Politics & Policy

The Government Cannot Take away Our Rights

In America, you don’t have to pray in order to accept God’s gift of liberty.

‘What if it is possible to ground our rights, as the Declaration does, firmly in our ‘Creator,’ while scrupulously defending the rights of dissenters, and without sliding down the slippery slope toward theocracy?” This is the core question and proposal of Kevin Seamus Hasson’s new book, Believers, Thinkers, and Founders: How We Came to Be One Nation Under God. The founder of the Becket Fund for Religious Liberty and author of the previous book The Right to Be Wrong, Hasson discusses his proposition. – KJL

Kathryn Jean Lopez: What’s so hilarious about Magna Carta?

Kevin Seamus Hasson: In Magna Carta, King John actually thinks he’s granting rights to God. He says, “We grant to God . . . that the English church is to be free and to have all of its rights fully and its liberties entirely.” To American ears, anyway, that’s very funny. By contrast, the Declaration of Independence holds that God gives rights that are enforceable against the sovereign.

Lopez: What’s new about your book?

Hasson: The American Revolution was “a new experiment in old ideas.” The book is a new presentation of even older ideas.

Lopez: You write, “If all goes well, the state can and should secure our rights in law — ‘secure the blessings of liberty’ as the preamble to the Constitution says. If things go wrong, the state can, and too often does, violate our rights. But that’s the worst it can do. It can’t actually amend or nullify the rights themselves. They didn’t come from the state in the first place, so the state can’t take them away.” But did the government do that to, say, the Little Sisters of the Poor? And Hobby Lobby before them?

Hasson: The government tries to do that whenever it violates someone’s rights. But the whole point is that no matter how profoundly it does violate fundamental human rights, it can’t actually repeal or amend the rights themselves. It can only violate them. The rights are still there, awaiting their vindication.

Lopez: You write that “in the tradition of James Madison and Thomas Jefferson, we are a nation “with liberty and justice for all” because we are a “nation under God.” But what about the wall of separation? Isn’t that the association most have with Jefferson when it comes to religion and government?

The phrase ‘separation of church and state,’ like ‘separation of powers,’ never actually appears in the Constitution.

Hasson: The phrase “separation of church and state,” like “separation of powers,” never actually appears in the Constitution. They’re both shorthand for other provisions that do. The separation of church and state is perfectly serviceable shorthand for religious liberty, provided we remember it’s shorthand, and don’t try to give it a life of its own. Jefferson’s draft of the Declaration of Independence and his bill for establishing religious freedom put him on public record as to the source of our religious liberty.

Lopez: How can Believers, Thinkers, and Founders resolve all church-versus-state clashes and controversies?

Hasson: In 200 pages? It can’t. Reminds me of my favorite Peanuts cartoon — the line where the kids’ test says, “Explain World War II. Use both sides, if necessary.” What I do hope it can do is shed light on first principles.

Lopez: How should religious believers speak differently about religious liberty when wanting to compellingly engage others and make allies and build coalitions?

Hasson: Make public arguments. That is, argue on the basis of a shared premise rather than on one you know will be disputed. The Founders are a great example. Some were ordinary Christians, some were Deists, some were in-between. But while they might have disagreed about who God is, and how it is that we could know that, they were all theists who could agree that this God they disagreed about had given them all individual rights.

Lopez: What difference does a philosophical recognition of God, rather than a religious one, make in our civic life? Is that a danger to authentic religious faith?

Hasson: According to First Amendment doctrine, the government may not make religious assertions, such as who God is. But the assertion that God is, is a philosophical assertion, and the government makes those all the time. There’s no danger to authentic religious faith, either. No one is claiming that there are different gods. Philosophy is a different — and more limited — way of knowing God than revelation is.

Lopez: “What if it is possible for the government to acknowledge the existence of a God who is the source of our rights — and mean it — without doing so religiously? What if, at least sometimes, the existence of God is a philosophical conclusion and not a religious dogma at all?” Are you demonizing dogma by saying such a thing?

Hasson: Absolutely, categorically not.


Lopez: How was “the Philosopher’s God” slavery’s “most implacable foe”?

Hasson: The Declaration taught that it was self-evident that slaves and masters were both created equal, endowed with the same inalienable rights. Even 80 some years after those lines were written, they remained salient.

Lopez: Could the Philosopher’s God be abortion’s most implacable foe, too?

