Give Up Blog

Thursday, November 17, 2005

Should Griswold be made obsolete?

Yesterday, Dan Savage had an Op-Ed in the Times. Instead of promoting the alternate uses of the word "Santorum", he was suggesting that progressives push to get a 'right to privacy' amendment. He's got an interesting point:

Problematically, however, a right to privacy is not explicitly mentioned in the Constitution. The majority in Griswold held that it was among the unenumerated rights implied by the Constitution's "penumbras" (which sound like something a sodomy law might keep you away from). The Griswold case didn't settle the matter, and the right to privacy quickly became the Tinkerbell of constitutional rights: clap your hands if you believe.

Liberals clap. We love the right to privacy because we believe adults should have access to birth control, abortion services and pornography as well as the right to engage in gay sex. Social conservatives hate the right to privacy for the very same reason, as they seek to regulate private behaviors from access to birth control to masturbation. (Think I'm kidding about masturbation? In Justice Antonin Scalia's dissent in Lawrence v. Texas, he wrote that the majority's decision called into question the legality of state laws against "masturbation, adultery, fornication.")

...

Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don't we just stick it in there? Wouldn't that make it easier to find?

If the Republicans can propose a constitutional amendment banning gay marriage, why can't the Democrats propose a right to privacy amendment? Making this implicit right explicit would forever end the debate about whether there is a right to privacy. And the debate over the bill would force Republicans who opposed it to explain why they don't think Americans deserve a right to privacy - which would alienate not only moderates, but also those libertarian, small-government conservatives who survive only in isolated pockets on the Eastern Seaboard and the American West.

Check out the entire article here.

1 Comments:

Rev. Dr. said...

Better yet, get one of those crazy libertarian right-wing Republicans to suggest the amendment so it can be bipartisan.

It might be hard to draft though because privacy is so complicated. We should ask Buck for what he thinks a perfect constitutional privacy amendment would look like.

I think it would have to be something like, "The right to privacy in ones home, health and records shall not be infringed without due process. Congress shall make no law which impinges upon the privacy of an individual or group.

The problems are, of course, how do you force crazy people to take their meds without violating their civil rights (hopefully due process covers this), and how do you allow people control over their bodies and behavior while still allowing safety and regulatory agencies to control things like pharmaceutical and food supplies. One might then claim a constitutional privacy right to eat tainted beef or take vioxx and fen-fen and accuse the FDA and USDA of violating their privacy.

I don't know, I demand input from the lawyers!

3:53 PM, November 17, 2005