Privacy

Dan Savage (he of the santorum redefinition) has an interesting idea:

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.

The debate raged when John Roberts was being confirmed (read about here, here, here, and here), and it is raging again as Sam Alito's nomination to the Supreme Court makes its way through the Senate (you can read all about it here, here, and here). Is the RTP in there? Or isn’t it?

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!

It’s a great idea—except for the whole constitutional amendment part. Constitutional amendments are notoriously difficult to pass, sometimes to our chagrin (ERA) and sometimes to our fortune (FMA). That doesn’t preclude the Dems using a proposed privacy amendment as a largely symbolic gesture, much as the FMA is, but in the current political climate, privacy rights are so important that it seems we ought to figure out a way to promote the idea without its being symbolic.

So, how about instead of using the Federal Marriage Amendment as our guide, instead we use the Defense of Marriage Act? DOMA, despite being very nearly as heinous as the FMA and arguably unconstitutional, passed as a federal law. (Similarly, the Title IX of the Higher Education Act, Women’s Suffrage, and other equal rights legislation had an easier time than the Equal Rights Amendment did.) A Privacy Rights Act would likely stand a better change of being passed simply by nature of its form. It would also avoid certain pitfalls that a constitutional amendment might cause—namely, that proposing an amendment regarding privacy rights plays into the hands of those who claim a constitutional right to privacy doesn’t already exist. A Privacy Rights Act, on the other hand, could be defined as bolstering the privacy rights already enshrined in the constitution.

Whether an amendment or an act, it would be inevitably difficult to define, finding the sweet spot where it straddles the ambiguity privacy rights necessitate and the clarity of intent needed to protect law-abiding individuals and not criminal enterprises and/or corporations. But I think it’s worth a shot.

It certainly would be fun watching the GOP try to argue their case against privacy rights.

(Hat tip AMERICAblog.)