Cultural Crossroads: Clarence Thomas and Our Right To Privacy

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.”

That “remote period’s” time has come. 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?

Ancient, Inalienable Rights

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.”

“Private” Matters of 1776

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 ( ) 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. This article was originally published on Thursday, July 3, 2003 by and is copyrighted by Thom Hartmann. Permission is granted for reprint in print, email, blog, or web media so long as this credit is attached.