Dear Clarence Thomas: It
Happened on July 4, 1776
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
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
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
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
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
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
"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
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
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.
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
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