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.

Incest

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.

Abortion

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.

Conclusion

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.