Why the Right of Privacy is Overused by the Court

The right to privacy was elevated by the Supreme Court during the controversial case Griswold v. Connecticut (1965). Griswold was controversial for several reasons. First of all, the Court could not agree on an acceptable way to elevate the right of privacy since it does not exist in the Constitution. Only Justice Goldberg, who cited the Ninth Amendment really got the decision correct. Justice Douglas, who wrote the convoluted decision cited the right of privacy was interpreted from a penumbra of privacy rights founded in the Constitution: No quartering of troops and no illegal searches and seizures to name a few. But the fact the founders cited only specific privacy rights certainly meant they did not want to protect all privacy rights as absolute. This brings us to our second point; the right of privacy is ambiguous and broad and is not meant to protect things such as crimes. For this reason, rights should be drafted narrowly to protect against ambiguity. Since the right of privacy can cover a wide rage of rights, it is often overused by the Court.

I willing to bet in a recent case, Carpenter v. United States (to be decided in 2018), that the Court will use the right to privacy to prevent the government from obtaining GPS data off cell phones without a warrant. But is this really a privacy case? No, it is a property case. The government should not be allowed to trespass on private property (a cell phone) without a warrant. Unlike privacy, property rights are protected in the Constitution. However, the Court has decimated property rights to the point that the Court protects privacy within the home, but the home itself is not protected. A home can be confiscated for anything the government feels will bring a public benefit (not use) to the community. This means no one’s home is safe. How can our privacy be protected in a home if the home is not fully protected (Kelo v. New London)? Heck, the government can confiscate private property even without just compensation (Penn Central Station v. New York).

Privacy rights have been used to protect other rights such as gay marriage, gay sex, abortion, and contraception. But even these rights can be protected by other means such as the right to contract that was introduced by the Court in Lochner v. New York (1905) and then rescinded by the Court in West Coast Hotel v. Parrish (1937). The right to contract has been outlined as a fundamental right in Justice Washington’s decision Corfield v. Coryell (1823). Washington’s Corfield decision became the basis for the Fourteenth Amendment drafted in 1868. But the progressive court overruled this right so government to intervene in everything that is economic including labor laws, manufacturing, wages, hours, farming, and even child labor. This is why it is much easier for a child to obtain an abortion then to get a job. In fact, it is harder for a child to watch a “R rated” movie, smoke, drink, vote, play a violent video game, work, or marry then to get an abortion. The right to contract was originally used to protect the employer / employee relationship. But it could also be used to protect marriage and even consensual decisions made by non-married couples. Privacy right cases always cite Meyer v. Nebraska (1923) and Pierce v. Society Sisters (1925) since these cases elevate many fundamental rights such as the right of marriage and the right to raise a family. One can see how those rights may protect gay marriage, gay sex, abortion, and contraception. But these cases also protected other rights such as the right of contract among other things including the right to work a lawful profession. It is apparent that the progressive sect of the Court simply picks and chooses which of the rights outlined by Justice McReynolds in Meyer and Pierce they like and dismiss those they do not like. It does not work like that. Since Meyer and Pierce are still considered good law today, the Court has to uphold the entire decision, not just the aspects they like.

The freedom of contract could be used to uphold marriage between any two individuals and decisions about consensual sex. I cannot find anything that will uphold abortion. Abortion is a contract between mother and child and that contract is obviously violated. The Court even lets women obtain an abortion without notifying the father which is also a violation of the contract between two consenting adults. Abortion is not even a private matter since it happens outside the home and a record is kept of the surgery. If abortion is a right then any cosmetic surgery would also be a fundamental right. Sure, we have a right to choose a cosmetic surgery, but it is not fundamental because cosmetic surgeries are controversial and not a natural right that we can all agree upon with 100% confidence like the right to self-defense, to work a lawful profession, to obtain knowledge, to procreate, to care for our children, or to enter into a contract with another company or person. I am not saying certain privacy rights should not be protected, but it is my opinion that privacy is used in a manner that it has become the safety net to protect things that do not need special protections such as abortion. This is why the Court resorted to using privacy rights instead of property rights or even the right to contract. And if the right of contract is brought back, then that would decimate the legitimacy of the entire New Deal progressive revolution.