November 16, 2005

Republican Opposition to Privacy Amendment Would Alienate Libertarians?

Today's New York Times has an Op-Ed entitled "Can I Get A Little Privacy?" in which Dan Savage argues that Democrats should propose a constitutional amendment to gaurantee a right to privacy. He goes on to claim that Republican opposition to the amendment "would alienate not only moderates, but also ... libertarian, small-government conservatives." Really? As I've discussed before, right-libertarians (and he certainly isn't talking about left-libertarians of the ACLU variety - what do the Republicans care about them?) are by definition opposed to the concept of "positive rights." Now, perhaps Savage has in mind a wording that would turn privacy into a negative right, as in "the right of the people to be secure against invasions of their personal privacy shall not be violated" (isn't that already in the fourth amendment?), but this has little to do with Roe v. Wade. In fact, the fourth amendment (and any amendment creating a "negative right" to privacy) makes enforcement of laws against abortion singularly difficult, but not impossible. The governnment would be required to show probable cause that something illegal had been done before looking at medical records, and this would be overseen by the judiciary. This means that a law prohibiting early abortions would be almost entirely unenforceable, but that does not make the law invalid. For instance, it is almost impossible to convict someone of treason in the US because of the criteria and standards of evidence involved, and these criteria are set up by the Constitution, but that doesn't make treason laws invalid.

Now, perhaps the liberals have in mind an amendment specifically keeping the government "out of the bedroom," as it were. This would be likely to garner support from libertarians. Would this cover a right to abortion? It would be debateable. (If it obviously and straightforwardly did, then it would cut down on the number of libertarians who supported it, because libertarians are deeply divided on this issue, due to the difficulty of determining whether the fetus is a person with rights.) To his credit, Savage does acknowledge that even with whatever amendment he has in mind, the issue would remain unsettled.

Personally, more in light of Guantanomo Bay than in light of the abortion issue, I've been considering the possibility of an amendment defining precisely who the Bill of Rights and other constitutional protections apply to, and this would certainly have some bearing on this subject, but that's another topic for another post.

Posted by Kenny at November 16, 2005 2:09 PM
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Why is the NSA Data Mining Operation Bad?
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