Friday, November 18, 2005

The Right to Privacy Amendment

In an Op-Ed piece in the New York Times, Dan Savage proposed that we amend the Constitution to include a right to privacy.

In the case Griswold vs. Connecticut, the Supreme Court majority found a right to privacy in the penumbra of several amendments to the Constitution. The argument basically states that if one looks at the Bill of Rights, they express a common underlying principle. That principle states that each person is entitle to some private space where the government may not intrude.

This privacy zone is a sphere of liberty around those decisions that are central to a person’s life – who to marry, whether to have children and how many, how to enjoy sex, and the like. Government may have the right to interfere in the public relationships among individual, but not in that private realm.

This has since been taken as the paradigm example of "legislating from the bench." Critics of this decision hold that the Supreme Court effectively wrote a new Amendment to the Constitution -- one that did not exist in fact. This, they argue, is outside of the proper scope of a judge.

Savage proposed that we end the debate over whether we can find a right to privacy in the Constitution by putting it there. Once the Amendment is passed, we never again need to worry about whether a Supreme Court nominee can find a Right to Privacy in the Constitution. We point to the Amendment and say, “See! It’s right here!”

The Moral Right to Privacy

The overall concern here is, as it should always be, bringing the law that is into alignment with what the law ought to be. What the law ought to be is a moral question. We cannot settle questions of what the law ought to be by looking at statute. Instead, we have to compare the law to some standard that exists outside of the law. There is no other standard to compare law against other than morality. So, in evaluating a change to the law, the only question to ask is whether this change brings the law closer to what the law morally ought to be.

Prudence suggests that, to the maximum degree possible, people should be free to decide for themselves how to live their own lives. To the degree that Person A demand the right to direct the affairs of Person B, to that degree it is likely that Person A will sacrifice the interests of Person B in order accomplish his or her own agenda.

Person A is always going to act in such a way that, to him, seems most likely to fulfill his own desires. This means that if he has the power to direct Person B’s life, he will direct Person B to act in a way that fulfills Person A’s own desires.

Of course, Person A might have a desire that Person B be healthy and happy. In this case, he will fulfill his desires by directing Person B in ways that he thinks will make Person B healthy and happy. However, even in this type of situation, other in the case of children and those suffering from some mental defect, who is in the better position to know how to make Person B healthy and happy? Who should be put in charge of running Person B’s life, other than Person B?

Even if Person A has concern for Person B’s welfare, that desire is still going to mix with and compete with all of the other desires Person A has -- desires for fame, fortune, sex, and others. These desires do not go away. They are always there. In any situation where the other options are nearly balanced, these desires will tilt that balance one way or the other. Person B’s life cannot be freed from these influences.

For these reasons, it is best that each individual direct his or her own affairs to the degree that he is able. This is not just an argument for a right to privacy, this is an argument for liberty. Protecting privacy is the essence of protecting liberty. Liberty -- freedom from government demands -- is most important in those decisions that lie at the core of a person's life -- questions about whether to have a family, when, how big it is going to be, and with whom.

[Note: I learned this argument in studying the works of 19th century British philosopher John Stuart Mill]

Blocking Objections

Opponents of such a move -- people who feel a particularly strong compulsion for making the core decisions on how other people may live their lives -- are bound to come up with a number of straw-man arguments against such a proposal. These are people who insist that the bedroom door be left open, so that they may peer inside and regulate the conduct they find there.

Child Abuse

One potential objection is that it would make child abuse a privacy issue, and that nothing could be done to protect abused children. Nowhere in the Constitution is there a right that has been thought so absolute that it overrides the state’s interest in protecting children from abuse. In all cases, from freedom of religion and the press to the right to due process, the State has been able to defend laws that look to violate these provisions on the surface if a compelling state interest is being served. Protecting children from abuse is a compelling state interest.


What about incest among adults? Would that be a privacy issue?

