Did the Supreme Court enact a law that encourages the concept of unequal rights, contradicting the Constitution and the Declaration of Independence?
(Regarding a column in the Orange County Register by Tyber Machen, a response to presidential candidate Dr. Alan Keyes’ premise that all men are created equal and endowed by their creator with unalienable rights. Machen claims that comparing slavery and abortion, as Keyes does, is not a fair parallel.)
We look at human beings and ask what is distinctive about human beings? One of the things that we see that is distinctive about human beings is that they have certain mental capacities that other beings do not seem to have. But that isn’t what qualifies a human being as a human being. If it were what qualified a human being, then anyone who did not have that quality in sufficient degree would not be a human, which is precisely what he is arguing. Here is the problem. What it becomes is an I.Q. test for being a human being. That’s what it really amounts to.
There is another point, too. If I were to accept his definition of what it means to be human, then I would that everybody in the Senate believed like he did because then minimally we’d have some kind of a period of time after which abortion would be immoral. Let’s say we have the full development of the cerebral cortex. That’s the second trimester. Well, good, then all third trimester abortions should be illegal. I have a dear friend that had a child at 22 weeks, and her daughter is still alive after six weeks of intensive care and is growing. So 24 weeks is pushing it a little bit far. But I’d even take that, frankly, because we’d save a lot of lives. But I think that there is another confusion here, and this is why I think that the objection or the comparison with slavery is a fair one.
Everyone is going to have to put their thinking caps on for a minute. We are going to have to spend a few moments talking about some metaphysical issues that are a little difficult for the rank and file, but I am going to try to put it in terms that will make sense.
I think the gentleman’s argument is flawed because it misunderstands something about the nature of being human and the foundation for human rights. If this man is a materialist then he must deny the argument of the Constitution with regards to basic human rights. The argument in the Constitution is this: Men have rights qua man—in other words, as men. Men qua men. Men in the capacity of being a human have particular rights. These rights are transcendent rights. They are not rights that are given or taken away by government, but are rights that come from God. Therefore, government must acknowledge them.
If you are a materialist, you can’t even argue that way. If you are a materialist, there is no God and there are no rights because rights are not material. There is no morality because morality is not material. If you are an atheist, you cannot argue this way. It just doesn’t work. An atheist would have to abandon the argument based on rights because he doesn’t believe that such things exist.
I’m going to accept the argument of the Constitution because I think it is a good one. I think human beings do have rights and those rights can only be properly justified and explained in the context of a theistic world view. That is the way they argued. If you read the Declaration of Independence, some form of the word God is used four different times and it is the very foundation of their entire case against England, the foundation for the Constitution, and our Republican way of government.
I’m going to accept the argument because this brings us back to the slavery issue, which the writer here said was not a fair parallel. I think it is fair because of the way the Constitution is worded. Lincoln, when he had his debates with Douglas, argued in a particular way. In his private notes he developed an argument and said something like this: Now, if you are saying that a black man is inferior, then you have to be careful because if his inferiority is in basic lack of intelligence and that gives you the appropriate right to enslave him, then someone else can use that argument against you if they have a higher I.Q. than you. In other words, he is saying that whatever rule you establish becomes a rule—rule to justify one kind of behavior can be applied consistently in other areas and it is going to have some very deleterious results. This ought to be a hint to us that our rule is a bad one.
Lincoln’s particular objection was to disqualify rights of a human being—what the Constitution calls “unalienable”—because of some physical characteristic. That was the foundation of his discussion. You can’t say that because he is black, that he doesn’t have rights. It is a physical quality. And anybody who is lighter than you are has more rights than you. That’s your rule, isn’t it? You can’t say because Negroes are, to use his term, less intelligent gives you the right then to enslave them because somebody more intelligent can use your rule to enslave you.
Lincoln points out that it misses the point entirely to ground rights in some kind of physical quality of the body. Isn’t this precisely the way this argument against the personhood of the unborn goes? It says in the Constitution—and it was even quoted in this article—that men are endowed with certain rights. How are they endowed? What qualifies them for the endowment of this unalienable right? It certainly isn’t anything about their physical body because we would claim that all men are created equal in the context of this discussion in the Declaration. When we ask the question, In what way is it true that all men are equal?, we will never come up with any physical criteria that makes us equal. This helps us to realize and understand that the point of this statement is that men are equal in a way that is non-physical. The particular thing that is in view here is that they are endowed as men. That’s why I said man qua men. They are endowed with rights as human beings. It is the fact that they are human beings that allows us to acknowledge the endowment by God of their unalienable rights. So what the Constitution says is that human beings are endowed by God with certain unalienable rights, and the endowment is not related to any physical thing in itself—any particular physical thing. We are endowed in a metaphysical way that is not related to our physical characteristics, but it is related to our humanness.
