Carving privacy rights into constitutional stone

November 16, 2005

The Stranger’s Dan Savage wrote up a New York Times op-ed today on an idea that’s been slowly making the rounds recently: a constitutional amendment on the right to privacy.

Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don’t we just stick it in there? Wouldn’t that make it easier to find?

If the Republicans can propose a constitutional amendment banning gay marriage, why can’t the Democrats propose a right to privacy amendment? Making this implicit right explicit would forever end the debate about whether there is a right to privacy. And the debate over the bill would force Republicans who opposed it to explain why they don’t think Americans deserve a right to privacy — which would alienate not only moderates, but also those libertarian, small-government conservatives who survive only in isolated pockets on the Eastern Seaboard and the American West.

Of course, passing a right to privacy amendment wouldn’t end the debate over abortion — that argument would shift to the question of whether abortion fell under the amendment. But given the precedent of Roe, abortion rights would be on firmer ground than they are now.

So, come on, Democrats, go on the offensive — start working on a bill.

Politically, it’s an approach that has a clear upside. Just as Republicans use schemes like the flag-burning amendment to score cheap nationalistic points, putting Dems on the spot who don’t want to appear unpatriotic, a privacy amendment could become just as problematic for the GOP. I haven’t seen any recent polling, but I suspect most Americans strongly support privacy rights and would back an amendment to guarantee those rights.

There are, however, a couple of concerns.

First is the practical application. As Savage mentioned, instead of arguing whether a right to privacy that guarantees abortion rights exist, we’d argue whether abortion rights fall under the right to privacy. For that matter, legal controversies over issues like sex and abortion would probably be covered, but what about death-with-dignity questions? Or maybe recreational drug use? It’d be difficult, if not impossible, to word an amendment in such a way as to avoid ambiguities. That’s a problem.

Second, the fundamental flaw in a liberal arguing that an amendment is necessary is that implicitly argues that a right to privacy doesn’t already exist in the Constitution, which is the conservative argument. My friend Michael Stickings at The Reaction covered this well a few days ago.

It’s an interesting idea, and Democrats might do well to go ahead with it (would Republicans or conservatives more specifically come out against privacy?), but…I tend to think that the Constitution already includes the right to privacy — it’s just not mentioned by name. […]

An amendment could help, no doubt, but we who hold that the Constitution already includes the right to privacy must be more vocal in our defense of that right and in our opposition to those who would take that right away from the American people.

Exactly. The left has been arguing — indeed, demanding — for 30 years that the Constitution already offers Americans a right to privacy. It doesn’t make a lot of sense for those same people to turn around and argue that the Constitution doesn’t offer that protection so we need to ratify an amendment.

It seems the wisest course, in addition to taking Stickings’ advice and standing up for this right more forcefully more often, is to wait for Bush’s nominees to start taking these rights away. After the Roberts/Scalia/Thomas/Alito gang start “tweaking” the last couple of generations of jurisprudence, a right to privacy amendment may become necessary.

What do you think?

November 16, 2005 at 2:42 pm

Absolutely. Do it.

Don’t worry about the legal ambiguities, the (stupid) flag amendment never needed to be that specific.

Dems should argue that the right to privacy has been respected as an integral part of American law, but that some Republican politicians have recently violated that right, and so it now needs to be explicitly stated and voted on.

Anyone who oppes a vote on it must be met with demands to explain why the American people shouldn’t be allowed to even vote on it.

Definitely a winner, and something that is long overdue.

Democrats must identify the things that both parties have been neglecting, and make them OUR issues.

Another good issue would be clean elections, but that’s another story…

Perhaps it could be framed as a “reinforcing the right to privacy” amendment rather than one seeking to explicitly “establish” the right to privacy.

So does a right to privacy cover the right to be free of a Government’s attempt to control a woman’s reproductive choices and thus prevent the Government from turning women into nothing more than broodmares?

Right that one up…

Many legal precedents developed at common law have been later codified into fed or state statutes. That a right already exists is a flimsy reason not to solidify it explicitly. Wording such an amendment, however, would be difficult.

