Perhaps this is a diary in response to Armando's dairy earlier today,
The Power Of The State: Privacy Rights and Economic Rights. As I wrote it, however, I realized how ill-suited I was to write a truly compelling argument for or against the need for "Right to Privacy" amendment to the Constitution (I've never studied Constitutional law). But after reading another blog today, I thought I could at least start a debate about the political, if not Constitutional, ramifications for proposing such an amendment.
At "The Slog", the blog at the Seattle newspaper The Stranger's Website, Dan Savage proposes that liberals and conservative libertarians fight to enact an amendment to the U.S. Constitution that insures an individual's "Right to Privacy":
More on the flip...
Estelle Griswold is a name that anyone who cares about women's rights, access to birth control, freedom of expression (read: looking at porn in your own home), and gay rights should familiarize themselves with. In a decision in 1965, the Supreme Court overturned Estelle's conviction on charges that she--horrors!--made birth control available to married couples. At the time Connecticut--Connecticut!--had a law agin' that sort of nonsense, as the state believed it was its job to discourage straight people from havng recreational sex. (Believe it or not, the having of recreational sex used to be a controversial topic. Sex, as many believed and few practiced, was strictly for procreation.)
The Supreme Court struck down that idiotic law, stating that it violated the "right to privacy." Much flows from Griswold, including 2003's Lawrence v. Texas, which found that even homos had a right to privacy, and that consensual, private homosexual sex can't be criminalized. (That was the end of sodomy laws in the U.S.) You can read all about Griswold here.
Problematically, a right to privacy is not explicitly mentioned anywhere in the U.S. Constitution. The majority argued that the right was among the "unenumerated" rights implied by something called the "penumbrus," which sounds like something that a sodomy law would prevent you from touching with your tongue.
Here we are, decades after Griswold, and social conservatives and liberals are constantly arguing about whether or not the right to privacy, which is a popular right (naturally enough), and one to which most Americans believe they're entitled, is actually a right to which Americans are entitled, constitutionally-speaking. Liberals love it because the RTP underpins our constitutional right to have access to birth control, abortion services, gay sex, porn. Social conservatives hate it for that very reason.
Savage argues that social conservatives would loathe such an amendment and he's right. As he points out, the reasons we liberals so vehemently argue for a "right-to-privacy" usually center around practices that we believe do not impinge upon the rights of others, namely "birth control, abortion services, gay sex, porn." Can you think of more heated hot button issues than these in today's political climate? But a very important constituency in the Republican Party are conservative libertarians who believe the government has too much say in their lives. Unfortunately, the most vocal advocates on the right for the RTP came from the most extreme fringes and happened in the mid-1990s, coinciding with Clinton's time in the White House. Much of the protests started with the siege at Waco, Texas on David Koresh's Branch Davidian compound and eventually became part of the narrative in the cases of Randy Weaver at Ruby Ridge, Idaho and Timothy McVeigh's bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
Even though these cases illustrated the most extreme cases of the desire for the "right-to-privacy" on the right, the 1990s were filled with instances of members of Congress and their allies bemoaning the intrusion of government into citizen's lives. Remember all the talk of black helicopters and "jack-booted" thugs from the ATF from Republican Congresswoman Helen Chenoweth of Idaho and the NRA? Even the Internal Revenue Service became equated with the overzealousness of the Federal Government.
After September 11th, all these voices on the right became muted. People on the right, left, and middle were willing to give up some of their individual rights in exchange for the possibility of stopping those -- namely terrorists -- who would abuse our freedoms to harm the general good. It seems that the arguments for Federal restraint, especially in fiscal matters and property rights, that arose from the movement conservatives like Goldwater and Reagan (remember his refrain "Government is not the solution to the problem; government is the problem") persisted but the demands of social conservatives with whom Reagan aligned himself to get elected came screaming to the fore. Presently we have some of the most prominent public officals -- Tom Delay and Rick Santorum come to mind -- arguing that no "right to privacy" exists in the Constitution.
So we return to the question as to whether it would be politically expedient for liberals to start a campaign to amend the Constitution to insure a "right to privacy." My inital reaction was, "Hell, ya!" But as I started writing this diary, I realized that it would be easy to label it "The Sodom and Gomorrah Amendment." Dan Savage, on the other hand, seems far less ambivalent:
I find myself wondering why we don't just put it in there? If the Republicans can propose a constitutional amendment banning gay marriage, can't the Dems propose a "Right to Privacy" amendment?
Since the RTP is popular (unlike the anti-gay marriage amendment), the Dems should put it out there and let the Republicans run around the country explaining why they're against a right to privacy--not a winning position. Then, once it passes, we'll be spared the debate over whether or not the RTP is in there every time a conservative is nominated to the Supreme Court.
The Right to Privacy Amendment--c'mon, Harry Reid, Barbara Boxer, Ted Kennedy, Patty Murray, Barak Obama! Propose it!
Savage is right that it's rarely a winning position for a politician to argue against the "right to privacy." And by starting this debate, might we illustrate to the electorate that, by enacting laws that would impinge on anothers RTP (i.e. gay marriage), their own treasured RTP might become endangered. A "right-to-privacy" debate, even if it doesn't result in an amendment, helps to open people's eyes to why its important to respect others' personal choices, even if they differ from their own.
Of course, a few problems with such an amendment come to mind (and again because I know so little about Constitutional law, such questions I fear may come across as simplistic, even idiotic. But what the fuck: I talk about sexual matters on here all the time. It's hard to be embarassed when you're devoid of shame):
- What areas of private conduct would such an amendment cover? (For example, maybe we could finally codify more explicitly the seperation of church and state.)
- How would such an amendment be worded?
- What unintended consequences could arise from enacting it? (For instance, would it extend to the rights of criminal suspects?)
- How would we approach arguing for such an amendment without falling into the trap that it's main intention was to protect the right to indulge in what are often perceived as merely personal vices (i.e. make and watch porn, practice and solicit prostitution?)
- Would such an amendment extend to economic and property matters? If so, would basing a good deal of our arguments on such matters help our cause?
So there are a few concerns to chew on. Please throw out a few that you think need to be considered. Or just ignore this all together; that's your right.