Regaining our Liberty and Freedom (Part II)

7. Controlling what are Fundamental Rights by:

a. Adhering to the “Deeply rooted in American history and tradition” and “neither liberty or justice would exist if they were sacrificed” standard. This standard was developed from Palko – Snyder – Moore – Glucksberg line of cases. This would prevent future abortion, gay sex, and gay marriage being elevated to fundamental rights since they are not deeply rooted in American history.

b. Define fundamental rights precisely and accurately. This is also proclaimed in Glucksberg requiring fundamental rights to have “careful description of the asserted fundamental liberty interest”. Glucksberg instructs courts to adapt a “narrow” definition of the fundamental rights. A few years earlier in the Reno v. Flores (1993) decision the Court asserted that “liberty interest must be construed narrowly to avoid unintended consequence.” No more fundamental rights should be defined broadly or ambiguously such as the “right to privacy” in Griswold. Griswold led to a slippery slope and several “unintended consequences”: Roe v. Wade, Obergefell v. Hodges, and Lawrence v. Texas.

c. Limit fundamental rights to those defined in Corfield v. Coryell and the Civil Rights Act of 1866. These documents closely relate to what our Founding Fathers and the authors of the Fourteenth Amendment intended. See my article on the “Best non-Supreme Court decision: Corfield v. Coryell”.

d. Use the “privileges and immunities” clause of the Fourteenth Amendment instead of the “due process” clause to elevate fundamental rights.

e. Avoid expanding fundamental rights at all cost. This is also stressed in Glucksberg: “because guideposts for responsible decision making in this uncharted are scarce and open-ended” and because it “places the matter outside the arena of public debate and legislative action.” In Reno v. Flores (1993) the Court also proclaims “the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Instead the Court should use the “due process” clause to identify if a statute is legal (instead of elevating fundamental rights) using the following standard: 1. Is the law rational, 2. Is the law arbitrary (discriminatory) and 3. Is there an injury to be settled? For instance, in Griswold instead of elevating a new Fundamental Right, the Court could use the standard applied by Justice Harlan (defined above) to strike down the statute. The Due Process standard could be used to apply to gay marriage laws or abortion state laws. “Due process” to evaluate statutes is better than elevating rights. Elevating rights should be a last resort. In Glucksberg the Court refused to hold that the “right to die” or the “right to choose a humane, dignified death” was a fundamental right which encompassed “assisted suicide”. In Flores the Court rejected several fundamental rights including “freedom from physical restraint” and “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives.” In Gonzalez v. Raich in 2007 a district court refused to elevate “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve life” as a fundamental right since only 10 states had medical marijuana laws (not enough to say it is deep rooted)