"While Bush was preaching to his base in St. Louis, Justice Scalia was laying the legal groundwork for overturning Roe v. Wade at the University of
Bush & Scalia: "You want privacy rights? Pass a law!"
Posted October 14, 2004 thepeoplesvoice.org
By: Thom Hartmann
In an eerie juxtaposition during the second presidential debate, both George W. Bush and Supreme Court Associate Justice Antonin Scalia - each in their own sort of code - were saying at the same time that if Bush is elected in 2004, women who get abortions will probably face criminal prosecutions, and our rights of privacy will evaporate.
Bush started it out by suggesting that when he appoints the next Supreme Court justice, abortions will become illegal in the United States. He signaled this message to his base by saying he wouldn't appoint a Supreme Court justice of the type that voted for the 1857 Dred Scott v. Sanford decision that institutionalized slavery and sparked the Civil War.
Invoking Dred Scott, of course, is code-speak to anti-abortion fanatics. They've argued for decades that the denial of civil rights to African Americans by Dred Scott is qualitatively the same as Roe v. Wade's "denial of a right to life" to fetuses.
When Bush said "Dred," what he meant was "Roe," and his most hard-core base instantly knew it. The analogy first bubbled to the top of larger public awareness in June of 2000 when, in Stenberg v. Carhart, the Supreme Court ruled 5-4 that Nebraska's ban on so-called " partial-birth abortion" was illegal. Justice Scalia wrote, in the lead dissent, "one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu [the case making it legal to intern Japanese Americans during WWII] and Dred Scott."
While Bush was preaching to his base in St. Louis, Justice Scalia was laying the legal groundwork for overturning Roe v. Wade at the University of Vermont, suggesting to a group of students that women don't have privacy rights or the concomitant right to choose abortion because those rights are not specifically named in the Constitution.
"Every time the Supreme Court defines another right in the Constitution," Scalia said in his best Orwell-speak, "it reduces the scope of democratic debate." As a 9 October 2004 Associated Press article by David Gram ("Justice Scalia Speaks at UVM") noted, "the court's leading conservative intellectual said judges shouldn't read rights into the Constitution that aren't spelled out in the document itself."
In a bizarre re-writing of American history, Scalia advocated the new conservative doctrine he calls "originalism," to which he and Associate Justice Clarence Thomas subscribe. According to Scalia and Thomas, the government gives us rights. And, they say, if rights weren't explicitly written into the Constitution, they don't exist.
As the AP article noted: "Abortion, gay rights and the 'right to die' are best left to the legislative and executive branches, he [Scalia] said. 'You want a right to abortion? ... Pass a law.'"
In his belief that we get our rights from our government, Scalia is more closely following the logic of dictators and theocrats than of Jefferson, Madison, and Hamilton.
Until Scalia and Thomas came along, modern Supreme Court justices generally understood that we don't get our rights from laws. Civil and human rights don't even come from the Constitution - as the Declaration of Independence notes, they pre-existed it.
("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...")
Our entire government - including he Constitution itself - comes from We The People exercising our rights to create a government answerable to us. And there's a clear historical trail to prove it.
Alexander Hamilton went so far as to explicitly point out that rights are so obviously held exclusively by We The People that, unlike king-ruled England, no Bill of Rights was even necessary as part of the Constitution. In Federalist #84, published in 1787, Hamilton opened his line of argument by acknowledging the complaints of people like Jefferson who wanted a Bill of Rights. (It wasn't added until several years after the Constitution was ratified.)
"The most considerable of the remaining objections [to ratification of the Constitution]," Hamilton wrote, "is that the plan of the [Constitutional] convention contains no bill of rights."
The reason for this, Hamilton noted, was that only if the government had rights did you need it to also grant rights to the people with a bill of rights. If the people were the sole holders of rights, a bill of rights became unnecessary, because government had no rights to give, and no right to give rights.
"It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects," he wrote, "abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights."
But in the opening sentence of the Constitution, Hamilton argued, " We, The People" created this government, and therefore "We, The People" hold all the rights:
"Here [in the United States], in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations [of rights]. 'WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.' Here," in the opening sentence of the Preamble to the Constitution itself, Hamilton added, "is a better recognition of popular rights...."
Hamilton summarized his argument into a single pithy sentence: "The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS." (Capitals Hamilton's.)
This was a radical departure from 6000 years of "civilized" history, and it's essential that we help Americans to learn this history. Other than the brief Athenian experiment, governments had always been dominated by one of the classic "three tyrannies": Kings, Theocrats, or Feudal Lords (known today as multinational corporations). In every previous government, one of these three forms of tyrants had held the " rights" and "the rabble" held only privileges.
