Wednesday, November 16, 2005

Dan Savage on the Privacy Amendment to the Constitution

This is pie-in-the-sky stuff in the current faith-based America, but Savage has some interesting things to say about the right to privacy:

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.

Savage makes an important point here: Roe was decided on the precedent of Griswold, and if Roe goes Griswold might go, too. Then we would be back in a world where contraceptives are smuggled in plain brown wrappers past the curious and angry faces of wingnuts.

Savage's solution is to go for a constitutional privacy amendment. Sort of like the wingnuts and their constitutional ban on same-sex marriage:

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.

My personal opinion on the proper basis of abortion rights is that they should have been based on arguments about equality, not privacy. But what is done is done. It would be fun to start a move for the privacy amendment, though.