Chapter 6: A RIGHT-TO- PRIVACY AMENDMENT

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Section_01: Be Very Afraid

Section_02: Renovate the Bill of Rights

Section_03: A Constitutional" Convention?

Section_01

Be Very Afraid

Talk is cheap. Proposals to amend the United States Constitution are, like want-to-be writers and Texas condos, “a dime a dozen.” Wordsmiths have floated the Equal Rights Amendment (including a new one that includes gays), a “protect the flag” amendment, multiple right-to-life amendments, and a “defense of marriage” amendment. Author Warren Farrell proposes an “equal rights and responsibilities amendment” which outlaws male-only draft registration and other forms of “male-bashing.”[1] Doug Bandow of the Cato Institute proposes a constitutional convention to adopt a term limits amendment -- an idea I applaud since it says people shouldn’t make a living making rules for others (including paean computer programmers like me). Robert Bork proposes an amendment that would allow any federal or state court decisions to be overridden by simple majorities in each house of Congress.[2] At least three religious freedom amendments have been proposed recently.[3] The Libertarian Party Platform of 1996 proposed an amendment limiting the president’s emergency powers, and also called for repealing the Sixteenth Amendment (income taxes). Boaz suggests we approach changing the Constitution, as conceived by the likes of Washington, Franklin, Hamilton and others, with “humility” and then whimsically suggests separation of state from almost “everything” before he makes “real” proposals, the most important to stop Congress from delegating legislative prerogatives to administrative agencies[4] (that is, authorizing “administrative law”). Perhaps Boaz is alluding to the tendency of many individuals to regard the “right” to have other people’s money redistributed to them as a “fundamental right,” like the right to breathe. Murray proposes that, outside of tort violations of persons and property, Congress not be allowed to prohibit any business from manufacturing or providing any good or service for sale. A line-item veto in appropriations has already been obtained in Congress without an amendment, but this may be challenged. [This was allowed by a Supreme Court ruling on June 26, 1997, but only on a technicality. A line-item veto could have been helpful against the 1993 “DADT” enclosure on gays in the military (Chap. 4) and on non-appropriations laws it could help prevent dangerous amendments to otherwise desirable legislation.]

In the states, there are similar efforts. Colorado advanced an “inalienable parental rights” (to control the values, education, and discipline of children) amendment by referendum; it barely failed. Virginia, in 1996, passed a “victims’ rights” amendment which turned an about-face and gave the General Assembly blanket authority to protect crime victims; however well motivated this measure is as public policy, a constitution normally protects individual rights by stating that certain things may not be done by a legislature or by administrative agencies.

Kluge discusses in detail the two most important failed amendment attempts: the Equal Rights Amendment (for gender) sent to the states in 1972, and the Balanced Budget Amendment of 1995.[5] All amendments passed so far have first come from Congress and then been ratified by three-fourths of the states. However, two-thirds of the states can petition Congress for a constitutional convention (“People's Party” style, as in Chapter 3), which could lead to the free-for-all of multiple amendments or even a total rewrite. Three-fourths of the states would have to pass such a resolution. Between 1987 and 1992, thirty-two states have passed such resolutions calling for constitutional convention, and with only two more, Congress would have to call one.[6]

I do feel fortunate to be an American, and I feel more confident that government will respect my freedom today than it did in those horrible days of “incarceration” at NIH in the early 1960’s. And William and Mary, after all, was a state school.

But “is it safe?” If I describe in this book a clandestine breakfast meeting with a gay military officer, the military could conceivably interrogate me and ask about his possible admission to me to acts of sodomy; and today the military aggressively prosecutes servicemembers for private consensual homosexual acts with adult civilians. Today it is still conceivable, if unlikely, that a zealous prosecutor could track down even civilian “crimes against nature” by giving immunity to one citizen who agrees to testify against others.[7] [Men are still sometimes prosecuted for “solicitation” for sodomy.] If I live with another man in an apparently sexual relationship in my apartment, I could conceivably be charged with “cohabitation” under Virginia law. Some communities still do not allow same-sex couples to rent or buy together because these couples supposedly violate sodomy laws. In the 1950’s, it was actually a crime for “known homosexuals” to assemble anywhere in California; in Virginia it is still technically illegal for a commercial establishment to serve alcohol to a “known homosexual.”[8] In California, a law designed to notify the public of the release of violent sex offenders has actually been interpreted as requiring elderly men, convicted of consensual “sex crimes” during the days of McCarthyism, to register with police.[9] Despite recent improvements in security clearances for gay people, I could still be investigated for “criminal” activity if I were to need a high-level clearance. My own life speaks to the government’s capability to require young men to “out” themselves and risk their lives for their country (a contingent capacity the government still, as of this writing, has through the Selective Service System). One argument for denying recognition of same-sex marriage is the notion that the state must not recognize a relationship defined by illegal acts. One reason given by the Virginia courts for yanking away a little boy from her natural mother, Sharon Bottoms, was her alleged participation in criminal lesbian sexual acts with her lover in her home. One writer recently suggested that states who had rescinded sodomy laws were subsequently less able to challenge attempts to legalize “gay marriage.”[10] The Cato Institute has recently catalogued an enormous list of subtle individual rights violations by the current Clinton administration; many of the cited transgressions involved misuse of federal powers.[11]

