A privacy amendment

Conservatives like to pretend that there is no general "right to privacy" because those words don't appear in the Constitution.

So maybe it's time for the American public -- which does believe it has such a right -- to end the discussion once and for all and put them in.

Dan Savage (via Sasha) suggested the other day that progressives put together their own campaign for a constitutional amendment establishing, once and for all, a general right to privacy.

This actually was an idea I proposed to folks in Salon's Table Talk some years back, but no one else seemed to want to latch onto it. So I've had to satisfy myself with arguing, ardently, for Democrats and progressives to drop all this talk about a "right to choose" and start talking about a "right to privacy," because that is what is really at stake with the ascendancy of so-called "strict constructionists" to the federal bench under the Bush regime. I've made that argument here again and again and again and again.

Fortunately, during the recent Senate hearings on John Roberts' appointment to the Supreme Court, the right to privacy indeed came rushing to the fore as a significant point. Rather predicatbly, right-wing propagandists like Rich Lowry weighed in pre-emptively on Roberts' behalf, arguing that because the Constitution doesn't explicitly list a general right to privacy, it doesn't exist:

There are privacy rights in the Constitution. The Fourth Amendment, for example, prohibits unreasonable searches and seizures. The entire constitutional scheme is meant to limit government power and leave people alone most of the time. But there is not a generalized, abstract right to privacy unhinged from any constitutional text.

The mischief began 40 years ago in the case Griswold v. Connecticut, when the Court struck down a prohibition on contraceptives on the basis of a "right to marital privacy." The bit about "marital" was quickly dropped, and the new discovery became a general right to privacy.

In Griswold, the Court suggested the right might be found in the First, Third, Fourth, Fifth and/or Ninth Amendments. In other words, it must be there somewhere, anywhere. But since the right to privacy is nowhere mentioned, the Court had to contend that it resides in "penumbras formed by emanations." In layman's terms, that means in partial shadows formed by emissions, which it doesn't take a constitutional scholar to conclude sounds pretty vaporous.

"'Privacy' [has] functioned as a euphemism for immunity from those public-morals laws deemed by the justices to reflect benighted moral views," write scholars Robert P. George and David L. Tubbs. From a right for married couples to obtain contraceptives, it has evolved into a constitutional right of homosexuals to engage in sodomy (in the case of Lawrence v. Texas in 2003) and then the right of gays to marry, in a 2003 Massachusetts-supreme-court decision.

But Roberts didn't make this argument -- after all, it was precisely this position that had destroyed the nomination of Robert Bork back in 1987. Roberts had to expound quite bit on "the so-called right to privacy" (as he once put it), but gave answers that, on the surface, seemed to suggest he agreed with the existence of such a general right.

However, as William Saletan at Slate pointed out, his answers actually were slick evasions that paved the way for him to overturn Roe v. Wade on the basis of the limitations to such privacy rights:

Roberts was asked to locate the right to privacy in the Constitution. He quoted parts of the Bill of Rights pertaining to military occupations and invasions of citizens' homes. Does the right to privacy extend beyond those contexts? Roberts offered one addition: "I agree with the Griswold court's conclusion that marital privacy extends to contraception." Sen. Dianne Feinstein, D-Calif., pressed him about the extension of contraceptive rights to unmarried people. "I don't have any quarrel with that conclusion," he allowed. What about Lawrence v. Texas, the 2003 case that interpreted Griswold to bar prosecution of private sex between consenting adults? Roberts ducked the question, citing "the difference between the issue that was presented in Griswold and its ramifications." In other words, any claim of privacy beyond the specific "issue" in Griswold—the right to marital contraception—is a "ramification" Roberts might reconsider.

Sen. Arlen Specter, R-Pa., asked Roberts whether the right to abortion "is so embedded that it's become a part of our national culture." Roberts demurred, explaining, "That gets to the application of the principles in a particular case." Feinstein asked Roberts whether the "right of privacy applies to the beginning of life and the end of life." Roberts begged off again, arguing, "The exact scope of it, with respect to the beginning of life and the end of life—those are issues that are coming before the court." Feinstein asked Roberts about his pro-privacy remarks to Sen. Ron Wyden, D-Ore. Roberts affirmed the "right to be left alone" as "a general statement of the principle." But he cautioned, "With regard to particular restrictions [Wyden] was talking about ... I don't think it's appropriate to comment on."

You get the picture. Privacy is a principle so general that its assertion against any "particular restriction" unspecified in the Constitution, aside from a ban on married people using birth control, is a mere "ramification" or "application" open to review. By refusing to define privacy's "scope," Roberts eviscerates it.

