Our Right to Privacy
The conservatives pushing for Sam Alito's nomination to the Supreme Court are forever carping about whether various human rights are actually 'in' the constitution, or whether they are part of the founders original vision of the constitution. The "originalists" would have us believe that we should live by the limits of the social imagination of 18th century minds. Of course were we to really do that we should still have slavery, women would not vote, and sex with out procreation would be illegal. Clearly we need the 'amendments' to the constitution to over come the limitations of the original authors, and to keep our constitution relevant to the modern world.
A principle technique of strict constitutionalists is to argue the a certain human right, like the 'right to privacy' is technically "not found" in the constitution; as if this was sufficient 'logic' to make us all just get over it. Advocates of 'human rights' often find themselves arguing from the contorted first appearance of a specific "right" in the cases brought before the court. Often, the case is morally correct, but legally convoluted, and the "right" stands on a contorted foundation of precedent. The originalists love to attack the technical aspects of various human rights on just this basis. "You may be right but it's just not in the constitution, sorry."
The left loves the 'right to privacy' because it underpins our right to have access to birth control, abortion services, gay sex, porn. Strict conservatives hate the 'right to privacy' for precisely this reason. But, regardless of their stand on these particular issues, the majority of voters think that their right to privacy is fundamental; they naively suppose that this 'right' is similar to their right to "life, liberty, and the pursuit of happiness."
Here's a novel idea - let's put 'the right to privacy' in the constitution explicitly. To block this action, the conservative right will have to argue that we don't deserve such a right, and they will look like fools. Let's have a national debate about this. Let's argue the issue on its merits; not its technical relation to the limited reasoning of 18th century white, male, land holding, rich guys who were preoccupied with their relation to a distant British king. Let's see what a contemporary American electorate thinks about our 'right to privacy', and then let's make it a proper amendment to the Bill of Rights.
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, and it is raging again as Sam Alito's nomination to the Supreme Court makes its way through the Senate. 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 explaining 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.
Originally posted by Dan Savage on the stranger.com
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