Political Proposal Arguing for Amendment to the Bill of Rights


Talk is cheap. Proposals to amend the United States Constitution are, like mainframe programmers 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, with the best of intentions, a Balanced Budget Amendment. Some libertarian forces may propose to end the Income Tax and Federal Reserve with amendments. As the virtual battle over gay-marriage continues, a one-sentence Defense of ("straight") Marriage amendment has already been offered to evade the U.S. Constitution's Full Faith and Credit Clause.

Ten years ago with the vindictive HARDWICK decision on the Georgia sodomy laws, the Supreme Court blurted out that the state may indeed perform purely non-consequentialist "moral" valuations of behavior, even among consenting adults in private. The Court also insinuated that the penumbra "right to privacy" applies to marriage and procreation but not to other adult intimate relationships. In striking down Colorado's AMENDMENT 2, the Supreme Court very recently conceded that government may not intentionally handicap a group for no particular reason but historical prejudice, and the majority hinted that the Court would scrutinize questionable attempts to define a "class" through "conduct." But it is clear that current constitutional case law does not sufficiently protect the right of adults to be free from state interference with private, consensual intimate association, even in their own homes. Often, the law seems to be motivated by the superficial idea of "family values" and holds that freedom from government supervision should apply only to "legitimate" families with children. Dornan has added a rider to the 1997 Defense bill to require the military to resume "asking" and to forcibly "out" otherwise "covert" gay soldiers. The military today has forced civilian lovers of gay soldiers to testify to acts of "sodomy." Georgia has, in several notorious cases, actually prosecuted heterosexuals for consensual "sodomy." Courts actually use sodomy laws (as in BOTTOMS) as indirect justification to take children away from biological parents. Laws in Virginia, still on the books if in legal limbo, prohibit the sale of alcohol to "known homosexuals" and prohibit cohabitation by unmarried adults (even without public recognition). A zealous prosecutor could still conduct a military-style witch-hunt (by providing selective immunities) to hunt down violators of the Crimes Against Nature law. In Texas, police used to harass gay bars regularly with false "lewdness" arrests and threats of conspiracy charges.

In many areas beyond criminal codes, the Constitution still give insufficient protection for Jefferson's "life, liberty, and pursuit of happiness" - that is, the expression of individual inner identity. Zoning laws prohibit unmarried couples from buying and renting together. Gay churches are prohibited from buying property in certain neighborhoods. Through controlling the "marriage license," the state gets indirect authority to leverage private behavior. Parents unable to afford private schools must accept whatever the politicians barter as the appropriate curricula for their children. People simply fitting profiles of "drug couriers" or approaching prostitutes have personal property seized without criminal trial under "civil forfeiture," without reasonable likelihood of recovery. "Johns" can be legally shamed in the press after arrest. However one feels about abortion, it is easy to envision objectionable laws prohibiting women from using insemination and forcing them to submit to sex to have children. Government still has the legal right to require forced servitude, including drafting into the military , and to use that power to identity and single out non-conformists and "undesirables" in later life, or to force people (particularly men) to conform to their biological gender roles.

It's time for us to get into ring and propose an Amendment of our own, an addition to the Bill of Rights. We need a Right to Privacy and Intimate Association Amendment. Gay men and lesbians would obviously "benefit" from the immediate vacation of sodomy laws. To sell the Amendment to the general public, we should offer variations, in a congruent spirit, which address mainstream privacy concerns. For example, we could reinforce the right of parents to control the content of their kids' educations. We could offer to protect the right of give birth, even by insemination, and to protect the right to "choose" abortion during the first trimester only. We could force government to decriminalize private possession of most drugs (although maybe not sale, transport, and trafficking), We could outlaw conscription, even into a civilian "national service" run by the state,

Such an amendment would only prevent a government (but even including the military) from criminalizing "victimless" behaviors; it would not, by itself, prohibit private interests (employers, property owners, insurers) from investigating and "discriminating" because of perceived inclinations or "propensities" for behaviors. It would not create "suspect classes" or provide a basis for entitlements. It would, however, forbid government to pass laws for which it has no reasonable expectation of gaining convictions under our notions of "due process." It would also stop the government itself from irrational exclusion and discrimination (even in the military), and from feeding animosity and discrimination in the private sector.

Increasingly, people really want to be allowed to be responsible for themselves. So, 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 out children.

Of course, this is no trivial undertaking. An ad-hoc, non-partisan group should be formed to consider contents and language of such an amendment. Constitutional scholars would need to be recruited. Gradually, this town-hall dialogue, on how psychological, moral, legal, and political concepts link, would migrate from Congress, the statehouses and courts, to private spheres. The essential justification of this amendment will be that personal responsibility (founded on absolute personal honor), rather than government approbation, must ultimately vindicate or justify personal lifestyle and intimate "choices"; every person must be responsible for the self. People will learn they don't need to have government protect them from themselves or help them play the "blame game." Hopefully, the public will start to see that "self-actualization" is much more than "gratification," as fulfillment requires knowing how to meet the real needs of other people, especially when the other people are not easily "lovable." Indeed, today's intrusive government, despite its best intentions, probably encourages a utilitarian, superficially "selfish" approach to human relationships. In time, the public will realize that such an Amendment and related restriction of statutory discretion is indeed in the best interests of all Americans.

Some libertarians believe that the only way to protect the "pursuit of happiness" from government is to abruptly and radically deconstruct almost the entire Federal government, outside of common defense and foreign policy areas (and protecting citizens from direct injuries by one another). That is, it's "all or nothing." Such rhetoric would call for elimination of welfare, of all Federal taxes, quick privatization of social security and Medicare, total legalization of drugs, and even the end of government fiat money. Sometimes their literature suggests a child-simple paradigm of "morality": do not carry out "aggression" against another person's will. This paradigm IS appropriate when considering government's proper place in enforcing "morality." By concentrating first on government interference with "personal fulfillment," we can have a non-partisan debate which will coax people into understanding how politicians keep them divided into camps (families vs. singles, races, grandchildren vs. grandparents) over the mirage of finite wealth and "sacrifice"; we can get people weaned from dependence on the state for their personal notions of stability and self-concept. Since technology has indeed given back to people and their families a potential autonomy that had seemed lost in all the "tribal" conflicts of the past, people may then learn that "GOVERNMENT DOESN'T WORK," that government cannot protect people from themselves, and that people must indeed haul in government's safety nets.

Please share your thoughts with me at JBOUSHKA@aol.com. c-1996 by Bill Boushka.

Originally published in slightly shorter form in The Quill in August, 1996.

Changes last made on: Thu Sept 19, 1996 20:00 EDT back to Main menu link to amendment text