We need a Privacy Amendment...and we need it now!

[thatcrazycajun]

Conservatives are fond of reminding us all that the Constitution of the United States, in its actual text, contains no reference whatsoever to any right of citizens to privacy. Usually these reminders are given in an attempt to justify the USA Patriot Act's extension, overturning Roe v. Wade, snooping on our library book checkouts and video rentals, tapping our phones or some other right-wing-desired infringement on personal liberty.

Since there seem to be movements afoot these days for amending the country's founding blueprint to promote just about every other cause under the sun -- prohibitions of abortion and same-sex marriage, gun owners' absolute freedom to arm themselves, protection of property owners from seizure of their lands by government, etc. -- why not rectify this glaring omission on the part of our Founding Fathers once and for all? Let's enact a Privacy Amendment to the Constitution.

This 28th Amendment's language would have to be wrangled out by better constitutional scholars than I, but the basic text might be something like this: "The right of all law-abiding citizens of the United States to complete privacy in their persons, homes, businesses, property and affairs shall not be infringed in any way by any office or agency of the Government of the United States, or of any of its constituent State or local governments, except where true and just need for such infringement shall be demonstrated by said office or agency before a court of law."

With a Privacy Amendment passed by Congress and ratified by three-fourths of the states, Roe v. Wade, Lawrence v. Texas and other precedents based on the right to privacy could no longer be challenged on the basis of the Constitution's lack of same. Citizens whose privacy has been unjustly invaded by government would have a sounder basis on which to protest and challenge the violations in court, as would law enforcement to prosecute officials who commit them. And maybe, just maybe, law-and-order-minded legislators, regulators, judges and activists whose zeal gets a tad out of hand might think twice before jeopardizing the civil liberties of us all for the sake of nailing the criminal few.

Write, call, fax or e-mail your Senators and Representative now to demand that they introduce a bill proposing a Privacy Amendment, and the White House to demand that President Bush sign it and send it to the states for ratification. And conservatives who claim to be motivated by principled desire to get government out of people’s private lives should get firmly behind it. Two and a quarter centuries without a real, Constitutionally protected right to privacy is too long.

Comments

[madfilkentist]

A fine idea, even if one that has little hope of passing.

Some thoughts, by way of debugging the text: Would this amendment mean that all exceptions to people's privacy would require demonstrating necessity before a court of law? In particular, would this apply to legislation passed by Congress before it could be enacted in law? Would it apply retroactively to existing laws, such as the income tax laws? And what court of law would have jurisdiction? Only the Supreme Court, or could lower courts give their approval to federal legislation?

In its current form, your proposal may be more radical than you intended it to be. (Which means that I might like it, but as for getting it actually enacted...) Some batting around of the specific wording might be helpful, if only as an intellectual exercise.

[redaxe.livejournal.com]

You will want to delete "law-abiding", not because I think it's a bad idea, but because (1) it violates the principle of "innocent until proved guilty" (as well as the spirit of this amendment itself) and (2) because the final clause copes quite nicely with it. If there is some cause to violate privacy, said reason will likely have to do with some violation of law.

An excellent idea, though I can't see how it could possibly be passed either in the current regime, which is the most privacy-violating since the demise of the USSR, or in the current political climate of the country, in which over 40% of folks would STILL vote to put the criminals back into office.

[redaxe.livejournal.com]

Oh, yeah. Gratuitous icon post, because I forgot to use it on the above comment :-)

[sdorn.livejournal.com]

One factual correction (apart from agreeing with madfilkentist about the need to bat around specific language): presidents have no control over the process of amending the constitution.

[cellio]

Good idea!

[tnatj.livejournal.com]

Sorry, but I don't see where this gets you anything more than a combination of the Fourth and Fourteenth Amendment. And perhaps quite a bit less.

It's vacuous for two reasons. First, the fact is very few citizens of the United States are 100% law-abiding, so the proposed amendment would apply to almost no one. Second, "except where true and just need for such infringement shall be demonstrated by said office or agency before a court of law" is loophole big enough that a legal Mack truck could drive through it. Who defines "true and just need" — well "a court of law" and we're right back to judges deciding what rights under the proposed amendment folks really have. And that's no different than what we have now, and perhaps worse.

Why worse? It's always possible that the courts might construe that the proposed amendment works to limit the Ninth Amendment, and actually reduce the unenumerated rights of individuals that the courts have recognized. And further, the clause "except where true and just need for such infringement shall be demonstrated by said office or agency before a court of law" may actually be used to reduce one's existing common-law rights under the Fourth Amendment and other portions of the Constitution!

