The recent Supreme Court case dealing with gay sex has once again brought up the issue of whether or not there is some implicit or explicit right to privacy expressed in the Constitution. Should there actually be a constitutionally protected right to privacy? If so, should there be an amendment to expressly state what that right entails? How would you word such an amendment?
I’d be in favor of such an amendment. Not because I believe there’s any problem with construing the constitution to protecting privacy, but because explicitly putting it in there would silence the Strict Constructionists.
“Congress shall make no law abridging the freedom to participate in any consensual activities in private, so long as those activities do not involve unlawful force or fraud, or the conspiracy to engage in unlawful force or fraud.”
I’d vote for it.
I think it would need to be broader than that, Mr2001. As I understand it, the abortion issue was decided based on a right to privacy, and your wording would not seem to include that.
I’d take a cue from Mr. H and replace ‘unlawful force or fraud’ with ‘measurable harm to another’. I mean, they can just make everything illegal, and what good is privacy then?
I think the right to privacy is a silliness if considered outside of the act being conducted (and I realize people in this thread are attempting to address that). I guess my point is that I believe you have a right to engage in any legal activity in privacy, and nothing more. The right to gay sex does not rest on a right to privacy, for example, it is rests on the fact that gay sex is legal. IMO. (And the same could be said for heterosexual sex.)
Otherwise, there is no end to what could be protected by this shapeless right. Saying “measurable harm to others” precludes quite a number of existing laws–e.g., prostitution, the use of illegal narcotics, etc. Would this amendment make these laws unconstitutional, or only if they were conducted in private? I see no meaning in a consitutional right to privacy as it is being described here.
This is one area we should have taken a cue form the French.
“Everyone has the freedom to do whatever they please, so long as they do not violate the rights of another to do the same.”
Just plonk that sucker in there and we cover the right to privacy, the drug war, censorship, and every nerf-coating soccer mom crusade out there.
Prior discussion on this topic: Strict constructionists: How about adding a constitutional “right to privacy”
NO WAY!!! I swear I did a search on “privacy” in the titles of GD before I started this.
That’s not much of a right at all. A right, IMO, is something that should be guaranteed to be legal, not something that just hasn’t been outlawed yet.
I believe that’s the point. I certainly had those laws in mind (among others) when I wrote my amendment.
The laws would probably have to be changed to allow the activities to take place in private; or they could simply not be enforced in private.
How so? It guarantees the right to take part in any consensual activity that doesn’t affect others. Whether or not you agree with that goal, surely you must see the effect it would have.
Well, it depends on how the courts interpret “consensual”. If the court decides that the fetus is a third party who did not consent, then yes, abortion could still be outlawed. However, the same is true of the “measurable harm to another” wording - the court just has to declare that the fetus is “another”.
In addition, measurable harm to another is much more vague, and implies a focus on the eventual result of a person’s private actions, rather than what those actions actually are. If John goes over to Steve’s house, has a night of hot man-man action, realizes he’s been in the closet all his life, and divorces his wife, that could be considered “measurable harm” to his wife and kids, but I don’t believe it should be illegal.
I would clarify “unlawful force or fraud” to “unlawful force or fraud against a nonconsenting party”, though.
**But that’s my point. The right to privacy…to do what? Privacy should not protect something that is otherwise illegal. If something ought not to be illegal, then there are avenues for pursuing that status, again IMO. The fact that something is private is not, by itself, a protection (or it shouldn’t be), otherwise anything privately conducted is lawful. If you want all activities that do not affect others to be lawful, why does the fact that it is private or not have anything to do with your desire that this be so? Why not an amendment that says “No harm to others, no foul”? Why does privacy matter in the least?
**See above. Then make those activities legal, by virtue of the fact that they harm no one else, assuming the majority of those governed by said laws agree with you. Why does privacy have anything to do with it?
I will bet that you didn’t set the date range properly. It defaults to the past 24 hours, which is the stupidest setting I can think of as a default. I understand the mods are trying to spare the hamsters, but it would make a lot more sense for the search function to default to, say, the past two weeks. Who the hell searches on just the past 24 hours of posts?
Well, a private action is unwitnessed by others - unlike streaking, for example, which is consensual but not private. I think there are plenty of consensual actions that can be legitimately outlawed.
Some principles are important enough to warrant a Constitutional amendment, and IMO this is one of them. After all, you could ensure a “right” to free speech simply by repealing all laws that limit speech, but without the First Amendment, nothing would prevent that right from being violated in the future.
Would these activities be legal if conducted in private? You lost me here.
Still not clear to me why you link this to privacy. Why not an amendment making legal any activity that does not harm another? Why is privacy relevant at all, why is it something that demands constitutional protection in the manner you describe?
If your answer is that an amendment of this type would be too shapeless, too difficult to pin down, then the same could be said of a privacy amendment that is simply the umbrella over the exact same activity (if I understand you correctly).
Dewey - I’m pretty sure I didn’t do that. Even now when I do a search on “privacy” in Great Debates titles, I get 17 hits including Right to Privacy Amendment, but not yours.
Hmm. That’s pretty weird. Maybe the end quotation mark in the thread title screwed up the search?
Eh, I got nuthin’.
The hamsters work in mysterious ways.
I have a question and a comment. First, the question: As a layman, I’m familiar with the “right to privacy” in only three contexts: birth control, abortion, and sodomy. Have there been any other Supreme Court cases involving this right?
The comment: I once offered up the following as my all-purpose “right to privacy” amendment:
This would be much broader than any right to privacy which the Court has found to date. It would bar laws against drug use, prostitution, gambling, ticket scalping, working for less than the minimum wage, and many other forms of economic regulation. Of course, I’m a libertarian, so I think this would be a good riddance. I’m well aware that 99% of the American population would not buy into this amendment.
The problem is when I try to draw up an amendment that would encompass the privacy rights established by SCOTUS to date but not the full range of rights established in my wet-dream amendment. I can’t do it. I can’t “distinguish” between birth control and prostitution. I can kind of distinguish sodomy, because it doesn’t involve any money changing hands. It’s a purely “private” act, with no economic aspect to regulate. But this is not the case for abortion and birth control.
So the choice, as I see it, is between a very narrow “sex only” privacy amendment, which wouldn’t do much more than the Court has already done via its recent ruling, and a broad “all consensual activity” amendment which would be unacceptable to 99% of Americans.