I don’t understand the need for a privacy amendment. Is there any better definition of privacy than being “secure in [your] persons, houses, papers, and effects, against unreasonable searches”?
Interestingly, I would think most people would object that this Amendment was too powerful, in that they couldn’t do stuff like prohibit individuals from manufacturing high-proof alcohol or drugs. Of course this could still be regulated at a state or local level, which after all may be the goal in the first place.
The thing I was responding to was Bricker pointing out that Roe v Wade is based on an implied right to privacy in the Constitution. Obviously, abortion isn’t an unreasonable search (and I don’t want this to be an abortion debate) - and there may be other points of privacy (like what happens between two consenting adults) that should be protected.
(And I’m only a social liberal - I drive my liberal friends crazy because I’m a fiscal conservative - these days that doesn’t bode well for the GOP though).
Ideally, there would be a body of discussion (ie. this thread!) for SCOTUS to use in interpreting the amendment, plus lots of body to the text (hence the need for everyone to help write it).
You have to make an exception for it, otherwise it could conceivably overrule it. For example, the 21st amendment overrules the 18th.
Well, I suppose that could easily be fixed by replacing “of legal age” with “at least 18 years of age”. The only reason I didn’t do that is, what happens if the voting age, and all other things get changed from 18 to 16. They now have to rewrite it and reapprove it. The intent is to use whatever legal language it takes to differentiate someone that is legally an adult from someone that is not. Perhaps someone with law training, like Bricker, might have a better idea for how to word it.
Personally, I’m looking at it more as an exercise, but I think there’s two reasons why it could be worth pursuing. First, it’s something set by legal precedent. It may take many years and many controversial decisions, but it’s possible that view could be changed. This amendment would ensure that that cannot happen. Second, there are some things that the clause you mention does not cover, that privacy entails or that this is intended to include. For instance, that clause does not cover prostitution or recreational drug use but those are things that the wording that I provided should allow.
Allow me to clarify, but it seems to my like the fourth amendment explicitly enumerates property rights, and it is from this that they imply a more general right to privacy. The intent of the wording I provided is to allow privacy in particular acts. That is, they won’t have the ability to prevent me from doing anything, provided I’m the only person it effects, or it only effects other adults who consent. I don’t see how my privacy in my actions has any effect on the search and seizure provisions already laid out in the fourth amendment.
Am I missing something in my wording? If I am, surely an exception can be made, or it can be reworded to fix the loophole.
In general, the Amendment is supposed to maintain some of the status quo. However, it’s also supposed to make things more consistent.
The inspiration for the idea came from several threads, but one was the Palin thread where we discussed Palin’s sort-of-argument for her position on abortion. She was talking about defending states’ rights (to ban abortion) rather myopically, which is pretty much the de facto argument for any initiative which fails at the federal level - civil rights for gays, legalization [of marjuana], abortion, repealing gun control, and so on.
Bricker rightly pointed out that we [liberals] do this all the time too.
Thus the goal of consistency: this amendment would, ideally (in my view), guarantee abortion rights, private drug use, render the Patriot Act toothless domestically- yay for liberals- but also protect gun owners - yay for classical liberals and conservatives.
Call it a quasi-libertarian initiative.
I haven’t thought it through all the way yet, and I imagine what we end up with will look little like what I originally envisioned- but that’s a good thing.
Maybe explicitly tie it to the voting age or possibly the age of consent for the jurisdiction, whatever that might be? so something like** “…any act in which all persons involved are of legal age, being the age at which said persons are entitled to vote in their relevant jurisdictions,…”**, only more legal-like
That would reduce the drinking age to 18. Is that something you want? I do.
My issue with this approach is two-fold. First, abortion is WAY too complicated too work into a constitutional amendment unless you are going for a complete ban or a complete legalization. If it’s the first, it would never pass because I think the majority of people either want it or think some provisions are reasonable. If it’s the latter, you could theoretically end up with the whole partial birth abortion thing all over again. How do you determine what level on something so specific should be set at without being arbitrary? If the people later change their minds, it’ll be very difficult change that arbitrary level. Even if all of that can be solved, how do you go about wording something like that? My best attempt was something along the lines of including “or the consent of the person’s legal guardian”, which would then necessarily cover abortion in all cases, but also legalize pedophilia, child pornography, and child abuse in some cases, all of which are things I’m pretty sure no one wants to legalize.
