Constitutional scholar Pete Donaldson, a loyal reader in Texas, kindly sent me the column, below, on whether there exists in the U.S. a constitutional right of privacy.
The writer's position is that there is such a right, but not as a constitutional right. He states why the Court was wrong to have asserted that there was in 1965 when Justice William O. Douglas, writing for the Court, in Griswold v. Connecticut, held that there must be a right to privacy because privacy is what the Constitution protects in four amendments.
The first was the 3rd Amendment which prohibits the government from quartering troops in the home (in violation of the home-owner's privacy), the 4th Amendment proscription against warrantless searches w/o probable cause, the 5th Amendment protection against extracted confessions, and the 9th Amendment's recognition that there are unenumerated right that must not be denied or disparaged because not listed in the text.
Douglas also relied on two earlier decisions, Pierce and Meyers, in which the Court held unconstitutional state laws prohibiting parents to send their children to Catholic school (anti-Catholicism was strong in some parts of the country in the 1920s) or to school to study the German language (during and after World War One, against Germany, anti-German feeling was strong). Parents have the right to direct the upbringing of their children, the Court held, and government may not interfere with these private decisions.
The writer of the article believes that the Court is wrong to develop new rights. See whether you agree. I note that he proposes the introduction of a new privacy amendment, but does not suggest any text. How would such an amendment read, I wonder. Would it pass? Would the Bill of Rights pass, today? Don't count on it.
If you put the Bill of Rights up for a vote today it would probably go down in flames after a big fight, because it protects too much controversial stuff such as flag-burning, abortion, foul language, hate-speech, religious displays in the town square and city hall, etc.
Perhaps the bill you'd like to submit to the people for a vote will have a number of exceptions to help draw more votes.
What exceptions will you include in your amendment bill?
Will there be a principled basis for your exceptions, or will you just list your personal list of dislikes?
Is the writer cagily insisting on an amendment which he feels confident will never pass? Is this a veiled way of killing an important existing right by making an impossible 'modest proposal'?
Perhaps we should leave good, or bad, enough alone: