the 28th Amendment?

November 3, 2005 10:22 PM

A explicit Right to Privacy Amendment? Dan Savage asks: why can't we have one?--...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. ... It affects all aspects of our lives-- from sexuality to procreation to speech to property to employment to housing, so isn't it time?
Europe has one, in the European Convention on Human Rights : Article 8-the right to respect for private and family life, home and correspondence. ...Article 8 offers general protection for a person’s private and family life, home and correspondence from arbitrary interference by the State. This right affects a large number of areas of life ranging from surveillance to sexual identity - it is framed extremely broadly. However, the right to respect for these aspects of privacy under Article 8 is qualified. ...
posted by amberglow (50 comments total)

Excellent idea.
posted by hackly_fracture at 10:27 PM on November 3, 2005

Why can't we have one?

A-B-O-R-T-I-O-N

Any amendment that could provide constitutional protection to abortion is DOA. There is no way you could get 3/4s of the states - let alone 2/3s of Congress.
posted by hobbes103 at 10:29 PM on November 3, 2005

I blame capitalism.
There is just too much money to be made through prying into peoples private lives/spending habits, ot selling products that give the illusion of thwarting such prying, that it'll never happen.

Not without re-writing the bill of rights, and I don't trust anyone, especially the cabal in power presently, to do that.
posted by Balisong at 10:30 PM on November 3, 2005

Interestingly, ironically, Microsoft is calling on Congress to enact a National Privacy Act. Granted it seems to be limited to consumer privacy — and it could just be a way for Microsoft to inure themselves from litigation by shifting security responsibility on others — but it's a good start.
posted by Rothko at 10:31 PM on November 3, 2005

Bleh: insure, not inure.
posted by Rothko at 10:36 PM on November 3, 2005

Savage for Senate!
posted by homunculus at 10:38 PM on November 3, 2005

The answer to this is pretty obvious, it seems to me.

Pro choice people think that right already exists -- and current case law backs them up. Why the hell try to get an amendment to the constitution past all that resistance?

The pro life folks have absolutely no desire to see a privacy amendment passed, as it would eliminate their primary legal thinking on why abortion should be allowed to be outlawed -- it's based on a non-existant right to privacy.

So it is currently in nobody's interest or desire to pass such an amendment. So there is no action in that way.

Such a thing is a good idea beyond abortion, I think, but it is no mystery why nothing is done towards that end, at least with regard to abortion.
posted by teece at 10:49 PM on November 3, 2005

Any amendment that could provide constitutional protection to abortion is DOA.

given that fundies are way out in front on criminalizing abortion (58% vs 37% among US white Catholics) we can hope for the rapture to remove these idiots from our midst.
posted by Heywood Mogroot at 10:51 PM on November 3, 2005

Savage for Senate!

He and Rick will get along famously.
posted by Pseudonumb at 10:52 PM on November 3, 2005

why can't we have one?

Certainly we can, but just as certainly we shouldn't. Enumerating specific rights in the Constitution makes it that much easier for statists to promote the idea that anything that is not enumerated is not granted.

The older I get, the more I agree with Alexander Hamilton: "For why declare that things shall not be done which there is no power to do?"

Perhaps the three most dangerous words in US jurispridence are "compelling government interest".

Human rights are infinite. And the government does not grant rights. Quite the opposite. The people allow the government to exist at their pleasure. (This is true everywhere, not just in the US, despite what you may have been told by your oppressors.)

One of the many problems we have in the US is a reflexive attitude that the solution to any problem of governance is to pass another law. The answer is not more government. The answer is is more restraint on government.
posted by oncogenesis at 10:58 PM on November 3, 2005

Interestingly, ironically, Microsoft is calling on Congress to enact a National Privacy Act.

and of course Weyerhaeuser supported the Healthy Forests Restoration Act of 2003, while the coal industry supported the Clean Air Act. gee, everything is hunky-dory!
posted by quonsar at 11:03 PM on November 3, 2005

oncogenesis : "The people allow the government to exist at their pleasure."

