Protecting What We Have Left

Spectator

By Stephen Tuttle | July 2, 2022

We typically celebrate the Fourth of July with cookouts and fireworks, another day off work without much appreciation for why.

The Declaration of Independence, written mostly by Thomas Jefferson over the course of three weeks, isn’t so much an eloquent plea for freedom from oppressive overlords—Jefferson intentionally toned down the soaring rhetoric after the introduction—but a 1,337-word indictment in what was then plain English.

Many of us were required to memorize that introduction but only remember the beginning of the second paragraph: “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, that among these are Life, Liberty and the pursuit of Happiness.” Aside from our confusion over Jefferson’s peculiar practice of capitalizing random words, we assume the entire revolutionary enterprise was about taxation without representation.

It was much more than that. And less.

The Declaration was more like a 27-charge indictment. It doesn’t get around to the unrepresented taxation issue until the 17th item. And that “all men are created equal” business? Not so much.

Jefferson didn’t really mean “all men;” he likely meant all white, property-owning men. White women had no rights at the time and certainly no unalienable rights; they were considered the property of their husbands or fathers and could not vote, own a gun, or own most property. Black men and women were barely even considered human, just property the constitution would eventually categorize as three-fifths of a person when property taxes were being calculated. Slavery was legal throughout the colonies, and it would take nearly 90 years before a constitutional amendment would change that. (The New Jersey constitution allowing women and free Black citizens to vote was an exception that lasted until 1807.)

This all comes to mind as many believe the U.S. Supreme Court is trying to turn back the clock two centuries searching for “deeply rooted” history. In the rulings that overturned five decades of Roe v. Wade reproductive rights for women, Justice Samuel Alito, writing for the majority, actually invoked a document from 1732. The idea it might have any relevance to anything from 2022 gives us some idea of his unusual thought processes.

In 1732, what would become the United State was less than 40 years beyond trying and hanging women accused of being witches. We’d already been importing slaves from Africa for more than a century with no end in sight. Catholics and Jews were prohibited from settling in Georgia and elsewhere, though authorities, needing able-bodied humans, relented and allowed Jews to come and work. Religious freedom existed unless you weren’t a Protestant. The colony’s population was less than 630,000 residents of European ancestry, and there were already nearly 150,000 slaves of African descent.

It seems a poor reference era for a modern justice. What troubles more than the obvious about the Roe decision is the implication for a series of other rulings. Roe was originally decided based on a constitutional right to privacy, and a series of rulings subsequent to Roe were supported by that same right. The Roberts court, however, finds no such right anywhere in the Constitution. Therefore, Roe was not constitutionally supported and was sent back to Congress or state legislatures.

Alito claimed the decision had no bearing on anything other than abortion. But he was either intentionally lying or simply did not read the concurring opinion of Justice Clarence Thomas, who clearly said the court should now revisit the constitutional protections for contraception, same-sex marriage, and same-sex intimacy just to name the most obvious subjects. Interestingly, Thomas conveniently omitted interracial marriage from his hit list.

Simply put, most every protection predicated on the notion we are entitled to privacy is now up for grabs. It’s not likely Jefferson felt the need to mention it beyond “Life, Liberty and the pursuit of Happiness,” and the framers may have felt the same, an assumption now rendered null and void.

Yet we have accepted the right to privacy for most of the life of our country. Supreme Court Justice Louis Brandeis wrote in 1928 that our “right to be left alone” was perhaps our most important right. Others have similarly claimed that though the word “privacy” never appears in either the Declaration or the Constitution, it is implied in the First Amendment (freedom of speech and conscience), the Fourth Amendment (the right to be secure in one’s person), and the Fifth Amendment (the right against self-incrimination). Some would add the Ninth and Fourteenth Amendments as well.

No matter, because the current Supreme Court finds no such right anywhere. It seems they didn’t spend much time looking for one.

This Fourth, we bemoan rights lost, though we might be better served focusing on and protecting those we still have left.