Amend the US Constitution with a Right to Privacy

Amend the US Constitution with a Right to Privacy
Photo by Jason Dent / Unsplash

Note: This is a bit of a departure for this site, but I felt the need to write something in response to recent events.  The connection to HELLAMETAMODERNISM here is indirection:  rather than a frontal conversation on the issues at hand, whether that is abortion, trans rights, or whatever else, we should find a different topic where more agreement is possible that ends up supporting our original goals.

On the one hand, I'd love to develop this idea more with some sort of artistic component that fits more clearly with HMM.  However, I'm going to go ahead and publish this, despite having barely proofread it, to meet this moment in its current feeling of urgency instead.  Perhaps I'll revisit the idea with a future article digging deeper into HMM-related philosophy.  But for now, please enjoy this hot take written more-or-less in one sitting.

Standing on perpetually shaky ground

The most terrifying thing about Associate Justice Samuel Alito's draft opinion overturning Roe v. Wade is that his justification attacks the entire concept of a right to privacy.  It is this right that was infamously found in the "penumbra" of the Constitution, leading to the rise of originalism and textualism as judicial philosophies designed to eliminate such implied rights.  Despite a laughable line in the opinion that it is only about Roe, this penumbral right underpins many rights and freedoms that we have taken for granted for decades, all of which have drawn the ire of conservatives to various degrees.  These rights include access to contraception, the freedom to engage in homosexual relations, gay marriage, and even interracial marriage.

While a large majority of Americans believe Roe should be upheld, the counter-majoritarian aspects of the American political system prevent the representatives of that majority from passing legislation in accordance with those opinions, or influence the courts to respect them.  Furthermore, cultural issues are not currently winning issues for progressives.

The Democratic party is the only party interested in protecting these rights, but it is perpetually timid in its pursuit.  Democrats are barely capable of achieving majorities, and have only been able to do so by including pro-lifers such as Joe Manchin, as well as other "centrists" (who would be considered center-right anywhere else).  While those who claim the two parties are "the same" are willfully ignoring that the majority of the Democratic party has supported a great deal more change than the centrists have allowed to pass, the difficulty in getting policy passed is real.

The question is, what strategy could draw broader support than Democrats have been able to muster?

Privacy is the heart of the matter

Legal concepts around privacy and constitutional law had been developing for some time before then.  Louis Brandeis and Samuel Warren's 1890 article "The Right to Privacy" in the Harvard Law Review is a particularly notable starting point for the modern legal concept.  Brandeis would later become an Associate Justice of the Supreme Court.

The penumbral right to privacy, primarily rooted in the inclusion of the word "liberty" in the Fourteenth Amendment's due process clause, first emerged not in the context of sexual liberation, but as a rationale to allow parents to send their children to parochial, rather than public, schools.  In 1922, Pierce v. Society of Sisters established that public education could not be compelled, and this decision was rooted in the 14th Amendment rather than purely in the 1st as one of the plaintiffs had argued.  Religious and charter schools are, of course, a cherished topic of the American conservative movement.

Many freedoms treasured by the right can be tied to privacy, even if that has not been done explicitly in the past.  Beyond that, concerns around social media are closely related to privacy, providing another point of leverage.

And for those of us on the left, there is no chance we will defend or extend LGBTQ (especially trans) rights without a right to privacy.  Just look at the executive guidance (not yet law) in Texas mandating the prosecution of parents who support their trans kids with child abuse.

It's time to change the conversation

A right to privacy is a winning concept across ideological lines.  Everyone whose rights are threatened (or on the verge of being stripped away assuming the draft or something very much like it becomes the majority opinion) understands the need for this deeper right that forms the basis for so many others.

Conservatives, absent ties to left-wing causes, would certainly approve of a right to privacy on its own.  So the question becomes how to show conservatives that things that they treasure are not secure without an explicit right to privacy added to the Constitution through an amendment.

The goal is not to get the dedicated pro-lifers on board.  To them, it's all about murder, and alternative theological perspectives on the beginning of life are irrelevant.  But there are not that many dedicated pro-lifers.

There are a hell of a lot more people in what passes for the "center" these days who will find something based in privacy that they will want to protect.  We should be finding these things and campaigning on them.  In blue states, we should write and introduce bills attacking any cherished freedoms that the left might plausibly attack, and explicitly tie them to the lack of a right to privacy.  It's not necessary to actually pass them.  In fact it might be counter-productive to do so.  The point is more to show that this door that is being opened has far more horrors hiding behind it than they are willing to accept for the ideological pleasure of "owning the libs."

The right is primed to seek defenses against perceived attacks

We want to leverage the victimization narrative on the right, so that they latch onto a privacy amendment as a way to fight back.  And yes, they may get some wins in that process that the left would rather not have (e.g. a right to privacy might interact in difficult ways with public health concerns such as vaccination — this is not as simple as tossing off a one-liner "individuals have a right to privacy" and hoping for the best).

A campaign in support of privacy should also be very meme-rich, and lends itself to memes around all sorts of concerns that flow from privacy.  The right is good at memes, so if seeded correctly we'd likely see plenty of memes advocating for privacy, even if they also attack leftist uses of privacy.

Deeper is better

Ultimately, I feel like even if culture wars continue to rage over the application of the amendment (e.g. "fetal personhood" arguments), establishing an enumerated, unassailable right to privacy would put those of us who wish to keep, expand, (or soon, wish to restore) hard-won civil, sexual, and medical rights on much more secure footing.

And with the right approach, we can find allies among our enemies by bypassing the hottest culture war topics as the primary focus.  The right hates government overreach, but has decided that it is fine or even desirable in certain circumstances.  Let's shift the conversation away from those specifics to something more fundamental, where their foundational ideology is harder to ignore.