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Monday, December 26, 2005

Save the right to privacy

For anyone who is looking for an update on the Flight 93 memorial, the Memorial Project superintendent, Joanne Hanley, asked me to write up a report that I can go over with them. Look for it within the next couple of weeks.

UPDATE: Hanley has had my report for a couple of days now, but I am not going to post here until she has had a little more time to look at it, and until I have had a chance to talk to her about it. What I can offer you now is a highly amusing thread over at TBogg's blog. He dissed my earlier analysis and I joined the comment thread, trying to get ANYONE there to acknowledge that having the central feature of a mosque (a crescent that people face into to face Mecca) as the central feature of the Flight 93 memorial is inappropriate. Nothing, out of what looks from the hit counters to be thousands of viewers. It's awesome. Check it out.

All that is just a side-note. The actual subject of this post is my recent Stanford Review article on saving privacy rights from the fiasco of errantly trying to create a right to abortion under this rubric:

Save the right to privacy

It is difficult for an originalist, or a strict constructionist, not to find a right to privacy in the Constitution. The Ninth Amendment asserts that unenumerated rights do exist, and the fact that several procedural restrictions seem designed to protect a sphere of privacy makes a right to privacy just about the most cautious application of the Ninth that can possibly be invoked. Thus to not recognize a right to privacy would be to render the Ninth entirely without effect, in violation of Chief Justice Marshall’s first principle of constitutional interpretation:
It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. (Marbury v. Madison, 1803.)
At the same time, the most famous application of the right to privacy—to confer abortion rights—is grossly untenable. Private matters are those that do not involve harm to others. Terminating one life to reduce burdens on another is an extreme example of a behavior that most certainly does involve harm to others. It may well be that there is a moral right to abortion and that it should be protected in the Constitution (such is my own view), but there is no way in the world that such a right can fall under the heading of privacy, or can in any other way be read into the Ninth Amendment.

With conservatives gaining control of the Supreme Court, it is crucial to get this right. Conservatives are united in understanding that the Supreme Court’s 1973 invention of abortion rights was grossly unconstitutional. There is great division, however, on the right to privacy. Social conservatives tend to regard privacy rights as the same kind of whole-cloth invention as abortion rights, while libertarian conservatives fear that the social conservatives are poised, ironically, to throw the baby out with the bath water.

How freedom of contract was lost
An almost identical throwing out of the baby with the bathwater occurred seventy years ago. The Court’s first foray into the identification of unenumerated liberty rights was its pre-New Deal protection for liberty of contract (the so-called the “Lochner era”). Just as the Constitution includes provisions that seem designed to protect a sphere of privacy, so too it hints at a protected status for economic rights. Article I section 10 prohibits the states from passing laws that impair the obligation of contracts. The Fifth Amendment bars any government “taking” of property without just compensation. Since property rights depend entirely on freedom of contract (if you can’t sell your property or otherwise enter into agreements with it, your property rights are taken), this constitutional protection for property rights points to liberty of contract as a constitutional value.

Like privacy rights, economic rights fall into that rarified category of unenumerated rights which, following the guidance of the Constitution itself, should obviously be protected first, if any unenumerated rights are to be protected at all. But like the Brennan Court with abortion rights, once the Lochner Court started locating enunemerated economic liberty rights, it quickly went power-mad, using liberty of contract to protect what was clearly not a matter of liberty of contract, striking down child-labor laws when liberty of contract only applies between consenting adults. The idea that society was not to treat children as minors was an outrage, akin to trying to fit abortion under the heading of privacy.

The political winds at that time were blowing to the left. When the Great Depression hit, Franklin Delano Roosevelt and his New Deal Democrats came to power. This was a group of people, shot through with communists, who all believed that the Great Depression was the collapse of capitalism predicted by the communists. (Vice President Henry Wallace was a small “c” communist who later founded the soviet-backed Progressive Party. Many other top New Dealers, like Alger Hiss at State, Duncan Lee at the OSS and Harry Dexter White at Treasury were capital “C” Communists, actual Soviet agents in the Roosevelt administration.)