Save the Court has more:

By saying that he believes in a constitutional right to privacy the way every member of the Court does, Roberts is essentially saying that he would provide virtually no real protection for the right to privacy. Every member of the Court, of course, includes Justices Antonin Scalia and Clarence Thomas. According to their view, any right to privacy does not encompass a woman's right to reproductive choice, and both have argued that Roe v. Wade should be overruled. According to their view, any right to privacy apparently does not include the right of consenting adults to be free from criminal prosecution for what they do in the privacy of their own bedrooms, as reflected in their dissents in Lawrence v. Texas. And according to Scalia's view, the right of privacy does not give even a fully competent adult the right to refuse unwanted medical treatment, as reflected in Scalia's opinion in Cruzan v. Missouri Dept. of Health.

Now, the subject continues to linger with the nomination of Samuel Alito to the court, likewise virtually assured to be a vote to overturn Roe:

Alito wants government to be able to interfere in personal decisions on reproductive rights. In Casey, Alito stated that he would have upheld a provision of Pennsylvania's restrictive anti-abortion law requiring a woman in certain circumstances to notify her husband before obtaining an abortion. His colleagues on the Third Circuit and the Supreme Court majority disagreed and overturned the provision.

But like Roberts, Alito is adopting the phony "I do believe in privacy rights" stance adopted by Roberts. And it appears to be working:

Senator Richard Durbin, an Illinois Democrat, said Alito told him in their meeting that he recognized a right to privacy, the principle that underlies the Supreme Court's abortion rights rulings. "I think he believes in that fundamental right," Durbin told reporters in Washington.

Volokh Conspiracy explores quite a bit more of Alito's real positions WRT privacy rights. As one commenter notes:

What exactly does he mean by "right to privacy"? The problem with that right (apart from the question of whether it's in the constitution) is that it's definitionally nebulous--it could mean a great deal or could mean next to nothing, depending on how one construes "privacy." If the right to privacy does not preclude spousal notification for abortions, then it's essentially a defense against state intervention, not a defense of personal sovereignty, which is a very important philosophical distinction.

Another commenter immediately observes:

Yep, pretty nebulous, sorta like "due process" or "privileges and immunities", "unreasonable search", "free exercise" or any of those unenumerated rights lurking in the 9th Amendment (maybe privacy is even one of those rights). One can certainly argue that there is no general right of privacy from government intrusion in the Constitution because the Constitution does not explictly provide for such a right but if "definitionally nebulous" made recognizing the right problematic (or the extent of the right), then that same objection could be applied to any number of rights in the Constitution.

Indeed, the right to privacy is generally recognized as one of those unenumerated rights inherent in the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And as Jeralyn at TalkLeft noted back in 2002, the Ninth Amendment rights widely recognized by jurists over the years have included not just the right to privacy but also the right to self-defense, which in my mind provides a more powerful bulwark in defense of private gun ownership than does the Second Amendment.

Yet, strangely enough, we don't see conservatives arguing that there is no "right to self-defense" ... even though those words appear nowhere in the Constitution.

As those wild-eyed leftists at USA Today point out:

In fact, the right to privacy is older than the republic, protected in the Constitution and affirmed repeatedly in a century of court rulings before the abortion controversy. Though the word privacy isn't in the Constitution, the "right to be let alone," as Justice Louis Brandeis put it, permeates the document.

What are freedom of religion, freedom of speech and freedom from unlawful searches and the like other than respect for privacy? Leading Founders urged adoption of the Constitution as necessary to protect "private rights." And the Ninth Amendment was added to assure that other rights already taken for granted were "retained by the people."

Starting in the 19th century, the Supreme Court ruled that the Constitution protects the privacy of the mail and that individuals have a right to refuse medical treatment.

Thus it was no stretch when, in 1965, the court overturned a Connecticut law banning birth control. Surely, the court ruled, the right of privacy prohibited police searches of "the sacred precincts of marital bedrooms." That decision, Griswold v. Connecticut, was the foundation for Roe.

To the anguish of those who want government in the bedroom and other personal places, privacy rights now protect unmarried and same-sex couples and individuals.

I think it's pretty clear that the coming Supreme Court lineup -- and particularly the Robert court -- is going to bring an end to Americans' general right to privacy.

Progressives would be smart to begin preparing against that eventuality now. As Sasha notes, it will be fun watching conservatives tie themselves up in knots explaining to Americans why they don't have a general right to privacy. But even more important, it is the kind of campaign around which a positive, forward-thinking progressive agenda can gain traction.