For Those Who Missed The Pilot...
Unfortunately, I'm not bright enough (or sufficiently focused) to have this kind of stuff just flow from my skull, fully formed like the goddess Athena. I probably started kicking around these ideas last summer with my wife as we watched yet another insipid "culture wars" debate on the Sunday morning talk shows. I had already started another blog at that point, but it took a couple more months to get to the point where I was ready to complain publicly. Now, of course, I've started this separate site, since I didn't want to hijack my technology-music-flotsam blog with extended philosophical rants on constitutional law.
Anyway, those first couple posts are sufficiently relevant that I've decided to repeat them here (after the jump) for continuity.
One last note -- the sub-head to this site will always contain my most-recent draft of a proposed Constitutional amendment. So far, I've only written one... but I hope that in the course of writing this site (and considering whatever else is happening in the world), I'll be able to improve on that initial cut.
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A Modest Addition to the Bill of Rights
October 05, 2005, 7:27 AM
Just a thought -- instead of relying on the "penumbras and emanations" of the Ninth Amendment (all rights not assigned to the feds reside in the people) to find a right to personal privacy and freedom, maybe it's time for a formal amendment enshrining the right to privacy. Like any good amendment, make it short and broad -- Congress and the courts can fill in the shifting parameters, informed by our history with an amorphous right currently found in a shadow of an unenumerated right.
A well-drafted amendment would enshrines the libertarian, rugged individualist ethos that many Americans currently mistake for a core value of the Republican Party. It would also provide explicit support for cases like Griswold and Roe and even Lawrence v. Texas (striking down criminal sodomy laws that target consentual behavior), insulating them from further attack.
The Amendment would also provide the explicit textual test to flush out Scalia and Thomas as conservative ideologues. A clear right to privacy strips them of the nominally-objective robes of "original intent of the framers" and "strict constructionism." I'm not objecting to their presence on the Court (in this context) -- I just want them to be honest with themselves and with the country when it comes to their judicial philosophies.
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Life, liberty, pursuit of ???
November 16, 2005, 7:10 AM
ARGH. Procrastination bites again -- this time, in the form of an op-ed in today's NYTimes by Dan Savage. No doubt thanks to the extensive editorial and fact-checking process (and the backlog of folks waiting to be published) at the Times, Dan actually posted it a couple weeks earlier (and already generated some of the basic discussion around the issue).
About six weeks ago, I suggested that it's time for a Constitutional amendment to provide explicit protection for individual privacy. I probably owe everyone some additional perspective before picking up my quill and parchment, so here goes.
Some 220 years ago, the Founding Fathers didn't see any need to be so literal, instead leaving us with the Ninth Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. If you buy Rousseau's idea of the "social contract" and the opening of the Declaration of Independence, then the Ninth Amendment clearly enshrines personal autonomy and liberty. Unfortunately, Rousseau really isn't the bedrock of American political thinking any more. Instead, we're in the age of "strict constructionism" and "close textual reading" and artificial culture wars masquerading as appropriate uses of the police power of the state. If the time has come for us to rise up and make the voices and desires of the populace heard again, then I'm willing to take the following shot:
Congress shall pass no law abridging the personal integrity and privacy of each citizen, except to preserve such rights for other citizens.
I welcome the debate over whether certain abridgements do in fact preserve the personal integrity of others. The vast majority of criminal law, for example, would still be legitimized under the formulation I've proposed. [...]
It's truly sad that our country has come to this stage, but it's time to step up and defend ourselves. Privacy and personal integrity aren't "liberal" or "conservative" issues -- they're personal and real and shockingly at risk.
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