April 16, 2005
The Constitution as moving target
By Ben Brothers
House majority leader Tom DeLay (R-Corrupt) gave an interview in the rightwing Washington Times Friday, in which he asserted the following:
“The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them.”
What has happened to the Republican Party? They don't believe in the right to privacy? They don't believe in the separation of church and state? They are totally intoxicated with power and out of control. It would have been unbelievable as recently as five years ago, and even now the thought seems vaguely surreal, but there is no way to read Tom DeLay's statement as other than a preference for some twisted and Zwinglian New Jerusalem over the Bill of Rights.
This sort of nonsense is not confined to the extreme right anymore. These are not the John Birchers or the Flat Earth Society. Tom DeLay is the House majority leader and the second most powerful man in Washington. Something is seriously wrong in our body politic. The few moderate Republicans left are aghast: Chris Shays said, "This Republican Party of Lincoln has become a party of theocracy."
For myself, I agree with C.S. Lewis: "I am a democrat because I believe that no man or group of men is good enough to be trusted with uncontrolled power over others. And the higher the pretensions of such power, the more dangerous I think it both to rulers and to the subjects. Theocracy is the worst of all governments."
This hostility to privacy is the cornerstone of the Republican jihad against an independent judiciary. It is one manifestation of the ugly authoritarianism at the heart of modern Republicanism, and it has been festering since at least 1965, when the U.S. Supreme Court, in Griswold v. Connecticut, affirmed that there was a right to privacy that "is within the penumbra of specific guarantees of the Bill of Rights." The ruling struck down a 19th century Connecticut law banning the sale of contraceptives to married couples.
Griswold is the sort of thing they object to when they rail against "activist judges." Nowhere in the text of the Constitution are the words, "The people have a natural right to privacy." Neither will you find an amendment specifically allowing contraception. Therefore, say the Federalist Society and the Republican congressional caucus, those rights do not exist but for the grace of the United States Congress.
This is a strange and unnatural reading of the Constitution, and one shared by none of the founders. Indeed, the strict constructionists have a curious ignorance of the 9th Amendment, which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
In other words, the right to privacy is a central feature of all American (and English) tradition, and the common law. That which is not forbidden is allowed. This is the heart of freedom. This is what it means to be a free people. Does the Republican Party understand this anymore?
(Ben Brothers maintains the badger blues Web log.)
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