Fundamental Rights Should be Inalienable Rights (Part II)

When it comes to the right of privacy, the Constitution mentions specific negative rights that cannot be abridged. Negative rights are not rights that a person would practice, but are individual rights that the government cannot violate. For instance, the government cannot conduct any “searches and seizures” without a warrant. Although these are negative rights, they are still Fundamental Rights because they protect every single individual the same. The right to privacy as discussed before is very broad and ambiguous. Under my definition it would only pertain to a person being alone, not in a group of people or with a spouse. The only exception to the “self” rule is for children. Parents have the Fundamental Right to make “decisions for their children” (Pierce v. Society of Sisters, 1925 and Troxel v. Granville, 2000). Children have restricted rights, for example their free speech is limited by age restrictions on driving, alcohol, the military, to marry, and to buy adult materials. Children do what their parents say, not what they want to do.

Property and possessions owned by one’s self are fundamentally protected rights. Property or possessions that have shared ownership are not fundamentally protected since clear ownership may not be determined. For instance, during a divorce, property that is co-owned is divided and many times it is not divided equally. For this reason, rights under multi ownership are hard to determine, but this is not so when property is owned by one person. People that own property individually are free to enter into contracts. Multi-owned properties or possessions can be contracted but only with the consent of all owners.

So what Fundamental Rights elevated by the Supreme Court would be allowed to stand as inalienable rights: the right to contract (Lochner v. New York, 1905). Everyone has a right “to” contract and a right “from” contract to protect with their possessions. Anyone who owns a cell phone signs a contract. Most people have a will or marriage contracts (marriage, divorce, or prenuptial). Hence, contracts are a part of our daily lifes. Also, the right to knowledge (Meyer v. Nebraska, 1923) and the right to self-defense (D.C. v. Heller, 2008 and McDonald v. Chicago, 2010) would also be Fundamental Rights.

Fundamental Rights are to protect everyone as individuals, not just moralistic (procreation and marriage) or social justice rights (diversity, abortion, sodomy, gay marriage, and contraception) that protect a portion of the electorate. The Supreme Court is inflating the value of Fundamental Rights by elevating too many. We all have the right to drive a car, ride a bike, walk, talk, watch TV, play video games, eat what we want to eat, and so forth. We all have rights to live our lives as we please so long as we are not breaking the law. But not everything can be a Fundamental Right. Fundamental Rights should be saved for those aspects of life that are common and vital to all. Women may have the right to get an abortion and people may have the right to engage in sodomy and people may have the right to gay marriage or traditional marriage but these issues should be left to the states to regulate and should not be elevated as Fundamental Rights. Having a diversity of conflicting rights defeats the purpose of having Fundamental Rights in the first place. It makes the law too complicated to interpret.

There is no doubt that Fundamental Rights are becoming a byproduct of the “partiality” principle. Everyone is partial to themselves, their family, and their friends over others. In fact, the inalienable right to “pursue happiness” can make us all partial to attain this goal at the expense of others. No Fundamental Right should be partial, but most are. Legislation should not be partial, but it is without exception. How does this happen? It is what James Madison called in Federalist #10 as “factions”. The strongest group of people (mostly the majority) will get their way on topics and issues of politics. This is precisely why Madison proposed a separation of powers for the structure of our government: to help mitigate the faction issue. Two recent stories on the local news demonstrate this point. In the first story, Representative Mike Coffman held a townhall meeting and a person asked him (I am paraphrasing) “I got searched to get into this event I assume to protect you, what are doing for me?” Of course this got a massive applause. In the second story, residents were not happy about lack of space on a bus route for both persons (standing room only) and their bikes. What is their solution to this problem, the state should build a train route between Denver and Boulder. This is the partiality principle at its best. A few people want us to spend billions to solve a standing room and bike restriction problem on one bus route. Why can’t the solution be to add a couple more buses on the schedule? Of course I will never use this train but I will undoubtedly be forced to pay more in taxes if this faction of people can get a strong enough backing. One of the most famous quotes from President Kennedy is “ask not what your country will do for you, instead ask what you can do for your country.” Unfortunately, this is not how people think. This is precisely why I do not like to join organizations (factions). My cycling club wants more tax money to be spent on safer roads. Sure, I would love safer roads, it could save my life. But this action would not be fair to 75% of the people who do not ride bikes. Why should they pay tax money for road upgrades? Should bike lanes be a priority for local taxes? Probably not. Wanting safer roads to bike on would purely be a selfish desire and clearly not looking at the big picture of local needs.