Activist Judges

The mind of George W. Bush's favorite Supreme in action:

In the high court's ruling Monday reversing a decision that would have removed "under God" from the Pledge of Allegiance, Thomas wrote a concurring statement suggesting states should be allowed to establish religions [emphasis added].

On the same day, in a sexual harassment case, Thomas was the only justice to dissent from a two-pronged opinion that balanced the rights of workers with those of employers. The eight other justices said workers who are run off the job by "intolerable" harassment can sue as if they had been wrongly fired, but also gave employers a defense against such a claim.

Thomas, a former chairman of the U.S. Equal Employment Opportunity Commission, argued for a standard that would have greatly shielded employers from such "constructive discharge" claims.

Quiet Clarence Thomas, who never asks a question from the bench, has some truly interesting ideas about the "framers' intent." In fact, this is a justice who goes even farther than his mentor, Anthony Scalia, in trying to remake the Constitution from a document intended (in the wake of the revolt against the tyranny of the king) to be a restraint on government, into a tool for the government to restrain its citizens' rights.

In researching more about Clarence, though, I came across a look at the framer's intent regarding the right to privacy, which, in light of Griswold v. Connecticut, Roe, and the recent Texas sodomy case, has been constantly under attack. The right to privacy is not mentioned in the bill of rights, an "omission" noted feverishly by those who would ban abortion, homosexuality, and even contraceptives.

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.'"

Arguing that he "can't find a specific right -- in fact, a word -- in the Constitution is disingenuous. The right to security, the right to the security of your home and person, in 18th century terms, is the same as our "right to privacy." In response, the strict constructionists argue that's "intent," and who can know what the framers intended.

Well, yes, you can.

Hartmann points out that the Constitution and even the hastily written Bill of Rights were not intended as a Chinese menu (especially since 18th century Chinese restaurants in Philadelphia and New York were not so good) of citizens rights. The Constitution was, on the contrary, written as a blueprint of what powers government should be granted, not what citizens are permitted.

[I]n 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.

Jefferson, always quick to see government's tendency towards tyranny if not fettered, understood that if we didn't at least try to encode certain basic rights we would be at the whim of government, insisted on a bill of rights.

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.

We have, as a nation, forgotten those fundamental concepts. The Patriot Act, written more hastily than the Bill of Rights, illustrates that.

But "concepts" are precisely what "strict constructionists," like Clarence Thomas, want to undermine.

A seductive argument for many, but a false one.

Jefferson made another prediction:

n 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."

Something tells me that Jefferson would have recognized -- with a shudder -- John Ashcroft, Donald Rumsfeld, Dick Cheney, and George Bush.