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Monday, May 15, 2006 

How Big is Your Penumbra?

An op-ed in the Harvard Crimson calls for a Constitutional Amendment defining the right of privacy. This isn't a new idea. It pops up every so often. The op-ed points out that Justice Scalia made this point recently...
When he spoke at the Institute of Politics last year, he asserted his judicial principle: if it isn't in the Constitution, it isn'’t constitutional; if we want it in the Constitution, let's add it. I agree. Let's amend the Constitution to include the right to privacy.
Everyone forgets that Article V lets us change the Constitution. It's been done before. We're up to 27 Amendments already. The problem is that people think the amendment process is too slow. Well, it is slow. It's slow for a reason. We should carefully deliberate before we amend the Constitution. But we can still amend it. Our current style of "illegitimate amending" consists of judges writing things into the Constitution. They create things like penumbras of rights in order to justify policy results. This may get you the result that you want, but it is totally ad hoc.


Nino says, "Amend it!"

Here's more from the op-ed...
Nearly every American agrees that there are certain spheres where the government does not belong, and that we have a right to be free from government intrusion in those areas - it's a part of the American ethos. The Constitution hints at it, as the justices recognized in Griswold, but doesn'’t flat-out say it.
I think that an amendment would be a good idea, but that hinges on the language, of course. I may end up hating the language and thinking the amendment itself is horrible. But I have more faith in an amendment with specific language than some screwy penumbra of privacy that Justice Douglas pulled out of wherever back in Griswold. It's not perfect, but it would at least be a marginal improvement.

Hi Steve. Check out this link.

http://www.confirmthem.com/?p=1873

Wow, you guys have a post for everything. That's why I love your blog.

Thanks for the link.

Well, the three great difficulties, I think are that (1) to propose an amendment guaranteeing privacy would be to concede that there presently is not one, (2) as Robert Bork has pointed out, a broadly-drawn "privacy right to be left alone" stipulation would essentially render virtually all law presumptively invalid, and (3) I don't think it's universally agreed (and certainly I don't agree) that one can get to a right to abortion from a generic right to privacy.

In any event, it must get in line behind my own floated 28th Amendment. ;)

Simon, let's combine everything into one big amendment. What do you say?

I. Congress shall have exclusive federal power to void state law that infringes upon fundamental rights of privacy which have already been enforced by a majority of the states for at least the fifty preceding years, provided that those fundamental rights do not infringe upon fundamental rights of other people, and also provided that those fundamental rights are not already protected by the provisions of the Bill of Rights due to being incorporated in the Fourteenth Amendment.

II. No Senator or Representative or President or Vice President who is serving a consecutive term in these offices shall be eligible for another consecutive term in these offices.

III. The Seventeenth and Twenty-Second Amendments are hereby repealed.

IV. Beginning in one year, Arizona instead of California shall include the counties of San Diego, Orange, Imperial, Riverside, and San Bernardino.

Seriously, what do you think?

Simon: I definitely agree. I'm just saying that as a generalized idea, I prefer an amendment (some text) to nothing.

The practical difficulties of drafting this amendment are going to be huge. Finding something that will pass is going to be tough. Even if it fails and ends up like the ERA, I think that a long, drawn out debate and discussion about the "rights of privacy" that are in the Constitution or should be in the Constitution would be positive.

I don't know how big of a concession a proposed amendment would be. It seems like people keep trying to hammer this right in general, and the abortion right specifically, into anywhere in the Constitution that they can, whether it's a penumbra, Due Process, or Equal Protection. I think Posner once said that it's a matter of time before someone tries to get the abortion right out of the Takings Clause. It's just blatantly using the Constitution as a means to an end. They care about the result, and it's hard to act intellectually pure when that's all you want.

Bork is right. It would have to be very narrowly written or very cleverly designed (from a legal point of view). The broad language that is found elsewhere in the Constitution will probably not cut it here. Language like that has gotten us into this situation. It would be harder for judges to read other stuff into the language of the new amendment. They can't fall back on that "how can we know the true intent?" cry. We know the intent; we just drafted it.

I don't think that a general right of privacy will give you a right to an abortion either. I think that is one of the specifics that will have to be debated and argued about.

