The Green Papers
The Green Papers

Loathing of Rights and Liberties in Today's America

by Richard E. Berg-Andersson Staff
Sun 29 Jun 2003

This is preeminently the time to speak the truth, the whole truth, frankly and boldly. Nor need we shrink from honestly facing conditions in our country today. This great nation will endure as it has endured, will revive and will prosper.

So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself- nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.


First Inaugural Address- 4 March 1933

I have, in the past on this website, used FDR's "The Only Thing We Have to Fear is Fear Itself" quote because it seems to most eloquently express a central, where not also essential, political truth. Yes, FDR was referring to the depths of the Great Depression in particular when he uttered these now- quite famous words but the threat of his "Fear Itself" to Freedom and Liberty can be made quite apparent in other political contexts, even those which are not- in and of themselves- solely economic in nature.

I thought of this phrase, "Fear Itself", today because of two decisions in the Federal courts last week-- one of major import at the highest level of the Federal Judiciary, the other a minor, technical one at a lower level but one which prompted some no little talk among those with their hands on the legal apparatus of the Federal Government, talk which- in its own way- made that minor technical decision almost as important as the more major one.

The minor technical Federal court decision last week involved yet another chapter in the seemingly never-ending saga of the criminal case known as United States v. Zacarias Moussaoui. For those who might have been hiding under a rock in the wake of the horrific events of 11 September 2001, let me just reiterate that Zacarias Moussaoui, aka Abu Khalid al-Sahrawi, is the alleged "20th hijacker" who was indicted for various counts of Conspiracy involving terrorism, aircraft piracy, use of weapons of mass destruction and the like and currently faces trial on these charges in the U.S. District Court for the Eastern District of Virginia (the Federal judicial district which includes the location of the Pentagon, one of the places attacked on the September 11th). The media catch phrase "20th hijacker" is based on the assumption that Moussaoui was supposed to be one of the September 11th terrorists (each of the four airliners used in the attacks but one had 5 hijackers on board, the fourth had only 4-- it is assumed that Moussaoui was supposed to be # 5 on this fourth one but he had already been arrested by the time the attacks took place).

In the course of the preliminaries which will eventually lead to his trial, Federal District Court Judge Leonie M. Brinkema recently ruled that Moussaoui has the right to question a suspected member of al-Qa'eda currently being held at the U.S. base at Guantanamo Bay, Cuba as an "enemy combatant" (a result of this person having been captured as part of the War Against International Terrorism in Afghanistan) as part of putting together his defense. The U.S. Government decided- on (among others) grounds of National Security- that they couldn't allow this and so they appealed to the U.S. Circuit Court for the Fourth Circuit to have Judge Brinkema's order overturned. The Circuit Court disallowed the appeal (though they did not, for reasons that will become clear later in this very sentence, rule on the actual merits of the Government's appeal per se), the technical nature of the Circuit Court's decision to do so being that Judge Brinkema had not yet issued any sanctions against the Government (largely because the Government had not formally informed the District Court that they were not going to follow her order, only that they intended not to abide by it).

The Sixth Amendment to the United States Constitution reads as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The question of the day, despite the technical nature of the Circuit Court's remand to the District Court held by Judge Brinkema, is still this, however: does Zacarias Moussaoui have the right "to have compulsory process for obtaining witnesses in his favor"? Answer: Yes. Note that the Sixth Amendment applies to "all criminal prosecutions"- not just some of them- in which "the accused shall enjoy the right"- "shall", not "maybe"- "to have compulsory process"- not "whenever we feel like it" process- "for obtaining witnesses in his favor", including- should the defense agree- witnesses among those being held in Guantanamo Bay. It is the U.S. Government, after all, that arrested Moussaoui with the intention to put him on trial before 11 September 2001: they cannot now deny him the judicial process that is his due under our Constitution and laws once he was arrested simply because the September 11th attacks eventually revealed Moussaoui's alleged involvement in conspiracies they could not have known about prior to those attacks!

