Courts have usurped legislatures in determining some of the most important issues of public policy in society.
The latest example comes from India, in which the Supreme Court declared that privacy is such a profound fundamental right that it would seem to have virtually no significant limitations. Indeed, the decision is so broad–indeed, radical–that it seems to sweep even the public good and protection of the vulnerable before it.
Read this incredibly broad language and ponder how broadly the fundamental right to privacy–not mentioned in India’s Constitution, by the way–could extend. From the decision (my emphasis).
The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual.
The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private.
These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt.
Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others.
How can any individual action–including those that cause terrible harm–be prevented in such a radical privacy regime? Indeed, in a quick but lethal hit, the Court ruled this includes the right to be made dead:
An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which fall within the zone of the right of privacy.
That’s a very open-ended statement that would seem to permit no limitations. What would that do to suicide prevention? Does it mean doctors can kill any patient who asks if they are mentally competent? If not, why not if this is a fundamental right?
Where else might this lead? Amputating healthy limbs for those able-bodied people who identify as disabled–a terrible mental illness known as body integrity identity disorder (BIID)? Why not? BIID sufferers see their desired disability core to their personalities.
Use your imaginations. How about selling oneself into slavery or indentured servitude? What could be more core to the human personality than determining whether one should even live in liberty?
This is not privacy, it is atomization. It will undermine community and push us toward the disintegration of cohesive societies since no one’s private behavior can be judged or prevented unless it attacks another.
It’s not just India. We are on our way to the same place, thanks in particular to Justice Anthony Kennedy, who has inserted philosophical musings into what should have been limited legal doctrines. For example, in the abortion decision Planned Parenthood v Casey v. Kennedy ruled:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life
How does one begin to put any parameters around such a broad, nay, open-ended concept?
He went further in Obergfell, conjuring out of the ether a fundamental right to define one’s own personal identity:
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.
In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.
Kennedy’s language precludes any meaningful or principled limitation, the language of “choices” and “dignity” are simply too fuzzy to pin down or deliniate with precision.
But these ephemeral bald assertions now have the raw power of law, and will serve as a launching pad in coming years for novel legal arguments seeking to imbed all manner of personal behaviors and self-declared identities into this newly invented constitutional right.
I know that trolls and other assorted critics will scream that my alarm means I want the government to control all behavior. Poppycock.
But think! No right is absolute.
Individual privacy is important, without question. But it not the be all and end all.
Sometimes it can be in dynamic tension with–and at times should bow to–promoting the general welfare and protecting the public good.
Decisions such as the one in India and Kennedy’s prestidigitation of a new right to personal identity create a dangerous imbalance that could destroy common mores and undermine shared values, corroding the communal benefits we receive from a free but organized society.