Chapter 6: A RIGHT-TO- PRIVACY AMENDMENT
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Section Headers:
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Section_01: Be Very Afraid
Section_02: Renovate the Bill of Rights
Section_03: A Constitutional" Convention?
Be Very Afraid
In the
states, there are similar efforts.
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
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
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
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,
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
The
history behind Hardwick bears
repeating. In 1982, an
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
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
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
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
Toonen v.
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
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
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,
Section 1.
In the following sections, “covered jurisdiction” means the
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
Section 7.
The
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
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
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
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
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
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
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
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
exorcising government, most of all from speech areas (and from its contingent
power to require young men to yield their lives)¾will tend to give more
people incentive for personal growth.
[Belief that rigid cultural rules, often centered in “religious”
morality, will really be enforced by the
state, tends to provide facile, sour-grapes rationalizations for personal
mediocrity.] But the fluid broadcast of ideas, some of which seem disruptive to
young people or less intact adults, still sounds very much up in the air.
“Liberal”
observers often insist that some personal “sacrifice” will always be demanded
in democracy as a result of the “just” consent
(a notion associated with the federal “enumerated powers” of Article I,
Section 8) implied by representative election of government with police powers.
But people don’t generally install others in office with the intention of
having their own freedom or earned wealth taken away without their immediate,
personal consent.
Some
libertarians will want to extend these privacy, liberty and procedural
protections to other areas. My amendment would probably protect possession on
private property of most substance defined
as illegal, but not the transportation of them through public spaces (or
importation into the
The militias notwithstanding (I was once bold
enough to drive a rental car slowly past the entrance to Aryan Nation
headquarters), no one in the mainstream takes seriously the idea today that
there is a right to overthrow government by force. All right, how did we have
an American Revolution? And did not little insurrectionist people (whether in
---
I have
gotten mixed reviews from the proposal as far as I float it. One attorney, who
works on military ban cases, says, surprisingly, that her concern is not “being
private,” but obtaining categorically equal protection for gays and lesbians.
The “privacy” paradigm used to be the easy way to deal with “gay rights,” and
libertarians today still like it; they tend to look at everyone’s life as
“private.” But privacy is after all, a bit of a mirage; people “know” who you
are. I find otherwise; privacy helps me regroup, and maintain complete control
over what I say.
Another
libertarian friend (from GLIL) played devil’s advocate with the attempt to get
rid of state sodomy laws. All we need be concerned with, he said, is
eliminating federal invasions of privacy and regulations; then the states can
compete among themselves. Bad, I say. A state, to an individual, can be every
bit as oppressive as the Federal government. I definitely believe in the
Incorporation Doctrine (based on the Fourteenth Amendment, it applies the Bill
of Rights to state governments as well as federal). Of course, sometimes the
distinction between government and “corporate state” becomes facetious. A
homeowner’s association is a bit of both: a private corporation, and the lowest
level of local government.
Several
state supreme courts, including
I recently
called Washington, D.C. “liberal” talk show host Joe Palka,
when he was talking about “third party” presidential candidates being shut out
of the debates (an unethical manipulation of electoral process by the Democrats
and the Republicans), and floated my privacy amendment proposal, and then
identified my connections with GLIL. “How can a gay person be a libertarian,”
he asked. To me, that’s obvious now; but he never let me finish an explanation,
coming back with claims that homosexuals will be safe only if they are
protected from the outside world by “strong, national anti-discrimination”
laws. “Your amendment would require a strong national effort.” True, but the
effort would be aimed at reducing the power of government, not expanding it.
Bottom
line is this: if we want to be freer to lead our own inner lives as we choose,
we must depend much less on government to rescue us (or even our children) from
our own mistakes.
A “Constitutional” Convention?