But what about the issue of Moussaoui not being a United States citizen? Don't the Sixth Amendment protections apply only to citizens?? Attorney General John Ashcroft evidently believes so, for he has so stated this before Congressional hearings-- but I don't see this in my copy of the U.S. Constitution; instead I read "In all criminal prosecutions", not "in only those criminal prosecutions in which the accused is a citizen of the United States". So why the Government's position as regards not allowing Moussaoui to avail himself of the Sixth Amendment's "compulsory process for obtaining witnesses in his favor" (aside from the obvious one of their fear that allowing him to so "obtain witnesses" might force them to reveal the sources and methods of intelligence gathering re: al-Qa'eda or, worse still, allow Moussaoui to even- unknowingly to the prosecution or even his own defense attorneys- signal a further terrorist attack against Americans, either at home or abroad, to begin)?

The Government's position is certainly not unpopular, even where it is very wrong, for it plays upon that very "Fear Itself" which has- however beneath the surface (when it is not, as it is from time to time, patently visible)- permeated our society ever since the September 11th attacks. How did FDR himself define it? "[N]ameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance". What could be more a statement of the aims of those we call "terrorists" than that very definition? "Nameless, unreasoning, unjustified terror" which, in turn, fuels that very "Fear Itself" which will- or so groups like al-Qa'eda would wish- cause us to abandon the very Freedom and Liberty that is at the cornerstone of our politicolegal system- not to mention our social fabric as a free, democratic republic. "See!", the al-Qa'eda recruiter might thereafter say, "the Americans talk all this big talk about the sacredness of their Rights and Liberties and seek to impose these on the rest of the World-- but when it comes to actually allowing these to those like you yourselves whom they might charge with a heinous crime, see how phony all their big talk about Freedom and Liberty really is!! Not only is theirs a decadent society- one that allows women to be the superiors of men in a business venture, that allows women to show at least some of their cleavage in the heat of summer, that even allows a woman to sit in judgment on our brother al-Sahrawi [=Moussaoui]- but they don't even really believe the decadent, sinful beliefs they themselves profess to believe, a lack of belief that makes them even more sinful and decadent!!!"

And they said one to another, "Behold, this dreamer cometh. Come now therefore, and let us slay him... and we shall see what will become of his dreams". [Genesis 37:19, 20a, 20c- King James Version]

But the dream of Freedom that others, such as al-Qa'eda, seek to slay is not free and one certainly does not at all advance the cause of Freedom by so willingly, where not also so blithely, giving it up. The whole essence of Freedom- as the concept has been developed by Western Civilization in general and the United States of America in particular- is that it is an essential human right, one applicable to all human beings- regardless of race and color, religion and social status, culture and gender. Anything less than this puts the ol' KI-bosh on those "self-evident Truths" stated so eloquently within that very Declaration we Americans are about to, once again, celebrate later this very week: "that all men [we would today say "all persons"] are created equal, that they are endowed by their Creator with certain unalienable Rights". The truest test of one's belief in Liberty, therefore, is not when one openly defends the Rights and Liberties of those with whom one might largely agree- that's easy! (where it is not also, frankly, rather cheap!!)- but when one is willing to defend those of they whom one despises. Al-Qa'eda's wrongheadedness is in that organization's incapacity to allow we Americans to be who we are: they attack us in an attempt to get us to be that which we are usually not by, through sheer terror, getting us to give in to that very "Fear Itself" of which FDR once warned; if we deny Rights and Liberties to one of their own because of "Fear Itself" can we honestly claim to be any less wrongheaded?

Yet we of late risk becoming so much more like those in al-Qa'eda would like us to be- indeed, so much the closer to being like al-Qa'eda itself! Thus, much of the negative reaction to the Federal decision of major import last week- the United States Supreme Court's decision in the case of Lawrence v. Texas in which a 6-3 majority struck down the law against sodomy (that is, homosexual sex) in Texas and, by extension, the sodomy laws in the 13 States that still have such laws on the books- effectively reversing the Court's own decision in Bowers v. Hardwick back in 1986, a decision which had upheld Georgia's sodomy law.

