Should Fundamental Rights Conflict?

Our fundamental Rights are listed in the Constitution and Bill of Rights. We have the fundamental right of Life and Liberty for instance. Does it make sense to have a right of Death and Restriction or Confinement? Of Course not, in fact in Gonzales v. Oregon the Court struck down a law making “the right to die” fundamental. Does it make sense to abridge any of the Rights outlined in the Bill of Rights? The Supreme Court has made exceptions to many rights in the Bill of Rights, but for the most part they cannot be abridged. For instance, on freedom of speech, the Court has placed a few exceptions such as “presenting a clear and present danger” or using “fighting words” and people can be found libel by falsely making defamation of character claims against private citizens (public citizens are fair game).

In my article “The Evolution of Substantive Due Process” I outline the many fundamental rights elevated by the Supreme Court. Substantive Due Process rights are rights not explicitly found in the Constitution, but the Court held they can be interpreted from the Ninth Amendment or the Due Process Clause of the Fifth or Fourteenth Amendments. These Fundamental Rights include control over activities such as contracts, occupation, knowledge, marriage, procreation, bodily integrity, contraception, abortion, privacy, gay marriage, gay sex, and decisions over children. Some of these make sense, but a few of them do not because they are in tension or conflict with each other. In fact, some of these Fundamental Rights are the antithesis or polar opposite of each other.

First, let’s examine those rights that make sense and are not conflicting. We have the right to make contracts (outlined in the Civil Rights Act of 1866), but we do not have the right to break contracts without consequences. We have the right to work a lawful occupation, but it is not a fundamental right to be unemployed and to live on welfare. We have the right to learn and acquire knowledge, but we do not have the right to be stupid, irresponsible, and unaccountable. We have the right to make decisions about our children’s lives, but we do not have the right to neglect our kids. We have many fundamental rights to privacy, but we do not have a fundamental right to be transparent. With fundamental rights it does not make sense when there are conflicting rights.

Secondly, let’s evaluate some conflicting Fundamental Rights declared by the Court. We have the right to procreate, but we also have the right to contraception and abortion. Abortion is the most troubling here. The first Fundamental Right declared by the Supreme Court in Dred Scott v. Sanford the Court held blacks had no constitutional rights. Abortion is analogous to Dred Scott in that it fails to identify any rights to the fetus or unborn. However, laws have protected the unborn from abusive behavior by the mother (drinking, drugs, smoking, etc.); if a fetus is killed by a crime, it is murder; a fetus can be willed items; Supreme Court decisions do defend a “viable” baby; and most states protect “wanted” babies (again the choice is solely the mothers). What is great about the Constitution is it protects everyone equally, morally, eliminates discrimination, and protects those that cannot protect themselves. Civil Rights for minorities and women are no different than protecting the rights of our children and most importantly our unborn, who cannot protect themselves. Abortion is discriminatory since women do not have to consult with fathers and most importantly, it affects mostly minorities (see Bailey v. Alabama, 1911 or Buchanan v. Warley, 1917). What is most stunning about Abortion being considered a Fundamental Right is that the mother accidently or mistakenly got pregnant. The mother and father were irresponsible. Where else can someone make a mistake and then undo it? Can we undo a car accident or a broken leg? Of course not. Statistics show that 97% of abortions are not to protect the life of the mother or victims of a crime, their purpose was to undo a mistake or the act of being irresponsible. In other words, Abortion is a Fundamental Right to protect the irresponsible at the expense of those that cannot protect themselves. This makes very little sense.

Or how about we have the Fundamental Right to traditional marriage, but there is also the Fundamental Right for gay marriage. By this logic, it only seems fair to have the right to remain single. And we have the right to procreate, but we also have the right to sodomy. It makes no sense when Fundamental Rights conflict. Nothing should become a Fundamental Right that conflicts with another right without repealing the conflicting right.