The Perils Of A Privacy Amendment

Morat suggests that a Constitutional amendment explicitly enshrining the right to privacy would be a good, bipartisan legislative project. I'm favorable to the idea of having privacy protection in the Constitution, but I see a couple problems with the idea.

First, I beg to differ on the potential for Republican support of the measure. Yes, conservatives want to, as Morat says, "Get the damn government out of my life!" However, I think the bulk of conservative small-government ideology is not primarily concerned with privacy. High taxes and burdensome environmental and safety regulation are not first and foremost privacy violations (though certainly some creative conservative lawyers would try to use the amendment against these laws). They're property and autonomy violations. Now, there are some conservative complaints that could be addressed with an explicit right to privacy -- gun registration springs to mind, since the conservative argument is that it's dangerous for the government to know who has a gun. But I think those gains would be outweighed by knowing what the left planned to use the amendment for. On the one hand, it would give a more solid undergirding to the sexual revolution advances (like legalizing birth control and homosexuality) that are currently buttressed by the implicit right to privacy. On the other hand, it would potentially put the Patriot Act in jeopardy. I doubt many conservatives would be too keen on risking those changes in order to shore up a cause that already has an amendment.

There's also reason for liberals to worry. The argument here runs something like the counter-argument to Kevin Drum's suggestion that Congress shut up the "we don't technically have to pay taxes" crowd by passing a law unambiguously stating that taxes are mandatory. Passing such a law implies that previous law did not require paying taxes -- otherwise we wouldn't need a new law. In the case of privacy, there are a good number of important court decisions resting on the idea that the Constitution as it stands contains an implicit right to privacy. Passing an amendment making that right explicit would seem to imply that there was no implicit right. One might try to get around that by making the amendment go above and beyond the privacy protections that have been asserted to already exist, but a more far-reaching amendment would be even harder to gain political support for. Now, if the amendment passes, that retroactive undermining would be a minor issue -- it would screw up some court cases about pre-amendment events and give rhetorical fodder to conservative commentators, but from henceforward the right to privacy would be secure. However, if the amendment were to fail -- which my previous paragraph establishes as likely -- it would accomplish that undermining without the compensating benefit. The failed amendment would have no legal standing, but advocates would find it hard to get their voices heard (certainly in the public discourse, and perhaps also in court) when they said "well, there was a right to privacy in the Constitution all along."