If the United States was to compete, these New Dealers believed, capitalism had to go: we needed centralized control of the economy, which was impossible so long as freedom of contract was protected. The earlier striking down of child labor laws was the nominal outrage, but when the Supremes overturned this perversion of liberty of contract, they took the opportunity to throw out all protection for genuine liberty of contract at the same time. The anti-capitalists won, with unabated consequences today. Consider just one example.

Why we have no vaccine industry
The tort revolution of the 60’s made it impossible for anyone to sign a binding release of liability. This is for your own protection, you see. It is assumed that you are not competent to make such a decision, and the Supreme Court no longer insists otherwise. But for products like vaccines, which are a very good gamble for everyone, even though they once in a while pay off very negatively for someone, the net benefits are available only if users sign a binding release of liability.

So here we are, entering the age of bio-terrorism, and the vaccine industry that would otherwise be racing ahead in the fashion of the computer industry now depends entirely on government and academia. Instead of a cure for the common cold (compared to which avian-flu would be child’s play) we have a tiny socialist backwater, all because the New-Deal court threw the liberty-of-contract baby out with the non-liberty-of-contract bathwater.

We are poised to make the same mistake with privacy rights. If the misuse of privacy to protect abortion causes privacy rights to be thrown out, the loss of privacy rights will likely be as permanent as the loss of economic liberty has been, and just as devastating, in its own uncountable ways. Technology for government snooping is advancing at a fantastic rate and the terrorist threat insures that we will be using it. This is no time to be throwing away all distinction between what is legitimately the government’s business and what is not.

Substantive due process
Does the fact that both times the Supreme Court managed to identify unenumerated rights it quickly abused the power prove that it should eschew the practice? It looks bad, but the real problem is with how the Court has gone about locating unenumerated rights. Its mistake has been to pretend that it is not locating unenumerated rights at all, but is divining actual enumerated rights that were just enumerated in very hidden form.

Neither the Court’s foray into economic rights, nor its foray into privacy rights, invoked the Ninth Amendment. The 9th gets a single mention in Justice Goldberg’s concurring opinion in Griswold v. Connecticut (a seminal privacy rights case) then never again. Instead, the Court has tried to locate unenumerated protections for liberty in the due process clause of the Fourth Amendment: that no one shall be “deprived of life, liberty or property without due process of law.”

By the meaning of words, this phrase obviously places no restriction on what liberties can be deprived through due process of law. Were the child-labor laws not duly enacted? Were laws restricting abortion not duly enacted? To pretend that “process” refers to substance, instead of to process, founds the entire enterprise on dishonesty. Thus “substantive due process,” whether protecting Lochner’s economic rights or Griswold’s privacy rights, has become a watch-word for Judicial usurpation of democratic prerogatives. It is a blatant perversion of the plain language of the Constitution.

It is no wonder that economic rights and privacy rights founded on this dishonesty were rapidly extended to matters that did not involve economic liberty or privacy. As J.R. Ewing put it: “once you give up integrity, the rest is easy.” Once the Court started having to avert its eyes from the truth of its own methods, there was no way it could arrive at properly limited results.

The Ninth Amendment
In contrast to the inherently unregulated nature of “substantive due process,” locating unenumerated rights where the Constitution locates them—in the Ninth Amendment—yields a very clear tension. Some unenumerated rights have to be recognized as protected rights, or the Ninth is without effect, violating the first principle of constitutional interpretation. On the other hand, every recognition of unenumerated rights does violence to other parts of the Constitution. In the right circumstance, any two parts of the Constitution can conflict. Unenumerated rights could conflict with enumerated ones, and they will certainly conflict with the enumerated powers that are granted to majority rule. Thus unenumerated protections must be located very cautiously, protecting what unenumerated rights must be protected (given that some must be), but withdrawing protection as soon as the logic behind a protection becomes tenuous.

When cautious analysis finds that the Constitution does point to some particular unenumerated right, protection for this right can be accommodated within the family of balancing tests that that the Court has developed for striking down laws that infringe the Constitution. Instead of the “strict scrutiny” that is applied when a law infringes an enumerated right, laws that infringe on Ninth Amendment rights could receive an intermediate level of scrutiny, such as the Court’s “closely drawn scrutiny” standard. [I have a post on the Court's different constitutional balancing tests, how they have been abused, and how they can be used legitimately, here.]

