Write a US Constitutional Amendment - The Right to Privacy

Here's a weekend project for you: Write a Constitutional Amendment.

Can I Get a Little Privacy?
By DAN SAVAGE
Published: November 16, 2005

WILL Estelle Griswold ever be able to rest in peace? Although she died in 1981, the poor woman gets kicked up and down the block whenever someone is nominated to a seat on the United States Supreme Court. But few people remember who Griswold was or what she did.

In 1961, Griswold, the executive director of the Planned Parenthood League of Connecticut, opened a birth-control clinic in New Haven. She was promptly arrested for dispensing contraceptives to a married couple and was eventually convicted and fined $100. She appealed, and when her case reached the Supreme Court in 1965, seven of nine justices voted to overturn the conviction, striking down Connecticut's law against selling birth control (effectively overturning similar laws in other states). Americans, the court ruled, had a fundamental right to privacy.

Much of American jurisprudence since then flows from Griswold - including Roe v. Wade, which found that women had a right to abortion, and Lawrence v. Texas of 2003, which found that the right to privacy prevents the government from banning sodomy, gay and straight.

Problematically, however, a right to privacy is not explicitly mentioned in the Constitution. The majority in Griswold held that it was among the unenumerated rights implied by the Constitution's "penumbras" (which sound like something a sodomy law might keep you away from). The Griswold case didn't settle the matter, and the right to privacy quickly became the Tinkerbell of constitutional rights: clap your hands if you believe.

Liberals clap. We love the right to privacy because we believe adults should have access to birth control, abortion services and pornography as well as the right to engage in gay sex. Social conservatives hate the right to privacy for the very same reason, as they seek to regulate private behaviors from access to birth control to masturbation. (Think I'm kidding about masturbation? In Justice Antonin Scalia's dissent in Lawrence v. Texas, he wrote that the majority's decision called into question the legality of state laws against "masturbation, adultery, fornication.")

And now, with three Supreme Court nominees in three months, the issue is again on the front burner. In the 1980's, Chief Justice John Roberts was a Reagan administration aide who wrote a memo questioning the "so-called" right to privacy. During his confirmation hearings the press-release brigade at People for the American Way warned that these documents suggested that he believed that the Constitution did not guarantee a right to privacy.

In his hearings, when asked if he could a locate a right to privacy in the Constitution, Judge Roberts said that he could - but he was vague about what it actually covered. Heterosexual married couples have a right to use birth control, he conceded, but that was about as far as he was willing to go.

During her brief but thoroughly entertaining tenure as a Supreme Court nominee, Harriet Miers bumbled into a "he said, she said" dispute with the Senate Judiciary Committee chairman, Arlen Specter. According to Senator Specter, Ms. Miers told him in a private meeting that the Griswold case was "rightly decided." The White House, however, denied that Ms. Miers had said any such thing, and later she said that Senator Specter had misunderstood her.

Now it is Samuel Alito's turn. Senator Specter says he believes the nominee accepts the idea of a constitutional right to privacy. But we can still count on Judge Alito to be grilled about Griswold during his confirmation hearings next month. Does he believe in a right to privacy or not? Can he locate it in the Constitution or not?

Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don't we just stick it in there? Wouldn't that make it easier to find?

If the Republicans can propose a constitutional amendment banning gay marriage, why can't the Democrats propose a right to privacy amendment? Making this implicit right explicit would forever end the debate about whether there is a right to privacy. And the debate over the bill would force Republicans who opposed it to explain why they don't think Americans deserve a right to privacy - which would alienate not only moderates, but also those libertarian, small-government conservatives who survive only in isolated pockets on the Eastern Seaboard and the American West.

Of course, passing a right to privacy amendment wouldn't end the debate over abortion - that argument would shift to the question of whether abortion fell under the amendment. But given the precedent of Roe, abortion rights would be on firmer ground than they are now.

So, come on, Democrats, go on the offensive - start working on a bill. Not only would enshrining the right to privacy in the Constitution secure a right that most Americans rightly believe they are already entitled to, it would also allow Estelle Griswold to finally rest in peace.

Dan Savage is the editor of The Stranger, a Seattle newsweekly.