is there not a right to be free to make personal choices unless the government has a compelling interest to intrude?
There are, as you know, an infinite number of personal choices into which the government feels it has a compelling interest to intrude.
For example, the FDA just banned "andro", an amino acid that used to be commonly found in health stores. One of the big name baseball players used andro. Not Sammy Sosa, the other one with all the home runs recently. At any rate, the FDA decided that it was dangerous. Too dangerous to allow you and me to decide whether to take it or not.
And I could go on. I have no idea, for example, why liquor is legal but marijuana illegal. Crazy.
Some Constitutional scholars, e.g., Brandeis, back in the late 19th century, started arguing that there ought to be a right to privacy found in the interstices of the Bill of Rights. But the big problem with that argument is that, at the foundation, it was well established that the Bill of Rights did not apply to the states.
So, they tried to find it in the 14th Amendment.
Which states, as follows:
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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I simply don't find the right to privacy in there.
I agree that there is an inchoate right to privacy, but whence does it derive, and who should enforce it?
I believe that the states have the obligation to enforce it, not the federal government.
Just as it is the duty of the states to decide whether you smoke marijuana, and what your schools teach, and how many policemen your county has, etc., etc., etc.
But I am old fashioned that way. I believe in subsidiarity. |
