Mark Levin on the right to privacy
Levin's a good guy and the excerpt from his new book that's featured at NRO today tackles a lot of the judicial craziness unto tyranny that has plagued the U.S. Supreme Court for decades.
But he's wrong about there being no general right to privacy. I explained why he's wrong in a note that I sent off to the NRO Corner:
There's a lot to agree with in Mark Levin's article, but the idea that privacy is not a constitutional right because it cannot be found in the Constitution is wrong. This was exactly the problem that Alexander Hamilton warned of when he opposed adding a Bill of Rights in the first place: that enumerating some rights would suggest that rights left unenumerated were not protected. And it's the problem that the Ninth Amendment attempted to solve.
The test for a right is whether it is a "just claim" of the individual. A region of personal privacy is clearly a just claim, a right, and it is suggested by the First Amendment's protection of freedom of conscience, which is predicated on the private nature of one's mind. The Third Amendment speaks to the privacy of one's home; the Fourth Amendment to the inviolability of one's own person, home, and property; the Fifth Amendment to the privacy of conscience and property.
So of course there is a general right to privacy. But like any right, the right to privacy has limits, and does not permit within the privacy zone the violation of the rights of others or other acts deemed illegal by the legislature. You can't kill your child in private or deal drugs in private and use privacy as your defense.
In other words, the privacy zone does not exclude the legislature's determinations. But there is always the question of whether laws are just or not, whether they tip the balance against an individual's just claim on his own life, which he brings with him to society with all of its immediate implications. All laws should and must face that test from their very inception.
What the Ninth Amendment only serves to emphasize is that neither the Bill of Rights nor the Constitution grant rights to people. Rather, the Constitution prohibits the government from infringing the rights that people hold by nature (or from withholding the civil rights that extend from natural rights by civic tradition), those "certain inalienable [natural] rights" with which people are endowed (as well as those civil rights that reflect them in the functions of civil society -- trial by jury, for instance). You won't find a right to life or a right to self-defense explicitly stated in the Constitution either. Is there any doubt that they are both more basic than any of the rights spelled out in the Bill of Rights?
I realize that I'm swimming here against the tide of Robert Bork's (and Mark Levin's) judicial philosophy, but I'm not swimming against the intent of the Framers, which both Bork and Levin would claim to be arguing for.
Here's a key difference: I plainly agree with Bork and Levin that Roe v. Wade was wrongly decided, but with one fundamental difference. I don't think that Roe v. Wade should be overturned for the purpose of sending the abortion question back to state legislatures. I think that Roe v. Wade should be, literally, reversed, so that the right to life of the unborn is protected. I do not think that determining the right to life of the innocent belongs to the legislatures. I think that Bork has been dead wrong about this all along, and it's time for it to be addressed.
If the unborn child is recognized as a person, he has all the rights of any person under the Constitution. And given the there is no longer any question of duality in any individual human life from the moment of conception, a human being is either a person from the moment of conception onward, or "personhood" is merely a subjective occurrence determined by law. Presented sufficient evidence, which exists in abundance, that human life and thus personhood begins at the bright line of conception, it is the obligation of the judge to apply the full protection of the law to that life, not any legislature's job to decide that it can be killed in New Jersey but not in Indiana.
But he's wrong about there being no general right to privacy. I explained why he's wrong in a note that I sent off to the NRO Corner:
There's a lot to agree with in Mark Levin's article, but the idea that privacy is not a constitutional right because it cannot be found in the Constitution is wrong. This was exactly the problem that Alexander Hamilton warned of when he opposed adding a Bill of Rights in the first place: that enumerating some rights would suggest that rights left unenumerated were not protected. And it's the problem that the Ninth Amendment attempted to solve.
The test for a right is whether it is a "just claim" of the individual. A region of personal privacy is clearly a just claim, a right, and it is suggested by the First Amendment's protection of freedom of conscience, which is predicated on the private nature of one's mind. The Third Amendment speaks to the privacy of one's home; the Fourth Amendment to the inviolability of one's own person, home, and property; the Fifth Amendment to the privacy of conscience and property.
So of course there is a general right to privacy. But like any right, the right to privacy has limits, and does not permit within the privacy zone the violation of the rights of others or other acts deemed illegal by the legislature. You can't kill your child in private or deal drugs in private and use privacy as your defense.
In other words, the privacy zone does not exclude the legislature's determinations. But there is always the question of whether laws are just or not, whether they tip the balance against an individual's just claim on his own life, which he brings with him to society with all of its immediate implications. All laws should and must face that test from their very inception.
What the Ninth Amendment only serves to emphasize is that neither the Bill of Rights nor the Constitution grant rights to people. Rather, the Constitution prohibits the government from infringing the rights that people hold by nature (or from withholding the civil rights that extend from natural rights by civic tradition), those "certain inalienable [natural] rights" with which people are endowed (as well as those civil rights that reflect them in the functions of civil society -- trial by jury, for instance). You won't find a right to life or a right to self-defense explicitly stated in the Constitution either. Is there any doubt that they are both more basic than any of the rights spelled out in the Bill of Rights?
I realize that I'm swimming here against the tide of Robert Bork's (and Mark Levin's) judicial philosophy, but I'm not swimming against the intent of the Framers, which both Bork and Levin would claim to be arguing for.
Here's a key difference: I plainly agree with Bork and Levin that Roe v. Wade was wrongly decided, but with one fundamental difference. I don't think that Roe v. Wade should be overturned for the purpose of sending the abortion question back to state legislatures. I think that Roe v. Wade should be, literally, reversed, so that the right to life of the unborn is protected. I do not think that determining the right to life of the innocent belongs to the legislatures. I think that Bork has been dead wrong about this all along, and it's time for it to be addressed.
If the unborn child is recognized as a person, he has all the rights of any person under the Constitution. And given the there is no longer any question of duality in any individual human life from the moment of conception, a human being is either a person from the moment of conception onward, or "personhood" is merely a subjective occurrence determined by law. Presented sufficient evidence, which exists in abundance, that human life and thus personhood begins at the bright line of conception, it is the obligation of the judge to apply the full protection of the law to that life, not any legislature's job to decide that it can be killed in New Jersey but not in Indiana.
Comments
When the average person starts caring enough about their own children that they refuse to allow the state to kidnap and brainwash them for six or more hours out of every twenty-four, they may be less willing in general to accept abortion as the "quick, easy answer" it has become.
Well, I guess I should say that it's all mighty big of you. At least you frame this as a matter of pragmatism ("hideously impractical") before you slip into the "No Treason" rap encrusted with all its traditional freezer burn.
The "moment" of conception takes about 24 hours. Keep working on that "bright line."
That's what passes for scientific cleverness among sufferers of hysterical moral blindness. For instance, 24 hours is sufficiently compact to be a bright line. But the successful formation of the single-cell zygote is the beginning of each new life.
From http://www.firstthings.com/ftissues/ft0412/opinion/saunders.htm:
Embryologists are united on this point. Consider the following statements from standard textbooks: “Human development begins at fertilization.... This highly specialized, totipotent cell marked the beginning of each of us as a unique individual” (Keith L. Moore and T.V.N. Persaud); “Almost all higher animals start their lives from a single cell, the fertilized ovum (zygote).... The time of fertilization represents the starting point in the life history, or ontogeny, of the individual” (Bruce M. Carlson); “Although life is a continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new, genetically distinct human organism is thereby formed.... The embryo now exists as a genetic unity” (Ronan O’Rahilly and Faiola Muller).