I. Thomas and the Perennial Question
Justice Clarence Thomas's April 2026 address at the University of Texas reopened what is, at its core, the foundational jurisprudential question of the American republic: whether rights are antecedent to and independent of political authority, or whether they are artifacts of governmental creation subject to governmental modification or revocation. Thomas argued that rights are God-given, natural, and absolute — that progressivism, by treating government as the ultimate source of social goods and individual entitlements, effectively elevates the state to a quasi-theological status incompatible with constitutional liberty.
This essay examines and defends Thomas's position through the lens of natural law theory, the founding documents, and Ezra Taft Benson's rigorous logical corollary, which demonstrates that the ontological origin of rights is not merely a philosophical abstraction but a jurisprudential and political question of the highest practical consequence.
II. Benson's Corollary: The Logic of Rights-Granting
Ezra Taft Benson, former Secretary of Agriculture and a serious student of American constitutional philosophy, framed the issue with uncommon analytical clarity:
Rights are either God-given as part of the divine plan, or they are granted by government as part of the political plan. If we accept the premise that human rights are granted by government, then we must be willing to accept the corollary that they can be denied by government.
Ezra Taft Benson
The force of Benson's argument is its logical necessity. He is not making a merely empirical claim about what governments have historically done — though the historical record is itself damning. He is making a conceptual claim: the power to grant necessarily entails the power to revoke. This is not a contingent feature of bad governments; it is a structural feature of any system in which political authority is the source of rights.
If rights flow from government, then they exist at the sufferance of the political process. They can be expanded or contracted by legislative majority, executive order, or judicial reinterpretation. They can be conditioned on compliance, means-tested, or suspended in emergencies. Every concession of governmental origin is simultaneously a concession of governmental supremacy over the scope and content of human freedom.
The natural law tradition, by contrast, holds that rights are logically prior to and independent of political authority. John Locke, whose Second Treatise of Government was the intellectual architecture of the American founding, argued that individuals possess rights in the state of nature — before and outside of any political compact. Government is not the author of these rights; it is their servant. Its legitimacy derives entirely from its fidelity to the purpose for which it was constituted: the protection of life, liberty, and property.
The logical structure of Benson's corollary thus points to an inescapable conclusion: the question of where rights come from is inseparable from the question of how secure they are. Natural rights, grounded in a moral order that transcends human authority, are immune in principle to governmental revocation, even when violated in practice. Government-granted rights are, by definition, entirely contingent on political will.
III. The Declaration as Constitutional Foundation
Justice Thomas's characterization of the Declaration of Independence as the "sheet anchor" of the American Republic deserves careful jurisprudential attention. This is not mere rhetoric; it reflects a substantive theory of constitutional interpretation with deep roots in the founding era.
The Declaration performs a twofold constitutional function. First, it establishes the philosophical premises on which the entire enterprise of American self-government rests. It asserts as self-evident — meaning as axiomatically true and not requiring legislative enactment — that all men are endowed by their Creator with unalienable rights. The adjective "unalienable" (or inalienable) is doing significant work here. Rights that cannot be alienated are rights that cannot be surrendered, sold, or taken. They attach to persons by virtue of their humanity, not by virtue of any governmental grant.
Second, the Declaration defines the purpose and thereby the limits of government. "To secure these rights, governments are instituted among men." The verb "secure" is telling. One secures what already exists. One does not create by securing. Government's role is protective and custodial, not creative.
Lincoln understood this relationship precisely. In his 1861 message to Congress and throughout his political speeches, he returned repeatedly to the Declaration as the authoritative gloss on the Constitution — the document that tells us what the Constitution is for. The Constitution's architecture of enumerated powers and protected liberties is incomprehensible without the Declaration's prior articulation of why government exists and on what terms it is legitimate.
The progressive tradition, beginning in earnest with Woodrow Wilson and refined through the New Deal and Great Society eras, explicitly rejected this interpretive framework. Wilson argued that the Founders' conception of natural rights was a relic of eighteenth-century rationalism unsuited to the complexities of modern industrial society. Government, on this view, is not merely a protector of pre-political rights but an active agent of social and economic organization — a creative force rather than a custodial one. This is precisely the inversion that Justice Thomas identifies as threatening: when government becomes the source of rights and the architect of social outcomes, its authority is no longer derived from or limited by the rights of the people. It is, instead, constitutive of them.
IV. Natural Law and the American Constitutional Order
The natural law foundation of the American constitutional order is evident not merely in the Declaration but in the structural choices of the Constitution itself. The Ninth Amendment — "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" — is only intelligible on a natural law reading. If rights are governmental grants, then only those rights enumerated in positive law exist. The Ninth Amendment presupposes the opposite: that there exists a body of rights antecedent to the Constitution that the Constitution does not create but may partially enumerate and must not deny.
Madison's explanation in Federalist No. 51 reinforces this reading. The entire structure of separated powers, federalism, and individual rights protections rests on an anthropology of fallen human nature and a correlative theory of governmental limitation. Government is not trusted with power because men are not angels; it is circumscribed because power concentrates and corrupts. This framework only makes sense if the rights being protected belong to individuals independently of governmental grant.
The natural law tradition from which the Founders drew — Aquinas, Hooker, Grotius, Pufendorf, Locke — consistently maintained that positive law derives its obligatory force from its conformity with a higher moral law accessible to reason. Positive law that contradicts natural law is not simply unwise policy; it is, in the strict sense, unjust, and potentially without binding force. This is why the Founders could declare independence from a sovereign whose positive law remained formally in effect: they appealed over positive law to the higher law that positive law must honor to be legitimate.
