I’ve heard this argument over and over again from textualists, who point out their belief that since the actual words “right to privacy” are not to be found in the constitution, it doesn’t properly exist as a constitutional right. Thus, the Supreme Court oversteps its bounds whenever it invokes “privacy” for things like contraception or abortion. Ok then. Purely for the sake of this argument, let’s concede that SCOTUS has overstepped its bounds.
Some of you, like Dewey, have said that privacy is a good thing that should be supported, but it’s still not a constitutional right.
Ok then, if it’s not a constitutional right, SHOULD it be one? Would you support a constitutional amendment that explicitly says something like:
"The right of the people to privacy in making personal decisions shall not be unreasonably infringed"
My initial feeling is to say yes, I do like that. But I’d like to see what the constitutional law folks have to say about it before I completely form an opinion.
I tend to favor something of this sort – although I’d refuse to limit it to “in making personal decisions.” But (and there are people more learned in the law than I on the board who appear to disagree) I think it’s firmly stated in the Constitution already: in the Fourth Amendment (and as such guaranteed against state intervention by the Fourteenth).
Is this a strategy to reinforce Roe v Wade? If so, I think the pro-life/anit-abortion folks will say that the fetus, or unborn child, also has the right to “personal decisions”. The most basic personal decision is to choose life.
I tend to agree with earlier posters that 4 and 9 are enough. In fact 9 is so open ended, it seems like it could be used to justify almost anything.
That would be one of its functions, among other things.
I admit that the amendment as I proposed it is not completely bullet proof from future changes in interpretation. Bullet resistant, sure, but not bullet proof.
Duckster this would amount to nothing more than a circular argument.
Additionally I had an exchange with the esteemed Polycarp indicating the Ninth Amendment states but a truism, like the Tenth Amendment, and does not create any new rights. In essence my view is similar to Madison’s although I did not know it at the time until now.
This general right to privacy cannot be found in the Fourth Amendment because through a series of U.S. Supreme Court opinions they have stated time and time again the Fourth Amendment protects places, things and Not People .
I think the term “liberty” in the Due Process clause of the Fourteenth Amendment can include a right to privacy regarding decisions to be made about sexual reproduction. However, I also believe this can be denied since the same clause requires only Due Process be given to deprive a person of life, liberty, or property.
So Blalron I would support such an amendment but I would change the wording. Your wording is very broad and can be interpreted to permit people to use any type of drug in the privacy of their own home, or have as many spouses as one chooses, or quit school at age 13, and the list can go on. Or was it your intention to permit people to make some or all of these decisions?
Now I do acknowledge you qualified the amendment with the word “unreasonable” and so I suppose some of these examples I mentioned would be permissible if they constituted as “reasonable” intrusions. But I am sure you are drawing the line somewhere between reasonable and unreasonable and I am just curious where the line would be drawn and why?
Since this was precipitated by my positions on constitutional law: yeah, sure, I’d go along with that, assuming we could hammer out reasonably satisfactory language (“personal decisions?” What if one of those personal decisions is to conspire to rob a bank? Am I entitled to privacy in that?). That would at least put an end to the contortionist readings needed to find a general right to privacy.
And re: the fourth and ninth amendments – well, we’ve been over this stuff ad naseum and I’d rather not revisit the same ground for the zillionth time. Suffice it to say that my position remains that the fourth amendment protects a particular privacy interest – the right to be free of searches and seizures absent probable cause – and not a broader right to privacy (if the founders wanted to protect privacy interests beyond searches and seizures, why didn’t they just say so in the text?), and that the ninth amendment is a guarantee that the enumeration of rights in the constitution will not act as a barrier to the people securing their rights via other democratic processes (e.g., statutes and state constitutional protections).
Strange sort of “strict construction,” Jimmy1, to conveniently omit one word from “The right of the people to be secure in their persons, houses, papers, and effects…” (And I realize you’re reporting SCOTUS decisions, not structuring an argument of your own there.)
For kicks, Jimmy, structure an amendment that would guarantee persons the right to take actions not harmful to another “in private” (and for purposes of this issue, whether or not you agree with the proposition, we will presume that a fetus is not “another”) which you feel would stand up under strict construction rules and have minimal undesirable unintended consequences.
That language is waaaaaay too broad to come anywhere close to pass. Senator Santorum – although arguing the point in a boneheaded way (and anyone who spends any time thinking about “man on dog” sex has really been warped by his religion) – had the kernel of an interesting point on this issue. He just doesn’t know how to articulate it.
If there really were a right to privacy in the Consitution, then it surely prevents the government from interfering in any private activity engaged in by consenting adults in the privacy of their homes that doesn’t result in harm to any other individuals outside their home. Hence Griswold and its progeny established that taking birth control, for either married or singles, falls within privacy. By natural extension (although there is a reasonable argument that the fetus is a “person” that falls outside of the “no harm to any other individuals”) you get Roe. And, if you really analyze it properly, Bowers v. Hardwick was wrongly decided, because that involved state action that regulated nothing more than private consensual activities between consenting adults.
