No, not that one, this one (which I have to admit thinking about in the past):
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…
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 explainging 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!
While such an amendment would certainly end the debate, I am willing to bet the reason people like Harry Reid and company have not proposed it is because in their view, it already exists- why should they offer an amendment that is unnecessary. Add to that the peril that should the amendment fail, they would have tacitly stated that there is no right to privacy in the Constitution by offering the amendment, ceding the argument to those who argue their is no right to privacy.
Interesting idea, at any rate.
(h/t Sullivan)
Doctor Gonzo
One thing that I wonder about is what the exact wording would be. Privacy is something that just about everybody agrees with, but how do you put a nebulous idea into an amednment? “An individual’s right to privacy shall not be infringed” sounds like it would have a lot of unforseen consequences.
Steve
The real problem is that a right-to-privacy amendment isn’t an end run around the abortion debate. Everyone will talk about it in terms of abortion.
I don’t think it’s a political dilemma for Republicans to oppose the right to privacy, at all. They simply will say “the Democrats are pushing this amendment as a stalking horse for their evil abortion-on-demand agenda.” They will claim that this amendment would create a federal constitutional entitlement to partial-birth abortion. I don’t see why they would have trouble framing the debate this way at all.
Geek, Esq.
Yeah, I think it could be a great political move for the Dems, but for the fact that:
A) As you noted, if it failed activist conservative judges would have an excuse to roll back Roe, Griswold, etc;
B) It would be a huge motivator for “the wackos.”
MrSnrub
I wasn’t paying that much attention at the time, but isn’t that why the Equal Rights Amendment died – people felt that it was adequately covered already?
yet another jeff
Nah, the Republicans would just turn PRIVACY into an acronym for something like President’s Rudimentary Invasion of Vaginal or Anal Clefts.
jg
I disagree. It will only fail because its redundant. Soldiers can’t be quartered in our homes, we can’t be searched without cause, theseboth imply a right to privacy. Plus the 9th amendment says just because we didn’t spell out all rights can’t be used as a means of saying only the rights spelled out are real. People wrote at that time that putting in a Bill of Rights was a bad idea because some fool in the future will try to say those are our only rights. That fool is the republican party.
There was a group previously that didn’t like the way the country was going, felt the states were losing autonomy. A war was fought, they lost. But they didn’t go away. Keep in mind when you are supporting the current version of the republican party that you are supporting the people who felt so strongly about how this country they once tried to destroy it.Personally I think most of what the founding fathers have to say about how this country shouls be structured crashed and burned right before the civil war. You need a strong, relevant central government to maintain this union.
jg
You mean, President’s Rudimentary Invasion of Vaginal or Anal Clefts, Yo!
yet another jeff
Heh…damm. Maybe that should be President’s Rudimentary Investigation of Vaginal or Anal Cleft Yearning.
metalgrid
They could just propose an amendment recognizing the existence of A9 and it’s inclusion of privacy. This would accomplish two goals:
– Instead of creating a new right, it merely verifies a pre-exisiting right.
– Thwack the idiot politicians and judges who don’t know that A9 exists in the head.
jg
Vaginal Yearning? Interesting.
demimondian
I expect that this will happen if _Roe_ is ever seriously put at risk, precisely because of the danger to _Griswold_. The risk is the same as the risk of the Fourteenth Amendment: unintended consequences. Substantive due process, that great bugaboo of “originalists”, arose from rational consideration of what the Fourteenth meant. A right to privacy might well have other consequences that nobody had ever thought about.
Blue Neposnet
Trying to amend the Constitution by specifically including a right to privacy would be a wing nut’s wet dream. The religious right would raise tons of money in response to a proposed amendement and their base would be super-energized for years in all 50 states.
I think that idea should be at the top of the Democrat’s “not to do” list.
Shygetz
I would be willing to see the brain-stem Republicams energized forever if that means that the Republicans will go on record as being against the privacy of Americans.
jg
http://www.prospect.org/weblog/archives/2005/11/index.html#008257
Edmund Dantes
Simple. The right to privacy is already in the Constitution. It’s located in the 9th Amendment. A right doesn’t have to explicitly spelt out in the Constitution for it to exist. It’s why the argument of strict constructionism, etc. falls flat on it’s face. The Constitution was never meant to be strictly read. It’s why the 9th and 10th amendments were so explicit in saying (paraphrasing) “just because it’s not specifically here, doesn’t mean it doesn’t exist”.
