Problem Unearthed by Alito's Draft Opinion
My April 25 post anticipated the repeal of Roe v. Wade that is presaged by Alito’s leaked, draft opinion. I am going to follow up on that earlier post, and try to draw another lesson from it in light of these new circumstances.
David French wrote an excellent summary of Alito’s reasoning, and I believe it illustrates a major flaw in our current Constitution and Constitutional legal thinking. An excerpt:
“…many of the Founders viewed the Constitution as reserving “all rights and powers that were not positively granted to the federal government” to the people or the states. In plain English, this means that the Constitution did not need to spell out our individual rights. They existed unless a constitutional provision declared otherwise.
Anti-federalists, however, insisted on the Bill of Rights as a belt-and-suspenders safeguard against federal encroachment. By spelling out (some) of our fundamental liberties, the citizens of the new republic could be assured that the federal government would be restrained. And how do we know that the Bill of Rights didn’t outline all of our liberties? Because the Ninth Amendment specifically states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Do the Ninth, Tenth, and Fourteenth Amendments Guarantee a Right to Privacy? Let’s look at private acts that are currently illegal in many States:
Assisted Suicide
Smoking marijuana, snorting cocaine, injecting heroin, and the production and distribution of these drugs
Marrying a close cousin, sibling, or your adult child
Prostitution
Gambling
Cutting or braiding someone’s hair for money without a license
Libertarians would claim that all of these activities should be practiced without any restraints. They claim that it is unconstitutional to restrict activities between consenting adults. However, most Abortion proponents are not Libertarians, and they would not agree that these all of these enumerated activities should be legal. But why not?
I believe that American citizens and their elected representatives have become lazy about political debate and legislation. We’ve deferred to the Judiciary to resolve our most pressing political conflicts. This political indolence has made Congress irrelevant. The Senate confirmation hearing for new Justices is about as close as we come to great open debates regarding political conflicts, and that is done vicariously through the nominees.
Put It In Writing
The US Re-Constitution (see insert below) has a very extensive list of Individual Rights in Article 19, including a Right to Privacy:
Section 5. Right to Privacy
Government shall make no law abridging the right of consenting Citizens who have attained the age of eighteen to engage in non-commercial and non-lethal activities involving any sexual acts, rituals, games, meetings, performances, consumption of food, drink, herbs, plants, or medicines of their choosing in the privacy of their homes.
Something like this represents what the vast majority of American believe is a right to privacy. Would it be so hard for Congress to pass this kind of law or to even amend our Constitution with this kind of language? It contains most of the caveats that permit government to continue the prohibitions on assisted suicide, prostitution, gambling, and the production and sale of drugs.
Age 18 and older
Non-Commercial Activities
Non-Lethal Activities
Performed inside the home
These four conditions are likely the biggest list of items you will get for a consensus about what reasonable restrictions on individual activities should be. As long as consenting adults are doing something inside their homes that is not for money and won’t kill them, then most voters agree that should not be regulated.
What about contraception, abortion, inter-racial marriage and gay marriage? Those aren’t covered by this Amendment. That means that they require separate amendments because they are outside the boundaries of what most people would agree are private acts. For marriage I write:
Section 22. Marriage
Marriage is a voluntary, joint and several partnership of only two natural persons, sanctioned by the laws of the Government. A person may be recognized as married to more than one person by a foreign government, but only one spouse for any person will be recognized under the jurisdiction of the United States. No other spouse will be recognized prior to submitting evidence for divorce or death of the spouse that was previously recognized.
Marriages originating under the jurisdiction of the United States must meet the following conditions for recognition: At the inception of the marriage, they must be fully-informed, consenting persons, attained sixteen years, and not be consanguineous through parental descent, or as a sibling or first cousin. Neither person may be married to another person. To ensure that both persons are fully-informed, the Government may require the following disclosures by both persons as a condition for the issuance of a Marriage License: health, fertility, and paternity information, financial records, and records of prior criminal convictions, marriages, and divorces. Excepting license fees, no additional restrictions may be imposed by any Government.
For Abortion I propose a Plebiscite because I don’t think it will be possible for Legislators to arrive at a consensus. On the rare occasions when that inability to arrive at a consensus occurs (no more than once a decade according to my US Re-Constitution), that’s when the voters at large should make the decision.
Section 24. Abortion Plebiscite
Upon ratification, one year after the first Federal Election for President and Members of the House of Representatives, a Plebiscite shall be scheduled for the first Tuesday of November to decide the propositions concerning the rights of a mother and an unborn child. The proposition receiving the majority of votes shall be ratified as an amendment to this Constitution.
Proposition 1.