When does a human being become a human being? A human being becomes a human being when it becomes a being. The fact is, when a thing is something it never becomes something else. You don’t have creatures that start out as one kind of being and slowly become another kind of being. The development that we see in our life from single cell into maturity is dictated by the kind of being we happen to be. It can develop into twins or triplets. It can attach itself in a way that it ends up killing the child. But what it cannot do is to become something other than what it is, and that is the point. It is a human being.
It is very easy to get there. It is alive and it is a separate being. That’s clear scientifically. Now, the question is simply, What kind of being is it? Every being is a kind of being, and the law of biogenesis, which is a well-established law of science, says that every being reproduces after its own kind. Human beings reproduce other human beings. From the time this separate being comes into existence it is a human being and it is a human being throughout. The only thing that changes is what it look like.
Here’s my basic point: An unborn child is a human from the moment it comes into existence and continues to be a human until it dies. Whether real death is brain death or not, that may be a moot issue. Whatever it is, it is throughout. It doesn’t become a human when it gets a brain because then one could ask the question, What was it before then? Clearly it is a being developing according to a certain pattern, and the pattern seems to be dictated by the kind of being that it is. The professor or doctor writing this piece couldn’t argue that up to the sixth week or the sixth day it could kind of go into any direction. It could be a rabbit or a squirrel. He is saying something can go amiss, or it can split into two or three human beings, but it still has the nature of being human.
The second point is that rights accrue to human beings as human beings. They don’t accrue regarding a particular physical state of development because then we are right back to Lincoln’s point again. You don’t have any grounds then for equal rights. There is only ground for equal rights if human beings are equal in some significant way. They are not equal physically in any way, so equal rights must be grounded on something else. The equal rights are grounded in the humanity, and that is the basis upon which God bestows the rights. Rights are bestowed to humans as humans. Therefore, any human being has those unalienable rights regardless of the kind of physical development that they happen to be in at the time.
Someone might point out that a zygote is obviously not a human being. My reply would be that that is circular reasoning. It is a human being at that particular stage in development. It may not look like one, but it sure looks exactly like a human being is supposed to look when it is two days old. All that is saying that an adult doesn’t look like a child, that there are different levels of development for any particular being. But when a being develops it doesn’t become more or less of that being, it just changes its properties.
Here is another thing that some folks can chew on. You may have heard of this concept before but think of it for a moment. Clearly, the unborn child changes through time. She develops through time. Now the notion of change presupposes that some part of that thing is always the same. When I say that I altered or changed a shirt, I have the same shirt from the beginning to end, but changes have been made to parts of the shirt. So in order for something to be changed, something about it must stay the same. It’s fundamental identity must stay the same throughout. Clearly the child changes physically as it grows, and in fact everything about its physical body changes.
What allows us to say that the child who is born at term is the same child that was conceived nine months prior in the womb of the mother? Clearly, physically speaking everything is different—the size, the shape, the composition, everything is different about this child that is born. We can say it is the same child because there is something about it that hasn’t changed at all. It still is itself, the particular being that it is. The being that it is a human being, and human beings are personal beings that have certain unalienable rights that God has given them. This is why we have something called human rights.
This discussion might be viewed as just a philosophical discussion that people could simply take exception with if they wanted. Well, that just simply isn’t true. The problem for Americans is that they’re locked into the Constitution, and once you toss out my assessment, you have tossed out the foundation for any rights whatsoever. You are back to rights not being equal rights, but rights and personhood being assigned based on physical qualities that different people have in varying degrees. Therefore, you have no foundation for equal rights whatsoever. You might have a foundation for some kind of right, but you don’t have any foundation for transcendent rights.
If you want to hold to equal rights for human beings, such that slavery is unjust—and this brings us back to the first part of the discussion—you are going to have to justify that in some fashion. The Founders justified it in a very precise way. The justification that the Founders used to argue for equal rights for all human beings, and then applied to the issue of slavery by Lincoln and civil rights leaders since then, is the same argument that can be applied to unborn children as human beings. Their rights should not be infringed through abortion. It’s the same argument. That is why it is a proper parallel.