In the “mainstream” society, I encounter a similar passion about privacy in family, child-rearing, and financial matters. At the Libertarian Party convention, Presidential Candidate Irwin Schiff described his income tax-resistance from prison and the invasion of his privacy by the IRS.[12] Similarly, another member stood up to condemn the assault weapons ban and other gun control laws with the statement, “if you can be trusted to be out on the streets under your own recognizance, you can be trusted to buy a gun.” Parents complain that school boards are forcing the indoctrination of their kids with materials they personally consider morally objectionable (even though I wouldn’t), such as the use of condoms or the reading of Heather Has Two Mommies.[13] When I drive a rental car through central Florida to Walt Disney’s Epcot Center, I feel some comfort in carrying traveler’s checks; if I were carrying several hundred in cash, a state trooper, without charging me with a crime, could seize it if he thought I fit the profile of a “drug courier” and make me “rebut” his “presumption” of my guilt to get my money back. The drug laws are so capricious that a citizen, if suspected of growing opium-bearing plants with “intent to distribute,” might have First Amendment-protected writings on opium or marijuana cultivation used against him in either civil forfeiture or criminal proceedings.[14] Indeed, there seems to a “drugs” exception to the Bill of Rights when it comes to First or Fourth Amendment protections. At the 1996 national Libertarian Party convention, someone circulated a flier in which it was claimed that citizens in rural areas of the California Sierras or wine country had been required to put up national guardsmen looking for marijuana growers; most of us have assumed the Third Amendment is still “safe.” The Third Amendment has, in fact, sometimes been mentioned by the Supreme Court as an explicit source for the right to privacy. In 1984 the Racketeer Influenced and Corrupt Organizations acts were amended to allow the federal government to seize assets derived from the sale of obscene materials (even without conviction).[15] It is still possible for the Supreme Court to restore the 1996 Communications Decency Act, which threatened to dumb down telecommunications to the most vulnerable members of society.[16] The government has tried to treat privately developed encryption software and documentation as a munition in its attempts to suppress its publication and export.[17] The line between protected free speech and abetting a violation of law can indeed become blurred.

Politicians and district attorneys often fall for the “witch-hunt” temptations in other areas where children are involved, especially going after teachers, day care operators, and even parents “accused” of abusing children.[18] We must rethink carefully whether our due-process protections today are sufficient. Surveys of the public show a disturbing willingness to surrender civil liberties and privacy rights in exchange for security against terrorists, but forcing the democratic “system” to take freedoms away from on ordinary citizens bootstraps terrorist strategy. Some rules for public safety, whether stopping for school busses or going through reasonable security procedures at airports, do not impose more than a negligible cost on individuals,[19] and these common safety regulations are not the target of my liberty concerns.

Talk of constitutional amendments reflects a faith in a court system which will always protect the individual from government’s crossing some unviewed line. Libertarians, even the most radical, would maintain a federal court system, and there’s no question that the founding fathers intended citizens to have court protection. Author Steven King even writes, “But law enforcement without a court system ain’t justice. It’s just vigilantism, rule by the fist.”[20] Bork’s aforementioned critique of the self-augmentation of the judiciary tests libertarianism; while we apparently need a court system to enforce the freedom to contract, we perhaps (without Bork) can get along without the notion of “judicial review” (so excruciatingly detailed here when discussing the military ban) as well as do the British.[21] Take the tour of Williamsburg’s restored capitol and learn that the court system upon which we depend to defend the Constitution, is an outgrowth of English aristocracy, just as the executive branch was derived from the Crown and the assembly from the “commoners.” It is amazing that separation of powers, upon which defense of our freedoms depends, is derived from the stratified English society from which the colonists sought to break loose. Participative democracy, so demanded by conservative justices in refusing to overturn political consensus, ultimately begs that people draw attention to themselves and speak candidly about the issues, rather than paying others to speak for them and harness government to ensure their group interests at the expense of others.

Bowers v Hardwick (1986) is notorious for denying that the “right to privacy” protects private gay sex, and this Supreme Court opinion provides much of my motivation for suggesting a new constitutional amendment. An earlier decision involving contraception, Griswold vs. Connecticut (1962),[22] had explored much of the conceptual foundations for the right to privacy in general. Justice Douglas had maintained that several provisions in the Bill of Rights created a “zone of privacy.” Among these were free speech in the First Amendment, freedom from unreasonable searches (and the right of people to be secure in their “persons, papers, and effects”) in the Fourth, the prohibition of self-incrimination in the Fifth, and the unremunerated rights derived from the so-called “penumbra effect” of the Ninth.[23] In 1973 the “notorious” Roe vs. Wade appealed to the right to reproductive privacy to protect the right of a woman to an elective abortion in the first trimester and sometimes later.[24] Spaeth and Smith summarize all the Supreme Court opinions which have established, however nebulously and ambiguously, this “right to privacy” (from government view)[25] During all these years, conservatives whined about the “incorporation doctrine,” which interpreted the Fourteenth Amendment as binding the states, as well as the “fibbies,” to many of the same provisions in the Bill of Rights.[26]

Most “victimless” sex laws (outside of the military) are state and local laws. Twenty-seven states have statutes that outlaw some form of non-conventional, non-commercial, adult, private, consensual sex. Until it repealed its sodomy laws in 1996, Montana actually outlawed masturbation! There was a bill to reinforce the sodomy law in Arizona in late 1996. We generally call these statutes “sodomy laws” although the exact definition of “sodomy” varies among the states. The Model Penal Code, proposed by the American Law Institute, proposes to eliminate laws that would prohibit private, consensual, adult “deviate sexual intercourse.”[27] Outside of the Armed Forces, Congress has generally been willing to stay out of this area. But United States Code (2421) prohibits foreign travel with the intent to violate the sex laws of a foreign jurisdiction.[28] Indeed, the possibility of federal consensual sex laws (for civilians) cannot be dismissed out of hand. In 1994, one attorney warned that the public cost of Clinton’s health care proposals would give the moralizing crowd its practical (or “rational”) basis for the “holy grail of a federal sodomy law.” [29]

