would necessarily be conceding to the king the right to abrogate those rights. He knew, that to the extent that our rights emanate from a source other than the people, whether king or Creator, is the extent that the will of the people is irrelevant.

If Jefferson had piety in mind rather than politics, he could have sealed the case for not only the the religious foundation of the nation, but the Christian foundation of human rights by declaring rights were endowed, say, ‘By the Lord our God, in Jesus name, ect.’ Or, relied on a more authoritative model from the Mayflower Compact, “In the name of God, Amen…We…do by these presents, solemnly and mutually, in the presence of God, and one another, covenant and combine ourselves…” ect.

He was not willing to go that far. Yet he knew that declaring a solely human agency for the origin of rights would place them on the shaky ground of the arbitrary. He chose the word ‘Creator’ because it was sufficiently ambiguous to serve the political purpose of enshrining equal rights as a permanent national goal, and sufficiently pious to be acceptable to the reader.

So he invokes a higher authority to emphasize the enduring quality of the rights, rights that neither the king or the state can justly abrogate. He needed a word like ‘Creator’, a word he knew would resonate with Christian populations. The religious tint to the word conveys a potent propaganda value that does not compromise his religious beliefs and also serves his secular purpose.

In other words, by using a word that was neutral as to any specific religion, and broad enough to support wide interpretation, Jefferson in effect served a secular purpose in writing the Declaration as he did. The word Creator, it can be said, is not inconsistent with a Christian interpretation; neither does it require it.

Since we cannot know Jefferson’s motivation, we cannot know exactly what he meant by looking at his words. But we can read those words in light of the secular government the founders meant to establish. Such a reading turns on whether the laws of the country are handed down from on high, or whether they evolve socially out of the transactions of humans with each other.

In a practical sense, it makes no difference what Jefferson intended. In the end, rights, whatever their source, are effective only to the extent they are protected. The grant of rights is only as firm as the will of the law to enforce them.

There is an old quatrain many law students know:

For every right under the sun

There is a remedy or there is none.

If there is one, fight till you find it.

If there is none, never mind it.

Our law in the United States is not a natural law system handed down by God. Our common law, derived from the English, is a system built from the bottom up, not the top down. So, as a practical matter, even if in theory it should be true that rights are endowed by our Creator, it is the government, it is “We the people”, that protects and guarantees those rights. So, as a practical matter, rights are viable and meaningful only to the extent they are protected. Thus, under our system of government, rights are created and protected by the will of the people.

Thus the de facto status of the origin of rights is a two — headed coin. On one side, rights however endowed can be protected only by the state. On the other, only rights so protected are rights enjoyed. Rights not protected and not enjoyed are, as a practical matter, rights not endowed. They are de facto nullities even though legally enacted, no matter how devoutly their endowment is proclaimed or justified by religious doctrine.

A secular account of the endowment of rights is consistent with the secular nature of our government. There is no substantial basis, in theory or in practice, for the contention that equal rights are founded on religious principles merely because the Declaration of Independence mentions a Creator. Those words serve a polemical purpose, not a religious one.