First things first...

...go to www.hannity.com and check out the "Hannidate" feature. It is probably one of the funniest things I've ever seen. Is Sean Hannity really the person people should use as a hub to the dating world? Apparently his listeners think so.

Anyway, on to more serious matters: Am I more conservative than John Roberts? The prospect of a "yes" answer naturally frightens me. This is a man who worked in the Justice Department of Ronald Reagan, the figurehead of our current political realignment. He is George W. Bush's appointee to be Chief Justice of the United States Supreme Court. And he believes in a constitutional right to privacy.

This last issue is my sticking point. "Wait," you cry, "are you (gulp) anti-choice?" No, my legions of readers, I am not opposed to abortion. In fact, I'm a strong supporter of reproductive rights; I even believe in federal funding for abortions (why do we only force poor women to have unwanted children?). The problem is whether federal privacy law stands up to scrutiny, and I don't think it does.

Unfortunately, the American privacy caselaw is held together by duct tape. Even more unfortunately, it isn't particularly high-grade duct tape. The main problem is that the concept on which it is based, Substantive Due Process, is self-contradictory. Any ninth-grade English student fresh out of his lesson on Greek roots can tell you that distinguishing between "procedural" and "substantive" due process is a bit silly, because "procedural due process" is a reduncancy. You see, "procedural" is the adjective form of "procedure," which, in turn, shares the same root and basic meaning as "process." When you start talking about "substantive due process" (e.g. right to privacy, right to contract, etc.), you're no longer talking about "process" at all. At least in the abstract sense, it cannot exist.

Then where did this absurd doctrine come from? A good place to start is a single Supreme Court case, now recognized as one of the worst decisions in its history: Lochner v. New York. This 1905 case established the legally specious "right to contract," on the grounds that it was contained in the substantive component of the Due Process Clause of the 14th Amendment. The reaction of liberal legal scholars was a little similar to the reaction of conservative scholars to today's privacy caselaw: "There's no such thing as substantive due process!"

The same specious concept with the unfortunate name controls privacy law in the 21st Century. And thusly, I don't support the privacy caselaw.

Besides the simple intellectual dishonesty of SDP, it should be opposed to prevent pernicious effects in the future. The fact is, if it can prop up rights as disparate as privacy and contracts, it can prop up pretty much any right a crafty judge chooses to put under its umbrella. Or, worse yet, it could bring back Lochner-era rulings that gutted economic regulation for several decades: the right to contract resulted in maximum hour and minimum wage laws being struck down, which means there's a lot of contemporary stuff us liberals like that would disappear pretty quickly (such as Social Security, the Environmental Protection Act, and the Civil Rights Act). The political process will never allow conservatives to take these things away, so the Court is their only recourse.

So, we have to punt SDP. I think a constitutional amendment establishing the right to privacy is a fantastic idea, intellectually and (more importantly) politically (after all, how can anyone who claims to be conservative vote against privacy?). But, we shouldn't let it stand as an artificial construction. There's just too much at stake.

Oh, and for an alternative to traditional liberal judicial review theory, check out John Hart Ely's Democracy and Distrust. It's not perfect, but it's a pretty good start.