An ad-hoc, non-partisan group should be formed
to consider the content and language of such an amendment. Constitutional scholars would need to be
recruited. I would personally be interested in active participation. If it were
up to me, a good place for the first brainstorming session might be the Raleigh
Tavern in
My formulation of this amendment would leave the
existing portions of the Bill of Rights in place; but certain concepts (due
process, privacy, parental rights, free speech) would be defined more
precisely. Others, such as freedom from cruel and unusual punishment, would be
left totally untouched. An obvious alternative to adding another long amendment
to the Bill of Rights is to rewrite the entire set of amendments. This effort
would have to clarify the reach of Equal Protection (Fifth and Fourteenth Amendments),
and consider federal taxation powers (Sixteenth amendment). The early steps in
the process would consist of citizens’ deciding on how they want all of the
revised amendments to read, well before trying to introduce them.
We would
do well to draft a supplementary “Bill of Responsibilities,” too. It would not
have legal force, and it could be drafted with a bottom-up, grass-roots
approach like “The Area of Mutual Agreement,” but eventually it could become
another national document, to be stored in a privately run, not-for-profit
museum, somewhere among all the monuments in Washington. [I can recapitulate
the subtle of “responsibility” from reviewing my own life. As a
graduate-student math instructor, I had actually looked upon the making up of
quizzes and the giving of grades as a “power” (in view of the draft) rather than
(what the university called it even then) “my responsibility.” Later, as a programmer, I would learn to live
with the knowledge that an undetected mistake could send out thousands of
checks in whole dollars rather than dollars and cents. I would never experience
a more intimate kind of responsibility, to give a two-year-old potty
training.]
The debate
over the amendment itself, of course, will focus on the resulting policy
choices on personal areas, and show that, increasingly, people want to be allowed
to be responsible for themselves. This amendment would be no call for cultural
license. But, in proposing that the government largely butt out of codifying
abstract “moral notions” and out of related social engineering, it would
intensify the moral and, indeed, psychological debate, particularly over
personal surplus and autonomy and its connection to the process of human
commitments and to protecting our children.
Gradually, this town-hall dialogue[56]
would migrate from Congress, the statehouses and courts to private spheres. Hopefully, the public would start to see that
“self-actualization” is much different from “gratification,” as it requires
knowing how to meet the real needs of other people; it will see the
counter-productivity of government’s trying to divide society into the
“self-indulgent” versus the “family friendly” as competitors for a finite pie,
for which politicians have every incentive to roll its flaky crust. It will see how freedom progresses from
personal honor and psychological attachments to outreach in public and civic
affairs. It will demand that government respect its bounds by not invading the
psychological space of the individual, even when it believes there is a
democratic mandate to carry out its best intentions to encourage people to make
and keep commitments to others and to mediate a wholesome culture for children.
The public will realize that such an amendment and related restriction to
statutory discretion is indeed in the best interests of all Americans. Still,
the American people face a debate on how much freedom (in personal sexuality,
use of property, speech, and child rearing) they believe they must give up in
order to defend the community[57],
provide a safe environment, to motivate the most vulnerable members of society,
and maybe to be protected from themselves. The conversation will require
intellectual precision and detail. It will call on reading comprehension¾college level on the Flesch
scale¾and redeem those English teachers of my youth
who sought to instill “appreciation” of real “literature.”[58] It will require the good intellectual
intentions of a Jimmy Carter, not the keep-it-simple and feel-good of a Great
Persuader (however better Reagan was a manager and delegator
of other policymakers). It demands
critical thinking that obliterates old-fashioned partisanship and “good old
boy” mentality. It will match up our
healthy instinct for moral absolutes, often religious in nature (and sometimes
demonstrated by the urge to defer to religious practice) against our need to
think for ourselves. It will demand we
reconcile our highest principles¾liberty, equality before the
law of all citizens¾with the practical limits of
a dangerous but growing world. It will
urge us, at least mentally, to envision our limits; after all, given unlimited
freedom to make certain “private” choices, such as the precise genetic
specifications for one’s children, people of means could resurrect the abuses
and a certain utilitarian callousness that in the past led to slavery, child
labor, conscription, and even homohatred. We have to trust ourselves.
