Last night, in my Advanced Criminal Law class, I heard something scary . . . again.

The comment was made by a fellow-student — near as I can tell, a very nice guy; let me be clear I’m not attacking him in this blog entry. The idea, however, is about as abhorrent an idea as I can possibly imagine.

And yet, he isn’t — as I noted in the first sentence of this article — the first person I’ve ever heard say it. In fact, it’s become a common-place, particularly amongst people who believe that it provides the key to the only tool against terrorism.

The comment was that he didn’t mind being stopped and searched periodically in his travels because, well, he had nothing to hide. More alarmingly, this comment was part of a discussion in which he expressed an irritation, impatience and intolerance accompanying his belief that “criminals” manage to “abuse” the constitutional protections against search and seizure. U.S. Const. amend. IV. If, like him, they had nothing to hide, why would they do this?

The very first thought that popped into my head was a question: “What the hell did George Washington have to hide? What did Thomas Jefferson have to hide? What did any of our Founders have to hide?” Surely, it must have been something. After all, wasn’t it our Founders who drafted the Constitution? Aren’t they responsible for the Fourth Amendment? They should have listened to Alexander Hamilton! At least he strenuously argued against a Bill of Rights! See generally, The Federalist No. 84, pp. 509-520 (Alexander Hamilton) (Clinton Rossiter, ed., 1961) (Before Republicans hold him up as their new saint, I should point out that the comment about Hamilton is sarcastic irony. While he did, in fact, argue against a Bill of Rights, it was because he thought such a thing was dangerous to the rights of individuals. For more information on that point, see my article “Re-Adopting the Constitution.”)

The fact of the matter is that the question — what have you got to hide? — assumes a false dichotomy. Either “you will submit willingly, at any time, to a sacrifice of your freedom” or else “you have something to hide.”

Yet freedom isn’t something you should be expected to sacrifice willingly “for the greater good.” That’s a bedrock principle of fascism. Rather, freedom is a thing that the Founders valued as an inalienable right. “We hold these truths to be self-evident,” our Founders wrote, “that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit [or “purfuit” if you read the original, and have less an understanding of historical graphology than humor] of Happiness.” The Declaration of Independence para. 2 (U.S. 1776), italics added.

For these reasons, the Founders absolutely abhorred unchecked power, particularly unchecked governmental power. James Madison, in explaining why the Constitution created a separation of powers among different branches of the government, said,

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with this accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. The Federalist No. 47, at p. 298 (James Madison) (Clinton Rossiter, ed., 1961)

According to Madison, “the preservation of liberty” actually required a separation of governmental powers to ensure the weakness of the government. The Federalist No. 47, at p. 298 (James Madison) (Clinton Rossiter, ed., 1961) It was always intended by our Founders that government would have “just enough” power to accomplish its goal of protecting individual freedoms. See generally, The Federalist No. 51, pp. 317-322 (James Madison) (Clinton Rossiter, ed., 1961); also The Federalist No. 84, pp. 509-520. When one person or group attains too much power, you get despotism.

As Montesquieu said, “When the savages of Louisiana want fruit, they cut down the tree and gather fruit.” Charles de Secondat, baron de Montesquieu, The Spirit of the Laws 59 (Anne Cohler et al, eds., 1989) (1748) Similarly, there are those who believe that by cutting down our freedoms, we gather it to ourselves and maintain it. The problem with this, of course, is that the fruit eventually rots. The only way to maintain a steady supply is to resist the temptation to cut down the whole tree. It’s a variation on The Goose with the Golden Eggs theme.

The point here is that it isn’t a matter of whether or not you have something to hide. It’s not either you have something to hide or you surrender your freedom to the State. “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured.” Thomas Paine, Rights of Man, in Rights of Man; Common Sense; and Other Political Writings 83, 119 (Mark Philp, ed., 1995), italics in original.

Our Founders — as well as Montesquieu and Paine — lived in a world that was not long out of the Dark Ages. During the period of Enlightenment, the power of the King, or State, gave way to the power of individuals. Were it not for that, the Enlightenment would never have occurred; to turn our backs on that is to slink back into the Dark. As Immanuel Kant put it,

Enlightenment is man’s leaving his self-caused immaturity. Immaturity is the incapacity to use one’s own understanding without the guidance of another. Such immaturity is self-caused if its cause is not lack of intelligence, but by lack of determination and courage to use one’s intelligence without being guided by another. The motto of the enlightenment is therefore: Sapere aude! Have the courage to use your own intelligence! Immanuel Kant, What is Enlightenment?, in The Age of Enlightenment, Wikipedia &#182 9 (last visited September 30, 2004).

Or as Lyman Baker, Intructor of English at Kansas State University put it,

Enlightenment is getting out of the childhood that you’ve kept yourself in. Mentally, you’re still a minor if you can’t use your mind without having someone else tell you what and how to think. This is your own fault if the problem is not that you have the bad luck to be retarded or brain-damaged, but that you just can’t make up your own mind, and are afraid to use your brains without someone else dictating what you think. Sapere aude! Dare to know! “Have the guts to use your own wits,” is thus the slogan of the Enlightenment. Definition of What is Englightenment?, WordIQ.com, ¶ 12, last visited September 30, 2004.

Prerequisite to the ability to have the guts to use your own wits is to have the power to use your own wits.

It is for the purpose of retaining this power that Americans originally created a Constitution that simultaneously established and limited our government — not because we have something illicit to hide, but because we have something implicit to protect: our Liberty.

Don’t misunderstand me. I’m not talking about a free-for-all here. I’m actually talking about adherence to Law.

Liberty is the right to do everything the laws permit; and if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power. Charles de Secondat, baron de Montesquieu, The Spirit of the Laws 155 (Anne Cohler et al, eds., 1989) (1748)

Laws that can preserve liberty of the sort true USA Patriots can embrace are not found in misnamed acts of Congress that abrogate constitutional freedoms. Instead, we must recognize and re-embrace the wisdom of our forebears. The Italian scholar and early humanist Petrarch, who was a prime mover in recovering the knowledge of ancient writers — and who is credited with creating the concept of “the Dark Ages” to describe the period in which such knowledge had been temporarily lost, once said,

Each famous author of antiquity whom I recover places a new offence and another cause of dishonor to the charge of earlier generations, who, not satisfied with their own disgraceful barrenness, permitted the fruit of other minds, and the writings that their ancestors had produced by toil and application, to perish through insufferable neglect. Although they had nothing of their own to hand down to those who were to come after, they robbed posterity of its ancestral heritage. Petrarch, Wikipedia (last visited September 30, 2004).

Let us not be like that. Let us not forget the work of the Revolution lead by our Founders. Let us not fall into the trap of believing that, if we have nothing to hide, we have nothing to lose. For as Benjamin Franklin is purported to have said,

Any society that would give up a little liberty to gain a little security will deserve neither and lose both. Benjamin Franklin, 1706-1790.

Re-Adopt the Constitution!