Hasson: Could be — just remember how long it took for the idea to sink in about slavery.

Lopez: What should every American know about the Gobitis family? Do you believe this could be clarifying about all things religious liberty?

Hasson: Lillian and Billy Gobitis were eleven and ten years old, respectively, when they were expelled from school for refusing to pledge allegiance to the flag — yet they took their consciences seriously. And so did their parents, who then had to drive them daily to another school in a different town. What’s more, when they sued, they lost. And it wasn’t until another family in another state brought their own lawsuit, that the Supreme Court changed its mind. All this is to say the Gobitis family had to suffer a great deal of injustice before their rights were vindicated. Lillian and Billy are poster children for courage.

Lopez: What do you mean by “the secularist challenge to the American tradition had thus finally reached its logical extreme — America: One Nation Under Nobody”? The pledge would never actually say that, would it?

Hasson: Well, no (although there are some activists I wouldn’t put it past). I was just trying to express the absurdity of the secularist position — that we have rights precisely because there is no Creator to endow us with them.

Lopez: Why are fights over the Pledge of Allegiance different? How does such a fight “isolate[e] the essential legal and philosophical debate of the culture war” and take it to “its logical extreme”?

Hasson: It gets to the heart of the matter — whether the rights we have are revocable gifts from the government or inalienable gifts from the Creator.

Lopez: Why is it so “important that the government acknowledge the ultimate source of our rights and thus the limits of its powers”?

Hasson: A government that imagines that it is the sole source of whatever rights it desires to bestow is far different from a government that knows its people have rights that it may not justly transgress. The first is an arrogant government, the second a humbler one.

Lopez: What is “ceremonial Deism” and how is it a mess?

Ceremonial Deism is the notion that cultural references to God are permissible because everyone knows we don’t really mean it anymore.

Hasson: Ceremonial Deism is the notion that cultural references to God are permissible because everyone knows we don’t really mean it anymore — such as saying, “God bless you” when somebody sneezes. Suggesting ceremonial Deism as the basis for upholding things such as the Pledge reminds me of the famous line of the public-affairs officer from the Vietnam war: “We had to destroy the village in order to save it.”

Lopez: What’s important about understanding Pilgrims and Park Rangers? How do modern-day pilgrims “undervalue the inherent dignity of even a mistaken conscience” and how might they change their ways so they don’t cause harm?

Hasson: Pilgrims and Park Rangers are both reacting to the presence of competing religious claims in public. Pilgrims want to legally establish their faith and only their faith. Park Rangers want to legally repress all religious expression. They give insufficient weight to the fact that others have the same duty to follow their mistaken consciences as they do to follow their presumably correct one.

Lopez: Did you ever think the Becket Fund you founded would have to defend the Little Sisters of the Poor at the Supreme Court?

Hasson: Never.


Lopez: Do you have a favorite client over the years at Becket? One whose courage inspires? One whose case clarifies?

Hasson: The young rabbi who was a military chaplain and joined with us in a successful lawsuit against the secretary of defense. I told him there was little I could do to protect him from retaliation, and I hoped he didn’t find himself digging latrines in Alaska. Not skipping a beat, he said, “If I were worried about getting in trouble for doing the right thing, I should have never become a rabbi.”

Lopez: What have you learned to treasure most about religious liberty?

Hasson: That it’s not just the liberty to think differently, or to dress differently, or even to try to convince others to do the same. Rather, it’s the freedom to be different, to organize your life around that which you believe to be true.

Lopez: What point from Believers, Thinkers, and Founders would you wish a presidential campaign to rally around?

Hasson: The line from President Kennedy’s inaugural address where he emphasizes that our rights “come not from the generosity of the state, but from the hand of God.”

Lopez: Why is acknowledging that the Creator gave us our rights so fundamentally important?

Hasson: Because when the government acknowledges that, it is confessing that its reach is limited.

Lopez: How near do you fear is the day we lose that limiting standard?

Hasson: As Ronald Reagan used to say, we’re never more than one generation away . . .

Lopez: What gives you hope about the future of America?

Hasson: The American tradition that we each have rights not because of what we believe or what we have or because of some title we hold, but because of our fundamental dignity as persons.

  Kathryn Jean Lopez is a senior fellow at the National Review Institute and editor-at-large of National Review Online. She is co-author of the updated How to Defend the Faith without Raising Your Voice


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