By the desert-hot day when I heard about the Bowers verdict on my car radio on the way to a real estate closing in Dallas, I had already become versed in the concepts of sodomy laws with the Texas Baker vs. Wade case. I had encountered it on a bit more personal level, too. Once, sitting on the barstool in the Dallas Throckmorton Mining Company on the day after the Iran hostage seizure, an attractive companion was telling me how he would give up homosexuality because “it’s against the law.” Shortly thereafter, I would work with the Dallas Gay Alliance Social Justice Committee, monitoring police harassment aimed at closing gay bars. Men were being hauled into paddywagons and falsely accused of “public lewdness,” much as had happened in New York twelve years earlier before Stonewall. I went down to the court house and tabulated statistics on arrests to show selective enforcement, much as in the military today. I went to one lewdness “trial” and watched a Judge Entz (judges are elected in Texas) pronounce, “I find him guilty as charged.” One year later, I would serve as foreman on a jury (weapons charge) over which the same judge would preside, and he obviously recognized me. Sodomy laws, in the minds of most people, confer on gays the semi-legal status of unapprehended felons (even if some gays don’t engage in sodomy and some heterosexuals do), and provide a “sweet lemons” (or “moral turpitude”) rationalization for denying custody, marriage or partnership rights, protection from discrimination, and (in the past) outright exclusion from some occupations (today, mainly the military).

The history behind Hardwick bears repeating. In 1982, an Atlanta policeman entered the home of Michael Hardwick through an unlocked front door to serve a misdemeanor ticket, and observed Hardwick engaging in oral sex with another adult man. Hardwick was arrested and charged with sodomy, a felony with a maximum ten-year sentence in Georgia, and was loudly jeered by other inmates at the county jail. The district attorney dropped the charges, but Hardwick sued anyway. Anti-gay violence in Atlanta increased sharply right after the ruling.

The vote was only five-to-four (Justice Powell switched in the late innings), but the vehemence of the majority’s opinion, written by Byron White and supplemented by Burger, shocked everyone. “There is no such thing as a fundamental right to engage in homosexual sodomy,” the Court wrote, and then editorialized that the “right to privacy” did not apply because of the lack of connection between family, man-woman marriage and procreation, and homosexual activity. Such “fundamental” rights (most of all, the right to marry) apparently needed to be deeply rooted in community or “family” purposes. In an earlier case, a Judge Harlan had written that “confining sexuality to marriage forms a pattern so deeply rooted in the substance of our society that any Constitutional doctrine in this area must build on that basis.” So much for “natural” rights to self-ownership! Justice White added that, “the law often expresses moral notions, and if every challenge to a law under the due process clause were heard, the courts would be very busy indeed.” The blind acceptance of majoritarian “moral notions” could certainly lead to silly reasoning; consider that in Romania, sodomy laws are still justified by a drop in population! Note that the Fifth Amendment is supposedly satisfied because the government is not denying a “fundamental right” (like property) by ignoring substantive due process (in that government embarrasses persons based on unprovable presumptions or that government’s treatment of certain persons is fundamentally unfair). The Court went out of its way to insist that its analysis applied to homosexuals only.

However, Justice Blackmun’s dissent seemed to reach almost to the level of Rosenfels, in asserting that “sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality ... The fact that individuals define themselves in a significant way through intimate sexual relationships with others suggest that in a nation as diverse as ours, there may be many ‘right’ ways of conducting these relationships, and that much of the richness of a relationship will come from the freedom of an individual to choose the form and nature of these intensely personal bonds.”[30]

The failure of due process analysis to hold when applied to sodomy laws would lead to more interest in equal protection analysis, with particular focus on convincing the courts that anti-gay public policy should be reviewed under “heightened scrutiny,”[31] as already noted earlier in discussions of military policy.

On May 20, 1996, in Romer vs. Evans, the Supreme Court struck down Colorado’s “Amendment 2” (Appendix 9) under equal protection analysis; it would deny gay people equal political access without even a “rational basis.” The state must not justify or subsequently feed the prejudice or “animus” of citizenry against a class of people (gays) with questionable, unreasonable, and stereotypical inferences about the presumed (but unobserved) “immoral” behaviors of some class-members. Scalia’s vehement and embarrassing dissent clung to the incorrect notion (even if apparently articulated by Hardwick) that homosexuality equals penetrative sodomy (that is, the conduct of sodomy defines the class of homosexuals), and that it could not be irrational for a state to “discriminate” against criminals. The principle inference of Romer, however, must be that homosexuality is more than sex acts; the ideas of Rosenfels (or similar concepts) have had time to trickle to the courts. Apparently, states could still single out those proven to have committed “sodomy” or other “sex offenses” for disparate treatment, but they have to treat heterosexuals and homosexuals in the same way once they have committed the acts.