Blue Neposnet
I don’t think you are giving the Republicans enough credit. They will come up with an argument against this amendment that has nothing to do with privacy. There isn’t a chance they will publically state they are against the privacy of Americans. As proof I refer you to any argument about prisoner abuse at Gitmo or Abu Gahrib; how many Republican office holders or party officials have stated publically that they are in favor of torture?
P.S. brain-stem Republicans is a great term
Krista
Augh…not a mental image I needed, thank you very much. Mind you, I’m not too worried about the President’s knowledge of human anatomy, seeing as he doesn’t know his ass from his elbow. He’d probably wind up invading someone’s left nostril instead, and then claiming he was looking to liberate the downtrodden boogies.
Krista
Getting back to the topic at hand…it would be a huge, huge risk for the Dems. Especially with the players that the Republicans have right now. Those guys are masters of spin, and masters of message, and they could wind up destroying privacy as you know it, if things go far enough. I think that the Dems should wait until they have more power before they try that.
Andrei
If you tied the amendment of the right to privacy to nothing more than social behavior, that makes sense. But like the right to vote for women, the Dems should consider an explicit amendment to resolve the issue.
It seems that the smarter move to me, imho, would be to tie the right to privacy to things that are more connected to technological issues. The fact is that technology is stripping away our ability to live our lives without someone peering over our shoulder. We have less and less privacy these days the more technology we use. And using technology is becoming less of an option the more the rest of society uses it.
By passing a RTP that is more closely associated with technological issues to keep you protected from invasive corporate behavior, you make it very hard for the GOP to fight it because while trying to stop the gay marriage or porn parts of it, they’d also be negating the parts that nearly everyone would agree with: Coporations have no right to invasive behavior or spying on me and what I do for their own profit.
Just an idea.
neil
Why would you amend the Constitution to put in something that’s already there?
TM Lutas
The Federalists were entirely convinced that the Bill of Rights, all 12 original amendments, were not necessary. To preserve domestic tranquility and ensure the passage of the US Constitution, they promised, and delivered on a Bill of Rights as the price for the Anti-Federalist’s accepting the new document.
It doesn’t matter if it’s in there or not implicitly. If it’s useful enough politically, it should be made explicit. Frankly, I don’t think that privacy is something that the pro-life movement should really be opposing. Killing somebody in privacy wouldn’t be protected by any sane amendment so you still have to decide whether a genetically unique human is constitutionally protected no matter how small or undeveloped they are and if not, when and by what reason do they acquire their rights.
Mr. Hyde
I wrote something about this a few days ago but didn’t post it. After seeing this, I decided to throw it out there, because I think we DO need to have this debate and get this issue squared away.
My proposed amendment is
“The right of the people to privacy, in intimate matters between mutually consenting adults, shall not be infringed.
Congress and the states shall create no law that regulates purely personal conduct in intimate matters unless a compelling case can be made for the public good.”
Shalimar
I am willing to bet the reason people like Harry Reid and company have not proposed it is because in their view, it already exists
I agree with your analysis except for this. In their view? No, their view is irrelevant. It already exists because the Supreme Court says it exists and their view is the only one that matters. When they reverse their rulings (which they will within the next 20 years), it will be time for a privacy amendment. Not before.
Don
I think you could make the case that both of those are indicative of a belief in the right to property and the control thereof. You cannot be forced to house soldiers in your house not because they’re gonna look through your stuff, but because they’ll eat your food and you should get to decide who uses your bed. And the 4th talks about searches AND seizures, again indicating that the concern was with the taking as much as the looking.
Richard Bennett
The left doesn’t want a privacy amendment because they want to regulate things like sex-selective abortions and domestic violence.
Take the government out of abortion and once the gay gene is found there will also be no more Andrew Sullivans, just as there are essentially no more Down Syndrome children (or very few, at any rate) today.
