The Liberty Papers

I am deeply disappointed in the Senate this week after seeing the absolutely horrible confirmation hearings for Samuel Alito. The truly important issues of the day, property rights, privacy, and free speech, fell by the wayside in favor of abortion and executive power. It is no wonder we never got a useful answer from Samuel Alito, since he was never asked a useful question.

The first useful question I would have asked him is what happens when stare decisis comes into conflict with one of the core rights of Americans, namely life, liberty, and property. In Kelo v. New London, the left wing of the Supreme Court decided that municipal tax revenue was a public use, opening the door to rampant violations of the property rights of every American. The truly scary thing about Kelo is that, when viewed in the light of stare decisis, it makes perfect sense. I want to hear anyone who is nominated to the Supreme Court say that the fundamental rights of Americans and the Constitution of the United States come before precedent and settled law. Too bad none of the Senators were principled enough to ask about that.

The next question I would have asked Samuel Alito is what he thought of the privacy right established in Roe v. Wade. My view is that Roe v. Wade sets a very dangerous precedent not because it acknowledges a privacy right, but because it attempts to establish a selective privacy right. The idea that a privacy right only exists in certain circumstances, like sexuality, child-rearing, and reproduction, is contrary to the very concept of rights. From Roe v. Wade:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

This concept is dangerous because the right to privacy, instead of being one’s right to conduct one’s private affairs without undue interference, becomes a way to protect certain activities and regulate others all based on whether or not the activity resides within a zone of privacy or not. Currently, the surgical procedure of abortion resides in a zone of privacy but the surgical procedure of breast enhancement does not. Logically, this does not make sense. Abortion involves a fetus that, given time, will become a separate being, bringing up a whole host of ethical questions. Breast enhancement involves simply a woman’s decision to alter a part of her self, carrying with it none of those ethical questions. If abortion, with its ethical questions, can be considered a private activity, then certainly breast enhancement should be. That would be reflective of a consistent and broad privacy right. That’s what we need instead of the zones of privacy of Roe. Again, too bad none of the Senators were principled enough to ask about that.

The final question I would have asked Samuel Alito is whether Congress had the right to regulate the speech of private citizens about elections. The First Amendment says that Congress shall make no law abridging the freedom of speech or of the press. It does not contain exceptions for compelling state interests, nor to avoid the appearance of corruption. The left wing of the court, plus Justice O’Connor, upheld, in McConnell v. FEC, the right of Congress to regulate the speech of private citizens based on the compelling state interest of avoiding the appearance of corruption.

These questions, I believe, would have illuminated a great many things about Samuel Alito. Instead of getting to the core of his philosophy, we got to hear a lot about the hot-button issue of today, executive power (which is important), and the worst possible proxy for judicial tendencies, abortion. It’s a sad time for the nation and for the Senate.

Cross posted at News, the Universe, and Everything.