Writing in the New York Times, Dan Savage makes an excellent point:
since many of our current culture-war battles center on whether or not judges and SCOTUS nominees agree that the Constitution implies a right to privacy, why aren't we seizing the initiative here? Why aren't Democrats proposing and pushing a Constitutional Amendment guaranteeing an explicit (no pun intended) right to privacy? Shouldn't this be a screamingly obvious move?
Problematically, however, a right to privacy is not explicitly mentioned in the Constitution. The majority in Griswold held that it was among the unenumerated rights implied by the Constitution's "penumbras" (which sound like something a sodomy law might keep you away from). The Griswold case didn't settle the matter, and the right to privacy quickly became the Tinkerbell of constitutional rights: clap your hands if you believe.
Liberals clap. We love the right to privacy because we believe adults should have access to birth control, abortion services and pornography as well as the right to engage in gay sex. Social conservatives hate the right to privacy for the very same reason, as they seek to regulate private behaviors from access to birth control to masturbation. (Think I'm kidding about masturbation? In Justice Antonin Scalia's dissent in Lawrence v. Texas, he wrote that the majority's decision called into question the legality of state laws against "masturbation, adultery, fornication.")
And now our SCOTUS nomination fights involve a frustrating game of trying to flush out where nominees stand on the issue - a question they're unlikely to answer directly.
The fact is that this is an enormous potential wedge issue. For the right, it is a litmus test: the only acceptable judicial nominees are those who deny the right to privacy, because much of the social right's agenda depends on there being no such guarantee. Yet, for ordinary Americans, the issue is a no-brainer. Of course we should have a right to privacy! Most Americans probably already believe that the Constitution already does make a specific guarantee to such a right. As Savage says:
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.
Can you imagine the chaos among Republicans if we force them to react to a Right to Privacy Amendment? It would be a disaster for the GOP: Republican politicans would be forced to walk the line between offending their base and alienating the vast majority of the American public. And on this issue, there is no such line to walk.
Even more than stem-cell research, a Right to Privacy Amendment would seem to have the potential to act as a devastating wedge against the right - not to mention the fact that it would make Americans more secure, and, as we are supposed to be, free from undue government intervention in our private lives.
My only question is, what would such an Amendment look like? How would it be worded? What do our DKos legal minds say?