# Strict constructionists: How about adding a constitutional "right to privacy" **URL:** \ **Category:** Great Debates\ **Created:** [May 9, 2003, 3:15am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038 "2003-05-09T03:15:14Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![AZCowboy](https://avatars.discourse-cdn.com/v4/letter/a/97f17d/32.png) [@AZCowboy](https://boards.straightdope.com/u/AZCowboy)\ **Post date:** [May 9, 2003, 4:10pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/21 "2003-05-09T16:10:16Z")
In concept, I’d certainly support it. I am concerned, however, about the language, specifically “regarding personal decisions”, which actually seems too limiting. I’d be fine with some limitation to where privacy is presumed to exist, such as ones home. I’d be interested in looking at other language to this end. While I support abortion rights, whether that particular right was covered under the amendment is not my concern. Whatever consenting adults do within their own homes, as long as it harms no one else (and doesn’t increase the threat of harm to others - thus banning arsenals, allowing drug use but not dealing, etc), should be a constitutional right in this country. While state legistlative action may be more practical, I would like to see constitutional protections that would prevent states from usurping such rights. I don’t understand the arguments that some level of social control is necessary (outside the constraints I’ve acknowledged). ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 10, 2003, 12:49am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/22 "2003-05-10T00:49:42Z")
I’m a moderate strict constructionist absolutist, and in consequence a strong liberal. Contrary to **Dewey** ’s assertion (and we’ve both received letters from the ASPCA about that horse;)), I hold that the guarantees of the Bill of Rights are intentionally broadly written to secure the maximum freedom consonant with good government. > [@](#): > > 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?). “Man, who hast made thee judge over thy fellows?” There are a lot of things Constitutionally permissible, even under the Rehnquist court, that I personally don’t approve of. But I feel that the idea of freedom on which this country was founded will survive the excesses of the few, as it has for well over two centuries now. I hold for protection of the young and the unwilling (and suggested that in my request for a possible text), and I think it’s none of my business what somebody else does, unless and until they ask for my advice. ---
**Author:** ![SteveEisenberg](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@SteveEisenberg](https://boards.straightdope.com/u/SteveEisenberg)\ **Post date:** [May 10, 2003, 1:42am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/23 "2003-05-10T01:42:10Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\ ***"The right of the people to privacy in making personal decisions shall not be unreasonably infringed"** > > Yay or Nay? \*\* Nay. First of all, as someone who posts under his own name, I’m not so big on privacy. Second, this would fit in fine with the rest of poorly written, vague US Constitution. The one thing US liberals and conservatives agree on it that our constitution is a great one, while at the same time each group is certain the constitution coincides with their own beliefs. Shouldn’t this tell us something? Third, the proposed amendment is open to infinite interpretations. For example, I would say that this amendment only refers to whether the decision making process is private, not whether you are actually allowed to implement the decision. Others may be thinking that this is ridiculous, as the legislative history of the new amendment’s passage would make clear that is was meant to legalize abortion, homosexuality, polyandry, etc. However, more likely, is that the legislative history would show a great deal of disagreement on what this amendment means. I would ask legislatures to make the laws rather than inviting unelected but politicized judges to do so, as this kind of amendment does. Lastly, liberals should consider that the current Republican-dominated Supreme Court feels somewhat bound by precedent. With this amendment, there would be no precedent, so they would interpret it just as they like. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 2:34am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/24 "2003-05-10T02:34:13Z")
> [@](#): > > \*Originally posted by SteveEisenberg \* > \*\* > I would ask legislatures to make the laws rather than inviting unelected but politicized judges to do so, as this kind of amendment does. > > Lastly, liberals should consider that the current Republican-dominated Supreme Court feels somewhat bound by precedent. With this amendment, there would be no precedent, so they would interpret it just as they like. \*\* Well, at the very least it would prevent Justice Scalia from throwing up his arms in pretended frustration and saying privacy may be a good thing, but since the exact words “right to privacy” don’t appear in the constitution, therefore there’s nothing he can do! :rolleyes: ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 2:42am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/25 "2003-05-10T02:42:09Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > **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.** Actually, I think I got a special present just for you! An amendment that explicitly authorizes the courts to recognize “Substantive Due Process”! **In cases involving Due Process Of Law in the Constitution, the phrase “Due Process” can be construed to mean Substantive as well as Procedural Due Process.** Would you be happy then? 😉 ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 3:12am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/26 "2003-05-10T03:12:57Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\* (“personal decisions?” What if one of those personal decisions is to conspire to rob a bank? Am I entitled to privacy in that?). Well, once your decisions go into the realm of harming others, I’d assume that it’s no longer a “personal” decision. And also, they can’t be _unreasonably infringed_. I never said the right to make personal decisions can’t be infringed at all. Prosecuting people who conspire to rob banks or kill people would, if anything would be, a _reasonable_ infringement upon that right. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 3:31am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/27 "2003-05-10T03:31:36Z")