I wouldn't expect any amendment to pass. As stated, I think that the debate itself would be healthy. If anything, it would do much more to legitimize the judicial philosophies of people who don't see a right to an abortion in the Constitution as written. The Left has succeeded in making anyone with an anti-Roe opinion seem extremist. It's a huge sword dangling over the head of many well qualified, potential SCOTUS nominees. This might do a lot to show people that maybe they aren't all a bunch of religious kooks who hate sex. People who are anti-Roe might actually have an intellectual argument against the decision.

I hate the 17th Amendment too.

Andrew: Clause I is really an intriguing piece of writing. The combination of both a legislative and judicial role in this is ingenious. A check and balance... I'm going to think about that for a while (and finish reading the comments in the above Confirm Them post).

And can we include something in there to sever Northern California from the rest of the state?

Steve, severing the counties I mentioned would move ten million people from California to Arizona, and Arizona would remain a red state.

In contrast, if a significant chunk of Northern California (i.e. having at least five million people), then you'd inevitably be creating another blue state. In other words, the new 51st state would either be blue, or Nevada would ecome lue instead of red.

MEANT TO SAY:

Steve, severing the counties I mentioned would move ten million people from California to Arizona, and Arizona would remain a red state.

In contrast, if a significant chunk of Northern California (i.e. having at least five million people) is severed, then you might well be creating another blue state. In other words, the new 51st state would either be blue, or Nevada would become blue instead of red. Alternatively, you could turn five million Northern Californians into Oregonians, but what would be the point?

http://en.wikipedia.org/wiki/State_of_Jefferson

It's not a serious proposal on my part. I just want a state named after Thomas Jefferson.

California has too many people. 35 million people is too many for one state, relative to the other states. If those five southern counties were transferred to Arizona, then each of their 10 million inhabitants would have greater influence over their state government (they'd each be 1 out of 16 million instead of 1 out of 35 million, and they'd also live in a state closer in tune with their values). Meanwhile, the remaining 25 million Californians would each have more control over their state government (they'd each be 1 out of 25 million instead of 1 out of 35 million). And, Arizona would gain lots of wonderful assets too, including coastline. The tremendous imbalance in Senate representation would be improved in a way that no other boundary shift could accomplish.

I think that California's size is also one of the biggest problems concerning the Ninth Circuit and its operations.

I wonder if there's a way to tweak this so that it would take care of the marriage issues as well. Above, I wrote:

"I. Congress shall have exclusive federal power to void state law that infringes upon fundamental rights of privacy which have already been enforced by a majority of the states for at least the fifty preceding years, provided that those fundamental rights do not infringe upon fundamental rights of other people, and also provided that those fundamental rights are not already protected by the provisions of the Bill of Rights due to being incorporated in the Fourteenth Amendment."

Instead, we could write something like this:

"I. Congress shall have exclusive federal power to void state law related to fundamental rights of privacy, by extending law that has already been enforced by a majority of the states for at least the fifty preceding years, provided that nothing in this amendment shall affect provisions in the Constitution that are applicable due to being incorporated by the Fourteenth Amendment."

I think that would cover the whole marriage issue. Congress would have power to void decisions like that of the Massachusetts Supreme Court mandating gay marriage. At the same time, Congress could decide to allow the Massachusetts legislature to achieve the same result as their Supreme Court achieved.

At first blush, §1 troubles me a little, as it seems (as I suppose it would have to be) quite vague; I'd worry about unforeseen consequences, and it seems to effectively codify the Sandra Day O'Connor balancing test: because practically every right impinges on someone else's rights, it's an invitation to nineteen part balancing tests.

§IV is a very interesting idea, although I'm not sure how it would interact with Art.IV §3. Explicitly declaring that this amendment - other than within its own terms - will not change that guarantee would probably be a good idea, lest a future court "get creative" with it.

Two more thoughts about the California severance: first, that would deprive California of a land border with Mexico, which may have volatile and unpredictable implications for the immigation debate. Second, if we figure California's population in the 35m area, transfer ten million people from California to Arizona, presumably that means that - as a ballpark figure - California would cede a third of its 53 seats to Arizona - say fifteen seats. This has a drastic effect on the future of the electoral college if Todd Estes' theory is even marginally correct.

You're right, Simon, I didn't think of that. Arizona would remain red, but would have way more electoral college votes, and California would have way less. It would be wonderful, but would never be approved by 3/4 of the state legislatures, or by California. Oh well.

Still an interesting idea, though...And not a bad one to float. Every good idea has to start somewhere before gaining prominence. ;)

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