Judicial originalism and judicial activism are not opposites. To be an originalist requires that a justice be at least in some degree a Ninth Amendment activist. The Court has already found the two tenable pillars of this approach: economic liberty rights and rights to privacy. If it will only resist stretching these concepts beyond their internal meanings, these pillars can strengthen the whole immensely. They are in the Constitution. They need to be in our constitutional interpretation.

Originally published in The Stanford Review, December 10th, 2005. Subscribe to the Review's online edition here.

This comment has been removed by a blog administrator.
You say: "Private matters are those that do not involve harm to others. Terminating one life to reduce burdens on another is an extreme example of a behavior that most certainly does involve harm to others."

The problem is, however, that there is no general consensus on when life begins. Your argument presumes that life begins at conception. IF that were provably so, or if there were a general national consensus that it were so, your argument might have merit. But given that it's not, the decision on whether or not to continue a pregnancy is a private one - much like any elective medical procedure might be. And the government does not have the right to insist that I remain pregnant and bear a child doesn't exist, just as the government has no right to demand that you undergo an invasive medical procedure to donate a kidney to someone who will die if you don't provide it. What you do with your body is private. Unless and until I believe that a first trimester fetus is an actual human being, then abortion is not terminating a human life. It's terminating the real potential for such a life.
Anon: It is important to consider this issue you raise about when a person becomes a person. In particular, does it affect whether or not abortion could be can be comprehended under the heading of privacy, where harm to others is not involved? I think the answer is no. We don't need to be able to define when a person becomes a person in order to say that abortion does harms to a person.

If I give you a disease now that doesn't kill you till next year, I have still harmed you now by harming your future. Similarly with abortion. As you say: "It's terminating the real potential for such a life." The fact that the life that is at stake is in a developmental stage does not mean that there is not a life that is at stake.

That does not mean abortion is necessarily wrong. It just means that it cannot be encompassed under the rubric of privacy. I believe that a conclusive argument for a right to abortion can be made. The point here is that there is no such right in the Constitution. Getting it into the Constitution will require an amendment.

My apologies to the first commentator for deleting her remarks. I have told people before: if you use foul language, I am going to delete your comments. Nothing personal, I just don't want my blog to get flagged by filtering software. Feel free to re-comment with more sensible language.
Do also write for the ONION? This stuff is gold!
Dear man, no matter how many comments you delete, (due to foul language) immorality will continue to exist as long as you're breathing. What women take for granted, men have always lived in awe (and fear) of the fact that only females are intrinsically equipped to create. There will never exist a species of males because, genetically speaking you're reproductively pathetic. You don't possess the eggs (seeds) to create. Males are nothing more than fertilizer --- and grass can grow without it.

I hate to kick a guy while he's down but the fact that men are irrelevant in the larger scheme of things is a profound reality you must recognize --- (along with your useless misogynistic opinion that the health of women's reproductive organs should not be considered private matters) for everything is female based.

While the X (female) chromosome towers over the puny Y, (male) scientists have predicted that men's extinction is inevitable. (Don't worry your puny little Y about women, we'll be fine like the hundreds of thousands of other female species, creating parthenogenetically)... Without a homologous chromosome (such as XX) in place, there is no repair mechanism. This leaves your Y at a grave disadvantage. In other words --- you're doomed. Worse than that, the male sperm count has decreased 50% in the last generation. Young men today would have been considered sterile a generation ago…

Some believe (rightly so) estrogen based chemicals (the first of which was DDT, now outlawed) and estrogen products (styrofoam) have caused the unfortunate feminization of the male sex. --- Then again maybe God, in Her infinite wisdom recognized that men have failed to live up to their rather insignificant roles as the "help meets" to the females She (God) designated as the creators of their species.

What I find incredibly interesting (and you might wish to ponder before your demise) is that when scientists came across the genetic mutations involving Y’s evolution and extinction, they discovered certain societies (Asian) of men having larger genetic deletions responsible for Y's infertility. Chromosomal deletion in Japan where misogyny thrives and women are poorly treated is as high as at 30%. In the US --- a democratic country where women are constitutionally protected and respected (ya, right) genetic deletions affects about two percent of men. You (Mr. Alec), without a doubt are part of that two percent. In other words, sterility (of men like you) will precede (human) male extinction.