Rather, one should say what one means, for example:

Section 1: Neither Congress nor the Legislature of any State shall make any law to disparage or restrict the right of a woman to terminate her pregnancy before the second trimester. Neither Congress nor the Legislature of any State shall make any law requiring a woman to terminate her pregnancy. Neither Congress nor the Legislature of any State shall make it unlawful to use any necessary and proper means for the lawful termination of pregnancy. Any law regulating the termination of a woman's pregnancy in and after the second trimester shall specify the interest and justification of the State in enforcing such regulation, so they may be taken in equity with the rights of the woman pursuant to existing precedence.

Section 2: Neither Congress nor the Legislature of any State shall make any law to disparage the right of any two natural persons of a minimum age set by law to partner in a contract of Civil Union. The institution of Marriage is hereby declared a free exercise of religion, and as such shall not be sanctified by the United States or by any State. Every Marriage or civil union existing at the time of the adoption of this amendment henceforth shall be deemed a contract of Civil Union for the purpose of this section. All laws of the United States and the several States concerning Marriage shall continue to be enforced and applied to contracts of Civil Union, subject to the restrictions of this section.

Section 3: ... etc. ...

Section N: Nothing in this article shall be construed to deny or disparage any other right of the person, whether enumerated or not enumerated in this constitution. Note: this would include, among other things, the Fourth Amendment, the Ninth Amendment, the Fourteenth Amendment, and clauses prohibiting ex post facto laws and bills of attainder.

Section N+1: Congress shall enforce the provisions of this article by appropriate legislation.

Section N+2: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

There are other things that could be added; but this is the sort of thing you would have to actually do to make a really meaningful amendment to the Constitution.

[billroper]

I'd think that our privacy rights are in greater danger from non-government than from government sources. I see nothing in the amendment text that would deal with that at all.

Your abortion section would fail to pass because it would be roundly condemned by both sides in the abortion debate. It might actually represent the majority opinion in the country, but they aren't going to pass any amendments.

My personal opinion is that legislating civil unions as distinct from traditional marriage would be a good idea because I want to avoid having the entire body of marriage law applied to civil unions with a single stroke of a pen. However, I think that civil unions should be available to same-sex and mixed-sex couples.

And I think that this amendment looks a lot like legislation and not something that we critically need in our Constitution.

[tnatj.livejournal.com]

I'd think that our privacy rights are in greater danger from non-government than from government sources. I see nothing in the amendment text that would deal with that at all.

I entirely agree. Both the customer/vendor relationship and the employee/employer relationship are two of the most critical points of contact wrt privacy rights, or lack thereof.

Your abortion section would fail to pass because it would be roundly condemned by both sides in the abortion debate. It might actually represent the majority opinion in the country, but they aren't going to pass any amendments.

With the tenor of the times being as they are, you are very likely correct. Oddly, though, this is pretty close to the law of the land today. My point was to write something that that makes explicit roughly what is current-day case-law.

I won't comment on Civil Unions vs. Marriage; because I'm not 100% clear on the practical difference between the two in law. Certainly not in every state where the two exist.

And I think that this amendment looks a lot like legislation and not something that we critically need in our Constitution.

I agree. There's nothing in what I wrote that couldn't be legislated by Congress or construed by the Supreme Court from the existing Constitution. Indeed, a good deal of it has.

But, unless you do it explicitly, any vague amendment, with glittering generalities such as the one originally proposed, is redundant. And in a worst-case scenario, such an amendment may mean less than nothing, in the way and for the reasons I mentioned.

My continuing point is that there is an enormous amount of Constitutional case-law, interpretation and tradition sitting out there: If it were all incorporated (even as succinctly as possible) into the text of the Constitution, the poor document would swell up to the size of a large book, if not an encyclopaedia.

[madfilkentist]

This would hardly be the same thing. The federal government gathers information on us in a huge number of ways; in some cases (as with Section 215 of the Patriot Act) requiring those providing the information to keep silent. This isn't just about abortion, or just about marriage, or just about libraries. The Bill of Rights establishes broad principles; I don't see any more danger to the Ninth Amendment than we already face from naming one more such broad principle.

One could get down to specific cases like "Congress shall place no hidden cameras in bathrooms," etc. That would be a bad idea because specific circumstances change over the years, and because the more specific the language, the more reasonable it is for the courts to assume that only those exact cases and nothing else are protected. That's why I see a greater danger to Ninth Amendment protections from highly specific language than from language establishing broad principles.

But we're in agreement that letting courts establish exceptions is a bad idea. It would effectively permit any intrusion on privacy that was authorized by a judge.