Of course, polygamy also falls under the same rationale. There are a reasonable number of people (most in Southern Utah and Nortern Arizona) who desire to enter such an arrangement legally as consenting adults, and plenty more people who engage in polygamy de facto (rich guy with wife and mistress). Same could be said for incest between two consenting adults of close consanguinity. It’s private, and it doesn’t really hurt anyone if they do it (and if you try to argue the genetics angle, you’re headed down the road of allowing the state to pre-screen couples for genetic problems and preventing them from marrying/procreating if there’s a potential problem). Oh, and you probably can’t regulate any sort of private use of drugs, of any kind, and likely can’t regulate prostitution (as long as they aren’t doing it in the street and frightening the horses).
So any constitutional amendment creating a right of privacy is going to have to be pretty specific as to what it does and doesn’t encompass, else the only people who will support it are the hard-core libertarians. Most of this country – let’s face it – wants to regulate the privacy of individuals in this country. Because there are things out there that people on both sides of the political spectrum just can really stand their neighbors to have the right to do.
PS: That amendment, either alone or taken together with the 2nd Amendment, pretty much allows you to keep a complete arsenal in your home. So you’d have plenty of Democrats trying to carve that out of the Amendment, along with all the Republicans trying to carve out any sort of sex that doesn’t involve a married man and a married women attempting to procreate.
Let’s not be unfair to the SCOTUS: they managed to spot “persons” in the constitution, too. That, or I wasted a lot of time learning about “Terry stops” and searches incident to arrest.
Keep in mind the the OP was asking if folks on this board would support the proposed ammendment. Not so much whether it could be enacted.
As I think about this more, I think I could support it. If it allowed things like use of drugs or whatever sexual practice consenting adults wanted to engage in, then it would be OK by me. Those rights so far have not been found in the constitution. Unfortunately, it’s for that exact reason that this would never fly.
Good point Polycarp but Dewey answered this partially and I would just qualify his answer by saying the amendment only creates a privacy right to be secure from unreasonable search and seizures and such language does not lend itself to a more generalized and broader right of privacy where the state can’t intrude.
I think Blalron’s amendment may be sufficient but I am worried about where the lines will be drawn regarding “unreasonable”. The state Supreme Court in Utah may find it unreasonable for the state and federal government to prohibit males from having more than one spouse because it burdens their religious belief. Some other state Supreme Court or an inferior Federal Court could find the Federal drug laws unconstitutional in so far as they prohibit drug use in the home.
Heart of Atlanta Hotel decision might be null and void as it is certainly a privacy decision of business owners to decide who they want to open their doors to for service.
I think the amendment could enumerate those activities immediately protected and any not mentioned are not protected by the amendment. I understand this may be impractical because there are some situations where we would intend for protection but did not specifically mention it for protection and then the courts can just simply rely upon legislative history, committee reports, and Congressional debates to resolve this issue.
I should also point out that the onerus amendment process is not strictly necessary – ordinary legislation is a far more realistic option, albeit one that is easier to undo. You have a much better shot at, say, getting Texas to repeal its sodomy law than you do at amending the constitution.
I would tend to favor NOT adding that amendment because of the concerns noted above. It would basically provide unlimited freedom. That amendment as styled would allow everyone to make an argument that their vice was a virtue.
As a proponent of social control of SOME level, I’d rather the court go on doing it the way they have (even though I disapprove) than add this amendment to the list. But this is my political opinion. I don’t support many of the “rights” this would allow. I don’t WANT people to be able to use drugs in the privacy of their own homes. I don’t want them to be able to commit incest or beastiality (what was Santorum thinking,by the way?).
But my legal view of the situation is different. If this amendment were added, a true textualist or strict constructionist would have no choice but to follow it.
Anyone who says they oppose this amendment because they are strict constructionists are misunderstanding their own motivations. A strict constructionist could not care less what is in the const. He only follows it because of what the const. says. It is his political view that may cause him to not want the amendment in, but a true strict constructionist shouldn’t have a dog in the fight.
Of course what makes one a strict constructionist probably makes one a conservative and vice versa.
If there WAS to be an amendment passed, I personally would want to have the following terms more clearly defined IN THE TEXT of the Amendment:
privacy in making personal decisions
AND
unreasonably infringed
(basically, I’d want a treatise written into the Const.)
I agree with DCH. I think this type of thing is better suited to legislation.
I may have misinterpreted DCH’s point. Based on his take here and in other threads where I have read his posts, he MAY feel this way
But my characterization of his opinion was based on the reply immediately proceeding mine where he says it may be more “realistic” but not really indicating his personal take.