Until you and all men recognize female superiority, (by getting down on your hands and knees, worshipping women for giving you life --- regardless of her ability or choice to do so) your impotence --- I mean infertility will continue to degrade. I understand it is hard to imagine how men's reproductive skills could be even more deformed than they were to begin with, but... I'll tell you what; the next time I see a pregnant man, I'll give ya 50% credit... Adios Muchacho

Oh, btw what was that you were saying about privacy rights and women's reproductive issues?
Now there is a comment from a truly rotten human being. Interesting how the leftists like to pretend that they have their hearts in the right place, and that that excuses their irrationality, when the fact is, their hearts are often pustulant, which is the main reason that their prescriptions are all so counterproductive.

Maybe if anonymous comes back, she can identify herself, of does she recognize that her views are too shameful to own to?
Interesting how the leftists like to pretend that they have their hearts in the right place, and that that excuses their irrationality, when the fact is, their hearts are often pustulant,

This coming from someone who questions the intelligence of anyone who doesn't subscribe to his theories on crescents. (as seen on the Tbogg blog comments)

What I questioned over at TBogg was the intelligence of people who couldn't figure out that the Crescent of Embrace actually does contain a crescent, or that a crescent actually has an orientation, or that putting the central feature of a mosque (a Mecca oriented crescent) on the crash site is in any way inappropriate.

TBoggers did not reject my analysis of the Crescent memorial. What they rejected was the idea of looking seriously at it. The whole tread is an extended litany of excuses why they should't bother to look at the evidence. I don't know if I can recommend it as worth the time, but I found it pretty interesting.

I'll admit I did return some of the insults in spades, but only by telling the truth, and Jaxebad has to admit that for the most part I was pretty forbearing. I really tried to talk to these people. I had no expectation that leftists would be any happier about a mosque on the crash site than anyone else would be.

They would certainly go berzerk if the main feature of the memorial were a gigantic cross, and that is when Christianity is willing to tolerate all of the left's perversions. Islam seeks their annihilation. But there is no logic to anything on the left.

The TBogg thread is a fascinating example of what I call the backwards thinking thought process, where instead of following reason and evidence, some people start with their presumptions and look for excuses to dismiss contrary reason and evidence.

The obvious problem with backwards thinking is that, since it does not follow reason and evidence, it rapidly gets divorced from reality. As a result, what the backwards thinker presumes to be right does not have a chance in hell of ever being right. These people just drift farther and farther into left field.

How loopy? Consider a typical example from the thread. Someone suggests that since you can draw a line in any direction, there is no such thing as the orientation of a crescent. (This was actually started someone who claimed to be a Stanford engineering alum!) Then the other commentators, instead of correcting this imbecility, pick it up as a meme, and say that no one should listen to me because I haven't answered it yet.

Of course I don't bother to answer one fiftieth of the idiotic things they say, so the thread just gets deeper and deeper with the absolutely stupidest things you can imagine. Finally someone pointed out that a crescent actually does have an orientation. That is the only correction in the entire thread.

In their minds, their twenty foot deep pile of unrebutted idiocy is the measure of their victory. You can't conceive of the stupidity until you actually read it.

Think of how disoriented must these people be if they ever visit a conservative comment thread and see the commenters constantly correcting each other. But I don't think they ever do visit any place where people think frontwards. They just stay in their own little backwards thinking bubble.
So I have a contract to deliver ten thousand gallons of arsenic to you. Does the government have any right to protect the potential for death to thousands if my delivery is less than perfect?

Because let's be honest and up front about so-called conservatives' Lochner fetish: it is not the purity of the Constitution that is being upheld, nor the rights of the people or individuals that are being protected.

You can find "constitutional" justification for the government to reach deeply into the personal decisions made by actual human individuals and justifying same as a balancing of the equities; but when it comes to regulation of industry, suddenly it is the down-trodden rights of individuals that are being violated behind a catch phrase of "freedom of contract".