But in the minds of the Founders, we are born with rights by the simple fact of existence, as identified by John Locke and others in the 1600s, and written by Thomas Jefferson in the Declaration of Independence in 1776. "We hold these truths to be self-evident," Jefferson 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 - or Scalia, or any government - can hand to us.
The job of the Constitution, instead, was to define a legal framework within which government and commerce could operate in a manner least intrusive to "We, the People," who are the holders of the rights. In its first draft and for the first few years of our nationhood, the Constitution 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 obvious.
Thomas Jefferson, however, foreseeing a time when the concepts fundamental to the founding of America were forgotten by people like Scalia, Thomas, and Bush, began to agitate for at least a rudimentary statement of rights as amendments to the Constitution, 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..."
Although the purpose of the Constitution wasn't to grant rights to people, Jefferson felt it was necessary to be unambiguous about the reality that humans are the holders of rights, and that in no way was the new government of the United States to ever infringe on those rights.
"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."
In an October 17, 1788 letter to Jefferson, Madison initially took Hamilton's position, writing that he was more afraid of the people abusing the government than the government abusing the people, because the new American government they'd laid on in the Constitution held so few powers to the government and clearly and explicitly acknowledged the rights of the people in its preamble.
"Wherever the real power in a Government lies," Madison wrote, "there is the danger of oppression. In our Governments, the real power lies in the majority of the Community...." In Madison's mind, the government had more to fear from the people than the people did from the government.
Madison added that he didn't see a need for a bill of rights because the way federal power was defined, all the rights were already held with the people. "I have not viewed it [a Bill of Rights] in an important light," he wrote, for two reasons. His first was that the people already had all the rights: "the rights in question are reserved by the manner in which the federal powers are granted."
Madison's second reason had even greater urgency: Should the day come when people forgot the core concept of the Founders and the Framers that all rights were held by the people, then future courts may parse carefully the rights they listed in a bill of rights and try to restrict people within those, as if government granted rights.
In ignorant or corrupt future hands, a Bill of Rights may actually limit rights "because," he believed, "there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude."
In fact, Madison noted, echoing Hamilton, only tyrannical kingdoms or theocracies needed bills of rights "whereas in a popular Government, the political and physical power may be considered as vested in the same hands..."
Still, Madison noted in a paragraph eerily prescient of the modern conservative assault on human rights, maybe Jefferson had a point about future generations forgetting the basis of the founding of the nation.
"Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well times advances, finally erect an independent Government on the subversion of liberty," he wrote, tossing a small bone to Jefferson. "Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury."
But even at that, Madison remained the optimist, not thinking it likely that a future government would try to seize so much power from its own people that they'd need a Bill of Rights. "At the same time I must own that I see no tendency in our Governments to danger on that side," he added in the very next sentence.
Nonetheless, he'd opened the letter with "My own opinion has always been in favor of a bill of rights," and Jefferson took it in that spirit.
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."
The Constitution doesn't grant rights - it acknowledges that We The People are the sole holders of rights. We don't need to "pass a law" to have rights.
Yet despite all the documentary evidence - from the Declaration of Independence, to the Federalist Papers, to the Constitution's own Preamble, to the letters of our nations Founders and Framers - Scalia continues to insist that we only have rights if he can find them written down in the Constitution.
His closest peer on the Court, Clarence Thomas, agrees.
For example, in the Texas sodomy case, Thomas wrote, "...I 'can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy,'..."
Echoing Scalia and 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 the same week.
With no right to privacy, Roe v. Wade would be overturned, and PATRIOT Act provisions wouldn't infringe on a non-existent right.
The Supreme Court is prepared to determine whether We The People hold rights like privacy, and at least three members of that court will be appointed by whoever is elected in November. This is among the least reported and most important issues facing Americans in the election of 2004.
As John Kerry said in the second debate, "A few years ago, when he came to office, the president said, these are his words: 'What we need are some good conservative judges on the courts.' And he said also that his two favorite justices are Justice Scalia and Justice Thomas. So you get a pretty good sense of where he's heading if he were to appoint somebody."
When a questioner asked about the erosion of our rights under the PATRIOT Act and other Bush policies, Bush brushed the question off. " I really don't think your rights are being watered down," he said.
James Madison didn't believe that Jefferson's fear of an overreaching government could ever come true. But here it is, at our doorstep.
Rights? Prepare to kiss them good-bye if Bush is elected this November.
Thom Hartmann (thom at thomhartmann.com) is a
Project Censored Award-winning best-selling author and host of a nationally
syndicated daily progressive talk show that runs in 57 markets from
His most recent books are "The
Last Hours of Ancient Sunlight," "We
The People: A Call To Take Back America," and "What
Would Jefferson Do?: A Return To Democracy."