Actually, I would have no problem creating an argument for a compelling state interest in regulating incest, even among consenting adults.

First, given the fact that humans have an inherent aversion to incest, we may reasonably expect that a large number of incestuous relations involve one person exercising undue control and influence (psychologically, financially, or physically) over another for his (or her) benefit.

Second, any weakening of the social prescription against incest – any weakening of the psychological aversion to this type of activity – may have the effect of increasing the incidence of other types of incest. The best way to prevent these harmful forms of incest from occurring is to heighten the psychological aversion to these types of relationships. This may be best and most easily done by prohibiting all incest. This way, in any specific case, we need never wonder if this is a “permissible” or “impermissible” instance.

In addition, there is no great burden to weigh against the value of a severe psychological and social prohibition against incest. There simply are not that many people who are made worse off by such a prohibition. At the same time, we have reason to believe that such a prohibition will prevent others from being made significantly worse off.

For these reasons, there is a compelling state interest in keeping the social and psychological prescription against incest as strong as it can be made. This includes continuing to prescribe against all incest at all times under all circumstances, period, without exception.


Savage was right that, unless abortion was specifically mentioned in the text of the Amendment, a privacy Amendment would have little to say on this issue.

We may assume that a right to privacy will not imply a right to murder one's own children even in the privacy of one’s own home.

I am not saying that the fetus is a child. In fact, as I have already written (Part I, Part II, I would deny that a fetus is a “child” in the moral sense until it brain and, with it, has acquired morally relevant interests to protect. However, my point here is that we must assume that I am right -- assume that I have made no mistakes -- before we can conclude a right to abortion from a right to privacy.

If I am right, the state has no compelling interests in protecting the life of an entity without desires- without interests. Yet, on what basis does a judge have the authority to decide if I am right or not? More to the point, on what basis does a judge decide that the lawmakers worked under the presumption that I was right and built that assumption into the law? The judges have no basis for making such an argument. It would be wrong for them to do so.


On the most intimate and personal matters concerning an individual's life, each individual ought to be free to make his or her decisions without the government telling them what they must and must not do. If their actions to not affect others, they should be free to affect themselves.

While there is controversy over a so-called legal right to privacy found in the penumbra of certain Amendments, this controversy can be ended by making explicit that which some argue now only exists implicitly.

The moral quest at all times is to change the law from what the law is to what the law ought to be. The law ought to be an institution that leaves people a private sphere of decision making where governments will not intrude.

A privacy Amendment would work to align the law with these moral facts. A privacy Amendment would narrow the gap between what the law is, and what the law ought to be.


Anonymous said...

That's a pretty weak argument against incest between consenting adults. It looks a lot like a slippery slope argument. Prohibitions against parent/child incest seem reasonable, as there is a very strong reason to suspect that there is some coersion going on. But a blood brother and a sister, raised apart, who want to have non-procreative sex? The government has no legitimate interest in stopping that. Even if there are only two "victims" of such a law, that doesn't make the law right.

See, I've been paying attention.

By the way, the aversion to incest is something that happens between children raised together, regardless of their genetic relationship. I believe Steven Pinker addresses it in one of his books.

Alonzo Fyfe said...

It is not actually a slippery slope argument.

A slippery slope argument states, "If we permit A, we will soon find ourselves permitting B, then C, then D, then . . . until we start permitting something that is obviously impermissible."

I have little respect for a slippery slope argument because, if the end point is obviously impermissible, then there is no reason to think that we would ever slide so far as to permit it.

This argument uses cause and effect.

Using the formula:

[belief + desire] -> intention -> intentional action,

we reduce the incidence of a particular intentional action (harmful incest) by strenthening the aversion to a particular act, we reduce the incidents of it.

The state has a legitimate interest in reducing incidents of harmful incest, so the state has a legitimate interest in promoting an overall aversion to it.

