I would support such an amendment, theoretically at least. Tough line to draw in some instances as to what truly affects someone else.
And perhaps this is a semantical nitpick, but that’s not a right to privacy. It protects anything you might do on Main Street as well. “The right to privacy,” ISTM, is one of those nebulous truisms. Using abortion as the obvious example again, I’d posit that there is a right to an abortion (or not) based on whether or not that act violates another’s greater right. If it does, the fact that some consider this a private matter, no one’s business but a woman and her doctor, does not transform it into something that ought to be protected. If it violates no one else’s rights, it should be protected (in my view) whether or not someone shouts about it from the rooftops or has the abortion performed in the public square.
True enough. And if we include acts that potentially offend another’s sensibilities in this category, however quietly that might occur, we have effectively rendered the amendment meaningless.
Because privacy is such a broad and kind of vague concept, any constitutional amendment is going to have to allow for judicial interpretation of the right (I think).
If we can assume that the courts will faithfully apply the standards and mores of the people to the definition, do we allow the courts broad authority to define the right, or do we narrow it down? Do we want a broad, malleable amendment, or a more limited amendment that strictly defines what we want to protect?
My opinion is that a broad definition would not work, so we need a more narrow definition. That may necessitate multiple amendments (an abortion amendment, a suicide amendment, etc.).
I realize I’ve been awfully questioning while not providing any suggestions myself.
My point is that you can’t just start throwing language out there willy-nilly. A constitutional amendment is an important thing. You need to have a purpose beforehand. If you can’t define the purpose, you have no business drafting the amendment.
A lot of criticism has been levied against the Fourteenth Amendment, but I sympathize with the drafters. It was a complex issue they were trying to address. Whether or not they could have foreseen the wacky interpretations applied to this amendment 100 years later is another question. But, at the very least they had a clear idea of what the problem was they were trying to solve. I thought they did the best they could, given the circumstances.
I don’t think an abortion amendment is necessary at all. Between RvW and our hypothetical amendment, abortion is a sealed deal.
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I think the amendment, as stated, is a good start. Allow me to quibble:
I am a bit less than enamored of the second half. Let us ask ourselves what it adds to the first; in what cases is law discriminating in age wrt privacy? That is, in what cases does the federal government exert more intrusion on people because of their youth? I’m unsure of anything specific. Can you explain why you added this bit, Blaster Master?
As to the first part, let’s take a look at the Fourth Amendment:
What does your suggestion add to the Fourth Amendment? In a thread about privacy, it seems to be an amendment promoting the legality, at a federal level, of what we currently understand to be victimless crimes. What is important to recognize here is that the Supreme Court has upheld the notion that the Fourth Amendment doesn’t protect illegal activity. That is, you cannot privately murder someone, or privately do drugs, or proclaim that a drug sniffing dog violated the Fourth Amendment (the last of which I am sorely upset about, as I consider it a completely ridiculous interpretation of the Fourth Amendment). Thus it must be made clear what privacy means. In your case, it seems, it means “the right to do what I want with others who want the same.” I am not sure this is a good definition, even if I think this should be the case.
That is to say, making sodomy illegal is not an intrusion of privacy to me. Do I think the government has any business where I put it? --Generally, no. And if the government decided that fighting sodomy meant installing cameras in every bedroom, then I’d agree this is an invasion of privacy. But to what extent is the law itself an invasion of privacy? The mere fact of an act being illegal may be intrusive in some sense (perhaps in that it increases my stress), but not in the sense of invading privacy.
Can you clarify the link you see between illegality of an act and privacy?
Is it? I don’t believe it is. That’s why when someone like a Judge Bork steps up and criticizes RvW, and all the pro-choice people freak out, I don’t understand it. If you’re pro-choice (as I am), and you want to make sure this right persists, you should demand a more logical and comprehensive analysis of the legal foundation for it. RvW is too vulnerable as a decision. A conservative court could easily rule “RvW is overturned because our decision had no foundation in the Constitution”, and their decision would be legally defensible.
I think you suppose the Supreme Court to be more fickle than it is, but I must plainly admit I do not have some list handy of cases where the Supreme Court effectively overruled itself by establishing a new precident where one it had already established existed, so perhaps the Court is more fickle than I suppose it is.
To me, this is the most difficult aspect of such an amendment. For example, my personal feeling is that personal drug use should be completely legal. Not all Americans agree with me. In my perfect world, a privacy amendment would override many drug laws. Others will disagree. So the issue becomes one of defining what legal privacy is.
If you can come up with such a definition, a privacy amendment can be vague. If you cannot, a privacy amendment must specifically enumerate protected rights.
State and federal courts are not afraid to do this. SCOTUS may be more conservative in this respect, but pack the Court with a majority, and I think their apprehension quickly disappears.
Plus, it’s not fickle to override a decision that has a weak legal foundation.
Believe me, there’s plenty of other “boring” legal stuff that SCOTUS has corrected themselves on. That might not mean anything to the average American, but it means something to somebody.
That’s because Plessy/Brown are pillars of American jurisprudence, civics and history, and Lawrence was quite recent- but there are plenty more. According to the GPO, SCOTUS has overruled itself 204 times. IIRC, the court rules on about 100 cases a year nowadays; I suspect that the court has heard over 10,000 in its history.
I think one of the strengths about our Constitution is the way rights are defined as general and vague, leaving the definition up to posterity, society and the courts. This works for everyone except a Scalia.
The Second Amendment doesn’t specify which pistols, rifles, and bombs are included. Freedom of the Press doesn’t define what the press is. Imagine if it did, and along comes a new technology that is not included (like blogging). You’d have to amend the amendment, and in a few years, do it again.
What’s “cruel and unusual punishment”? 1700’s definitions would allow for harsher terms than 2000’s.
We can probably agree on the general rights – who’s NOT for privacy or freedom of speech? But we will have a knock-down, drag-out argument over just what those are if we have to make a detailed list. The OP’s a pretty good start.
So I think it’s best to write the philosophy into the Constitution and let time and the courts work out the details.
But here, for me, it’s more than "too vague’; it’s meaningless. Does anyone propose that anything conducted in private should be legal? No sane person would. And if we all agree that is NOT the case, than categorizing something as “private” doesn’t assign it some sort of magic protection.
So, then, what does it mean? Are we trying to protect victimless “crimes”? If so, we’re protecting them for the fact that there’s no victim, ISTM, not because they’re private matters.
There is nothing inherent about the fact that a matter might be considered “private” that makes it right or wrong. Some private matters deserve protection. Some don’t. If that’s the case–and how could it not be?–then there is no broad “right to privacy” that somehow legitimizes an action regardless of any other variable.