Thomas's jurisprudence has consistently reflected this framework. His dissent in Kelo v. City of New London and his natural law references in Dobbs v. Jackson Women's Health Organization signal a coherent jurisprudential commitment to grounding constitutional interpretation in principles that transcend the preferences of contemporary majorities. This is not judicial activism; it is fidelity to the founding premise that the Constitution protects rights that majorities cannot define away.
V. The Progressive Inversion and Its Consequences
The progressive reorientation of rights discourse represents not merely a policy disagreement but a categorical shift in the metaphysics of governance. The positive rights now routinely asserted in progressive constitutionalism — rights to healthcare, housing, education, income security, and a growing catalog of social goods — are structurally different in kind from the natural rights of the founding tradition.
Classical natural rights are fundamentally rights against government: the right to be free from governmental interference with speech, conscience, association, self-defense, property, and personal autonomy. Their recognition costs government nothing; it requires only restraint. The positive rights of progressive constitutionalism, by contrast, are rights to governmental provision: they obligate the state to act, to spend, to redistribute, to organize economic and social life in specific ways. Their satisfaction requires expansive governmental power.
This inversion has profound structural consequences. When government is obligated to provide rights, government must control the resources necessary to fulfill those obligations. When government controls those resources, the individuals who depend on them are subject to governmental discretion in a way that classical liberal citizens are not. Dependence is the antithesis of liberty, and a citizenry that derives its material security from governmental provision cannot maintain the independence necessary for genuine self-governance.
Benson's corollary applies with particular force here. A government empowered to grant a right to healthcare is necessarily empowered to define what healthcare is, who receives it, under what conditions, and in what form. The "right" is operationally a bureaucratic entitlement, contingent on continued political support and administrative discretion. It is not unalienable; it is precisely the kind of right that can be denied, restructured, or conditioned by the same authority that created it.
VI. Cultural Decline and the Institutional Preconditions of Liberty
Justice Thomas's warning about cultural decline is not tangential to the rights question; it identifies the social infrastructure on which natural rights theory depends. The classical liberal tradition, including its natural law foundations, never assumed that rights could sustain themselves in isolation from the moral and institutional conditions that made liberty possible.
The family, as Alexis de Tocqueville recognized and as generations of social scientists have since confirmed, is the primary school of republican virtue. It is the institution in which the habits of self-governance, deferred gratification, mutual obligation, and moral formation are transmitted across generations. The weakening of the family does not merely produce social pathology; it produces citizens less capable of the self-direction that genuine liberty requires and more dependent on state provision of what families and communities once supplied.
The same logic applies to religious institutions. Whatever one's metaphysical commitments, it is historically undeniable that the moral consensus undergirding the American constitutional order was deeply indebted to the Judeo-Christian tradition. Natural rights theory was not a secular invention imposed on a religious culture; it was, as Michael Novak and others have argued, a theoretical articulation of convictions that already animated popular moral culture. The doctrine that human beings are created in the image of God — imago Dei — carries direct implications for human dignity, the limits of governmental authority, and the inalienability of conscience. A culture that abandons that theological anthropology does not merely change its religious preferences; it removes the foundation on which natural rights claims rest.
If rights are not grounded in a moral order that transcends human authority, then rights claims become exercises in political preference articulated in the grammar of moral absolutes. This is precisely the incoherence of much contemporary rights discourse: asserting absolute rights while simultaneously denying the metaphysical framework that makes absoluteness intelligible.
VII. Constitutional Implications
The practical constitutional stakes of this debate are considerable. A jurisprudence that accepts the governmental-grant theory of rights is a jurisprudence without a principled basis for limiting governmental power. If rights exist only insofar as government recognizes them, then constitutional adjudication reduces to a contest of competing governmental preferences — and there is no external standard by which to evaluate it.
Natural law jurisprudence, by contrast, provides a basis for constitutional adjudication that does not collapse into majoritarianism or pure textual positivism. It holds that certain principles — that individuals possess inherent dignity, that government derives its legitimacy from consent and is bounded by the purposes for which it was constituted, that there exist acts so violative of human dignity that no majority can authorize them — are not simply policy preferences but moral truths accessible to reason, enshrined in the founding documents, and binding on courts as well as legislatures.
Justice Thomas's position, understood in this light, is not an exercise in judicial restraint in the narrow sense of deference to democratic majorities. It is, more fundamentally, a commitment to the moral premises of the Constitution itself: that there are things majorities may not do, because there are rights that majorities did not give and cannot take.
VIII. Conclusion
The argument from natural law, as developed by Locke, articulated by Jefferson, constitutionalized by Madison, and restated by Benson, is not merely a historical curiosity. It is the jurisprudential spine of the American constitutional order. Justice Thomas's address at the University of Texas was a reminder that the most consequential jurisprudential question is also the most basic one: whether the rights the Constitution protects are antecedent to political authority or derived from it.
Benson's corollary supplies the answer to why this question cannot be treated as merely academic. The logic is unassailable: the power to grant is the power to revoke. A constitutional order that accepts governmental origin of rights is not a constitutional order that protects rights; it is an order in which rights exist provisionally, at the discretion of the political majority or the administrative state.
The Declaration of Independence was written to announce the opposite. Its authors staked their lives, their fortunes, and their sacred honor on the proposition that government exists to secure rights it did not create and cannot destroy. That proposition is either true or it is not. If it is true, then the progressive reorientation of rights discourse is not merely a policy error; it is a fundamental constitutional wrong. If it is not true, then the entire American constitutional enterprise rests on a fiction, and the only remaining question is which political faction will control the dispensing of privileges dressed in the language of rights.
Justice Thomas, his intellectual tradition, and the weight of the American founding argue that it is true. The burden lies with those who would abandon it to explain not only what replaces it, but whether what replaces it deserves the name of freedom at all.