Romer does leave us dangling on the (anti-gay) sodomy laws, because the historical approach taken by the courts (only rational basis review on gay issues) still leaves policy makers plenty of excuses to deny gay men and lesbians appropriate civil rights protections in such areas as the military and family law. One interpretation suggested to me by a Republican party leader in the Portland, Oregon area is that Romer forbids both the federal government and the people of any state from singling out gays in a referendum but still allows the elected representatives of a state to make public policy that is discriminatory to gays. Other attorneys predict that Romer will lead to the nullification of homosexual-only sodomy laws, still on the books in five states. [As we know from the June 1997 Agostini v. Felton decision on incidental use of public school teachers in parochial institutions (for non-religious instruction) it is sometimes possible for the Court to reverse itself on controversial matters, and these could one day include either sodomy or abortion.]

Perhaps Romer will deter courts from allowing other abuses or cultural extensions of sodomy laws. In April, 1997, an appellate court in Alabama ruled that a state-funded school could not deny funding for a gay student group on the grounds that it advocated illegal behavior; the First Amendment, at least, permits arguing that criminal laws be repealed and possibly for advocating the behavior itself.

In the summer of 1996, I was enjoying outdoor brunch with two friends at the Lobster Shop on Puget Sound, discussing this whole situation with the military ban and Romer, when one of the friends, active with Libertarian Gay and Lesbian Concerns (the partisan analogue to GLIL) suddenly mentioned the international law angle. The next day, he gave me a fact sheet that built up his case as follows:

The International Bill of Human Rights was adopted in 1948. Article 2 stipulates, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, political or other opinion, national or social origin, property, birth, or other status.” Article 7 states, “All are equal before the law and entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

In March 1976, the United States signed the International Covenant on Civil and Political Rights (although not the “Optional Protocol”). Article 17, section 1 states, “No one shall be subject to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honor and reputation.”

Toonen v. Australia (1994) determined that laws prohibiting all sexual activity between men violated the privacy provisions of Article 17 of the International Covenant on Civil and Political Rights.[32] Presumably, the United States, since Article 6 requires it to honor all its treaties, would be bound by any international human rights rulings made under this covenant.

I have bounced this idea off of some attorneys litigating the military ban cases. They think this is far-fetched and improbable, but could be useful to bring moral pressure. Congress, or a state legislature, could be told it really is (indirectly) violating international law and treaties in keeping sodomy laws on the books. In some situations, various kinds of anti-gay discrimination could be arguably found “unconstitutional” under international law.[33] In England, Stephen Wittle used it to get a favorable ruling from the European Court on a transgendered servicemember.

Besides sodomy laws, civil asset forfeitures, in which government seizes property (without compensation) associated with illegal business activity (usually the sale of illegal drugs, obscenity, child pornography, or even prostitution) have sometimes grossly violated citizens’ rights and seem at least morally suspicious, particularly when the individual is never convicted of a specific crime. The Supreme Court has upheld civil forfeiture several times, most recently in 1996 when the State of Michigan took a woman’s car after her husband (without her knowledge) used it for prostitution (Bennis v. Michigan). Also, in U.S. v. Ursery (1996), the Supreme Court unanimously held that civil forfeiture, when added to a criminal sentence, does not violate the Double Jeopardy Clause of the Fifth Amendment. Apparently “property” is not a fundamental right, at least not essential enough for substantive due process protection during civil procedures, unless “property” confers a strict liability for what a property owner’s customers or tenants do even when the owner is absent or (sometimes) ignorant. (Another good question would be, did native Americans have a property right in the nineteenth century not to have their lands conquered, or do they have such a right today to cover gambling operations?) Courts have ruled repeatedly that civil forfeiture is not intended to “punish” but to “protect” the public prospectively through a civil remedy. It is not entirely clear what the Court would say about a prophylactic civil forfeiture without associated criminal charges; but if there is sufficient probable cause (as when a business establishment is closed down for liquor violations or for public sex on the premises) such civil action would probably be permitted. The forfeiture practice originated out of British maritime law, where ship owners could not be located but their ships could be seized if the owners contributed to crimes (although generally colonial law did not allow civil seizure without conviction of a crime). The comparison of asset forfeiture to loss of security clearance or military career (not considered “property”) by administrative action (“witch-hunts”) without criminal charges is instructive. Possibly, by contrast, laws where sex offenders are held under civil commitment after their sentences might one day be struck down because “person” (that is freedom) is a fundamental right (after serving one’s sentence); the solution to this habitual offender problem is to specify sufficiently long sentences in the first place. [The June 1997 Court decision allowing Kansas to commit ex post facto sexual predators who are mentally “abnormal” but not clinically mentally ill, could one day lead to attempts to commit “abnormal” people whom others believe have a “propensity” to attach themselves to children; in extreme scenarios, the 1973 APA claim that homosexuality is not a “mental illness” may not be enough.]

Section_02

Renovate the Bill of Rights

It is time for progressive and libertarian interests to get into the ring and propose an amendment of our own, an addition to the Bill of Rights. It starts by clearly identifying “privacy” with the individual, removing the dependence on family context, and then must move to other areas such as speech and civil forfeiture. We need a Right to Privacy, Intimate Association, Life, and Pursuit of Happiness amendment. This effort should address mainstream privacy concerns, as well as those of gay men and lesbians who obviously want to repeal sodomy laws. For example, it should reinforce the right of parents to control the content of their kids’ educations.[34] It should offer to protect the right to give birth, even by insemination, and protect the legal “choice” of abortion for pregnant women during the first trimester only (when the unborn infant is unlikely to have become sentient). It should force government to decriminalize private possession and use of most drugs (although not sale, transport, and trafficking). It would outlaw government’s drafting persons into any kind of servitude, military or not.