The moral
precepts¾of what is true and right¾seem like they ought to be simple, but when
one looks in detail at all the issues (family values, the workplace, free
speech, military) one finds enormous complexity of inter-connections. One has
to look at everything before knowing what’s right or true. The deepest moral
conflicts have to do with an individual’s choosing his own ends and balancing
those choices with the real needs of others. The
We should
decide what we want the Bill of Rights to say in the new millennium. I’ve given
it my best shot. Maybe we can strengthen our rights sufficiently by repealing
prohibitionist statutes, or through more court actions, such as on Hardwick. But we must have on paper a
plan for what we want.
---
My own
life probably comes across as that of a wanna-be
gumshoe, one of psychological (more than sexual) voyeurism, roaming and running
around as much committed participation; yet I have seen enough kinky things,
miniature episodes almost unusual enough for Twin Peaks, to piece together a thread of truth that runs through
it all. I have led simultaneously within and outside the mainstream, and gained
unusual perspectives. I certainly have
not earned publicity (or notoriety) as a swimmer, war hero, politician,
journalist or business man before starting to write. Perhaps my deliberate avoidance of conventional
career advancement (with promotions and formal authority over others) and my
moderation (though not poverty) as a consumer as well as my not having children
of my own, all make me feel more smug¾enough to administer this
enjoyable tongue-lashing!¾in judging the behavior and
integrity of others, both as individuals and as loyal members of their familial
and economic interest groups. I am
struck by how much most people give up of themselves just to be accepted by
others and be comfortable with this acceptance; for all the respect I have for
marriage and family, I don't think straight America really finds importance to
others through it. Political solutions like The Ban and DOMA (with ENDA as a
bone) keep a lot of people more comfortable¾or less uncomfortable, and
less anxious. People find psychological sanctuary within the general welfare,
and become giddy as they branch out for longer day hikes “away from home,” from
their own special worlds. I have
presented social strategies which encourage people to grasp how others
psychologically and culturally very different think, to be more aware of
others’ feelings. For us all to get
along, we need to see beyond our own comforts.
But I want
to replay my main thread of thematic development. A lot of people are falling
through the cracks, failing and dying and taking others with them; and today
(compared to the past) this happens as much because of personal moral failure
as from economic exploitation by others.
People are lured by the glitter of personal gratification, believing
this will bring fulfillment, and simply lose all interest in the real needs of
others. Of course, we need to reaffirm “family values,” but we don’t do this by
snubbing people who don’t fit our ideas of the proper sex roles. Sexism at best
coarsens our daily communication with others and, at worst, leads to outright
hatred and violence. A culture that reaffirms commitment to others will stress
finding special value in others as individuals, not just in proving that
everyone is “equal.” Government can uplift by facilitating global cooperation
according to our best democratic ideals, but government must stop trying to
tell people how they “ought” to conduct their personal lives. For gays and
lesbians, this means government must not categorically exclude them from
sharing the most visible responsibilities in civilization, parenting and
defending liberty; at the same time, government cannot force private citizens
to “accept” homosexuals or make homosexuals equal in terms of group rights.
Morality is achieved only when people first accept, and then make and keep
commitments to others willingly (a
favorite term of my own mother) and out of their own identities. Debating the
privacy amendment will demonstrate all of this; and, conversely, the Amendment
can succeed only if the American people live as if they believe in themselves.
---
For
America to publicly and visibly commit itself two congruent principles¾a clear line to fence out government
intervention in private lives, and a consistent cultural imperative to personal
responsibility and commitment¾would set a good example for
the rest of the world which, given our rejoicing over the end of the Cold War
which so shaped my life, seems as dangerous and unstable as ever. Imagine the next
century, when men and women just being born will contemplate voyages into space
months or years long, and then the settlement of other worlds, and will have to
get along, personally and politically, in conditions of “intimacy” unimagined
even today. Perhaps the American frontier, in its early days, knew the benefits
of cooperation and self-reliance, because privacy was literally built into the
homestead, better than any age since. In a modern, more entrepreneurial age, we
should be ready again for the optimism that comes with personal responsibility.
