Tim Kaine in the Riley Barnes Hearing: Is Kaine Right to be Alarmed by Divine Endowment Theories of Rights?

Turley rakes Kaine over the coals here.

My view of the matter:

[1] Yes, it's pretty amazing that Kaine spoke as if he were unaware of what Jefferson writes in the Preamble of the Declaration of Independence. It's a head-scratcher. I reckon he just got caught up in the anti-Trump fervor of the moment.

[2] Obviously Kaine knows what Jefferson wrote in the Declaration.

[3] Turley is right that legal positivism is implausible to say the least.

[4] OTOH, essentially divine theories of law and ethics (paradigmatically: the divine command theory, but also pure natural law theories in which the rational/normative force of law is based on divine fiat) are equally implausible.

(The main problem for both theories is that of arbitrariness.)

   So, anyhoo, maybe Kaine has 4 in mind? (It doesn't really seem that way.)

   I mean...that really wouldn't excuse his seeming obliviousness to the words of the Declaration... OTOH, of course, the Declaration is not law, and such appeals don't appear in the Constitution. OTOOH, its pretty clear that the Founders accepted/assumed the view that our rights are inherent--which is why they're inalienable--and why we can appeal beyond law and criticize it.

   Incidentally, I read 'self-evident' just as, roughly, obvious. I'm skeptical of e.g. Cartesian self-evidence.

   My current view is influenced by Peirce (like my skepticism about self-evidence): keep philosophy out of first-order discussions. It rarely helps and often does damage. My $0.02: for one thing, it turns at-least-possibly-tractable disagreements into intractable ones. If you think Congress is going to figure out these philosophical disagreements...well...uh...you're wrong. Appealing to divine endowment--or sez me, anyway--is a hand-wavy way of saying that our rights are inherent. It's roughly a normative God of the gaps argument:  Our rights are inherent...we don't know how that works...oh, hell, I guess God did it...

   Anway, I suppose this comes down to:

(a) 1 is right; Kaine's outrage was weird and a bit dopey.

but:

(b) Everything always goes to hell when you try to inject philosophy into ordinary discussions.

so:

(c) Kaine's criticisms of Barnes are basically weightless... One might say that Kaine is busting Barnes for not having a workable theory of the grounds of law and morality...which nobody has...

Though:

(d) If Barnes thinks that acceptance of a divine endowment theory has implications for our specific, first-order rights, I think his philosophical views do become relevant.

And, finally:

(e) Barnes does claim, in his opening statement, that "identity politics" is a bust, on the grounds that it makes our rights variable/changeable...but (he says) a divine endowment theory denies that:

In his first remarks to State Department employees, Secretary Rubio emphasized that, “We are a nation founded on a powerful principle, and that powerful principle is that all men are created equal, because our rights come from God our Creator – not from our laws, not from our governments.” The Secretary went on to say that we will always be strong defenders of that principle. And that’s why the Bureau of Democracy, Human Rights, and Labor is important. We are a nation of individuals, each made in the image of God and possessing an inherent dignity. This is a truth that our founders understood as essential to American self-government. 1 I believe our country and our government is the best in the world, and our strength comes from our enduring values. These values aren’t an endless list of “rights” that people create and change and form to meet their own needs or desires. These values aren’t identity politics. They are the historic, natural rights that we have as individuals, pursuing life, liberty, and happiness in this world. For rights to be untethered from this core principle is to make them mere sentiments, easily manipulated by authoritarians and bad actors. Natural rights are a blessing and an immutable reality. President Trump and Secretary Rubio, like our Founding Fathers, understand this.

 Well, this seems sort of ok to me--but, then, I think identity politics is mostly (mostly) a crock of shit...so I'm not neutral. But if we take this seriously, it becomes a bit of a can of worms--and maybe gives Kaine a leg to stand on. If a divine endowment theory rules out identity politics, then, given that the blue team is now, to a non-trivial degree, committed to identity politics, this seems to entail that they're free to challenge the metatheory.

   I think it would be reasonable to argue that Barnes started it by trying to leverage a largely rhetorical, God-of-the-gaps-ish (I'm speaking loosely here) theory to support a specific, contested (anti-identity-politics) position. 

   I'm getting sloppy here, and there's more to be said, but I'm losing interest and running out of steam, so I'll wind this down.

   One last point: I don't see that identity politics necessarily entails changeability. But I haven't thought about that question.