Such an privacy amendment would only prevent a government (even including the military) from criminalizing “victimless” behavior, not private interests from investigating and “discriminating” because of perceived inclinations or “propensities” for behavior. It would effectively prohibit government itself from engaging in irrational exclusion or discrimination, and from suborning discrimination or animosity in the private sector. It would not create any “suspect classes” or provide a basis for entitlements. Government would punish those who directly injure others, with even more certainty. Government would not, however, pass laws for which it has no reasonable expectation of gaining convictions under our notions of “due process.”

Douglass Ohmen, who ran for nomination of the Libertarian Party for president in 1996, suggests verbally a simple wording: “The right to privacy in adult intimate association shall not be infringed.”

Then Peter McWilliams proposes a similar amendment, but almost as an afterthought towards the end of his book on “the absurdity of consensual crimes in our country”: Neither the Congress nor any state could make any act committed by a citizen of the United States a crime unless the act “physically harms the person or property of a non-consenting other.”[35] Presumably, McWilliams means “adult” when he says “other.” This sounds succinct enough; however, one can certainly harm non-consenting others without physical damage (such as by embezzlement or fraud), and one can endanger others (as with driving while intoxicated) without the result of immediate harm in a specific case.

[The pursuit of happiness, in libertarian thought, correlates closely to property ownership and use. Indirectly, at least, such an amendment will enlarge the role of property as an element of constitutional deliberation. Yet, property does not always imply unfettered individualism. Real estate definitely invokes community and “collective” values, as any condo owner knows. What is increasing is our notion that property ownership implies personal responsibility. We are breaking away from the mindset that wanted to penalize people for the sins of their ancestors.]
My proposal for the text of this amendment follows now.

PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

TWENTY-EIGHTH AMENDMENT ¾ To be known as number eleven of The Bill of Rights

THE RIGHT TO PRIVACY, INTIMATE ASSOCIATION, LIFE, AND THE PURSUIT OF HAPPINESS

Section 1.

In the following sections, “covered jurisdiction” means the United States, any state, or any other subordinate jurisdiction.

Section 2.

No covered jurisdiction may pass any legislation defining any conduct occurring in privately-owned space as criminal when there is no reasonable chain of events that could lead to an actor's actual conviction of the (specific occurrence of the) crime. Obtaining witness testimony in consideration for immunity will be considered a legitimate method of obtaining conviction for a crime when (1) the witness is victimized by the crime, or (2) there is immediate threat of injury or death to persons.

Section 3.

No covered jurisdiction may pass any legislation which criminalizes private, consensual, non-fraternal intimate conduct between adults, unless a specific occurrence of the conduct results in provable infliction of injury upon or transmission of disease to a person.

No covered jurisdiction may pass any legislation or administrative rules whose only purpose is to “stigmatize” persons based on a perception of their participation in the intimate conduct as just defined.

In this provision, "fraternal" refers to persons related by blood, by military rank, or by a similar reporting relationship in government employment.

Section 4.

No covered jurisdiction may pass any legislation which criminalizes or otherwise prohibits cohabitation between any consenting adults, except for reasonable requirements for per-person living space.

.

Section 5.

Nothing in Sections 1, 2 and 3 requires any covered jurisdiction to recognize any group of individuals as a "suspect class" (requiring “heightened scrutiny” or “disparate impact” consideration) according to their preferred forms of adult intimate behavior. Nothing in these sections requires Congress or any state or subordinate jurisdiction to recognize any particular intimate relationship as a legal marriage.

Section 6.

The United States of America recognizes the right of any human being to life, and of any pregnant woman to her own person; therefore, there must be reconciliation of competing legitimate interests. The policy of the United States of America is to give the highest priority to the right to life for anyone who is capable of knowing of his or her existence. Accordingly, no covered jurisdiction may prohibit abortion during the first ninety days of pregnancy. From day ninety-one to the end of term, the States (but not the Congress) will have the right to limit abortion according to normal legislative remedies. No covered jurisdiction may prohibit the beginning of a pregnancy by artificial means except to prevent the transmission of a communicable disease.

Section 7.

The United States recognizes property as an important component of personal privacy and expression and, therefore as a fundamental right. No covered jurisdiction may seize property under tort and hold it without trial for more than a brief period necessary to ensure public health and safety. Property may be withheld permanently only after civil trial or as part of a sentence for a criminal conviction.

Section 8.

No covered jurisdiction may require involuntary servitude, even with pay, of anyone.

Section 9.

The expression of a voluntary silent prayer or spiritual practice in a public place will not constitute government or public endorsement of a particular religious expression. The voluntary, incidental display of a religious object or artifact in a public place likewise will not constitute public endorsement of religion.

Section 10.

The United States recognized the rights and responsibilities of a parent to give informed consent to the content of his or her child’s education. State and local governments must allow a parent to veto the exposure of his or her child to material the parent deems objectionable, and must, within five years of enactment of this amendment, provide a decentralized mechanism to determine and ratify school curricula at the most local level practical. No covered jurisdiction may order parents to transport students to particular public schools merely to maintain certain racial ratios.

Section 11.

No covered jurisdiction, for purposes of employment, loan subsidies, housing, licensing, or admission to public educational institutions, may establish preferential treatment or quota assignment for members of any social group, defined by race, ethnicity, gender, or age. This provision does not preclude preferential consideration by public agencies due to income or economic circumstances. No covered jurisdiction may exclude from employment, education admission, access to government information, or professional license, anyone because of race, ethnicity, gender, age, or (apart from observed inappropriate conduct) sexual orientation. This provision does not preclude the application of bona fide medical, physical or intellectual job qualifications by public, intelligence, law enforcement or protective agencies, and the Armed Forces.