Classical
music, from the sonata and symphony to opera, accomplishes the weaving together
of apparently unrelated or even contradictory motives and logically working
them out into a final cadence of either triumph or peace, but sometimes
tragedy. So it is with freedom, as we come to the end of a millennium. Freedom,
like my own symphonic manifesto, finally seeks its tonic triad. We should
celebrate a renovation of the Bill of Rights with an event on the Mall, a
Million-person March surpassing all in history.
We fought
and won the Second World War, a great and horrifying adventure, so that people
could hold the state accountable and put their own family lives on a par with
patriotism and even politics. We set into motion a civil rights movement so
that, for the convenience of the “normal” or privileged establishment, people
would not have to “pass” as Christians, as white, or, now, as straight. The
fall, or at least stumble, of communism, shows the failure of the values behind
collectivism, even as fundamentalist religious forces try to reinstate an
authoritarian, external morality. In the 1960’s we saw our freedom tested by
social divisions and imperial war; in the 1970’s, by our own over-consumption,
in the 1980’s, by an epidemic. We did
not fail. In the 1990’s, we have reversed ourselves enough to feel the growing
pains over personal identity, particularly as symbolized by two “gay” issues:
the military ban, and same-sex marriage (and parenting). Early in the next
century, perhaps in only another decade, we will face squarely the question of
whether our human species is really unique and alone (and whether perhaps some
cetacean species with whom we share our oceans are our intellectual equals).
We’re certainly going to look! Man in
Space, as we termed it at Understanding back in the 1970’s, would call for
unprecedented communal ark-style cooperation!
The gentle winds of a more prosperous future, with more personal
freedom, rise up upon us as the new millennium approaches. Yet, we may enjoy
neither if we do not take from government its still excessive prerogatives to
hollow out from us our own moral commitments. We must recognize the weak points
of individualism, such as the skipping of obligations and the ignorance of
consistent personal limits, but we must not give back to government our own
sense of personal honor. Debating this amendment will force us all, and not
just the kids, to grow up.
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[1] Warren Farrell, op. cit., p. 367.
[2] Robert Bork, op. cit., p. 117. Taken literally, Article II Section 2 gives
Congress the authority to modify the appellate jurisdiction of the Supreme
Court in both fact and law. See also
Bork’s “The Conservative Case for Amending the Constitution,” The Weekly Standard,
[3] HJ Res 121/SJ Res 45: Religious Equality Amendment proposed (Henry Hyde)
would prohibit denial of federal or state benefits because of practice of
religion; HJ 127: Religious Liberties Amendment (Istook) would permit
student-composed prayer in public schools but forbid official prayers; HJ 184: Religious Freedom
Amendment (Armey) is similar to Hyde but would “legitimate the direct public
subsidy of religious activities and of pervasively religious institutions.”
David Ackerman and James Sayler, “School Prayer and Other Church-State
Issues: Proposals to Amend the Constitution,” Congressional Research Service,
IB95080,
[4] Boaz, Libertarianism,
op. cit., p. 125.
[5] Actually, a local Democratic
party caucus in the heavily gay
[6] David Kluge, The People’s Guide to the United States Constitution (New York: Citadel, 1994), pp 150-155. Such a convention might be limited to the Balanced Budget Amendment, but then I could sue to get my changes to the Bill of Rights introduced! Maybe that would keep things tied up for a while. Most likely, the Supreme Court would allow only the issue that brought on the convention to be addressed. The practical consequence of this “threat” is that Congress should itself pass a Balanced Budget Amendment and send it to the states once a constitutional convention had really become credible. This is looking unlikely in 1997, so there is at least considerable statutory pressure on Congress to stay on track for a balanced budget by 2002. Some libertarians even insist that a federal budget should be balanced against prior year’s revenues, not just expected revenues.