“A woman has an unalienable right to control her body and terminate a pregnancy at any time prior to birth, without hinderance, and at the time of her choosing.”
Proposition 2.
“A woman who is pregnant may terminate the pregnancy any time prior to the detection of an unborn child’s heartbeat, but only if two licensed physicians attest to this. After the detection of a heartbeat, the laws of each State shall regulate the grounds for termination of the pregnancy provided that (1) the State assumes responsibility for the care of the child if the mother surrenders custody within one year of birth, and (2) the State pays for any diminished compensation and medical costs incurred to involuntarily continue the pregnancy, and (3) the State pays damages in the event that the mother dies or suffers permanent physical impairment as a consequence of the birth of the child. The State is obligated to provide these remedies for women who were residents of the State for greater than one year prior to the birth date of the child.
I would bet that Proposition 2 would win a majority, and both the anti-abortion and pro-abortion poles in the debate would be upset. But it would represent a consensus of the population, permitting diverse abortion laws provided that certain basic protections of the mother are recognized.
For contraception, the government could regulate the production and sale of contraceptives, but it couldn’t regulate the use of contraceptive devices or practices under my Privacy Amendment. All States throughout history have an interest in promoting growth of their populations. Only recently with the rise of environmental concerns and economic stress (e.g. China) has there been an expression of State interest in restricting population growth. Restrictions on contraception evolve over time, and cannot be enshrined as absolute rights rooted in a fundamental principle without opening up Pandora’s Box.
Requiring a license to cut or braid hair for money is covered by:
Section 20. Occupational Licensing Protections
The Government shall have burden of proving that occupational licensing requirements enacted are the least onerous method of protecting persons from physical injury, and financial losses due to fraud.
Licensing not based upon examinations, and tests of skills pertinent to the occupation are subject to the strictest scrutiny by the Courts. Eligibility for taking these examinations may not be restricted by any requirements other than age, Citizenship, residency, examination fees, and criminal or civil convictions.
No State may restrict interstate commerce and prevent its residents from purchasing and receiving any goods or services from vendors who are not domiciled or licensed in the State.
Professional licensing in complex and dangerous practices where practitioners could cause serious bodily harm or serious property damage exceeding one-fourth of the compensation of a Member of the House of Representatives per incident can be subject to the requirement of an apprenticeship and an evaluation of expertise by practitioners in the field, but in no case shall these requirements be arbitrary, un-related to the prevention of injury, and have the effect of restricting competition from competent practitioners.
If the Federal Government adopts an occupational licensing requirement, then no State may require a person with a Federal License to obtain a State license for a similar occupation.
Excepting commerce between individuals residing in different states, the Federal government may not prevent the practice of an occupation in a State by requirement of a Federal license. Enactment of exceptions to this rule require a three-fifths vote by the House and Senate.
Most professional licensing requirements are designed to create barriers to entry to lessen competition. Physicians are the most egregious example, and Barber Licenses are close behind. Allowing States to restrict interstate commerce in services like insurance and securities transactions are another example. The odds of this kind of legislation passing in Congress are quite low because these licensed individuals form trade organizations that are active donating to elected representatives to protect their monopolies. Nevertheless, these licensing restrictions are definitely an injustice in most circumstances. Do we really need to protect consumers from bad haircuts by requiring two thousand hours of classroom instruction and apprenticeship at a Barber College that are unaffordable to many persons at the lowest ends of the income ladder?
Legislating In Congress Instead Of From The Bench
There is no easy way to distinguish “legislating from the bench,” with “enforcing the Constitution.” Nevertheless, the temptation to legislate from the bench will be far less if it were easier to amend the Constitution in the sphere of individual rights.
Article 18 of my US Re-Constitution has 2 separate types of Amendments. The first is for amending parts of the Constitution dealing with the structure of the Government, and that requires 2/3rds of the Congress to propose and 2/3rds the States to Ratify an Amendment — down from the 3/4ths of States currently required.
The second is for amending Section 19 covering Individual Rights. Section 3 only requires a 5/9th vote of Congress to send an Amendment to the States, and only 5/9ths of the State Legislatures are required to ratify. Making it much easier for adding Individual Rights to the Constitution removes the pressure that Justices of the Supreme Court might feel that they should step in to “invent” a new right not explicitly found in the text.
I believe that the extremist rhetoric exhibited in the current debates are rooted in the inadequacy of our current Constitution. Too many important issues are not being resolved in Congress the way they were in the past. The Courts have been the main battleground and venues for protests because Congress has abdicated its role.
These weaknesses are remedied by the US Re-Constitution. I don’t blame Facebook, Twitter, and Instagram for our polarization. I blame our Constitution.
David Barulich