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Friday, November 04, 2005

Needed? An Explicit "Right to Privacy" Amendment?

Despite Amendment VI,  which I think covers it,  I'd vote for it...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



The Right to Privacy—Stick It In!

Posted by DAN SAVAGE at 12:59 PM | permalink | read/post comments

Estelle Griswold is a name that anyone who cares about women's rights, access to birth control, freedom of expression (read: looking at porn in your own home), and gay rights should familiarize themselves with. In a decision in 1965, the Supreme Court overturned Estelle's conviction on charges that she—horrors!—made birth control available to married couples. At the time Connecticut—Connecticut!—had a law agin' that sort of nonsense, as the state believed it was its job to discourage straight people from havng recreational sex. (Believe it or not, the having of recreational sex used to be a controversial topic. Sex, as many believed and few practiced, was strictly for procreation.)

The Supreme Court struck down that idiotic law, stating that it violated the "right to privacy." Much flows from Griswold, including 2003's Lawrence v. Texas, which found that even homos had a right to privacy, and that consensual, private homosexual sex can't be criminalized. (That was the end of sodomy laws in the U.S.) You can read all about Griswold here.

Problematically, a right to privacy is not explicitly mentioned anywhere in the U.S. Constitution. The majority argued that the right was among the "unenumerated" rights implied by something called the "penumbrus," which sounds like something that a sodomy law would prevent you from touching with your tongue.

Here we are, decades after Griswold, and social conservatives and liberals are constantly arguing about whether or not the right to privacy, which is a popular right (naturally enough), and one to which most Americans believe they're entitled, is actually a right to which Americans are entitled, constitutionally-speaking. Liberals love it because the RTP underpins our constitutional right to have access to birth control, abortion services, gay sex, porn. Social conservatives hate it for that very reason.

The debate raged when John Roberts was being confirmed (read about here, here, here, and here), and it is raging again as Sam Alito's nomination to the Supreme Court makes its way through the Senate (you can read all about it here, here, and here). Is the RTP in there? Or isn't it?

I find myself wondering why we don't just put it in there? If the Republicans can propose a constitutional amendment banning gay marriage, can't the Dems propose a "Right to Privacy" amendment? Since the RTP is popular (unlike the anti-gay marriage amendment), the Dems should put it out there and let the Republicans run around the country explainging why they're against a right to privacy—not a winning position. Then, once it passes, we'll be spared the debate over whether or not the RTP is in there every time a conservative is nominated to the Supreme Court.

The Right to Privacy Amendment—c'mon, Harry Reid, Barbara Boxer, Ted Kennedy, Patty Murray, Barak Obama! Propose it!