Rights, Inalienable and Otherwise

Should popular majorities make decisions on fundamental rights like privacy?

Reason magazine, which I consider to be floss for my brain, has a thought-provoking post up about the questionable wisdom of any ballot measure connected to privacy rights, like, for instance, the South Dakota ballot initiative to outlaw abortion except in cases of rape and incest that’s coming to voters this fall. “There’s nothing inherently noble about a majority of people agreeing on a particular issue,” says Damon Root. And what about that pesky privacy right — inalienable, or not? Root mentions that conservative former federal appeals court judge Robert Bork sees no right to privacy — the basis on which both Roe and Griswold v. Connecticut were decided — in the Constitution because the word “privacy” isn’t there. “But what about the Ninth Amendment[?]” Root counters. Quoth he: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” So, Root concludes, “It’s only when popular majorities are anchored to the idea of inalienable rights” — of which, by the way, privacy should be one — “that they’re most entitled to our respect.”

Next time let’s decide Roe on a woman’s right to equal protection, or to a human being’s right to health care. Penumbras be gone!