And take the government out of marriage and what happens to the whole industry that’s been created to engage in the care and feeding of abused women and children? All of that stuff will be considered a “private family matter” and no interest to the state.
And the same goes for female genital mutilation, drugs, and child prostitution and porn.
So the biggest obstacle that a privacy amendment faces is the desire of both parties to regulate private behavior that they find objectionable.
Don’t hold your breath.
tzs
Also, a lot of what we consider “privacy rights” would have been considered Natural Rights by the Founding Fathers. Tradition in Western Law going all the way back to Aristotle.
Sheesh, doesn’t anyone study legal history any more? (Bangs head against wall.)
Steve S
I don’t get RB… He doesn’t seem to grasp that laws are necessary to protect one person from another. But that laws regulating your own self behavior are an invasion of privacy.
Perhaps it’s just wishful thinking on his part. At one point in our society, family abuse was regarded as a private family matter, and perhaps he wishes to return to such a time?
The Cavalry
Richard Bennett — I liked that article you linked to from Zell Miller on your blog. One of the best summaries of the whole Plame thing I’ve read so far.
Richard Bennett
Steve S, you’re not getting it. The feminist left wants to prevent abortions depending on motive alone, and that’s not a question of protecting one person from another.
Similarly, it wants to crack down on men suspected of beating their wives, but it wants to give mothers who beat their children a free pass.
Do you see the problem here?
Personally, I’d like to see a return to the era when your parent could beat you senseless because you clearly deserve it, but this comment isn’t about me, it’s about the law and shit.
Tractarian
Looks like someone has lost their Irascibility.
Jess
Are you suggesting that the right doesn’t want to prevent such things? Wow. If that’s true, then I’m appalled. I disagree with many positions on the right, but I never thought the majority of the voters on the right were THAT bad. But I’m pretty sure that most people on the right would agree that these are things that should be not only regulated, but outlawed.
Or is this a parody? Please clarify.
I’m not a fan of radical feminism, but I have to say I have NEVER heard this position supported, or even voiced. Sounds to me like you need to do your research and a bit of critical thinking before you spew. You might want to start by looking up the term “feminism” in the dictionary.
Richard Bennett
Jess, let’s try a little logic exercise. Group A wants to ban a procedure in all of its applicatiions, but Group B only wants to ban it in some. Does the ban proposed by Group B cover any areas not covered by the ban proposed by Group A?
That wasn’t too hard, was it? Now let’s move on to your second instance of credulity.
Now as to feminism and child abuse, we have the example of a set of laws proposed by the National Organization for Women and the Feminist Majority Fund after the O. J. Simpson case that would have banned men who had engaged in wife abuse or had been served with restraining orders based on allegations of wife abuse from having or sharing custody of children. Domestic Violence research sponsored by NOW itself shows that a third of battered mothers are abusive to their own children (“The Battered Woman”, Lenore Walker, Harper and Row 1979.)
Under the O. J. laws, these women have been able to obtain sole custody of their victims without so much as a genuine evaluation of their parental behavior.
Tulkinghorn
Whoa, nelly.
“O. J. Simpson” laws would have made custody decisions dispositive on whether a parent has been “served with restraining orders”?
I don’t think that there was ever a real risk of such laws being passed – for one, they would have been invalid for constitutional reasons. I _have_ seen this done in for temporary orders situations, but where father is innocent and credible it is pretty straightforward to turn this against the mother in court.
It does not do NOW any credit if, as an organization, it supported such legislation, but most advocacy groups push their agenda in shrill, unreasonable ways at times.
Condemning feminists as a whole as unreasonable due to a policy proposal that sputtered out and died ten years ago is a bit of a reach.
Mark-NC
Here’s a question for those of you who boot-lick all things Republican/Right:
Does Rush Limbaugh say that there is no Constitutional “right to privacy”?
Just asking!!
So, as a follow up question – when Limbaugh’s lawyers in the massive pill-popping case go to court trying to keep the prosecutors from getting his medical records – do they argue that Limbaugh has the right to keep his medical records private?
Again – just asking!
Richard Bennett
It didn’t sputter out and die, it’s the law in 30 states (or so), one of which is California.