Blake Masters thinks there can be a right to liberty without a right to privacy. So, apparently, does Samuel Alito. Masters wants to be a U.S. Senator from Arizona. Alito is a Supreme Court Justice who authored the draft opinion that overturns Roe v Wade and eliminates the right to choose, disparaging the right to privacy along the way.
They’re both wrong. You cannot separate privacy from liberty.
Masters criticizes Griswold v. Connecticut, the U. S. Supreme Court case that articulated the right to privacy. “In Griswold, the justices wholesale *made up a constitutional right* to achieve a political outcome,” he recently tweeted. “I am opposed to judges making law.” In Masters’ view, the right to privacy did not exist until the Supreme Court created it in Griswold. He believes there is no constitutional right to privacy because the Constitution doesn’t specifically mention it.
Alito, in the leaked draft opinion in Dobbs v. Jackson Women’s Health, makes a similar observation. He notes Roe’s opinion “that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” He added, “And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions.” Alito is skeptical about constitutional privacy and weaponized his skepticism when he declared the right to choose, which is based on the right to privacy, doesn’t exist.
Liberty is protected by the Constitution. Even conservative commentators who argue there is no constitutional right to privacy agree the Constitution explicitly guarantees liberty. Can you guarantee one, but not the other?
Suppose you had the right to do anything you wanted, anywhere you wanted, anytime you wanted, in any manner you preferred. No constraints; absolute liberty. However, there’s a catch: you are under constant surveillance. Is that liberty or captivity? The answer is obvious: it’s captivity. How free are you if you’re constantly watched?
There’s an inherent danger in mining the Constitution for individual rights. The Constitution was born out of the American Revolution, which was inspired by the Enlightenment. “Enlightenment thinkers in Britain, in France and throughout Europe questioned traditional authority,” notes History.com, “and embraced the notion that humanity could be improved through rational change.” It adds, “The American and French Revolutions were directly inspired by Enlightenment ideals…”
Consider the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This reflects the Enlightenment view that liberty is not conferred by the monarch, but is a human birthright. The Constitution is a governing document among free people who sacrifice some of their freedom for the common good. In that sense, the Constitution tempers liberty, but does not grant it.
You can’t separate liberty from privacy; they’re the same thing. You can’t have one without the other. There’s no need to infer a right to privacy from “five different constitutional provisions.” The constitutional guarantee of liberty includes it. Liberty without privacy is a form of captivity.
By overturning Roe v Wade because the Constitution doesn’t specifically articulate the right to choose, Alito is more in line with the pre-Enlightenment view that rights derive from the benevolence of the monarch. His judicial philosophy threatens to make the Constitution a stand-in for the king. Alito is not only acting to overturn Roe v Wade; he’s trying to reverse the Enlightenment.
If the Dobbs opinion becomes law, abortion opponents will rejoice. In their reverie, they are unlikely to acknowledge the potential reversal of centuries of growing liberty that is our inheritance from the Enlightenment. They will simply celebrate.
Heck, they’ll party like it’s 1499.
© 2022 by Mike Tully
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Red Confetti
Parents line up inside a civic center in a small Texas hill town. One by one, they silently provide DNA samples to help identify the victims of a shooting a few blocks away. Nobody speaks of the reason DNA samples were needed, although the truth hung in the air like a thundercloud. The victims were unidentifiable.
In an elementary school a few blocks from the civic center, crime scene experts – forensic examiners from state, local and federal agencies – somberly comb through a classroom. Nineteen small children and two teachers were slaughtered inside that classroom by a madman equipped with an AR-15 – a weapon designed for the battlefield. Many, if not all, of the victims are still inside that classroom as I write this. It’s not the kind of crime scene depicted by movies and television shows, where bodies are scattered randomly within the debris.
There are few, if any, recognizable bodies. The room is filled with red confetti. That is the horror found inside that room, glistening red confetti marinating in a bright scarlet puddle. Death is not always the color of black crepe. Sometimes it’s bright red.
Years ago, I chatted with a good friend from high school who had seen combat in Vietnam. His description of battle’s consequence was simple and concise. “Very bloody,” he said. “And very gooey.” That is what a battlefield looks like in the wake of killing. Bloody, red, and gooey. Weapons designed for war leave red confetti on a battlefield. And in a classroom.
As I write this, the governor of Texas is conducting a news conference. His Lieutenant Governor is seated next to him. The Governor blamed the shooting on a “serious mental health crisis” in Uvalde, Texas. Nothing about the easy access to weapons of war. Nothing about the proliferation of guns in our country, especially guns designed for use on the battlefield.
Earth to Governor Abbott: other countries have people dealing with mental health issues as well. Unlike the United States, they don’t arm them with military grade weaponry. The United States has four percent of the world’s population, but 42 percent of the guns. We lead in another statistic as well: gun homicides per capita. We are the land of the brave, the free, and the shredded.
Beto O’Rourke had enough. He strode up to Governor Abbott, confronted him, pointed at him and told him, “You have done nothing.” “Sir, you’re out of line,” sputtered Lieutenant Governor Dan Patrick. O’Rourke gave him the attention he deserved: none. O’Rourke made a few more brief statements and stormed out of the news conference, followed by members of the news media. Meanwhile, Abbot and Patrick droned on, blathering about mental illness and “evil” but not whispering a word about guns.
Abbott and his supporters will dismiss O’Rourke’s appearance as a political stunt, noting that he’s running to unseat Abbott. Perhaps it was. But they can’t dismiss history. Abbott has done everything in his power to increase the number and availability of firearms in Texas. “I’m EMBARRASSED,” he tweeted during the gubernatorial campaign in 2015. “Texas #2 in nation for new gun purchases, behind CALIFORNIA.” He added, “Let’s pick up the pace Texas.”
California has nearly 40 million residents. Texas has under 29 million. It would take a remarkable buying spree for Texas to catch its much larger fellow state in anything, much less gun ownership. But Abbot has done everything he can while in office to bring his gun-fever dream to reality.
Texas may not lead the nation in gun ownership, but it’s number one in production of red confetti. Since Abbott first ran for Governor in 2015, Texas has seen an epidemic of mass shootings. From Waco to El Paso to Sutherland Springs to Uvalde, the number grows like a flood after a storm.
The National Rifle Association has scheduled its annual meeting in Texas for this coming weekend. Abbott is scheduled to address the conference, as well as Senator Ted Cruz and former President Trump. Nobody will say anything critical about firearms, most notably weapons of war. No, they will talk about mental illness. The news conference is still underway and Abbott just brought up mental illness for the third time.
Again: other nations have people with mental health issues. But they aren’t swimming in privately-owned weaponry. They don’t allow private citizens to purchase military grade weaponry.
And they sure as hell don’t lead the world in the production of red confetti. That “honor” belongs to us, and us alone.
© 2022 by Mike Tully
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