[7] Frank Whitworth, of
[8] In 1991, the
[9] Nicholas Riccardi,
Jeff Leeds, “Megan's Law Calling Up Old, Minor Offenses,” The
[10] David Frum,
“The Courts, Gay Marriage, and the Popular Will,” Sullivan, Same-Sex
Marriage, op. cit., p. 360.
[11] Timothy Lynch, “Dereliction
of Duty: The Constitutional Record of President Clinton,” Policy Analysis, No, 271, Cato Institute,
[12] Irwin Schiff, The Federal
Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes (Las
Vegas: Freedom, 1990/92). Schiff bases much of his constitutional reasoning on
the premise that compliance with federal income tax laws is entirely voluntary.
[13] Leslea Newman, Heather Has Two Mommies (Boston: Alyson,
1989). Also Michael Willhoite’s Daddy’s Roommate (Alyson, 1990). Both booklets try to teach
mainstream children respect for peers who grow up in unconventional homes.
[14] Michael Pallan,
“Opium Made Easy: One Gardener’s Encounter with the War on Drugs,” Harpers, April 1997, p. 35. Maybe Harpers
itself could be in jeopardy for running this 10,000 word piece!
[15] Ronald Goldfard
and Gail Ross, The Writer’s Lawyer (New York: Times, 1989), p. 36. In
the mid-1980’s, it was sometimes possible to seize the entire stock of a
bookstore for the sale of one book or magazine portraying child pornography.
[16] Robert Corn-Reves: “New-Age Comstockery: Exon
vs. the Internet,” Cato Policy Bulletin,
Richard
Sincere, “Act Deserved to Be Struck Down,”
[17] Paul Wallich,
“Cracking the
[18] ABC “Turning Point,”
[19] Although the delays at some
airports after the 1996
[20] Steven King, The Stand, (New York:
Signet, 1990), p. 779.
[21] Jeffrey Rosen, “Orginalist Sin,” New
Republic,
In the
[22] There is also a similar recent decision, Planned Parenthood vs. Casey , 505 U.S.
833 (1992).
[23] Vincent Samar, The
Right to Privacy: Gays, Lesbians, and the Constitution (Philadelphia:
Temple University, 1991), p. 24. Without a “penumbra,” a Bill of Rights might defeat
its own purpose by circumscribing rights. Justice Ginsburg has pointed out that
other rights, such as suffrage, spelled
out in various other articles and amendments are also fundamental rights.
[24] Marian Faux, Roe v. Wade
(New York, Mentor, 1989). The plaintiff, in 1994, announced publicly that she
now opposes abortion.
[25] Harold Spaeth and
Conrad Smith, The Constitution of the
[26] Linda R. Monk, The Bill
of Rights, A User’s Guide (Close Up, 1991), p. 215.
[27] Richard Posner and Katharine
Silbaugh, A Guide to America’s Sex Laws
(University of Chicago Press, 1996), p. 65.
[28] Posner, op. cit., p. 71.
[29] Dave Edmondson, “Run Down by
[30] Hardwick vs. Bowers, 760 F. 2d 1202 (11th Cir., 1985), note 1, p.
199,
Harvard
Law Review, Sexual Orientation and the Law (Cambridge: Harvard
University Press, 1989), pp 9-43.
[31] Chai Feldblum, Sexual Orientation, Morality, and the Law: Devlin
Revisited, (Washington, Georgetown University Law School, 1996).
Chai Feldblum, Brief to the Supreme Court, Romer
vs. Evans, Oct., 1995. This paper lists five “warnings to the courts” regarding
scrutiny level, such as immutability, benignness, and
history of discrimination.
Melinda S. Cooper, “Equal Protection and
Sexual Orientation in Military and Security Contexts: An Analysis of Recent
Decisions,” Law and Sexuality, a Review
of Lesbian and Gay Issues, Vol. 3,
[32] Robert Wintemute, Sexual
Orientation and Human Rights: The
[33] Wintemute
compares the various arguments: privacy (or liberty) and equal protection in
the
[34] Barry Lynn, “What’s Wrong with ‘Parental
Rights’” Gay and Lesbian Parents
International Network, Summer 1996. This editorial refers to the “Parental
Rights Amendment” as proposing “the right of parents to direct the upbringing
and education of their children shall not be infringed.” The writer believes
that such an amendment would dumb down public education, but actually it could
force school privatization, or at least school “choice.”
