A fantastic historical article submitted to Buzzflash that details the modern erosion of the founding fathers' vision of constitutional rights. So much so, that many of the Fathers didn't even want to include a Bill of Rights, because these rights were so obvious to everyone....Jefferson, Madison and Hamilton's arguments about future generations forgetting or "foolishly electing" tyrannical leaders, is downright scary in their accuracy of foresight.
some excerpts (but you really should read the whole thing):
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.
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.
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.
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.
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.
With no right to privacy, Roe v. Wade would be overturned, and PATRIOT Act provisions wouldn't infringe on a non-existent right.