Clarence Thomas:.....NOT the most qualified.....certainly the least qualified
Dear Clarence Thomas: It Happened on July 4,
1776
by Thom Hartmann
In 1789, Thomas Jefferson wrote a note to James Madison about the future possibility of a
president who didn't understand the principles on which America was founded. "The tyranny
of the legislatures is the most formidable dread at present," he wrote, "and will be for many
years. That of the executive will come in its turn, but it will be at a remote period."
The new so-called conservatives claim the power to violate citizens' private lives because,
they say, there is no "right to privacy" in the United States. In that, they overlook the history
of America and the Declaration of Independence, signed on July 4, 1776. And they miss a
basic understanding of the evolution of language in the United States.
Of course, they're not the first to have made these mistakes.
When I was a teenager, it was a felony in parts of the United States to advise a married
couple about how to practice birth control. This ended in 1965, in the Griswold v.
Connecticut case before the U.S. Supreme Court, when the Court reversed the criminal
conviction of a Planned Parenthood program director who had discussed contraception with
a married couple, and of a doctor who had prescribed a birth-control device to them.
The majority of the Court summarized their ruling by saying, "Would we allow the police to
search the sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy...."
However, Supreme Court Justice Potter Stewart disagreed back in 1965, saying that he
could find no "right of privacy" in the Constitution of the United States. Using his logic, under
the laws of the day, the couple in question could themselves have been sent to prison for
using birth control in their own bedroom.
As Justice Stewart wrote in his dissent in the case, "Since 1879 Connecticut has had on its
books a law which forbids the use of contraceptives by anyone.... What provision of the
Constitution, then, makes this state law invalid? The Court says it is the right of privacy
'created by several fundamental constitutional guarantees.' With all deference, I can find no
such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in
any case ever before decided by this Court."
In that view of American law, Justice Clarence Thomas - George W. Bush's "role model" for
future Supreme Court nominees - agrees.
In his dissent in the Texas sodomy case, Thomas wrote, "just like Justice Stewart, I 'can
find [neither in the Bill of Rights nor any other part of the Constitution a] general right of
privacy,' or as the Court terms it today, the 'liberty of the person both in its spatial and more
transcendent dimensions.'"
Echoing Thomas' so-called conservative perspective, Rush Limbaugh said on his radio
program on June 27, 2003, "There is no right to privacy specifically enumerated in the
Constitution." Jerry Falwell similarly agreed on Fox News.
Limbaugh and Thomas may soon also point out to us that the Constitution doesn't
specifically grant a right to marry, and thus license that function exclusively to, say, Falwell.
The Constitution doesn't grant a right to eat, or to read, or to have children. Yet do we doubt
these are rights we hold?
The simple reality is that there are many "rights" that are not specified in the Constitution,
but which we daily enjoy and cannot be taken away from us by the government. But if that's
the case, Bush and Thomas would say, why doesn't the Constitution list those rights in the
Bill of Rights?
The reason is simple: the Constitution wasn't written as a vehicle to grant us rights. We
don't derive our rights from the constitution.
Rather, in the minds of the Founders, human rights are inalienable - inseparable - from
humans themselves. We are born with rights by simple fact of existence, as defined by John
Locke and written by Thomas Jefferson in the Declaration of Independence. "We hold these
truths to be self-evident," the Founders wrote. Humans are "endowed by their creator with
certain inalienable rights...." These rights are clear and obvious, the Founders repeatedly
said. They belong to us from birth, as opposed to something the Constitution must hand to
us, and are more ancient than any government.
The job of the Constitution was to define a legal framework within which government and
business could operate in a manner least intrusive to "We, The People," who are the holders
of the rights. In its first draft it didn't even have a Bill of Rights, because the Framers felt it
wasn't necessary to state out loud that human rights came from something greater, larger,
and older than government. They all knew this; it was simply obvious.
Thomas Jefferson, however, foreseeing a time when the concepts fundamental to the
founding of America were forgotten, strongly argued that the Constitution must contain at
least a rudimentary statement of rights, laying out those main areas where government
could, at the minimum, never intrude into our lives.
Jefferson was in France when Madison sent him the first draft of the new Constitution, and
he wrote back on December 20, 1787, that, "I will now tell you what I do not like [about the
new constitution]. First, the omission of a bill of rights, providing clearly, and without the aid
of sophism, for freedom of religion, freedom of the press, protection against standing armies,
restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and
trials by jury in all matters of fact triable by the laws of the land..."