[35] Peter McWilliams, Ain’t
Nobody’s Business If You Do (Los Angeles: Prelude Press, 1996), p. 641.
[36] Amniocentesis today is
generally not available to check for birth defects or unwanted genes until
about the fifteenth week, after the ninety-day period above. David Brown: “Late
Term Abortions,” The
[37] The film Parts, The Clonus
Horror (1978).
[38] Boaz (Libertarian Primer)
notes that slavery was once called “man
stealing.”
[39] ABC 20-20
[40] On
[41] Much has been made of the
fact that Timothy McVeigh had read the novel The Turner Diaries, and a murder victim in
Jonathan Rauch, “Offices and Gentlemen,” New Republic,
[42] David Loomis, Gay Spirit:
A Guide to Becoming a Sensuous Homosexual (New York: Strawberry Hill/Grove,
1974).
[43] It used to be conventional wisdom that writers needed to prove they could earn their way writing genre trash before they dared to write what they really wanted., because they would often create conflicts with their real jobs or risk lawsuits by making enemies.
[44] A healthy example of free
speech was the reaction of sponsors to the self-outing of “Ellen” in May, 1969.
Many sponsors replaced the ones which “jumped ship” and the show, despite a
TV-14 rating, earned terrific ratings. Christopher Jones, “Ellen’s Biggest Sponsors
all Jumped Ship,” The Washington Blade,
[45] Sometimes in heterosexual
rape cases, “sodomy” is charged because it is easier to convict the accused of
something if the he maintains the victim gave “consent.” This is a dishonest
judicial practice and gets back to the jury manipulation issues of some
notorious trials.
[46] Waldman, op.
cit., p. 33. Waldman suggests that those not meeting military standards
(gays??) would do civilian service. Possibly, military service would be
required as a pre-requisite for some public offices. But civilian service
programs (AmeriCorps) are serious competition for
military recruits. See also Harris Wofford,
Steven Waldman, Doug Bandow, “AmeriCorps
the Beautiful,” Policy Review, Sept
1996, p. 28; “Americans Won’t Face
Another Draft,” Newsweek,
The very recent sexual harassment scandal
which forces the Army to encourage female soldiers to adopt a self-chaperoning
buddy system, while a welcome sign that the military may finally be ready to
give up “lesbian baiting,” raises the troubling possibility that combat units
simply will not resolve their sexual tensions and that the all-male draft could
again appear necessary. Paul Simon, in
his remarks supporting ENDA, hinted he believed a draft could be reinstituted (Congressional Digest, Nov. 96, p. 282)
In 1996, the Marine Corps failed to meet its recruiting goals.
[47] Steven Waldman, “The Case
for Paid Volunteering,”
[48] Lerner, op.
cit., pp 294-295.
[49] Jonathan Alter, “Powell’s
new War,” Newsweek,
[50] Patterson and Kim, op. cit., p. 246.
[51]
[52] Monk, op. cit., p.91, discussion of “Collective Rights v. Individual Rights.”
[53] Some communities have passed
laws outlawing gun ownership even at home, and the Supreme Court has not
incorporated the Second Amendment.
[54] Lambda Legal Defense and
Education Fund, Lambda Update, Fall
1994, p. 20. The police had tried to use
the presumption argument.
[55] Harvard Law Review,
Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989),
p. 25.
[56] A similar process was described by Perot in 1992, and by Patterson and Kim, op. cit., pp 269-273.
[57] Harry Browne (Why Government Doesn’t Work) does support a missile defense; see pp 146-158.
[58] And, please, don’t present
Ebonics, with its vagueness about time and causality, as a real “language.”