The last seven years have presented Americans with an unprecedented number of moments that came and went where, upon reflection, we've said individually and collectively, “if we had only known.”
If we had known that the Bush administration hadn't a clue about Iraq's supposed WMDs… That has to top the list but there are many other instances.
We live in a world that has not only shrunk in distance but in time. Couple this with a democracy that can, at times, be seriously derailed – a Congress, Judicial system (and it would seem various departments of the Executive) along with our massively corporate Fourth Estate that become almost completely ineffectual in playing their counterbalancing role, and we have a recipe for disaster.
As much of a help as the Freedom of Information Act (1966) has been and despite that it is used nearly two million times a year, it is, I believe, for the times we live in too slow and too cumbersome. However, the creation of the FIA has led me to wonder: do we have a “right” to know? On the face of things it would seem so. That was the impetus of the creation of the FIA, despite the fact that President Johnson had to be hauled, kicking and screaming, to the signing ceremony.
But does such an right really exist?
I believe it does. I believe also that it would be found in a place that scares the living hell out of most lawgivers, not to mention judges, lawyers, and politicians of all stripes. That place? The Ninth Amendment, which reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It's call the forgotten amendment. This for the simple reason that for 150 years it was. It peeked out from behind the curtain in 1947 United Public Workers v. Mitchell 33 U.S. 75. But its big debut was 1965 in Griswold v. Connecticut 381 U.S. 479. This was the case of over an “uncommonly silly law” (Justice Stewart) of the State which forbade the use of anything that was designed to prevent conception. In essence the Court stated that such a law infringed on “fundamental personal rights”. Griswold was quite frankly a mess of a decision. It led to an even bigger mess in 1973 with Roe v. Wade 410 U.S. 113 where Douglas, who had helped craft the Griswold decision used the Ninth again to speak of a “penumbra” of rights to be found… in there… somewhere.
Technicians of the law break out in a sweat when the question arises over the source of natural rights. Indeed, when the issue of the Bill of Rights first arose, there was a great deal of argument against it. The fear was that any enumeration of certain rights would threaten those not “recognized,” that the federal government would then retain them.
Furthermore, in something I thought was curious, especially since many making this claim were lawyers, it was felt that there was no need for the Bill of Rights because natural rights were so blatantly “obvious” to all. Everyone could recognize human rights. So why bother naming them? It sends a real chill down my back thinking that had this view, held actually by the majority, prevailed, we would have never seen the Bill of Rights. Why does it scare me? Beyond the obvious reasons history has provided?
Because there at the founding we had a complete dichotomy. At one moment everyone is claiming that natural rights are glaringly obvious to all. At the next the all stare slack-jawed and sweating into the maw of the Ninth Amendment. Yet somewhere in there the right to know exists. More to the point, the right to know in a timely fashion. The FIA, while useful, is too slow and can be thwarted at any turn. If it is, lawsuits must be filed (if the plaintive can afford it,) and a Federal court has to find standing for the suit.
But what do you do, as a citizen, if you have a Congress that proudly marches in lock step with the Executive branch, if you have a Judicial branch that is packed, if you have media outlets that are overwhelmingly owned by Fortune 100 companies who's very board of directors are themselves packed with either former or (near) future government bureaucrats? How are the people to know the truth of things? If “checks and balances” pertain only to the lining of pockets and not to keeping the truth of things out where We the People can see it, then what are we to do?
The despair and indeed desperation of so many Americans who repeatedly and all too often discover far too late the truth of things – of unimaginable corruption, of a government that insists that a restriction of personal liberties is for their own good and can't possibly be abused, of the disappearance of billions of our tax dollars in the sands of the Middle East, of the mechanism of government increasingly given over to the “needs” of Corporate America. Do We the People not have a right to know in a timely fashion?
So the Ninth Amendment is scary. The Founding Fathers no doubt looked askance at the Ninth because they realized that they had not created a mechanism for the “discovery” of unenumerated rights. In order to discover rights an agreement must be reached as to their source. The source. The heart of that blackness staring back at them from the Ninth.
While the founders overwhelming believed in a Supreme Being, they were not, as the Christian Right would have us believe today, “fundamentalist Christians”. Many were deists of a sort. But for all of them, it was “self evident” that in order to fulfill our “nature” as human beings certain rights must necessarily exist. In other words, natural law.
The Founding Fathers were walking a tight rope. Swing too far in one direction and America would quickly become the next battlefield of what seemed to be a ceaseless religious bloodletting. (indeed the term “natural law” has been hijacked over the past quarter century by the religious right in its attempt to bring about sweeping changes in American law).
But for the Founders, the alternative offered no comfort either. This other direction would eventually lead them to Plato. The Founding Fathers were not scholars. Indeed there wasn't much in the way of Platonic scholarship at this time. Jefferson, who used to speak of Plato with great admiration finally read some of the Dialogues and practically ran from Plato, so sure was he that Plato was an enemy of democracy.
As for the philosophers of the time, neither Leibniz nor Kant and certainly not Hegel had a real grasp on Plato's concept of what Western Philosophy has come to now know as natural law. It was dimly understood that in some ways Plato gave rise to natural law concepts that did not rest on some direct divine revelatory act. But beyond this – at this time no one had worked it all out.
So there was no exploring this avenue for the Founders. They didn't have that kind of time. Nor the inclination. They had a nation to bring into being and after that to protect. The business of governing took over immediately. So the Ninth (as well as its sister, the Tenth) have remained a vast unexplored plain. Out there still only vaguely defined is the right to privacy. And I suggest the right to know.
But let's suppose the right is “discovered”? Skipping the “how” let's deal with the practical. So it exists. So it is recognized. How could it be applied in reality? But before we start that thought experiment let's suggest another.
If such a right had existed in full maturity when Bush's insisted the existence of WMDs and our need to go to war with Iraq, could such a right have been applied, somehow, to step in where the Congress and so much of the media were afraid to tread?
What I am asking here is this: have we reached a point in our evolution as a society where we need to bring into being some form of a plebiscite? Something that Plato himself would actually rail against, since in some ways it hearkens back to the “mob rule” of Athenian democracy? The technology of course already exists to allow it. What we lack – what was lacking 2500 years ago – is a well-educated, well-studied electorate. Could we find a way to allay Plato's legitimate fears?
If such a plebiscite existed at the time the Bush administration was making its “case” for war with Iraq, and if the right to know had played its part, i.e., the insistence for a more stringent burden of proof, would this ruinous war have been started?
Have we, as a world, really shrunk back to a village – where the actions and decisions of our chief can make or break the village and everyone in it in a big fat hurry?
Is there a right to know and, if there is, where, as with the freedom of speech, do its boundaries lie? Would the “discovered” right to know push us toward some form of plebiscite?
Is this what we've come to?
I'm just wondering…