The bottom line, like with the amendments proposed by the GOP, is that they do not have to pass. It would allow Dems to engage in the “culture war” on ground where they have the advantage. They could point to the Schiavo incident as an example of why such an amendment is needed. The GOP would be left arguing why the government should be able to make intimate life decisions for its citizenry.

I think this is a good idea. No so much for abortion rights, but more for keeping the government out of our bedrooms, etc.

I am pro-choice. However, the right to an abortion has NEVER been about the right to privacy, as most pro-choice activists would argue. The fundamental question with regard to abortion is “When does a fetus become a human life worthy of legal protections?”

Roe said that abortions are legal BECAUSE fetuses, before the third trimester, are not legally protected beings. Since they are not, a woman’s right to privacy trumps the interest of a government in a pre-viable fetus. But if, as pro-lifers maintain, a fetus is a person from the moment of conception, then your right to privacy, even if it exists, does not trump the life of another.

While I think that a privacy amendment would be a good thing, clarifying a lot of issues, I also think that it’s worthwhile to look at how another amendment related to hot-button social issues was viewed in the past: the Equal Rights Amendment. Just as opponents of the ERA argued that it would mandate same-sex bathrooms, women in combat, recognition of same-sex marriage, and so forth, the opponents of a privacy amendment might say that it would enshrine bestiality as a right in the Constitution, etc. (In fact, a lot of the same “arguments” against the ERA would transfer without significant change.) Is this a fight worth starting? Only if we can avoid being suckered by the social conservatives.

it doesn’t necessarily have to be framed in terms of abortion either. States really should have no business selling drivers license information. People shouldn’t have to rely on hit-or-miss state laws to be notified when their personal banking and credit card data have been compromised.

i don’t see why the age-old “if you haven’t done anything wrong, you have nothing to hide” excuse that authoritarian people have clung to would be any less well received as an argument against this amendment. i think there might be a real underestimation here of just how myopic the GOP can be.

I’m with Laszlo (and others). This is a political goldmine. And if the GOP says, this will legalize beastiality, our response should be “I am horrifed that you Senator ____ would suggest that Americans would even consider such a thing. The fact that you and and every other person who doesn’t believe in a fundamental right to privacy would resort to such outrageous assumptions about the wonder american people, just so you can continue to justify the government making critical personal decisions like you tried to do with Mrs. Schiavo is outrageous. Outrageous.”

That’s right. Everytime they mention bestiality or abortion or homosexuality, we ignore the charge and mention Schivo. Over and over an over again.

This is a winner for us!

I hate to say, I don’t think it will happen.

There are too many powerful interests that will see it fail. The business community will fight against it tooth and nail for fear about not being able to aggregate marketing info (think financial, insurance, etc.) Health care industry will fight also.

Social conservatives will look at it as a moral free-for-all. (Even though as a “free” country, the common denominator is supposed to be freedom first, then restrictions second.) To which I say “America: Love it or Leave It!” (always wanted to spin that one around. Seriously–go move to a third world country where 19th century norms still prevail if you want to be bound by 19th century norms.

ERA is a great analogy. On face, what could possibly be offensive about equal rights for 51% of our population? The right is willing to say what ever is necessary to protect their 19th century norms. (ie., rib from adam-homemaker-subservient to men line of thought). They will make a mockery of a Privacy Amendment by concocting off the wall scenarios, while real-world violations are happening on a daily basis.

The other disturbing thing is that the famous (paraphrased) “gov’t shall not infringe on inalienable rights such as life, liberty, and pursuit of happiness” has no legal weight. I think the founders thought this to be so clear that it did not need to be restated. Yet, if they are so inalienable, why give them no force? This needs to be incorporated into the Constitution so that once and for all, ALL restrictions on such must be examined strickly and skeptically and involked only when necessary (rather than the opposite).

“…wonderful american people”

D’oh!

“The left has been arguing — indeed, demanding — for 30 years that the Constitution already offers Americans a right to privacy. It doesn’t make a lot of sense for those same people to turn around and argue that the Constitution doesn’t offer that protection so we need to ratify an amendment.”

