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July 7, 2003 by AK

The existence of a constitutional right to privacy has long been debated by American legal scholars. For instance, Justice Douglas’s 1965 penumbras and emanations opinion has been ridiculed more than it deserves. Here’s Jeffrey Rosen of TNR on the recent Texas sodomy law decision:


Next to the hyperbole of Kennedy and Scalia, the most convincing opinions in Lawrence were the most modest. In the same way that O’Connor offered the case for striking down the Texas law in the narrowest possible terms, so Justice Thomas gave us a dissent of eloquent simplicity. “The law before the Court today “is … uncommonly silly,” he said, quoting Justice Stewart’s dissent in the contraceptives case. “If I were a member of the Texas Legislature, I would vote to repeal it.” Nevertheless, Thomas said he was unable to find in the Constitution a “general right of privacy,” or, as the Court called it “the liberty of the person both in its spatial and more transcendent dimensions.”

My question is equally simple. If the right for privacy seems to have such a tenuous constitutional foundation, while most Americans treasure it, instinctively or consciously, — why has not a politician of note come forward with a proposal for a constitutional amendment affirming it once and for all?


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