EDITORIAL: IT'S TIME FOR A RIGHT-TO-PRIVACY AMENDMENT
Talk is cheap. Proposals to amend the United States Constitution are, like
mainframe programmers and
Ten years ago with the vindictive HARDWICK decision on the
In many areas beyond criminal codes, the Constitution still give
insufficient protection for
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
Please share your thoughts with me at JBOUSHKA@aol.com. c-1996
Originally published in slightly shorter form in The Quill in August, 1996.