It is reasonable to believe that the more qualifications built into a prohibition, the more complex the 'rule' it is, the harder it is to internalize and the greater the number of people who will find some way to rationalize their situation into one of these exceptions.

So, the best option would be, "no exceptions."

This is the rule that would create the strongest aversion, which would have the greatest effect in reducing the incidents of harmful incest.

You make two other statements that I would disagree with.

(1) If there are only two victims of such a law, the law can still be right -- if there are significantly more victims of no law.

(2) The government has no legitimate interest in barring procreation unless it is certain that the baby would suffer a life that was so bad that non-existence would be preferable.

However, right here, I do not have room to defend these arguments in detail. I'll put them on the list for future essay, though.

Boelf said...

So, in evaluating a change to the law, the only question to ask is whether this change brings the law closer to what the law morally ought to be. - Alonzo Fyfe

A minor quibble really. I don't see law as a device for enforcing morality but as a device for facilitating the smooth operation of society.

In that light I see two criteria for a law to exist:

1. Does the law address a real problem? Statistical proof that the problem exists is required.

2. Is the law the best way to address the problem? Again substantial evidence required.

Driving on the right side of the road unless otherwise posted meets such criteria but is hardly a moral issue.

Alonzo Fyfe said...


What counts as a "problem"? Is the fact that there are black people living in my neighborhood a "problem"?

Does the "smooth operation of society" include, for example, the "smooth operation" of the slave trade or the extermination of the Jews?

Ultimately, I argue, we cannot define "smooth operation of society" or "problem" without, ultimately, referencing some moral principles -- some principles, outside of the law itself -- that tell us how a society ought to function (a moral statement).

Now, there are limits to this. Your case about which side of the road to drive on illustrates that, in some cases, morality does not give us an answer.

We can make moral claims that those who drive on the wrong side of the road are being reckless and endangering others who have a reasonable expectation that people will follow the rules. Yet, the specific content of those rules are arbitrary.

Furthermore, as I have stated elsewhere, the law is a huge and unwieldly instrument ill suited for the fine distinctions of morality. Using the law as an instrument of morality in some instances is like using a wrecking ball to cut diamonds. It just does not work. If a child lies to his parents about where he was last night, this is a wrong, but not one that the state can make a matter of law.

There is a line between law and morality, but it is not a sharp line. And, in many cases, the difference between a just law and an unjust law is a moral question. Morality cannot be ignored in evaluating law.

Anonymous said...

"we reduce the incidence of a particular intentional action (harmful incest) by strenthening the aversion to a particular act, we reduce the incidents of it.

The state has a legitimate interest in reducing incidents of harmful incest, so the state has a legitimate interest in promoting an overall aversion to it.

It is reasonable to believe that the more qualifications built into a prohibition, the more complex the 'rule' it is, the harder it is to internalize and the greater the number of people who will find some way to rationalize their situation into one of these exceptions.

So, the best option would be, "no exceptions." "

If applied Kant's test to this logic and made it apply universally to all laws... wouldn't we quickly find that many of our freedoms have been removed in order to protect the few people harmed by the absense of restriction?

Take for instance a hypothetical case where a man drowns in a public lake. The state, realizing that as long as people can swim in the lake, there is a potential that some will drown. The state passes a law that states "No-one may swim in this lake."

Theoretically, the life of one person is more important than the temporary enjoyment of several people. Thus, the protection of the few people that drown by passing a law forbidding swimming is morally superior than having no such law and allowing all to swim at their leisure. So by that logic, it is better to not give people the freedom to swim than have some of them die as a result.

Granted there are flaws with this hypothetical, but the point still stands. If you make a blanket rule that is restricting to the masses because there is potential for harm by a few, you are limiting the freedoms of some when you should be using other laws to prosecute those few who do harm.

In the case of incest, one could make a case for psychological trauma, physical/emotional abuse, or even rape depending on the severity without ever needing to bring incest into the picture. If none of those harms apply, then we should really question if the incest was wrong in the first place.