> [@](#): > > \*Originally posted by SteveEisenberg \* > > Third, the proposed amendment is open to infinite interpretations. For example, I would say that this amendment only refers to whether the decision making process is private, not whether you are actually allowed to implement the decision. Others may be thinking that this is ridiculous, as the legislative history of the new amendment’s passage would make clear that is was meant to legalize abortion, homosexuality, polyandry, etc. However, more likely, is that the legislative history would show a great deal of disagreement on what this amendment means. Upon further examination, I find your interpretation to be a credible way of looking at it, although far fetched. So I cracked upon a dictionary, and looked up the word privacy. I found three different definitions (1) The quality or condition of being private; withdrawal from company or public view; seclusion. (2) secrecy (3) One’s private life or personal affairs. It seems like you would be using definition number one, which would merely be a weak reaffirmation of the Fourth Amendent right to be free from unreasonable searches, except this would just be about making decisions and nothing else. I, on the other hand, am going on definition number three. My amendment is meant to protect people in making decisions regarding “ **ones private life or personal affairs** ”. I realize I never explictly said anything about the right to carry those decisions out, but I think any reasonable interpretation would say that it is clearly implied. I’d welcome any ideas for an alternative wording to make this more clear. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [May 10, 2003, 3:47am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/28 "2003-05-10T03:47:53Z")
Aye. I would go for something written with the same economy and clarity of language as the First Amendment: “Congress shall make no law abriding the freedom of speech.” Man, that was sweet. It’s been sticking in the throats of would-be fascists and thought police for centuries. I love it. The fascists and thought police have historically won temporary victories over the First Amendment, but over time the language has repeatedly crushed their nasty little dreams of robosheep knowing only what they’re allowed to know. Something along the lines of: Congress shall make no law violating a citizen’s right to privacy. The fascists will fight it tooth and nail, just like they’ve always fought the First Amendment, and there may well be reasonable exceptions found here and there. But I say keep it simple and clean, the better to drive it into the hearts of fascists like a stake going into a vampire’s heart. Then let’s fight over it and see where we wind up. I suspect in a much better place than we’d be in without it. ---
**Author:** ![SteveEisenberg](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@SteveEisenberg](https://boards.straightdope.com/u/SteveEisenberg)\ **Post date:** [May 10, 2003, 10:36am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/29 "2003-05-10T10:36:34Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*I’d welcome any ideas for an alternative wording to make this more clear. \*\* The kind of provision which is clear would not use words like privacy or reasonableness. For example: “Enforcement of any law or policy criminalizing, or providing civil penalties against, abortion, sodomy, homosexuality, or sexual activity between consenting persons age 18 or older and conducted behind closed doors, is prohibited at every level of government, including local, state, federal, and military.” Is the above open to interpretation? Of course. For example, there would eventually be a case involving the borderline between abortion and infanticide. However, this language would likely limit the courts to interpretation rather than creation of overall policy on an issue such as abortion. Do I personally favor the clear amendment indicated above? Not as worded, since it would legalize third trimester abortion, as well as arrangements highly likely to be predatory, such as incest between a young adult daughter and her father, or sex between a general and his orderly. Plus I do not think the federal government should be in the business of second-guessing state legislatures on issues having little national impact. I just wrote the above amendment language is give an idea of alternatives to the vagueness of the existing bill of rights. Of course, if the bill of rights had been worded clearly, it never would have passed. However, framers such as Madison, who wrote that bills of rights were meaningless “parchment promises,” never intended the courts to be deciding whether the congress, much less the states, had been adhering to the promises. ---
**Author:** ![OliverH](https://avatars.discourse-cdn.com/v4/letter/o/278dde/32.png) [@OliverH](https://boards.straightdope.com/u/OliverH)\ **Post date:** [May 10, 2003, 10:44am UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/30 "2003-05-10T10:44:42Z")
> [@](#): > > \*Originally posted by John Mace \* > \*\*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. > \*\* However, protecting personal decisions requires that such decisions can be made at all. The fetus not being capable (not just not being able to _articulate_, but definitely not capable of _making_ such a decision would _normally_ make such a point moot. I say normally because I do not doubt that members of the current SCOTUS do not feel bound by real world constraints and impossibilities. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [May 10, 2003, 1:15pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/31 "2003-05-10T13:15:33Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*Actually, I think I got a special present just for you! An amendment that explicitly authorizes the courts to recognize “Substantive Due Process”! > > **In cases involving Due Process Of Law in the Constitution, the phrase “Due Process” can be construed to mean Substantive as well as Procedural Due Process.** > > Would you be happy then? 😉 \*\* No, for the same reason I oppose the SDP doctrine in the first place – it allows the courts to essentially write new provisions into the Constitution wholesale. Amending the constitution is a serious matter; the de facto power to do so should not be handed to the least representative branch of government. Although of course you’re right that such an amendment would settle all arguments about the propriety of the SDP doctrine. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [May 10, 2003, 1:52pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/32 "2003-05-10T13:52:02Z")