I find the word contract only twice in the constitution itself: Article I Section 10 and Article VI. And neither speaks of any particular freedom interest that the government must protect. And again let's cut through the high-brow legalism and admit that contracts are only as good as the effort made by the government to provide effective remedies (i.e. a court system).

So is this "freedom of contract" god-given or is it to be found among the other penumbra from which you would like to selectively pick and choose?
Of course freedom of contract depends on government enforcement of contracts, and on the enforcement of liability for many harms to third parties. You find this somehow inconsistent with a government interst in freedom of contract?

And why do you suggest that I only care about freedom of contract and not other unenumerated liberties. Did you not read the title (or the substance) of my article?

How come you leftists are so fixated on being contrary that you cannot vet your own comments for the most obvious error? Your thought processes are so out of whack. Instead of being so agenda oriented, I suggest you just try to make sense.
Said Alec Rawls:

"For anyone who is looking for an update on the Flight 93 memorial, ... What I can offer you now is a highly amusing thread over at TBogg's blog."

It is indeed amusing.

"He dissed my earlier analysis and I joined the comment thread, trying to get ANYONE there to acknowledge that having the central feature of a mosque (a crescent that people face into to face Mecca) as the central feature of the Flight 93 memorial is inappropriate. Nothing, out of what looks from the hit counters to be thousands of viewers. It's awesome."

"Awesome" doesn't begin to cover it. That thread is unprecedented in all my experience of the internet. By Mister Fister's calculation, there've been 486 comments (24 by Alec Rawls), 147 identifiable unique posters, 145 anonymous posts, easily 150-300 posters total, with a wordcount approaching that of a shortish novel, and not one of them has agreed with Alec Rawls.

This simply never happens. Someone always comes along and takes the contrarian position, if only to be polite. Alec Rawls' theories, research, data, procedures, conclusions, and defense of his hypothesis, are so powerfully wrong that they have inspired unanimity of opinion in a long, lively political discussion in an open venue.

I've been hanging out on the 'net for a very long time. I know a miracle when I see one.

Teresa Nielsen Hayden
Making Light
Theresa is completely typical of this thread (well, except that she writes coherently). She accepts that NO ONE in the entire thread is willing to acknowledge that it might be inappropriate to place a half-mile wide Mecca oriented crescent on the crash site, and she attributes this to ME being off the deep end. What kind of brain does that take?

I understand WHAT these people are doing. They are doing what I call "thinking backwards." Instead of following reason and evidence, they start with what they presume to be correct and look for excuses to dismiss all contrary reason and evidence. What I don't understand is how people can get trapped in that mode. Don't the native faculties of intelligence automatically engage reason and evidence? But something about the fact that they are all doing it allows them to all do it.

The thread is absolutely as awesome as this woman says. But it wasn't quite novel length when I left yesterday. I'll get back for another look. I'm just too busy for the next couple of days.
Wow, I'm as liberal as they come, and vehemently disagree with Alec, but even I was offended by the 5th anonymous post.

Sounds like all that's going on is that this 'unknown' chick is having problems finding a man to fertilize her, so she's becoming an exclusionist.

Well have fun reproducing without men, honey. If you can pull off getting pregnant without any sperm, THEN I'll agree that the male gender is superfluous. Until then, shut your pretty little mouth.

*For anyone with a malfunctioning irony meter, this post was sexist on purpose for the sake of satire*
Alec, you seem like a pretty forthright guy who doesn't need much of a rooting section to assuage his ego. That thread about the crescent of embrace is what is so saddening about the internet. It is a leftist ghetto, and anyone who is not from the home turf gets flamed. I have seen it in other parts of the web. Right wing blogs are not immune from it either. One of the peculiarities of the internet is that it enables people of common interests and goals to associate. It is very much a two edged sword.
One peculiar thing about the Crescent of Embrace monument is that its architect, Paul Murdoch, is nearly silent about the criticism leveled at it. Yes, he did move a couple of trees in the revision, but never said why he was doing that. If your charges are so false, why doesn't he defend his original design? It seems to me the tack being taken is to paint you as such an extremist or nut that the issues you raise don't justify a response. President Clinton's handlers used to do that with women who said they were wrongly treated by Clinton when there were bimbo eruptions. Keep on keepin' on Alec.
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