Section 12.

When anyone is charged with an offense of making indecent or otherwise unsuitable material available to minors, a successful defense is made when the actor makes a good-faith effort to publish in an area not normally or immediately accessible to minors, or to use customer age-screening technologies available at reasonable effort and cost.

Section 13.

The United States shall honor reasonable and proper procedural due process in all administrative actions against its employees or against members of the Armed Forces.

All of these proposals would apply to the federal government and states alike. The concept of federalism, in which states can experiment with different systems of subtle "moral values," does not extend to the rights of states to invade the intimate home life of adults or shame them with criminal labels applicable only with the "presumption" device. All of these provisions express the notion that government primarily serves to stop “aggression” of unscrupulous people upon others. Although these suggestions would not completely limit federal government to what libertarians see as legitimate federal functions (providing for common defense, foreign policy, oversight of interstate commerce, and a judiciary), they move in that direction. Many of these provisions expand the notions of fundamental rights and substantive due process ¾ the notion that laws and regulations, as well as the procedures that implement them, must be inherently fair and reasonable.

Section 2 would not automatically decriminalize drugs or weapons possession, because laws against "possession" can be reasonably enforced by search warrants issued under probable cause; on the other hand, "catching" someone at consensual sodomy in private, "in the act," is most unlikely, even with a warrant. (That is, unless civilian society copies the military's practice of witch-hunts and "naming names.”) It would not always prevent prosecution for "conspiracy," which can normally be proven by sworn testimony. It would not negate the legal notion of “intent,” which is the law’s way to deal with a child’s notion of doing things “on purpose” or of saying, “I didn’t mean to!”

But Section 2 should help bring back respect for law, once citizens believe that laws are reasonable, respect their privacy, and can really be enforced. One sidebar concerns hate crime legislation, which should be opposed because it leaves the impression that some violent crime is less reprehensible than other.

Section 3 would protect members of the Armed Forces, and would require that UCMJ Article 125 (sodomy) be amended to apply only when there are aggravating circumstances, as proposed in Chapter 4. It would not directly prevent administrative (not criminal) discharges for “homosexual conduct.” The rules I proposed in Chapter 4 are intended to prohibit administrative actions that unreasonably invade the privacy of servicemembers.

Section 3 would also prevent a state from criminalizing adultery, or even incest between consenting adults (not involving minors). However distasteful to our culture, this should not be a crime when confined to legal adults. Polygamy would not be a crime; the state simply would not recognize more than one marriage at a time (there could be civil or criminal penalties for fraud involved in multiple partnerships). States could maintain age-of-consent laws for consensual sex (as well as automobile operation, child labor, alcohol, tobacco, or other substance purchase) but could still try violent criminal offenders only as adults. [It is worth remembering that some communist nations, such as China (still today) have at times not had sodomy laws on their books yet these countries have often prevented gay organizations from operating.]

Section 6, protecting reproductive rights, explicitly codifies Roe v. Wade, but only for the first trimester of pregnancy. This seems like the best reconciliation of liberty and human life interests, to protect life as human (in preference to the “privacy” of the mother) when there is a reasonable basis for presuming that the unborn knows that she exists.[36] The Section does not address the possibility of “cloning” human beings (indeed severing procreation from sexuality), a possibility so recently raised by science that it obviously needs careful debate on its own. Libertarians probably would shy away from the notion that rich people can spend their own money on spare parts factories and recognize that the human beings so cloned are indeed “victims.”[37] Would cloning would deny the meaning of individuality? After all, genetic twins raised apart are separate (however spiritually bonded) persons, so would be non-contemporary twins. Still, these issues remind us that a democracy can never avoid completely the “moral” notions that undergird our foundation of individual rights. [If we can manufacture perfect people to order, will we become unable to care about the more human and ordinary people?]

For lesbians and gay men, the right to life issue goes beyond the suddenly commonplace arguments about testing for imagined gay genes. Gay teenage men are more than twice as likely to attempt suicide than straight teenage men.

[On June 26, 1997, the Supreme Court held that people do not have a “fundamental right” to assistance in ending their own lives. Such a holding could undermine social incentives to take care of ill, disabled poor people, especially those without families or who are seen as “burdens.”]

Section 8 expands the provisions of the Thirteenth Amendment, which had prevented private entities from owning slaves,[38] to government itself. (There are some libertarians who believe the Thirteenth Amendment already precludes an income tax.) In particular, the Selective Service System would be abolished. However, voluntary national service programs could be continued, and it is easy to imagine some employers preferring candidates who had done a stint of some kind of service. Congressional interest in protecting volunteers from tort liability is to be encouraged. Jury duty might become voluntary. Would the exploitation of migrant workers become unconstitutional?

Section 10 denies politicians and school boards the right to force controversial materials (such as those dealing with gender roles, or “creationism”) upon students, or likewise to deny them access to such materials. These decisions belong with parents. This section would be implemented by requiring school boards to draw up plans allowing school choice within five years of enactment, or by school privatization and charter schools. If a controversial item were offered only by a private school in an area, a school taxing authority would have to allow relief for a parent who wanted to use the private curriculum. The amendment does not shield parental child abuse. The rights of grandparents, however sympathetically portrayed by an ABC News report, would not be the business of the state.[39]

Section 11 repeals old-fashioned affirmative action at the stroke of “my” pen, and reaffirms what California voters had already decided in 1996 with Proposition 209.[40] The section also, effectively, lifts the military ban against gays, but would allow a set of conduct rules such as are outlined in Chapter 4 or as were proposed in 1993 by Rand. Sum all this up as Meinhold did in his phone call to me: “Just treat everyone the same!”

