Great Minds Think Alike?
Dan Savage has an op-ed in the New York Times today arguing for...wait for it...a right-to-privacy amendment to the US Constitution. His argument is basically identical to mine:
Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don't we just stick it in there? Wouldn't that make it easier to find?...Savage is exactly right about the potential broad appeal of a RTP amendment, which to be sure is not a universal appeal. Just ask Mara Stith. Not only, apparently, do social conservatives think the state has a right to regulate consensual private behavior amongst adults, but so do MacKinnonite feminists who see RTP---and if they're being logically consistent, the full range of constitutional rights---as vectors for the oppression of women. I should have mentioned this in my response to Stith's letter, but if her view that the Supreme Court's decision in Roe was an act of "judicial creativity," I don't see how she could possibly claim that Griswold was correctly decided. Oh well, it's not as if the right has a monopoly on puritanism.
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. [emphasis mine]
Link via Julian Sanchez at H&R, who tries to lay out some of the difficulties in judicial interpretation of RTP without declaring the whole project doomed. Defining privacy with "specificity and precision," as Julian puts it, would minimize those difficulties. My question is, aren't those difficulties, even if maximal, preferable to leaving the existence of RTP an open question in the first place?