There had already been discussion among the delegates to the constitutional convention
about whether they should go to the trouble of enumerating the human rights they had held
up to the world with the Declaration of Independence, but the consensus had been that it
was unnecessary.
The Declaration, the writings of many of the Founders and Framers, and no shortage of other
documents made amply clear the Founders' and the Framers' sentiments that human rights
were solely the province of humans, and that governments don't grant rights but, rather, that
in a constitutionally limited democratic republic We, The People - the holders of the rights -
grant to our governments whatever privileges our government may need to function (while
keeping the rights for ourselves).
This is the fundamental difference between kingdoms, theocracies, feudal states, and a
democratic republic. In the former three, people must beg for their rights at the pleasure of
the rulers. In the latter, the republic derives its legitimacy from the people, the sole holders
of rights.
Although the purpose of the Constitution wasn't to grant rights to people, as kings and
popes and feudal lords had done in the past, Jefferson felt it was necessary to be absolutely
unambiguous about the solid reality that humans are holders of rights, and that in no way
was the Constitution or the new government of the United States to ever be allowed to
infringe on those rights. The Constitution's authors well understood this, Jefferson noted,
having just fought a revolutionary war to gain their "self-evident" and "inalienable" rights from
King George, but he also felt strongly that both the common person of the day and future
generations must be reminded of this reality.
"To say, as Mr. Wilson does, that a bill of rights was not necessary," Jefferson wrote in his
December 1787 letter to Madison, "...might do for the audience to which it was
addressed..." But it wasn't enough. Human rights may be well known to those writing the
constitution, they may all agree that governments may not infringe on human rights, but,
nonetheless, we must not trust that simply inferring this truth is enough for future
generations who have not so carefully read history or who may foolishly elect leaders
inclined toward tyranny. "Let me add," Jefferson wrote, "that a bill of rights is what the
people are entitled to against every government on earth, general or particular; and what no
just government should refuse, or rest on inference."
Madison took Jefferson's notes and shared them with Hamilton, Adams, Mason, and others,
and then sent a letter to Jefferson outlining the objections to a Bill of Rights that had been
raised by the members of the constitutional convention.
On March 15, 1789, Jefferson replied to Madison: "I am happy to find that, on the whole, you
are a friend to this amendment. The declaration of rights is, like all other human blessings,
alloyed with some inconveniences, and not accomplishing fully its object. But the good in
this instance vastly overweighs the evil.
"I cannot refrain from making short answers to the objections which your letter states to
have been raised [by others]:
"1. 'That the rights in question are reserved, by the manner in which the federal powers are
granted.' Answer. A constitutive act [the Constitution] may, certainly, be so formed, as to
need no declaration of rights. ... In the draught of a constitution which I had once a thought
of proposing in Virginia, and I printed afterwards, I endeavored to reach all the great objects
of public liberty, and did not mean to add a declaration of rights. ... But...this instrument [the
U.S. Constitution] forms us into one State, as to certain objects, and gives us a legislative
and executive body for these objects. It should, therefore, guard us against their abuses of
power, within the field submitted to them."
In this, Jefferson is stating openly that the purpose of the Constitution - and even the Bill of
Rights - is not to grant rights to the people, but to restrain government. It doesn't grant, it
limits.
And, Jefferson said, his proposed Bill of Rights was only a beginning and imperfect; it would
be nearly impossible to list in detail all the rights humans have. But a start, a try, is better
than nothing - at least it will make clear that the purpose of the constitution is to limit
government:
"2. 'A positive declaration of some essential rights could not be obtained in the requisite
latitude.' Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us
secure what we can."
His third point was that the states may try to limit peoples rights if the explicit nature of
government and rights wasn't spelled out in the Constitution through a Bill of Rights, so the
constitution protected citizens from tyrannical state governments who may overreach (as the
Supreme Court ultimately ruled Connecticut had done in banning birth control).
And, finally, Jefferson noted that if they were to err, it would be better to err on the side of
over-defining rights - even if past efforts had proven unnecessary or nonviable - than
under-defining them.
"4. 'Experience proves the inefficacy of a bill of rights.' True. But though it is not absolutely
efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A
brace the more will often keep up the building which would have fallen, with that brace the
less. There is a remarkable difference between the characters of the inconveniences which
attend a declaration of rights, and those which attend the want of it. The inconveniences of
the declaration are, that it may cramp government in its useful exertions. But the evil of this
is short-lived, moderate and reparable. The inconveniences of the want of a declaration are
permanent, afflicting and irreparable."