For example, Justice Antonin Scalia issued a scathing dissent in the case, one in which he argued that the High Court had taken sides in what he called "the culture war" (ah, yes-- that ol' Kulturkampf, the curtain behind which many a wannabe Junker or Nazi would very much like to hide behind!) and that the Court was embracing "the so-called 'homosexual agenda' ". At least Justice Scalia had the intellectual honesty to use the phrase "so-called", since the alleged "homosexual agenda" is pretty much a fictional creation largely engendered by abject paranoia- where not also "Fear Itself". Ken Connor, head of the Family Research Council, was quoted as saying that "[i]f the hallmarks of the test are consent and privacy, then that throws the door open to any sexual behavior"; James Minnery, Vice President of Public Policy at Focus on the Family, claimed that "[i]f the people have no right to regulate sexuality, then ultimately the institution of marriage is in peril, and with it, the welfare of coming generations of children". The problem is not so much that such as Mr. Connor and Mr. Minnery cannot see the forest for the trees- that would be bad enough!: it is that they do not want to acknowledge (or, to put it bluntly, they do not want to have it acknowledged) that a given forest might even consist of trees!

Let us look at each of their statements more closely: I would like to have it well explained to me how "the welfare... of children" of a gay or lesbian couple is at all enhanced by denying their parents the right to form a legal household in which to raise them (since so much of the negativity the Lawrence decision has raised seems to mostly be based on the anticipation that 'with sodomy now legal, can gay marriage be all that far behind?'-- Justice Scalia's dissent itself noted that "the decision leaves on shaky grounds state laws limiting marriage to opposite sex couples", an observation that puts pay to his expressed concern that the Court had "depart[ed] from its role, as neutral observer, that the democratic rules of engagement are observed" since he himself had brought up an issue not even before the Court in Lawrence [that proverbial ol' "pot calling the kettle black"!]). However, of course, "welfare"- in the ordinary sense of the term- is not at all the issue here: rather, it is a narrow- frankly selfish- definition of "the welfare... of children", a definition where the future sexuality of today's children (a sexuality they themselves will have the right to define as well as enjoy once they become tomorrow's adults), is homosexuality- (for that matter, masturbation-, not to mention certain sexual position-) free: sexuality for every adult as defined on such largely entirely narrow- where not equally selfish- legal, cultural, moral and even religious grounds.

But since when was Mr. Minnery chosen Supreme Pontiff of the United States? I certainly don't remember being asked for my vote 'yea' or 'nay'! Since when was he- or anyone else, for that matter!- invested with the power to enforce moral authority on all the rest of us?? More to the point, when was even a majority of those who might agree with Mr. Minnery (assuming- if only for the sake of this particular argument- that said persons would even be a majority) invested with such power and authority??? Living in a democratic republic such as the United States of America means that, while the majority might generally rule in most cases (hence, it is "democratic"), that majority has absolutely no right and power to so dominate a minority- and certainly not a minority of consenting adults- when it comes to their private affairs (hence, the protections of a "republic"- something an at least healthy chunk of those who deign to call themselves Republicans apparently still must learn). These, Mr. Justice Scalia, are the "democratic rules of engagement" to be "observed"; thus, or so I would argue, the Court, indeed, well protected these in Lawrence.

If Mr. Minnery is so all-fired concerned about "the welfare of coming generations of children", he should know that this decision of the U.S. Supreme Court applies to consenting adults only, not minors- and that, while it has been said that "the Constitution does not stop at the schoolhouse door", the States do yet retain the power to determine "age of consent" and the welfare (as I define it) of those below whatever age that might happen to be is not at all impaired by the Lawrence decision. Mr. Minnery's problem is that he cannot possibly abide those above this age of consent doing that which Mr. Minnery and others who agree with him do not at all condone or even like. Well, that's just too damn bad! Such is the price we all must pay for living in such a horrible thing as a free society!! If you yourself might wish to avail yourself of your inalienable Freedom and Liberty, you very well cannot deny it to others- even if these others use their Freedom and Liberty in a way you yourself would not!!! Or have those who might find themselves disagreeing with the Supreme Court's decision now joined the likes of Osama bin Laden and al-Qa'eda in their abject hatred for that very Freedom and Liberty that are part and parcel of Western Civilization? The belief system may be somewhat (but only that-- "somewhat"!) different-- yet, or so I am afraid, the inherent reasoning looks very much the same!

