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Wednesday, November 30, 2005

[POLITICS] Right-wingers have been proposing all sorts of petty amendments to the Constitution, mostly as wedge issues. An amendment to prohibit burning the flag. An amendment to ban gay marriage.

Recently I heard the excellent idea that both liberals and libertarians ought to push for a Right to Privacy Amendment.

A Right to Privacy Amendment would prohibit the government from regulating private behavior except where it can demonstrate a compelling social interest. If a state or city, for example, made homosexual acts illegal, the burden would be on it to demonstrate that homosexual acts hurt other people, rather than the burden being on the accused to prove that government has no business in the bedroom. Likewise if someone wants to take peyote, the state would have to explain why that's anyone's business but his own. On the other hand, if someone wants to molest their child, the state would have little problem showing that it has a compelling interest in protecting the safety of minors.

It would not automatically establish a right to terminate a pregnancy. The anti-abortion argument is that the fetus is a human being, and the state obviously has a compelling interest in protecting human beings. However any attempt to restrict abortions would start from the presumption that a woman's body is her own business, and any law restricting them would have to establish that the fetus is an independent person under law. In other words a Right to Privacy Amendment wouldn't settle the argument, but it would, I think, force people to face the underlying issue.

Many state constitutions establish an explicit right to privacy -- California's does, in its first paragraph:
SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
However, at the federal level, the US Supreme Court has had to extract a "penumbra" of a right to privacy from various other amendments, e.g. the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violate....
Presumably it did not occur to the Framers that this did not establish a right to privacy, or I imagine they would have made it even clearer in the Bill of Rights.

A Right to Privacy Amendment would make a nice wedge issue itself, splitting the libertarians who'd like government to stop bothering them at all, from the religious right, who'd like the government to bother everyone who doesn't live in a manner of which they approve. And I'd love to hear any politician explain to Americans why they should not have a right to privacy.

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3 Comments:

Oh, I'm sure they'd start rolling out the whole "hey, if you have nothing to hide, what's the problem, you're not a terrorist, are you? ARE YOU??" argument - same one we get here when we argue against identity cards (that could cost us anything up to £100 each, that will do nothing to prevent attacks, and that will probably make it easier for people to steal identities).

It would have to be very carefully worded, but it would be good to see them on the defensive for once.

By Blogger James Moran, at 6:09 AM  

You answer your own question there. The State *does* have a compelling interest in protecting the safety of minors. But, saddly, for the majority that interest is exactly the same reason why "the State" should prohibit consenting adults from engaging in homosexual acts. I mean, if gays can chew gum, they might even... dance!

(Same thing for peyote - "Bad example for the kids! (Everybody have a beer to celebrate.)" - as well as Parental Consent laws - "The Government must protect the rights of parents so they can protect their kids from a G-dless government!")

By Blogger David J Oakes, at 7:00 PM  

While I really like your idea, I'm pretty sure the Repugs will paint it as an abortion issue and therefore use it to energize their base.

By Blogger MikeyMo, at 2:05 PM  

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