The Right To Privacy And Practical Limitations
By Stephen M. Lilienthal (09/21/06)
Syndicated columnist Dan Savage, known for his salacious columns discussing sex, is an advocate of a Constitutional amendment right-to-privacy amendment. "If the Republicans can propose a constitutional amendment banning gay marriage, why can't the Democrats propose a right to privacy amendment?," asked Savage in a NEW YORK TIMES commentary, "Can I Get a Little Privacy," published last year. Indeed, one need not be a Democrat to consider such an idea worth embracing. With that said, conservatives beware.
Savage’s primary concern, as expressed in his commentary, is not with protecting Americans from identity thieves, fast- buck data brokerage firms or National Security Agency wiretapping without approval by a court or subject to oversight by Congress. Savage wrote, ‘’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… ” (Savage’s last sentence is not accurate. Conservatives, with greater concern for the community fabric than sheer individualism, do have a desire for protecting our time-honored liberties. Their view of privacy, therefore, is far more restrained than that which Savage clearly prefers.) Savage delights in the thought that the debate over a privacy amendment would split the conservative-libertarian coalition.
There is some talk within liberal circles, primarily confined to blogs, about the need to enact a Constitutional amendment to protect privacy. George Soros, to the best of my knowledge, has not started dipping into his wallet to finance a national campaign to enact such a Constitutional amendment. It would be an arduous task. Not only must two-thirds of the House of Representatives and the Senate vote to refer the amendment to the States but, 37 States must vote, either by their legislature or referendum, to ratify the amendment. Successful Constitutional amendments through our history have been non-controversial when enacted and ratified. When abortion, parental consent or both are injected into the debate a proposed amendment establishing vested privacy rights becomes suddenly a third-rail issue.
A number of State constitutions acknowledge some measure of privacy.
The Florida Constitution, for example, has a provision protecting privacy. Article One, Section 23 in the Sunshine State’s Declaration of Rights proclaims, “Every natural person has the right to be left alone and free from governmental intrusion into the person’s provided life except as otherwise provided herein.” The exceptions are defined as the public right to access of records pertaining to information about meetings and records as defined by law. Floridians cast their ballots in 2004 for a constitutional amendment requiring parental notification when minors seek abortions. After it was approved by nearly 65% of voters, NARAL Pro-Choice America made clear that, in its view, the initiative “strips young women’s right to privacy from the [Florida Constitution] by exempting mandatory parental notification laws for abortion.” NARAL thinks of parental notification as an “option” to be exercised at the discretion of teens rather than recognize parents have a fundamental right to be informed – and make decisions -- about treatment sought by underage children.
Conservatives may think they have good reason to embrace a Constitutional amendment purporting simply to guarantee privacy without qualification. They would be wrong. Such an amendment, which would be broadly drafted, opens the door to sweeping interpretations unless clarified along the lines of protecting parental rights and in cases in which the right to privacy conflicts with the law. In the wake of the Supreme Court’s 2003 decision Lawrence v. Texas striking down Texas’ sodomy statute, an amendment might guarantee rights not just for couples, same-sex or heterosexual, of legal age, engaging in consensual sodomy within their own homes. Supreme Court Justice Clarence Thomas, in his dissent, stated that if he were a member of the Texas Legislature he would have supported repeal of the law. “Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources,” Justice Thomas wrote. The slippery slope still exists, however. Society runs the dangerous risk, in this permissive age, of sanctioning activities such as sex with minors, beastiality, hard-core pornography. In each case, the greater good of society – the protection of the innocent, in the first two; overall societal standards, and frequently protection of those vulnerable to abuse, in the latter – trumps a laissez-faire concept of privacy.
Conservatives place great precedence on common law and thus respect the right to have one’s home free of governmental intrusion. Certainly, homeschoolers understand that. At least from this writer’s perspective, most Americans would not want – or tolerate -- the state actively snooping on what occurs within the privacy of one’s own home between adults of age and involving no violence or disorder. Americans have the freedom to frown upon such activity; parents and friends of those committing such acts can actively discourage it; landlords can refuse to rent to those who do it; churches can shun parishioners.
Even before the Supreme Court reached its verdict in the Texas sodomy case, such couplings were not illegal – if not always approved of -- in a majority of the states. That said, Thomas, citing Justice Potter Stewart, asserted in his dissent that he never had discovered a “general right of privacy” in the Bill of Rights or Constitution.
Many conservatives and libertarians respect the sanctity of life and the right of parents to be informed if their child is seeking an abortion. There are conservatives and libertarians who oppose special rights, such as “gay rights,” when it involves silencing one’s freedom to express opposition based on a moral or religious belief. Many conservatives, including this writer, believe that the States and the Federal Government have the ability to determine the lawful kind of marital arrangements. People are free to forge their own private contractual agreements regarding their relationships. The States and the Federal Government are not compelled to sanction any and all definitions of marriage. No doubt there are those, such as Savage, who wish the right to privacy would secure the smorgasbord of rights, without any oversight or restraint, threatening to take us down a very slippery slope.
The more prudent course for conservatives is to develop a more practical, limited agenda on issues involving privacy, employing the legislative or referendum process to enact it, crafting tailored language to protect privacy, refraining from an overly expansive definition.
Practical privacy issues that could unite conservatives and libertarians include the right to school your child, property rights, Second Amendment rights, fully protecting medical records of adults from disclosure without consent to entities that are not involved in practicing medicine, while ensuring parents are entitled to know if their child seeks an abortion or birth control, and religious freedom. Such an agenda in states where conservatives and small “l” libertarians compose a majority could maintain a united coalition without risking a full-scale crackup that enactment of sweeping privacy amendments might impel.
Sweeping privacy amendments, as proposed by Dan Savage, may have some initial sizzle to conservatives who support a limited view of government but who want traditional values protected. The steak is likely to be quite unpalatable, however.
Stephen M. Lilienthal is the Director of the Center for Privacy and Technology Policy at the Free Congress Foundation.
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