In theory.
posted by Gyan at 11:03 PM on November 3, 2005

Conceive a legal definition of "privacy" that you believe will be agreeable to two-thirds of the populace. Then we'll talk.
posted by cribcage at 11:04 PM on November 3, 2005

Pro choice people think that right already exists -- and current case law backs them up. Why the hell try to get an amendment to the constitution past all that resistance?

Because Roberts and most likely Alito would be part of a cadre of justices who would be happily waiting for an anti-choice state to challenge Roe v. Wade, to help overturn it.

The new justices need simply question the interpretation of personal autonomy (privacy) only weakly supported by the 14th Amendment. Roberts already has a known dislike for the interpretation of this amendment in its application to abortion rights protections.

While it would be very difficult to impossible to pass a privacy amendment, it would certainly start a national dialog that would help inform Americans how seemingly little personal privacy to which they have realistic, legal entitlement.
posted by Rothko at 11:05 PM on November 3, 2005

and of course Weyerhaeuser supported the Healthy Forests Restoration Act of 2003, while the coal industry supported the Clean Air Act. gee, everything is hunky-dory!
posted by quonsar at 2:03 AM EST on November 4 [!]

Hey grumpy, show me any other party or person at least getting the discussion started in our legislative branch.
posted by Rothko at 11:07 PM on November 3, 2005

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

-- 9th amendment of the United States Constitution.

This has been one of the most neglected and little-known, and I suggest one of the most unjustly neglected parts of the constitution. It provides a better basis for a privacy right and other protections that have been awkwardly placed on other grounds.
posted by jam_pony at 11:14 PM on November 3, 2005

Here is Cornell's case-based discussion of the constitutionality of privacy in US law:

The right of privacy has evolved to protect the freedom of individuals to choose whether or not to perform certain acts or subject themselves to certain experiences. This personal autonomy has grown into a 'liberty' protected by the due process clause of the 14th amendment. However, this liberty is narrowly defined, and generally only protects privacy of family, marriage, motherhood, procreation, and child rearing. Further extensions of this right of privacy have been attempted under the 1st, 4th, and 5th Amendments to the U.S. Constitution, however a general right to personal autonomy has yet to take hold beyond limited circumstances.
posted by Rothko at 11:17 PM on November 3, 2005

While it would be very difficult to impossible to pass a privacy amendment, it would certainly start a national dialog that would help inform Americans how seemingly little personal privacy to which they have realistic, legal entitlement.

You're absolutely right about that: Some of the incidents that occur and are subsequently upheld by courts are frightening. I'm a Republican and I believe in small government...and some of the powers that have been exercised by various governments in this country (local, state, federal) are abominable.

But if you want a word of advice from across the aisle: You can make that point very well without mentioning abortion. There are a lot of people in this country who will be on your side right up until you mention "abortion" and "privacy" in the same sentence...and then you've lost them.
posted by cribcage at 11:18 PM on November 3, 2005

Here's what Senator Durbin had to say about Alito after a meeting earlier this week:

Senator Richard Durbin, an Illinois Democrat, said Alito told him in their meeting that he recognized a right to privacy, the principle that underlies the Supreme Court's abortion rights rulings. ``I think he believes in that fundamental right,' Durbin told reporters in Washington. He added that Alito didn't say if he would apply it in abortion cases.

Not an assurance, but encouraging none the less (if you lean that way).
posted by sbutler at 11:25 PM on November 3, 2005

jam: interestingly, in his pre-hack days (1990) Instapundit wrote an essay for the Georgia Law Review dissing Bork and supporting the 9th & Griswold.
posted by Heywood Mogroot at 11:39 PM on November 3, 2005

Honestly, I can see this amendment being shot down even without abortion at stake. I believe more than 1/4 of states would still vote against anything that would provide constitutional protection to keep homosexuality and pornography legal without question.