As for Mr. Connor, all I can say is "well--- duhhhhh!!!" If, indeed, the tests are "consent and privacy" (what else could the tests of a substantive Right of Privacy even be?), then- indeed- that does throw "the door open to any sexual behavior"-- though only for adults-- consenting adults (as, clearly, any sexual behavior forced on an adult who does not consent to it would still be just as illegal as any such sexual behavior foisted on children, consenting or no [if we here define "children" as those under the age of consent-- in my State of New Jersey, the age of 16 (yes, ladies and gentlemen, in my State you can legally have sex before you can legally get a driver's license and you don't even need a Learner's Permit [though, perhaps, one should be required! ;-)]). Mr. Connor went on to say that "judicial activists have used their fertile imagination to create rights that simply don't exist in the Constitution"-- well, let's just closely examine that particular premise, shall we?

The Ninth Amendment to the Constitution of the United States reads as follows:

The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People.

This very simply means that the mere listing of what can be considered to be Rights and Liberties within the text of the Constitution itself (and not just those found in that which we Americans, somewhat inaccurately, call "the Bill of Rights"- usually defined as the first ten Amendments to the U.S. Constitution, but starting with the right to a writ of Habeas Corpus in Article I, Section 9, clause 2 [the first Right in and of itself to be found in the body of the original Constitution-- unless one wishes to consider the right to vote for Members of Congress in Article I, Section 2, clause 1 (though this right, at least in the earliest days of the Republic, was conditional upon one having "the Qualifications requisite for Electors of the most numerous branch of the State Legislature"- so, in a sense, this is not a Federal right per se- being at the behest of the election law in one's home State)] down through the 26th Amendment's having conferred the right to vote on all American citizens who have attained the age of 18) should not at all be taken to be an all-inclusive inventory of all Rights and Liberties so protected by the document. But what was intended to be protected? What exactly are these "others retained by the People"??

On the more technical legal level, those Rights and Liberties specifically protected by one's home State- through its own Constitution and laws- are well within the purview of the Ninth Amendment's "others retained by the People"; put another way, the Federal Government cannot encroach upon rights I myself (so long as I remain a resident- hence citizen- of New Jersey and am acting on those rights within the boundaries of New Jersey) might have under the State Constitution of New Jersey- whether specifically embodied within that document, enforced under statutes adopted by my State's Legislature and which subsequently became Law, or embraced by the application of said provisions to cases and controversies brought before my State's courts and interpreted by those courts in the course of such application. However, there is more protected by the Ninth Amendment than the merely technical:

Also protected by the Ninth Amendment as "others retained by the People" are the very natural, or inalienable, rights envisioned by the Framers themselves. I have often argued- even on this very website- that, while the Declaration of Independence we Americans are once again about to celebrate within the week is not, in and of itself, Law in that it does not confer powers and rights anymore than does the Preamble to the U.S. Constitution itself, it is- like the Preamble- a statement of the basic philosophical underpinnings of that Constitution. No Independence?-- then no United States of America and, certainly, no Federal Constitution (even though it be written more than a decade after Independence). Those who drafted the Constitution certainly had not forgotten- in little over ten years' time- that all are "endowed by their Creator with certain unalienable Rights" (which is simply the declarers of Independence grappling with the notion that Liberty is not something given via the largesse of mere human beings but, instead, derives from something beyond that which is human-- call it God, Allah, "[the] Creator" or, for that matter, Nature: it matters not. I myself have often stated that Freedom should never be taken for granted, else some damn fool will think he or she granted it and then try to take it away! Rights are a human concept, therefore they accrue to one solely in one's capacity as a human being and, thus, no one can lawfully claim the power to take them away!!). Moreover, "Life, Liberty and the pursuit of Happiness" were merely three "among these" natural, or inalienable, Rights, implying "others retained by the People"; thus, the very language of the Ninth Amendment brings the Federal Constitution full circle back in line with the Declaration of Independence!