As a comment supplementary to Section 12, I note that “murder manuals,” as reprehensible as they are (I certainly would never write one or deal with a publisher who produces them), are protected by Free Speech as long as reasonable attempts are made to sell them only to adults. Should authors of novels dealing with terrorism be accused of (or be held liable for) giving a deranged person ideas? It is the person who actually commits a violent crime who should be solely responsible for his own act.[41] If public policy authorizes censorship based on the idea that unstable people can’t answer for themselves, then why not ban the publication of sex manuals[42] on the theory that they encourage the spread of AIDS and, say, ultimately endanger blood transfusion recipients? With the nagging threats to valuable public speech, we should realize that we have come along way from the sedition acts in the past in both England and in this country (the First Amendment notwithstanding). The Espionage Act of 1917, for example, made it a crime to interfere with the draft and to issue disloyal statements about the United States government. Critical speech like mine used to be seen as subversive.

But more important than the extreme applications of free speech is to grow a culture that welcomes the presentation and discussion of new ideas. In the past, many subjects (especially those dealing with sexuality) were simply not to be discussed; authoritarian mentality considered them downright dangerous to sexual competence. Even today, the threat of obscenity and indecency laws, as well as the complicated torts of libel and publicity, can hinder the credible presentation of and standing for radical proposals, and force one to have the bureaucratic approval of others before being listened to.[43] The free public debate to which conservative justices now implore us when they refuse on their own to invent “new fundamental rights” or otherwise to hamstring the state, demands that people of average means be able to put everything on the table without first paying “loyalty” tribute to family, corporation, labor union, political party or candidate. This is my answer to radical, adversarial politics carried out by those with nothing to lose! Readiness to speak up is an essential component of healthy identity and even of honor. This process provides a healthful example of the commercial “profit” motive, where an individual, a team or a power of “one,” invests his own money to be heard rather than just to demonstrate a quick and facile return on a trial balance sheet. The rapidly falling cost of self-publishing (whether in books, web pages, even CD-roms) creates the potential for changing the mechanics of political debate, and this opportunity should not be jeopardized. Good debate requires that the truth be whole and that it be addressable.[44]

Our mainstream culture accepts the presentation of controversial political ideas in historical period contexts (such as in Arthur Miller’s play The Crucible, dealing with the Salem witchcraft trials in 1692 and containing a great “naming names” scene where the women fall in a line in collective hysteria), but has more difficulty applying them in modern settings dealing with sensitive topics like sexual identity. While some of the problem is personal insecurity, much of it is also intellectual laziness. People need to be more open to learning, which is hard work and requires real mental agility ¾from the speed-reading machines of the 1950’s to today’s open “object oriented” information systems. Otherwise, politicians and religious demagogues, to keep themselves in power, will continue to exploit their ignorance. Intellectual laziness is dangerous for national security; it lets wars start. One needs to cherish challenge, difficulty, paradox, and even moral ambiguity.

Conservative, “family values,” and religious ideas are certainly most welcome at the table of public debate. If former Vice President Quayle would prefer to see a religious program to counter the public Meinhold-style public outing of Ellen DeGeneres, that’s fine. I watch Biography, History, and religious cable channels myself all the time¾and I usually prefer them to silly comedies and to violence. But the real point is to localize debate and give everyone a voice. Perhaps people, deep inside, understand “family values,” better than I think they do, and what they need is the cultural freedom to talk about it. It is, by the way, a form of speech when one volunteers and chooses her cause; it is also a form of speech when one starts a business and makes it work big (like Microsoft), even if that business consists of watching a particular industry on the stock market on the Internet and making a fortune by short selling.

Almost as a footnote, I also propose a second amendment to clarify the marriage issue for constitutional purposes.

TWENTY-NINTH AMENDMENT ¾ Marriage

Section 1.

No state will be required, under the Full Faith and Credit Clause, to honor a marriage made in another state if that marriage would not have been valid in the subject state.

Section 2.

The federal government is not bound by the marriage laws of any state in characterizing a marriage relationship for purposes of defining any federal tax liabilities or benefits or entitlements under federal law.

Constitutional law obviously should not try to define what is or is not a real “marriage”; this would be silly. The policy focus should, as discussed previously, consider reducing or eliminating subsidy of adult relationships that do not support children or other dependents.

The modern renovation of the Bill of Rights, with the final authority of the United States Constitution directly limits the prerogative of government to criminalize “victimless” behaviors and to invade into areas of personal life. It strengthens directly the protections for Jefferson’s “life, liberty, and the pursuit of happiness”¾that is, the expression of individual inner identity, which is effectively removed as a subject about which a democratically elected majority may circumscribe moral judgments. The “right to privacy” at the Constitutional level refers specifically to intrusions on the individual by government not by other private entities. The amendment does not, by itself, prohibit private interests (employers, property owners, insurers) from investigating and “discriminating” because of perceived associations or values implying “propensities” for questionable behaviors. It would, however, forbid government to pass laws for which there is no reasonable expectation of gaining convictions,[45] based on current notions of “due process.” It would preclude government from criminalizing behavior only to protect people from themselves (and not from others) or from setting “bad examples” for others. It would also stop government itself from irrational exclusion and discrimination (even in the military) and from feeding animosity and discrimination in the private sector and therefore indirectly protect privacy, while simultaneously encouraging openness and cooperation.