Remember, religious belief means an omnipotent being sees everything you do anyway. A "right to privacy" is just a futile attempt at escaping the watchful eye of God, and that's just not right. Remember, God is watching you masturbate to that porn flick.
posted by Saydur at 12:14 AM on November 4, 2005

Just remember, if wingers are twigged to Dred Scott as code for Roe v. Wade, you can be darned sure they'll be twigged to this "Privacy Amendment" concept.

And they'll prove it's unamerican because it permits unisex bathrooms and requires us to draft women into the mlitary.
posted by dhartung at 12:39 AM on November 4, 2005

Saydur: Remember, God is watching you masturbate to that porn flick.

Hey God. So you like to watch? Yeah? Oh, yeah, call me a heathen again. Oh yeah.
posted by Joey Michaels at 12:39 AM on November 4, 2005

Good luck with that. An explicit privacy amendment warms the cockles of my libertarian heart. As nice as it would be, hobbes103 is correct. This idea is DOA.
posted by caddis at 4:09 AM on November 4, 2005

Ugh, I can't even think of how a "right to privacy" would be worded. If someone walks past a house and overhears a husband threatening to kill his wife, can he call the cops? Can photographers take pictures of celebrities when their eating in a restaurant? And how would this complicate information disclosure? Would call lists be outlawed? And, of course, what about abortion?

I'm not suggesting an opinion in any of those circumstances, mind you. Just saying that an all-encompassing amendment would be really hard to nail.
posted by Civil_Disobedient at 4:30 AM on November 4, 2005

We have a right to privacy. And it's culturally and legally a lot more serious that some bullshit pseudo Euro-Constitution.

Is the right to murder in your home in that thing? I've heard that abortion is actually more strictly regulated in several EU members than the US, so be careful what you wish for.
posted by ParisParamus at 4:35 AM on November 4, 2005

You nay-sayers don't fucking get it. The reason why a Privacy Ammendment ("The government shall make no law infringing on the privacy of the public in person and property unless exceptional public interest can be demonstrated" just to make one up) is important is that it's a WEDGE issue. There are plenty of Republicans that would support it, especially if the rhetoric is kept away from abortion (one thing politicians know how to do is dodge questions— just don't fucking comment in public on it, while assuring pro-choicers that yes, that's exactly what it means).
It might be as unlikely to get through as a marriage ammendment, but it will energize the base and shear off libertarian-type Republicans. This is GREAT politics. Quit your grousing and throw your backs behind it, unless you have a better wedge issue to split the right with.
posted by klangklangston at 5:57 AM on November 4, 2005

Yeah, it drives a wedge between the minority and the majority. We just disagree on which side is which.
posted by smackfu at 6:27 AM on November 4, 2005

If we had a right to privacy in this country, we could not have a prohibition against drugs.

It's like the people claming a privacy right arn't paying any attention to the world around them at all.

(Not that I don't belive in a right to privacy, but come on)
posted by delmoi at 7:21 AM on November 4, 2005

The older I get, the more I agree with Alexander Hamilton: "For why declare that things shall not be done which there is no power to do?"

Except that Hamilton did want to do those things. Ever hear of the sedition act? Try paying attention in history class. Nonsense rhetoric in defense of bad policy is hardly a new invention.
posted by delmoi at 7:23 AM on November 4, 2005

when their eating in a restaurant

Argh... they're. Sorry, I couldn't let that slide.
posted by Civil_Disobedient at 7:40 AM on November 4, 2005

Drug use at home, yeah. Public intoxication'd still be illegal.
posted by klangklangston at 7:49 AM on November 4, 2005

Yeah, it drives a wedge between the minority and the majority. We just disagree on which side is which

seems pretty clear which is which, at least when it comes to abortion.
posted by Hat Maui at 8:07 AM on November 4, 2005

James Madison:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

The Preamble to the Declation of Independence:

We hold these Truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

posted by kirkaracha at 8:51 AM on November 4, 2005

I agreed with the sentiment of the FPP until I got to the "procreation" line - and now I just can't support it... The last things we need are more people born before their parents are ready to provide for them, it's beyond epidemic already. Such reckless irresponsibility that injures the lives of so many others is not a right, it's a travesty.
posted by stewiethegreat at 9:04 AM on November 4, 2005

We have such an amendment. It is the 4th.
From Thom Hartmann's article:

there's good reason to believe - as the majority of the Supreme Court did in the Griswold case, the Texas sodomy case, and at least a dozen others - that the Founders and Framers did write a right to privacy into the Constitution. However, living in the 18th Century, they never would have actually used the word "privacy" out loud or in writing. A search, for example, of all 16,000 of Thomas Jefferson's letters and writings produces not a single use of the word "privacy." Nor does Adams use the word in his writings, so far as I can find.

The reason is simple: "privacy" in 1776 was a code word for toilet functions. A person would say, "I need a moment of privacy" as a way of excusing themselves to go use the "privy" or outhouse. The chamberpots around the house, into which people relieved themselves during the evening and which were emptied in the morning, were referred to as "the privates," a phrase also used to describe genitals. Privacy, in short, was a word that wasn't generally used in political discourse or polite company during an era when women were expected to cover their arms and legs and discussion of bedroom behavior was unthinkable.

It wasn't until 1898 that Thomas Crapper began marketing the flush toilet and discussion of toilet functions became relatively acceptable. Prior to then, saying somebody had a "right to privacy" would have meant "a right to excrete." This was, of course, a right that was taken for granted and thus the Framers felt no need to specify it in the Constitution.

Instead, the word of the day was "security," and in many ways it meant what we today mean when we say "privacy." Consider, for example, 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 violated...."

Similarly, "liberty" was also understood, in one of its dimensions, to mean something close to what today we'd call "privacy." The Fifth Amendment talks about how "No person shall be ... deprived of life, liberty, or property..." and the Fourteenth Amendment adds that "nor shall any State deprive any person of life, liberty, or property...."

posted by Aknaton at 9:11 AM on November 4, 2005

thanks, aknaton.

oncogenesis:

One of the many problems we have in the US is a reflexive attitude that the solution to any problem of governance is to pass another law. The answer is not more government. The answer is is more restraint on government.

As I understand it, that would be exactly the point of a Privacy Amendment: To formally restrain all levels of government from impinging on what were once commonly understood expectations of personal liberty and privacy. And no, abortion rights don't necessarily enter into the picture, unless the courts decide to interpret Abortion as a privacy matter under the new more formal right to privacy just as they did in the past when privacy rights were less clear.
posted by all-seeing eye dog at 11:02 AM on November 4, 2005

I think because it's all inferred that we really do need something like this--something explicit--and not derived from other amendments, or from parsing the original language of the Constitution, or from previous court decisions. A clear statement of our general right to privacy, like the European one.
posted by amberglow at 11:10 AM on November 4, 2005

Conceive a legal definition of "privacy" that you believe will be agreeable to two-thirds of the populace. Then we'll talk.

How about "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Naw, you're right. It'll never fly.
posted by jlub at 12:28 PM on November 4, 2005

Naw, you're right. It'll never fly.

I don't know what the 4th has to do with personal autonomy with respect to right-to-choice, but police can now use non-intrusive technology to scan your house from outside the premises, and this is not considered a Constitutional violation of the 4th Amendment. If the police do have a warrant to come into your home and they remove property as "evidence", you may likely never see it again. If you're convicted of a drug offense, your property will likely be taken.
posted by Rothko at 12:59 PM on November 4, 2005

I don't know what the 4th has to do with personal autonomy with respect to right-to-choice

