The SDMB Privacy Amendment (US Constitution)

Over here, Dangerosa, a liberal, and Bricker, one of our more prominent conservatives, sort of proposed a Constitional amendment clearly setting down the right to privacy vaguely hinted at in the 4th, 9th and 14th Amendments.

I thought it would be neat if we as a Board wrote such an Amendment and somebody got their congressional delegation to propose it in the House.

Since, obviously, it will require tinkering, I figure I’ll post a provisional draft, and we can all poke and prod it into something that might pass muster in Congress and maybe even the state legislatures.

I’m putting this in GD because I’m quite serious about this, and because I expect there will be a lot of actual debate about what each revision means for existing case law (particularly Roe, and probably some other ideas like decriminalization of marjuana).

Here’s my basic proposal:

The right of citizens to privacy shall not be abridged, abrogated or restricted by any Act of Congress, any State, or county, city or otherwise defined municipality therein.

Let the redrafting begin!

Not to do this in two different threads, but I’ll simply point out again that ANY enumeration of rights (even with such a broad idea as “privacy”) is going to fail, because you simply can’t list them all. The right to make medical decisions about yourself, the right to die, the right to contraception, the right to abortion, the right to have sexual relations with the consenting adult of your selection, the right to view and possess pornography, the right to raise your children, and thousands of other impossible to list rights could, and have been found, to fall under the idea of “privacy” rights.

While I would fully support adding such an Amendment to the Constitution, if it specifically left out abortion, it would solve nothing. The issues of what rights should be protected is to be determined by the very people and institutions that the Constitution helped create, the legislature, the judiciary, and the executive.

It doesn’t have to solve anything, necessarily; it provides clear grounding for a right which isn’t actually mentioned in the Constitution- which bothers some people of a particular nature. While the “emanating from the penumbra” argument may now be generally accepted legal fact, it’s still a rather shaky basis for a number of important civil liberties.

If you think the Amendment needs to specifically lay out abortion rights, rewrite it. That’s what the thread is for.

In real life any right to privacy will be limited in some way. If you don’t address that in the text of the amendment it is pretty worthless because there is no chance that the right will exist as advertised.

Don’t we need to define privacy? The amendment as written (right now) seems overly vague and overly broad. This language would eliminate wire taps background checks etc.

So how do we define it without making the amendment worthless?

Real question not snark. (I say this becuase I have a tendancy to seem snarky when I am serious)

I think this would make search warrants illegal. Are you sure you want to do that?

You tell me, people. I proposed the original amendment- you tell me how it needs to be changed- and propose changes.

Sure, make us do all the work.

I proposed a talking point that allows futher proposals for future changes! I say my job is done here and will take the next three months off before I come back to offer more critique!

Rather, I will be back later when I have an idea on how to fix it.

Perhaps you misunderstand the thread. The OP is not asking for an enumeration of rights in general, but the clarification of one particular right, the right to privacy. This right must exist because of two facts:

  1. The constitution does not explicitly grant the government the power to invade people’s private areas in general; and,
  2. a right to privacy must exist in order for something like the first, third, and fourth amendments (at a minimum) to obtain.

Comment on (1): the powers of government are enumerated in the constitution, unlike the rights retained by the states and the people.

Comment on (2): Can be read as the “penumbras and emanations” angle; philosophers and logicians have snappier infinitives like “to obtain”.

It’s too vague as a concept. Such an amendment wouldn’t change the current process by which the Supreme Court identifies unenumerated privacy rights that are protected by the Constitution. It needs to specifically define an area of human life that the government can not touch.

Besides that, whose conception of “privacy” will win the day? Personally, I’d broadly define it to include the right to abortion, marriage, drug use, and suicide. Basically anything you can do to yourself that doesn’t harm anyone else would be protected, but not everyone would agree with the types of rights I’ve listed.

Just cut and paste from the California Constitution:

Also, the phrases “due process” and “bear arms” and the terms “liberty” and “establishment” are vague, but it didn’t stop them from including them in the federal Constitution.

Yeah, and look at the mess that has caused.

I still don’t have a better solution yet, but I am working on it.

Kinda ruins the thread :mad:

Anyway, I highly doubt we’ll get any congressperson to propose amending the US Constitution to match the California one.

erislover gets it; the point of the thread is amending the COUS so that we don’t have to follow a logic trail.

Since nobody else wants to do it, I’ll amend my amendment to allow for warrants and wiretapping:

The right of citizens to privacy shall not be abridged, abrogated or restricted by any Act of Congress, any State, or county, city or otherwise defined municipality therein; except by warrant issued in a manner to be provided for by the Congress, requiring the careful review of no less than three (3) judges appointed per Article III of this Constitution.

Sorry, I was trying to help.

I know. It was a smiley-mad-smiley, not a mad-mad-smiley.

3 judge panel to issue a warrant? Why?

What would be the practical “command” that a privacy amendment would issue to judges? Would it command them to incorporate previously agreed-upon privacy rights into the new amendment (abortion, family relations, etc)? Would it establish a new framework for determining what a valid privacy right is, or would it solely be in the hands of the Supreme Court to define what the right is?

Aren’t warrants and, to some degree, wire-tappings covered under the fourth amendment? I don’t think adding a provision for that is really necessary.

I think the best way to go about this is to see what these things that privacy entail have in common. For instance, the list that Hamlet provided I think can be summed up pretty well by the idea that all those involved are adults and consent. For instance, homsexual relations, contraceptions, euthanasia, and some forms of recreational drug use (like marijuana use in a private residence) should all easily be able to be covered under some verbage like that. So perhaps something like this (borrowing verbage from some other amendments):

The right of the people to be secure in their private matters, shall not be violated; any act in which all persons involved are of legal age and consent willingly shall not be infringed.

I think that wording would allow for all the things I listed, but obviously allow some common sense regulation like using drugs in public or while driving.
Of course, this verbage doesn’t include things like parental rights and abortion (I say this because the obvious argument for why it isn’t covered is that the unborn child is not 18). I think anything involving those sorts of rights need to be worded very carefully otherwise you could end up allowing child abuse, child pornography, pedophilia, or any number of other things. No wording of which I’ve thought yet can allow reasonable parental rights without allowing unreasonable ones.

I would love to see some discussion of this proposal to help me finalize my opinion, but as it looks now, I like this. A lot.

Knowing some jurisdiction’s approaches to gun control:

“The legal age at which to engage in prostitution in this city shall be 100.”

This sounds nice, but what does it really add in terms of protections? There are already several privacy rights that the Constitution protects. It can’t be just a reminder of “Hey, we really mean it about all the other rights currently covered, don’t mess with them.” A Privacy Amendment has to be more substantial.