The right to privately do what? That’s always my reaction when I hear this. The “right to privacy” can’t protect an activity that is otherwise illegal, right? Or does the right to privacy trump any other restriction that conflicts with it? We’re not trying to protect the right to do things privately, regardless of what the activity is, correct? So it’s not the veil of privacy that’s important, it’s the right to do _certain things_ behind that veil. Then why not protect that specific activity rather than create a vague protection? ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [May 10, 2003, 2:53pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/33 "2003-05-10T14:53:38Z")
“Enforcement of any law or policy criminalizing, or providing civil penalties against, abortion, sodomy, homosexuality, or sexual activity between consenting persons age 18 or older and conducted behind closed doors, is prohibited at every level of government, including local, state, federal, and military.” Excellent! 3-somes are still allowed! Now, query, does this allow for: 1) gay marriage; 2) polygamy/bigamy; 3) incest. I think at least this would prevent laws against incest, and one could argue that it also prevents laws against gay marriage and polygamy. ---
**Author:** ![ResIpsaLoquitor](https://avatars.discourse-cdn.com/v4/letter/r/b3f665/32.png) [@ResIpsaLoquitor](https://boards.straightdope.com/u/ResIpsaLoquitor)\ **Post date:** [May 10, 2003, 4:09pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/34 "2003-05-10T16:09:46Z")
Just to clarify from way back when: The case of Katz v. United States, 389 U.S. 347 (1967) held that the “correct” interpretation of the 4th amendment, for better or worse, is the protection of privacy interests, **not** places or things. The “privacy” interest still comes down to protection against police or state intrusions only (it wouldn’t hold weight against, say, the idea that the state can prohibit suicide), but the essence of the holding was that the 4th Amendment was meant to protect persons. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [May 10, 2003, 4:51pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/35 "2003-05-10T16:51:06Z")
> [@](#): > > The case of Katz v. United States, 389 U.S. 347 (1967) held that the “correct” interpretation of the 4th amendment, for better or worse, is the protection of privacy interests, not places or things. **Res** do you know how many U.S. Supreme Court opinions that came down after that very old 1967 case stating the Fourth Amendment does not protect people but rather this privacy interest extends to protecting places or things? There were several and unfortunately I don’t have the book or my outline here to spell out every case as I have left them back at school and I don’t have the time to do a Westlaw search at this very moment. But rest assured these subsequent cases acknowledged a privacy interests exists in the Fourth Amendment but noted this privacy interest extends its protection only to places, such as the home or a non-mobile automobile, or things, such as objects to be searched for, and people from being unreasonable search and seizure and nothing more. You cite one case and ignore the case law coming afterwards that interpreted Katz v. United States to mean this privacy interest extends only to those subjects in the Fourth Amendment from unreasonable search and seizures as opposed to some very broad and abstract privacy interest that the Fourth Amendment does not create. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 4:58pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/36 "2003-05-10T16:58:27Z")
> [@](#): > > “Enforcement of any law or policy criminalizing, or providing civil penalties against, abortion, sodomy, homosexuality, or sexual activity between consenting persons age 18 or older and conducted behind closed doors, is prohibited at every level of government, including local, state, federal, and military.” Military is kind of questionable to add here. Hasn’t it always been military policy to prohibit fraternization? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 5:03pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/37 "2003-05-10T17:03:51Z")
> [@](#): > > The kind of provision which is clear would not use words like privacy or reasonableness. I don’t believe that every possible situation can be clearly explicated without cluttering up the constitution. “Cruel and unusual punishment” is a vague phrase also, but it being vague allows for change to reflect evolving standards of society. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 5:09pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/38 "2003-05-10T17:09:31Z")
> [@](#): > > Do I personally favor the clear amendment indicated above? Not as worded, since it would legalize third trimester abortion, as well as arrangements highly likely to be predatory, such as incest between a young adult daughter and her father, or sex between a general and his orderly. I think sometimes you have to take the good with the bad. Freedom of speech means we have to tolerate Nazis that want to march in a Jewish neighborhood. If that is the price we have to pay to be free from unwarranted government intrusion in the bedroom, I don’t think that’s too high of a price to pay. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [May 10, 2003, 5:30pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/39 "2003-05-10T17:30:31Z")
**Res** Never mind my post, you and I are actually in agreement as opposed to disagreement. **Blalron** why not just have the amendment list all of the activities that come to mind for protection? Then in the amendment state any unlisted shall not be construed as an intention to deny protection to some future conduct? Then of course the Court’s can look at the intent of the Framers of the Amendment to assess whether or not there wasn an intention to protect some future but unspecified conduct? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 5:41pm UTC](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038/40 "2003-05-10T17:41:17Z")
That might work. **The existence of specific privacy rights in this amendment shall not be construed to deny other rights retained by the people, rights which may not be infringed.** I added the “may not be infringed” part because if I didn’t, the strict constructionists would simply say there is no enforcement provision for those other rights therefore they can’t be effectually protected even if they are acknowledged to exist. That’s what the 9th amendment is in their eyes, simply an expression that rights exist, an ineffectual toothless nicety. [Previous page](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038.md?page=1) [Next page](https://boards.straightdope.com/t/strict-constructionists-how-about-adding-a-constitutional-right-to-privacy/174038.md?page=3)