A decision was handed down today by a federal court in the Northern District of Alabama in a case over whether a law against sex toys violates the right to privacy.
The decision made very clear that there are numerous rights that Americans today take for granted -- rights that, if taken away, all Americans would be horrified. And none of these rights are spelled out in the Constitution. They were all derived from the Due Process Clause of the 14th Amendment and either flowed from or contributed to the establishment of a constitutional right of privacy.
This won't come as any surprise to anyone who has studied even a little constitutional law. But it is instructive to note that with so many strict constructionists being appointed to the federal bench -- including Alito -- it is not just abortion that is potentially at risk.
Beyond the specific provisions of the Bill of Rights thus absorbed into and
protected by the Fourteenth Amendment lies a constitutional quagmire, rife with soft
and slippery doctrinal ground, jurisprudential quicksand, and subtle, semantical
snares for the unwary traveler. This is the domain of those rights that -- even though
lacking an explicit textual basis in the Constitution -- the Supreme Court has
recognized as possessing a value so essential to the preservation of individual
"liberty" that they have been characterized as "fundamental." They are freedoms
deemed "implicit in the concept of ordered liberty," inherent in human nature, and
consequently inalienable.
The specific liberty interests that fall under the heading of "fundamental rights"
have varied over the course of the American experiment in democratic selfgovernment.
For example, rights of "property" were of paramount importance during
the ante-bellum period, and "freedom of contract" held sway for seventy years after
the Civil War. With the decline of "economic substantive due process" following the
head-on collision of the Hughes Court with Franklin Roosevelt's "New Deal"
programs, however, those interests lost primacy. From then through the remainder
of the Twentieth Century, personal liberty interests have assumed the position of first
importance.
Thus far, the Supreme Court has characterized the following, non-textual
liberty interests as "fundamental" and, as such, rights that should prevail if in conflict
with governmental authority or other, less valued, liberties: (i) the right to marry; (ii) the right to procreate; (iii) the right to purchase and use contraceptives; (iv) the
qualified right to an abortion; (v) the right to custody of one's children; (vi) the
right to keep a family together; (vii) the right of parents to direct the education and
upbringing of their children; (viii) the right to marital privacy; (ix) the right to bodily integrity; (x) the right to refuse unwanted, lifesaving, medical treatment;
(xi) the right to travel within the United States; (xii) the right to vote; (xiii) the
qualified right to control the dissemination of private information; (xiv) the right of
all persons to equal access to the courts; and arguably (xv) the right of adults to
engage in private, consensual, non-commercial, sexual activity common to a
homosexual lifestyle.
The quote above seems to draw on a 1997 SCOTUS case called Washington v. Glucksberg. The opinion written by Chief Justice Rehnquist includes this quote:
The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S. at 278-279.