Wallflowers at the Dance of the Lawyers

RICHARD RODRIGUEZ

December 18, 1991|By RICHARD RODRIGUEZ

Two hundred years after the adoption of the Bill of Rights as part of the U.S. Constitution, I dare you to read it.

Americans today line up in Washington to appeal and demand and lobby for what we call our ''rights.'' We make the public realm the arbiter of our private lives. We want judges to authorize our sexual identities. We expect government to define the proper relationship of parents to children. We elect politicians to condone the behavior of our bodies and thus of our souls.

Read the Bill of Rights.

You do not have to be a constitutional expert to be struck by its elegant irony. Here is the voice of a government limiting the role of government in our lives. (Congress shall make no law . . . ) The Bill of Rights is nothing but an itemization of what government cannot do to us.

Throughout the document is a skepticism toward government reflecting our nation's original Protestant character, a low-church fear of the group and faith in the individual. But the intellectual genealogy of the Bill of Rights is as old as the Greeks.

There is an industry in this country, I call it the Rights Industry. The aim of this industry is to translate our private life into the public arena. Its ascendancy has roughly paralleled the breakdown of our private lives over the last 30 years. The origin of this breakdown, however, may be older and harder to date. Possibly what young Americans in the notorious 1960s sensed in their parents were old disbeliefs and thus the ''hypocrisy'' of parents yielding to a way of life they no longer believed in.

Coincident with this private crisis in America was the example of the black civil-rights movement -- its challenge to the old order, its rightful appeals for government protection which many Americans mistook as the romance of victimization.

Two hundred years after its adoption, I write in praise of the Bill of Rights and yet I tell you it gave us nothing. The Bill of Rights didn't give you or me a single right. The Bill of Rights only acknowledged our right as individuals. I regard this distinction as crucial and important to note on this anniversary because our inclination now is exactly the reverse. We have come to see government as a giver of rights, the dispenser of largess.

Fifteen years before the Bill of Rights became part of our %J Constitution, Thomas Jefferson wrote in the Declaration of Independence of what he called ''certain unalienable rights.'' Implicit in that phrase is the idea that as human beings we have stature above human law. Whence comes our stature? It is not given by government. Rather it is God-given.

I like what a friend of mine who is gay said recently: ''I don't want the justices of the Supreme Court deciding whether or not I am entitled to sleep with my lover.''

Political activists would answer no doubt that unless the government protects your rights, you have no rights. Outside the district of rhetoric, everyone knows that rights are alienable, after all. That's what history tells us. The activists are right, but I do not think they are more than half right, and the half that is missing has precisely to do with the private realm to which government should have no access.

Two elderly bachelor-uncles -- (everyone knew they were gay) used to go to their Episcopal church every Sunday morning. Probably everyone made fun of the old gay couple. But I'd wager the bachelors taught people around them more about the normality of homosexuality than any government opinion about gay life. The fact is that attitudes toward homosexuality cannot be changed by government decree alone. If attitudes are changing today, and I think they are, it is also because one's sister is gay, or the nice man who lives in the next apartment is gay, or the old couple in the front pew at the Episcopal church is gay.

I am speaking here of intimacy, of the slow, steady influence of lives on one another, of the intimacy of daily contact. I am not speaking of the quick fix of government.

Or consider the recent debacle of the Clarence Thomas confirmation hearings. A woman I know who would want herself identified as a ''feminist'' tells me at issue was not the guilt or innocence of Clarence Thomas. ''I don't give a damn about Clarence Thomas. We all know that men are constantly mistreating women.'' For this woman, and in the name of the woman's movement, the individual's right to what the Bill of Rights calls ''due process'' is dispensable.

Call it a civic crisis. Something has happened in America in recent decades that we scarcely know how to describe. We have lost the knack, the genius, the ease of living in the intimate realm. We find relief from this failure in abstract identities made legitimate by the public realm.

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