Second, gun rights are already well covered under the second amendment. This approach will provide something to the socially liberal, but it will not provide anything to the opposing viewpoint. I think the social conservative response would be “wait, so this amendment will legalize abortion, gay rights, recreational drug use, euthanasia–all things with which we oppose–but all we get is something we already have? That’s a raw deal!”
I’ve taken the libertarian approach, since that seemed to be the intent, though I did not read the thread that sparked this discussion and I was trying to include all of the things that I felt were relatively simple to cover and that I thought should be legalized.
And I hate to go back to the abortion issue, but besides it being complicated, I really don’t think it’s purely a privacy issue and adding it here adds the whole other side. I don’t want to hijack the thread by bringing in an abortion debate, so I’ll try to keep it simple. Abortion propents think abortion is a right to privacy issue, opponents think abortion is a right to life issue. The way I see it, the opponents are not arguing that women don’t have the right to privacy, they’re arguing a completely different right. As such, you’re now muddling a fairly simple concept with all this other baggage.
My personal views on abortion aside, I think any amendment addressing either the legalization or prohibition of abortion really should be made a completely separate amendment. However, I do think that such an amendment would be made easier to discuss and implement in light of this proposed amendment.
They are? I think you’ll find most conservatives think the Second Amendment has done little (or at least not enough) to protect the rights of gun owners. The problem is all the “a well equipped(?) militia” stuff- we lefties tend to gloss over the 2A by saying, “well, you’re not in a militia, this Amendment is an anachronism, and we’re restricting your guns.”
I don’t want to hijack this into a gun rights debate either, but IME the whole “what does the second amendment really mean?” debate has seemed to have been over for a while, and that it means the citizens do have the right to bear arms. AFAICT, the debate now is more or less about what constitutes reasonable restrictions for private gun ownership.
Further, even as someone who is strongly in favor of gun rights, I don’t really see gun ownership so much as a privacy rights issue as much as a property rights issue. Although, there are some privacy issues related to guns that could be considered, particularly CCWs, gun registries, etc. But, again, that’s a whole new can of worms and I’d have to give it some consideration to see how exactly it works with the other set of rights.
The right to privacy…to do what? Is anything we conduct in privacy protected? I suspect no one would argue that. You couldn’t murder your cousin Ralph and dispose of his remains in your Cuisinart with impunity by virtue of drawing your blinds.
The right to conduct matters in private that do not violate another’s rights? That right already exists. Who can legally interfere with such a right? Should we expand it to be the right to be unmolested in the practice of “private matters,” unless the government through due process provides satisfactory evidence that a law has been broken? Again, that is our current circumstance.
The abortion argument (or any other, for that matter) that rests on the right to privacy is circular. If abortion is an acceptable practice–something completely personal, no consequences to another person–it doesn’t need to be categorized as a “private matter” to be protected. Conversely, if it is not, calling it a private matter doesn’t somehow render it acceptable. Abortion is acceptable, or it is not. Whether or not it is a private matter doesn’t change that.
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.
Remove everything up to the semi-colon. Have you changed the essence of what this legalizes? What remains may well be axiomatic, but what has it to do with privacy? Ignoring public decency laws and such things, how would this modified amendment protect something you conduct behind closed doors but not something executed on your front porch?
What about rights of minors period? Does this not imply that a minor does NOT have the right to “be secure in their private matters” with regard to the government?
Lots of things are acceptable but not protected. Pornography is “acceptable” but not protected.
Drinking is a acceptable, yet the government (technically, the state legislatures, but via federal strongarming) restricts it.
I read somewhere (I don’t remember where, sorry) that both Roberts and Alito, in their confirmation hearings, said they thought that the Constitution already protected privacy.
If so, and if their views are shared by many, it may be that a lot of the folks who matter may think that explicitness is just not necessary.
Yes, but what Justices say to Congress and what they actually believe are not necessarily the same thing. Besides, their conception of privacy and whatever we decide constitutes privacy are almost certainly not the same thing.
Not getting your point. I clarified “acceptable” in my post: something completely personal, no consequences to another person. Replace the word “acceptable” with “deserving of legal protection,” or “reflective of a real right,” if it makes it clearer, then re-read my post.
That’s the thing- the courts have not always held that just because something is totally personal and has no consequences to another individual. Ergo, whether or not this should already be construed as a right, it isn’t always.