So, is there a substantive Right of Privacy among one's natural, or inalienable, rights- as stated by the Declaration of Independence and protected as another "retained by the People" by the Ninth Amendment? I sure think so. Judging from the decision of the U.S. Supreme Court about which I am opining herein, so does that High Court- Justice Scalia's dissent, along with Mr. Connor's and Mr. Minnery's protestations, notwithstanding. More to the point, many- if not most- of those who decry this decision do, indeed, believe in the existence of just such a substantive right (they sure as hell do not at all shrink from claiming it when it is bloody well convenient for them to do so!). One conservative commentator on Constitutional Law I have read recently openly admits to there being a Right of Privacy under the Ninth Amendment (although this particular commentator does not think that this right protects the right to contraceptives [the issue in the 1965 U.S. Supreme Court case of Griswold v. Connecticut, which utilized the Ninth Amendment to protect such a right], apparently on the grounds that if a State were to require one to use contraceptives, this would be unconstitutional via its interference with an inalienable right to procreate. Such fuzzy logic is silly, where not also disingenuous: the State also cannot force you to read my Commentaries on 'The Green Papers' either-- how is this at all an argument that one does not then have the right to read them should one have access to the Internet and wish to do so?)

Another argument I have heard made against the Lawrence decision is that the Framers of the Constitution (or, for that matter, those who adopted the Declaration of Independence) would not have ever condoned homosexual behavior (and, in fact, the society in which they lived regularly adopted and enforced laws indicating this). But the Framers would also not have condoned my walking in front of what they called the Pennsylvania State House in Philadelphia on a hot summer's day without a powdered wig, waistcoat and knee breeches-- yet I myself have walked Independence Mall in a T-shirt and shorts with little, if any, comment! Most certainly the Framers would not have condoned the modern dress of women- even the everyday dress of women who heartily agree with the aims and beliefs of such organizations as the Family Research Council and Focus on the Family!! Neither, by the way, does al-Qa'eda!!!

The simple fact is that morals change over time and they change- not by legislative act, executive decree or judicial fiat- but, rather, by the collective actions of free individuals over time. Morality in America is not defined by a majority of we 280 million-plus Americans suddenly waking up one morning and saying "gee... yesterday, I thought 'X' was immoral, but now I think 'X' is perfectly okay!". In our society, adult individuals are free to exercise their (in my own opinion) God-given Right of Privacy (yes, protected by the Federal Constitution) and what can be more private than one's own sexuality? Therefore, such freedom includes the inherent right to engage in sexual behavior with another consenting adult who agrees- the community be damned (so long as each consenting adult takes into account the ramifications of their actions and accepts responsibility for those same actions: for instance, dangerous sexual activity- I need not be at all graphic and explain this concept here!- that results in injury and death, even if one of the sexual partners knowingly consented to it, is still- as well it should be!!- punishable under law, despite the "Fear Itself" of at least many of those who would disagree with my position on the Right of Privacy as it applies to sexual behavior in general. As in all cases, Rights imply concomitant Responsibility: my own exercise of Free Speech in this here very Commentary is one in which I am still required to be responsible for how I might go about using it!).

So, no, Mr. Connor, the Right to Privacy and its application to the instant case is not at all the product of the "fertile imagination" of "judicial activists" (though, yes, such "judicial activists" do exist-- and note that, unlike Justice Scalia, I did not have to resort to the use of the modifier "so-called"); and, no, Mr. Minnery, the institution of Marriage is, in fact, alive and quite well, thank you: it's just that people you don't want to have partake of said institution might very well be allowed to do so in the near future, whether you happen to like it or not! (though, on the very day I am typing this [Sunday 29 June 2003], U.S. Senate Majority Leader Bill Frist has stated that he would back a Constitutional Amendment to ban homosexual marriage, his accompanying argument that the Supreme Court decision striking down State sodomy laws would, as a matter of course, lead to legalizing prostitution and drug use in the privacy of one's home, etc. being one of the worst examples of a politician openly pandering to that very "Fear Itself" of which FDR warned seven decades ago...

but that would be a topic for a whole other Commentary!).

Modified .