Our "right to privacy" is an amalgam of protections in the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments, plus judicial interpretation. It is not spelled out. Now, we have a Supreme Court unfriendly to making inferences, a President opening new doors to government intrusion in the home, and a Republican Congress unwilling to stop him.
Is the government free to wiretap at will? Are the families of patients like Terri Schiavo free to refuse medical care? Is abortion legal? Do gay couples receive the same protections as straight ones?
As Sen. Patrick Leahy said during the Alito confirmation:
The Supreme Court -- I feel one of the most important functions of the court is to stop our government from intruding into Americans' privacy or our freedom or our personal decisions.
To force the Court to fulfill that obligation, and as an electoral strategy for the 2006 elections, it is time for Democrats to write a Privacy Amendment for the U.S. Constitution.
I am opening a thread at
The Next Hurrah to brainstorm how to write the amendment itself, and I hope you'll join us there. Here, I want to make the case for why it's needed, and how it will help us in 2006.
Why it's needed
Disclaimer: I have no legal training. Most of the info below comes from this summary that I highly recommend to you.
The "penumbras and emanations" argument that Justice Douglas made in Griswold (1965) saying that privacy arises as a sort of zeitgeist product of the Bill of Rights has been derided as fuzzy-brained, and if workable at all then relevant only to marital behavior. Roe (1973) expanded it to reproductive rights of unmarried people, shifting privacy to an individual right rather than a product of husband-wife association. With different logic, Katz (1967) also moved privacy to individuals by extending search-and-seizure protections of the home (property rights) to the person. You can see already that our right to privacy is of recent origin, and is a toothpick house built of still-evolving reasoning. Is that good enough? Better ask Sen. Tom Coburn, who said at the Alito hearing:
The ripping and tearing of an unborn child from his mother's womb through the hands of another, and we say, "That's fine; you have a constitutional right to do that."
How is it that we have a right of privacy and due process to do that but you don't have the right, as rejected unanimously by the Supreme Court in 1997, to take your own life in assisted suicide?
You know, how is it that we have sodomy protected under that due process but prostitution unprotected? It's schizophrenic. And the reason it's schizophrenic is there's no foundation for it whatsoever other than a falsely created foundation that is in error.
Or better yet, ask the new Justices themselves. Here's what Justice Samuel Alito said during his confirmation hearing:
ALITO: There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments.
CORNYN: And the reason it's protected is because the Supreme Court has so interpreted the Constitution. Isn't that correct, sir?
ALITO: That's correct. It's a question of interpretation rather than simply looking at what is in the text of the document.
(Emphases here and below are mine.)
Chief Justice John Roberts was even harder to pin down. He avoided answering directly when asked by Sen. Feinstein about privacy and the beginning and end of life, and by Sen. Biden about privacy and abortion, and only hinted at his views to Sen. Schumer:
SCHUMER: I'm interested in how you will divine what that right to privacy means. I mean this is going to be an issue in the 21st century that's before us in many, many different ways. And there's no words in the Constitution.
ROBERTS: Well, the court in, for example, I think most recently in the Glucksberg case, talked about the necessity of considering the nation's history, traditions and practices.
As Justice Harlan always explained in his opinions, you need to do that with an appropriate sensitivity to the limitations on the judicial role.
Again, you need to recognize that it is not your job to make policy, either under the Constitution or under the statutes.
That is a far cry from Justice Louis Brandeis' famous dissent in 1928:
The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men.
That was the losing opinion in a case about -- what else? -- government wiretaps. Do you think Brandeis' view will prevail, 80 years later, on a Court where Justices Roberts and Alito now sit? If we do not write it into the U.S. Constitution, what hope is there for the privacy right if all three branches of government willfully neglect it?
The Electoral Strategy of a Privacy Amendment
The Republicans' apostasy of small government and fiscal responsibility has left conservative voters dissatisfied and adrift. They are not yet ready to vote Democratic, but they do not support the wasteful and intrusive policies of the incumbents. Together with a balanced budget policy, a proposed Privacy Amendment would frame the election debate and let Democrats seize the conservative banner. This is not about being "Republican-lite." It is about packaging core Democratic values -- freedom, personal liberty, personal choice -- in a way that appeals both to our base as well as to dissatisfied conservatives.
Americans disapprove of warrantless wiretaps, even in the war on terror, 48% - 47% (LA Times/Bloomberg poll, April 8-11; thanks DemFromCT!). We disapproved of Congress' interference with Terri Schiavo's medical care 72% - 17% (Pew poll, Nov. 9-27, 2005). South Dakota's strict new anti-abortion law is disapproved of, 58% - 34% (LA Times/Bloomberg poll, April 8-11). The approval rating of Congress is hovering around 30% and approval of the President is stuck around 35%. This is not a country welcoming the government into our personal lives.
The Privacy Amendment should be written and presented by the kind of united front that we saw after Kerry's nomination, including Carter, Gore, both Clintons, Kerry, Edwards, Dean, Reid, Pelosi and any 2008 prospectives. It should encapsulate Democratic values for the voter by framing medical care, marriage, and wiretapping in the language of privacy and freedom from government intrusion. It should form the basis, along with a separate balanced budget policy, of a coherent Democratic message going into the 2006 elections.
The idea isn't new -- I found mentions of it from Dan Savage in November 2005, and other bloggers from 2005, 2004, and 2003, to cite just a few well-written ones.
So why should the Privacy Amendment get any more traction now? Three reasons: (1) The Roberts Court, (2) Illegal wiretaps, and (3) an unpopular incumbency facing midterm elections.
I can anticipate several objections -- but I want to hear what you think. Please comment below, and join us at The Next Hurrah for more brainstorming on what the right to privacy really is.