A Bill of Rights wasn't necessary, but it was important. We all knew the constitution was
designed to define and constrain government, but it's still better to say too much about
liberty than too little. Even though this thrown-together-at-the-last-minute Bill of Rights
doesn't cover all the rights we consider self-evident, and may inconvenience government, it's
better to include it than overlook it and risk future generations forgetting our words and
deeds.
Beyond that, there's good reason to believe - as the majority of the Supreme Court did in the
Griswold case, the Texas sodomy case, and at least a dozen others - that the Founders
and Framers did write a right to privacy into the Constitution. However, living in the 18th
Century, they never would have actually used the word "privacy" out loud or in writing. A
search, for example, of all 16,000 of Thomas Jefferson's letters and writings produces not a
single use of the word "privacy." Nor does Adams use the word in his writings, so far as I
can find.
The reason is simple: "privacy" in 1776 was a code word for toilet functions. A person would
say, "I need a moment of privacy" as a way of excusing themselves to go use the "privy" or
outhouse. The chamberpots around the house, into which people relieved themselves during
the evening and which were emptied in the morning, were referred to as "the privates," a
phrase also used to describe genitals. Privacy, in short, was a word that wasn't generally
used in political discourse or polite company during an era when women were expected to
cover their arms and legs and discussion of bedroom behavior was unthinkable.
It wasn't until 1898 that Thomas Crapper began marketing the flush toilet and discussion of
toilet functions became relatively acceptable. Prior to then, saying somebody had a "right to
privacy" would have meant "a right to excrete." This was, of course, a right that was taken
for granted and thus the Framers felt no need to specify it in the Constitution.
Instead, the word of the day was "security," and in many ways it meant what we today
mean when we say "privacy." Consider, for example, the Fourth Amendment: "The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated...."
Similarly, "liberty" was also understood, in one of its dimensions, to mean something close
to what today we'd call "privacy." The Fifth Amendment talks about how "No person shall be
... deprived of life, liberty, or property..." and the Fourteenth Amendment adds that "nor shall
any State deprive any person of life, liberty, or property...." And, of course, the Declaration of
Independence itself proclaims that all "are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness."
So now, on the anniversary of the signing of the Declaration of Independence, we have come
to that remote period in time Jefferson was concerned about. Our leaders, ignorant of or
ignoring the history of this nation's founding, make a parody of liberty and, with their
so-called "Patriot Act," flaunt their challenges even to those rights explicitly defined in the
Constitution.
Our best defense against today's pervasive ignorance about American history and human
rights is education, a task that Jefferson undertook in starting the University of Virginia to
provide a comprehensive and free public education to all capable students. A well-informed
populace will always preserve liberty better than a powerful government, a philosophy which
led the University of California and others to once offer free education to their states'
citizens.
As Jefferson noted in that first letter to Madison: "And say, finally, whether peace is best
preserved by giving energy to the government, or information to the people. This last is the
most certain, and the most legitimate engine of government. Educate and inform the whole
mass of the people. Enable them to see that it is their interest to preserve peace and order,
and they will preserve them... They are the only sure reliance for the preservation of our
liberty."
The majority of the Supreme Court wrote in their opinion in the 1965 Griswold case legalizing
contraception that, "We deal with a right of privacy older than the Bill of Rights [and] older
than our political parties..." saying explicitly that the right of privacy is a fundamental
personal right, emanating "from the totality of the constitutional scheme under which we
live."
Hopefully Americans - including Clarence Thomas - will realize that the Constitution doesn't
grant rights but instead constrains government. Our rights predate any government, a fact
recognized when the Declaration of Independence was signed on July 4, 1776. We must
teach our children and inform the world about the essentials of human rights and how our
constitutional republic works - deriving its sole powers from the consent of We, The People
who hold the rights - if democracy is to survive.
Thom Hartmann (thom at thomhartmann.com) is the author of over a dozen books,
including "Unequal Protection" and "The Last Hours of Ancient Sunlight," and a nationally
syndicated daily talk show host. www.thomhartmann.com This article is copyright by Thom
Hartmann, but permission is granted for reprint in print, email, blog, or web media so long
as this credit is attached.
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