I thought we were talking about privacy? Also, I'm not sure what point you were trying to make: that our 4th amendment rights are being violated, or that our 4th amendment rights do not cover the situations you mentioned?
posted by jlub at 1:55 PM on November 4, 2005

While I agree with you in principle, strictly speaking:

1) Your 4th Amendment rights aren't being violated, at least from the perspective of court rulings on those matters related to what I mentioned

2) Privacy entails many things; the 4th Amendment only deals with a very specific subset of privacy issues, none of which have to with sexual or reproductive privacy, at least — again — from court rulings on those two issues

So: what is meant by privacy? Among other issues, a Generic Privacy Amendment could entail the government not getting involved in preventing prayer in public schools. Which is something probably a number of MeFi'ers would be against. Privacy is not a monolithic entity.
posted by Rothko at 2:53 PM on November 4, 2005

Yes, privacy is complicated. I just have to cut'n'paste the 4th whenever anybody says "there is no right to privacy in the Constitution", because that statement is just so blatantly false. Of course the extent of that right, and where it conflicts with other rights (or responsibilities) is rightly a subject of endless debate.

But since "privacy" is now a code word for "abortion" it seems like we can't have an actual debate about privacy.

One nitpick though. "...could entail the government not getting involved in preventing prayer in public schools." This is a bad example. If they are public schools, then the government is involved whether prayer is allowed, forbidden, or compulsory.
posted by jlub at 3:09 PM on November 4, 2005

But since "privacy" is now a code word for "abortion" it seems like we can't have an actual debate about privacy.

All I was saying is that bringing up the 4th has nothing to do with abortion. Debate privacy all you want, just choose your definitions carefully.
posted by Rothko at 3:12 PM on November 4, 2005

Among other issues, a Generic Privacy Amendment could entail the government not getting involved in preventing prayer in public schools.

Actually, my understanding of this issue was that under current precedent, prayer in school as a personal matter is completely kosher. It's only compulsory group prayer that's forbidden. I'm pretty sure the whole idea that current law prevents individual students from praying when it's a matter of personal perogative is a right-wing boogie man idea... Any legal experts care to chime in on that?
posted by all-seeing eye dog at 3:18 PM on November 4, 2005

The lay of the land may have changed since I was actively following this issue (back in my young republican days growing up in the swamps)...
posted by all-seeing eye dog at 3:20 PM on November 4, 2005

I'm in favor of privacy and abortion, but I have to concede that the constructionists are correct. These DON'T exist in the constitution, and (purely on a legal basis) I don't agree with Griswald or Roe. An amendment is the right way to do it. If the law can be stretched so far in a way that I'm happy with, then it can be stretched in other ways, too.

Also, I never understood why abortion should necessary flow out of privacy. As far as I can tell, the real issue in abortion is whether or not you're killing a human being. For this, I think we would need a separate amendment that actually establishes the definition of personhood. This will only be more crucial in the future when we invent new forms of life. Having established such a definition, issues like abortion (and slavery) become moot.

Of course, getting such amendments passed is a whole other issue. Privacy alone might have a chance, as long as the language did not weigh on abortion. An amendment to define personhood...as important as it is, I wonder if it could ever happen. This is something we are bound to be divided on.
posted by Edgewise at 4:07 AM on November 5, 2005

Oh yeah, Dan Savage is great.
posted by Edgewise at 4:07 AM on November 5, 2005

I think because it's all inferred that we really do need something like this--something explicit--and not derived from other amendments, or from parsing the original language of the Constitution, or from previous court decisions.

I'd like this pony too. But I think it would be way easier to get essentially Hartmann's text above written into a Supreme Court decision, which could then be cited by anyone wanting to point out that a right to privacy is already in the Constitution. All it takes is an enterprising Supreme Court clerk to suggest it as an addendum to some already popular decision, not 2/3 of the states or whatever.
posted by Aknaton at 9:08 AM on November 6, 2005

NYT op-ed today by Savage on this
posted by amberglow at 6:28 AM on November 16, 2005