A mainstream liberal may say, fine. We should have an amendment protecting adult sexuality and reproductive rights; but we need the power of government to extend these protections into the “pseudo-private” areas of the corporate state, just as we need government to prevent unjust exploitation of the working classes by the rich, to protect the environment, to prevent monopoly, and to provide a social safety net. Government, in this paradigm, still retains the responsibility for the “moral values” of a decent society where the strong do not exploit the disadvantaged. My immediate reaction to a liberal’s indignation is, run with it! We need the privacy concept to be taken up by all reasonable sectors of political interests. The effort to implement it must be truly non-partisan.

I believe, however, that it is impossible for government to do many of these things without selling the spoils to the highest bidders, and without encouraging convenient and blind tribal allegiance and conflicts, [particularly in such deep-seated problems such as race]. Government entitlements and over-regulation tend to corrupt the incentive for people to be responsible for themselves and their own intimate or familial associates. Since the line between private acts (or values that lead to acts) and public consequences varies like a shoreline with the tides, determinations of what are legitimate “fundamental rights” will themselves remain subjects for political barter. If the public is going to have to pay for the health care or safety hazards for sexual, dietary, substance-abusing or even psychologically addictive behaviors, is it not arguably necessary for government to regulate some of these behaviors, at least when their occurrences, if not always directly observed, seem inevitable by “common sense?” Doesn’t it become necessary to declare as “public policy” what is right and wrong in these personal matters, if only to guide the young and more vulnerable? The only principled answer is to emphasize personal accountability for the consequences of one’s own actions, for any adult, without exception, regardless of background or inherited or congenital disability even when due to parental neglect or abuse. No insanity defenses! Accordingly, I have built up to this amendment proposal with discussions that would have government bowing out of favoristic policies not just in family life but also in economic marketplaces which have increasing incentives to accommodate families. The process of letting¾even making¾people chart our their own courses will provide an interesting experiment: will people find the time and resources to care more about deeper, motivational moral values; will they drift towards narrow, darwinian meritocracy; or will they just focus on everyday adaptive, necessary “tribal” loyalties? I’m optimistic they’ll pick “option A.”

The “conservative” knee-jerk reaction will be that we need government to regulate personal morality and, specifically, proscribe certain private acts and compel certain communal obligations, because human beings, as a whole, need to be told definite standards of right and wrong, even if they know these standards can hardly be consistently enforced. Young people need to be told, by the legal system, that using drugs is wrong, whether perpetrators get caught or not. This is essentially a collectivist view, and a pessimistic one. It does make the definition of “wrong” very vulnerable to political tides, especially with an area as sensitive as private, adult, consensual sexual behavior; it would preclude using the market to select one’s own moral universe. Sometimes, it takes the attitude, “we’ll leave you alone if we don’t know about it, but we need a way to tell others your lifestyle is wrong and bad for the good of the community as a whole.” It leads, at best, to delirious circles, such as maintaining sodomy laws to deny same-sex marriage or even cohabitation, to maintain the desired result, often gender-conformist behavior. It is hardly confined to just sexual behavior or even drugs and gambling; during the insider-trading scandals of the late 1980’s, we actually heard “liberals” (suddenly talking like social conservatives) proposing compulsory national service as a way to force young people to unlearn “greed.” [My thesis for lesbians and gay men, of course, is that even with much less state-mandated regulation, society will discover it can’t afford to continually treat us unfairly.]

Volunteerism and service has been seen more as morally cleansing than just as a way to reduce dependence on government. But there is tension between the obligation to help those less fortunate and possibly self-effacing servitude. Today, ex-military officers sometimes tell me we should return to the draft, and some writers propose a “national service lottery”[46] or national volunteer program with federal benefits similar to the GI Bill.[47] Michael Lerner has a much better suggestion, of a voluntary national service program (hopefully privately run) which would encourage persons to volunteer small amounts of time throughout life.[48] Former President Carter often speaks publicly about “service” and his Habitat for Humanity is surely one of the best programs. Colin Powell stresses volunteerism which targets disadvantaged and endangered young people.[49] Some public high schools now require “community service” for graduation (an idea unknown during my youth, during the era of the draft and the Cold War). Generally, when government or large mainstream organizations sponsor volunteerism individuals tend to feel they have less choice in the specific clients they will help or the tasks they will perform. Bureaucrats contemplating running “volunteers” programs should remember that children often insist, “I did it because I wanted to, not because you made me.” Some gay men volunteering as buddies for persons with AIDS are less enthusiastic when their clients are drug addicts. The common proverb of volunteerism is “find a need and fill it.” But personal choice of arena of service (even the military)¾in a grateful manner that fits one’s goals¾gives one a chance to earn his own social justice.

Representative democracy has always been predicated on the amalgamation of otherwise adversarial individual interests and has assumed that people, while going about their own personal and business lives, are willing to leave some political calculations and discourse to paid (“professional”?) representatives whom they elect. Perhaps I see this fact as a necessary “evil” that comes from our need to all get along. I have indeed leveraged my own opinions and hijacked the process by presenting this book. But if government gives up favoring some people at the expense of others, most controversies would be resolved in local and private hands where people can have real voices. My own personal history, from college through my involvement with the military, shows what happens when a person injects expression of his own identity and values into environments where most people are caught up in adaptive or, at best, self-recreative efforts; furthermore, my odyssey encountered others, in settings ranging from psychological “communes” to the military, who tried to vent the same kinds of expression. Getting government out of at least the most personal issues¾and the process of exor