Oh, logic! Why must we always let it get in our way?

I’m with smiley. It’s about reinforcement. The GOP has been pushing for years for a constitutional amendment to ban gay marriage. So you’d think that the very fact that they feel like they NEED such an amendment means that gay marriage must be constitutional! Or at least they’re afraid that it might be.

Maybe a privacy amendment could be presented as a way to put the right of each and every American to manage his or her own life forever beyond the reach of radical right-wing judicial activists legislating from the bench …

Argument #1: ” It’d be difficult, if not impossible, to word an amendment in such a way as to avoid ambiguities.” So what? That is not the point of any amendment. The point is to state a broad principle regarding the relationship of the people and the state. None of the amendments in the Bill of Rights are free from ambiguity, and that is their chief virtue. Elimination of ambiguity would have tied them firmly to their times, making them so inflexible as to be unable to meet unforeseen future situations. “Congress shall make no law abridging the freedom of speech.” And yet Congress has done this quite a bit. Courts use the clearly stated principle as a guideline without it having to enumerate all the possible exceptions: no shouting “fire” in the theaters, no using free speech as a get out of jail free card for perjury, free speech does not cover slander or libel. Ambiguities abound. Big fat hairy deal.

Argument #2: “the fundamental flaw in a liberal arguing that an amendment is necessary is that implicitly argues that a right to privacy doesn’t already exist in the Constitution” Again, so what? This is exactly (and almost verbatim) the argument that the Federalists gave against the idea of a Bill of Rights in the first place — that it was unnecessary, that powers not spelled out by the constitution were obviously denied to the government. The argument was wrong then and age has not improved it.

Madison and Jefferson were right. Hamilton was wrong. Madison was also right on the prose — short and sweet, make the main point unambiguous and let the courts and subsequent generations use that principle as a guideline to sort out for themselves all the specific instances.

I would second the comments made in #6. Essentially, this would be a re-run of the ERA debate. I think, however, it is important to note that even though the ERA failed to pass, women’s right to equal treatment under the law continued to be recognized as implicit in the 14th amendment. So if the proposed amendment fails and the right o privacy is not made explicit, that does not necessarily invalidate the implicit right.

Don’t like it, how the hell would you throw a party to celebrate the passing of such amendment? At home alone?

At home alone?

At home, sure. But alone?! How would we know? Better yet, we woudn’t and more importantly the government shouldn’t know. And that’s reason enough to celebrate!

It is clearly incumbant upon us to start the process of establishing a Constitutional Right to Privacy.

Obviously, those “elected” to represent us wish not to, for fear of losing precious campaign contibutions and kick-ass ski weekends.

Why don’t we here begin?

Ok, Here is your amendment:

Congress shall make no law that directly or indirectly infringes privacy, abridges liberty or curtails the responsibility of an adult citizen’s private choices with regard to, but not limited to, reproductive, health, safety, and economic decisions in so much as these decisions do not directly compromise a fellow citizen’s life, liberty or property.

Who’s with me?

Now that you love me it is time to change your mind. While you are all have your eyes focused on abortion, death with dignity and pot-smoking, I will use the above law to kill seatbelt laws, helmet laws, shut up the people whining about banning trans-fatty acids, stop the lawsuits against McDonalds for making people fat and I am just getting warmed up. I will relagate the Food & Drug adminstration to an advisory only capacity because if it is my body and my health then I am going to take any prescription drug available in the world, not just the ones approved by the FDA. And, my personal favorite, I get to ban minimum wage laws! You see, as long as there is just one citizen who using their own body and their own time chooses to work for less than minimum wage, well then, that would be their own private option. When that same person wants extra money from their employer, the employer would be free to negotiate with this free and private individual such things as no time-and-a-half for overtime.

The problem with you liberals is that you see conservatives as authoritarian because they think citizens are not moral and they seek to regulate morality. But, you fail to see that liberals are really authoritarian socialist who believe that people are too stupid to make good decisions for themselves. This is evidenced through your nanny-statist paternalistic laws regarding health, safety and economics.

Join me, become a liberatarian.

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