[Clarence] Thomas is one of the few jurists today, conservative or otherwise, who understands and defends the principle that our rights come not from government but from a “creator” and “the laws of nature and of nature’s God,” as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.
My feeling is that objections to Clarence Thomas’s jurisprudence should focus on what we think people’s rights are, substantively, rather than where we think they come from. But let me comment on the God vs Man question anyway. Actually, let Roberto Mangabeira Unger comment on it, from his Politics:
Modern social thought was born proclaiming that society is made and imagined, that it is a human artifact rather than an expression of an underlying natural order.
The Constitution of the United States is a decisive political expression of this conviction. It doesn’t preclude deep and shared religious convictions—it just doesn’t presuppose them. Having lived with this way of thinking about the social order for a few centuries, we know it threatens to create more problems than it solves. The hubris that leads to disastrous ventures in social engineering rests on it, as does the easy cruelty that always blames victims for their own misfortunes. Note that both of these vices can be found in religiously-motivated pictures of the world: the former in the zeal of fanatics who take it upon themselves to remake the world according to God’s plan, whether we like it or not; the latter in the complacent insistence that even the most vicious injustice must be part of God’s plan for us all. In many ways, modern ideologies—from a belief in the virtues of centralized planning to a commitment to the infinite wisdom of the market—are just secularized versions of essentially religious ideas about the perfectibility of human beings or the inevitability of fate. After Darwin, things get more complicated because a Social-Darwinian order could be presented as having the authority of nature without the contrivance of God. Because of Darwin, the boundary between what is given by nature and what is susceptible to reorganization became a dominant trope in 20th-century social thought. Nevertheless, the shift that Unger identifies is still a decisive one. The idea that society is a human artifact is what makes the political life of modern societies distinctive, if anything does.
Update: In comments at Crooked Timber, Nicholas Weininger complains that “Unger’s dichotomy reads Hayek right out of the history of social thought.” I think this is wrong. For Hayek, the social order is certainly a human product, but (as Nicholas says) it’s not something that’s consciously designed. This was why I contrasted the pitfalls of believing everything could be planned with believing that everything would spontaneously order itself. The first is a vice of the left, the second, of the right. (Those are descriptions of tendencies, by the way, and not fair characterizations of particular thinkers like Marx or Hayek.) The bit above about Darwin is relevant too, as you can see a strong streak in libertarian thought about the inevitable failure of planning efforts due to planning’s incompatibility with the natural (but not divinely-given) tedency of societies to co-ordinate in a distributed way. In that sense Hayek is certainly part of the debate about “the boundary between what is given by nature and what is susceptible to reorganization.”
This shared commitment to seeing the social order as a human product helps explain why secular left-wing thinkers and libertarian types have tended to have more productive arguments with each other than either have with conservatives who see society as manifesting a divine order. The socialist calculation debate in economics is one example of this.