Restoring the American Dream (Part I)

What is the American dream? It is precisely defined in the Declaration of Independence as “the pursuit of happiness”. No one is guaranteed happiness, but we should have a right to pursue it. What are some things people may lawfully pursue to be happy? They include the right to own and sell property as well as those rights brilliantly outlined in Meyer v. Nebraska (1923) by Justice McReynolds: “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Moreover, Reynolds opined “The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Two years later McReynolds also delivered the majority opinion in a similar case: Society Sisters v. Pierce. Both Meyer and Society Sisters are considered good law today, but unfortunately government laws and the Court only use this precedent when protecting privacy rights. McReynolds understood the American dream, which modern progressive and conservative courts have failed to recognize. Meyer and Society Sisters are often cited in cases together. This precedent was used to find a right of privacy in Griswold v. Connecticut (1965), the right to choose abortion in Roe v. Wade (1973), and the right to consenting sex in Lawrence v. Texas (2003). For this reason, Meyer is sometimes called the first privacy case. But, this is not true. Meyer and Society Sisters were not privacy cases. Both Meyer and Society Sisters addressed the right to acquire useful knowledge. In Meyer the Court struck down a Nebraska law forbidding a child under 10 years of age from learning a foreign language. In Society Sisters the Court struck down a law prohibiting students from attending private school. Education is not a privacy issue. While Griswold (Contraception) and Lawrence (Sex) are privacy issues, Roe (abortion) is not necessarily a private matter since clinics, nurses, hospitals, doctors, and others may be privy of an abortion. Also, in abortion cases, medical records are kept. Yes, just as in the case of a student in education, these types of records are private but certain people will always have access to them.

No one will argue or dispute the fact that a person’s happiness is directly proportional to one’s education, work, family, church, and home as outlined in Meyer. While privacy within the home has gotten some protection from the Court, the same cannot be said of a person’s right to education, property, and work. In fact, those fundamental rights are continually being diminished by government laws which are upheld by the Court. If privacy is protected within the home, but if a person’s right to education, property, and work are not protected then the American Dream and the pursuit of happiness is essentially gone. Also, it is important to remember that even privacy rights are not absolute as lawful citizens can be monitored by the National Security Agency (NSA) without warrants. What’s worse, police can even monitor our phone GPS data to obtain information without warrants (Carpenter v. United States, 2018). Big Brother is watching us, with or without privacy rights. Carpenter is an interesting case. Although it appears that the Court is going to limit authorities from accessing GPS data from phones without a warrant, their rationale is going to be flawed. Carpenter illustrates the Court’s historically misguided view to protect privacy rights and neglect property rights. Carpenter should be a property case because authorities are trespassing on personal property (phones) without a warrant. However, it looks as though Carpenter will be decided using privacy concerns. Carpenter shows the willingness of the Court to protect privacy rights (an elevated right) but neglect property rights (enumerated right) which is important as we look at why the American dream is dying.

The 1905 case Lochner v. New York was a decision that has lived in infamy. In this case, the Court struck down a New York law regulating how many hours bakers can work in a week. However, the Court upheld all of the other provisions of the New York law to promote public health and safety. Lochner upheld the same freedom of contract alluded to in Meyer 18 years later. The Court held that the freedom of contract between an employer and employee was paramount and legislatures cannot deny that right or freedom under the guise of public health and safety. Lochner was a huge win for working rights, but those rights would be short lived. Lochner was officially overruled in West Coast Hotel v. Parrish in 1937. But government economic regulation started in Nebbia v. New York (1934). The Court held that a New York law prohibiting selling a quart of milk under 9 cents was lawful. Hence, the conviction of a grocer who sold two quarts of milk and a loaf of bread for 18 cents was upheld. Why can’t a businessman set a price that is satisfactory to him and his customers? The whole purpose of a contract is for both Party A and Party B to be happy with the result. In Nebbia, both A and B were happy so why is it necessary to regulate this contract? How can people pursue a lawful occupation without government interference if the government regulates their work hours, overtime, wages, child labor laws, and the prices at which they can sell products? The government’s purpose is to protect rights and not to regulate, prohibit, deny, manage, or disparage rights without any compelling government reason.