Chapter 6: A RIGHT-TO- PRIVACY AMENDMENT
E-commerce links for hardcopy of book containing this chapter (DADT 1997).
Section_01: Be Very Afraid
Section_02: Renovate the Bill of Rights
Section_03: A Constitutional" Convention?
Be Very Afraid
states, there are similar efforts.
Kluge discusses in detail the two most important failed amendment attempts: the Equal Rights Amendment (for gender) sent to the states in 1972, and the Balanced Budget Amendment of 1995. All amendments passed so far have first come from Congress and then been ratified by three-fourths of the states. However, two-thirds of the states can petition Congress for a constitutional convention (“People's Party” style, as in Chapter 3), which could lead to the free-for-all of multiple amendments or even a total rewrite. Three-fourths of the states would have to pass such a resolution. Between 1987 and 1992, thirty-two states have passed such resolutions calling for constitutional convention, and with only two more, Congress would have to call one.
I do feel fortunate to be an American, and I feel more confident that government will respect my freedom today than it did in those horrible days of “incarceration” at NIH in the early 1960’s. And William and Mary, after all, was a state school.
But “is it
safe?” If I describe in this book a
clandestine breakfast meeting with a gay military officer, the military could
conceivably interrogate me and ask about his possible admission to me to acts
of sodomy; and today the military aggressively prosecutes servicemembers
for private consensual homosexual acts with adult civilians. Today it is still
conceivable, if unlikely, that a zealous prosecutor could track down even
civilian “crimes against nature” by giving immunity to one citizen who agrees
to testify against others. [Men are still sometimes prosecuted for
“solicitation” for sodomy.] If I live with another man in an apparently sexual
relationship in my apartment, I could conceivably be charged with
“mainstream” society, I encounter a similar passion about privacy in family,
child-rearing, and financial matters. At the Libertarian Party convention,
Presidential Candidate Irwin Schiff described his income tax-resistance from
prison and the invasion of his privacy by the
Politicians and district attorneys often fall for the “witch-hunt” temptations in other areas where children are involved, especially going after teachers, day care operators, and even parents “accused” of abusing children. We must rethink carefully whether our due-process protections today are sufficient. Surveys of the public show a disturbing willingness to surrender civil liberties and privacy rights in exchange for security against terrorists, but forcing the democratic “system” to take freedoms away from on ordinary citizens bootstraps terrorist strategy. Some rules for public safety, whether stopping for school busses or going through reasonable security procedures at airports, do not impose more than a negligible cost on individuals, and these common safety regulations are not the target of my liberty concerns.
constitutional amendments reflects a faith in a court system which will always
protect the individual from government’s crossing some unviewed line. Libertarians,
even the most radical, would maintain a federal court system, and there’s no
question that the founding fathers intended citizens to have court protection.
Author Steven King even writes, “But law enforcement without a court system ain’t justice. It’s just vigilantism, rule by the fist.”
Bork’s aforementioned critique of the self-augmentation of the judiciary tests
libertarianism; while we apparently need a court system to enforce the freedom
to contract, we perhaps (without Bork) can get along without the notion of
“judicial review” (so excruciatingly detailed here when discussing the military
ban) as well as do the British.
Take the tour of
Bowers v Hardwick (1986) is notorious for denying that the “right to privacy” protects private gay sex, and this Supreme Court opinion provides much of my motivation for suggesting a new constitutional amendment. An earlier decision involving contraception, Griswold vs. Connecticut (1962), had explored much of the conceptual foundations for the right to privacy in general. Justice Douglas had maintained that several provisions in the Bill of Rights created a “zone of privacy.” Among these were free speech in the First Amendment, freedom from unreasonable searches (and the right of people to be secure in their “persons, papers, and effects”) in the Fourth, the prohibition of self-incrimination in the Fifth, and the unremunerated rights derived from the so-called “penumbra effect” of the Ninth. In 1973 the “notorious” Roe vs. Wade appealed to the right to reproductive privacy to protect the right of a woman to an elective abortion in the first trimester and sometimes later. Spaeth and Smith summarize all the Supreme Court opinions which have established, however nebulously and ambiguously, this “right to privacy” (from government view) During all these years, conservatives whined about the “incorporation doctrine,” which interpreted the Fourteenth Amendment as binding the states, as well as the “fibbies,” to many of the same provisions in the Bill of Rights.
“victimless” sex laws (outside of the military) are state and local laws. Twenty-seven states have statutes that outlaw
some form of non-conventional, non-commercial, adult, private, consensual sex.
Until it repealed its sodomy laws in 1996,
desert-hot day when I heard about the Bowers verdict on my car radio on the way
to a real estate closing in
history behind Hardwick bears
repeating. In 1982, an
was only five-to-four (Justice Powell switched in the late innings), but the
vehemence of the majority’s opinion, written by Byron White and supplemented by
Burger, shocked everyone. “There is no such thing as a fundamental right to
engage in homosexual sodomy,” the Court wrote, and then editorialized that the
“right to privacy” did not apply because of the lack of connection between
family, man-woman marriage and procreation, and homosexual activity. Such
“fundamental” rights (most of all, the right to marry) apparently needed to be
deeply rooted in community or “family” purposes. In an earlier case, a Judge
Harlan had written that “confining sexuality to marriage forms a pattern so
deeply rooted in the substance of our society that any Constitutional doctrine
in this area must build on that basis.” So much for “natural” rights to
self-ownership! Justice White added that,
“the law often expresses moral notions, and if every challenge to a law under
the due process clause were heard, the courts would be very busy indeed.” The
blind acceptance of majoritarian “moral notions”
could certainly lead to silly reasoning; consider that in
However, Justice Blackmun’s dissent seemed to reach almost to the level of Rosenfels, in asserting that “sexual intimacy is a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality ... The fact that individuals define themselves in a significant way through intimate sexual relationships with others suggest that in a nation as diverse as ours, there may be many ‘right’ ways of conducting these relationships, and that much of the richness of a relationship will come from the freedom of an individual to choose the form and nature of these intensely personal bonds.”
The failure of due process analysis to hold when applied to sodomy laws would lead to more interest in equal protection analysis, with particular focus on convincing the courts that anti-gay public policy should be reviewed under “heightened scrutiny,” as already noted earlier in discussions of military policy.
Romer does leave us dangling on the (anti-gay) sodomy laws, because the historical approach taken by the courts (only rational basis review on gay issues) still leaves policy makers plenty of excuses to deny gay men and lesbians appropriate civil rights protections in such areas as the military and family law. One interpretation suggested to me by a Republican party leader in the Portland, Oregon area is that Romer forbids both the federal government and the people of any state from singling out gays in a referendum but still allows the elected representatives of a state to make public policy that is discriminatory to gays. Other attorneys predict that Romer will lead to the nullification of homosexual-only sodomy laws, still on the books in five states. [As we know from the June 1997 Agostini v. Felton decision on incidental use of public school teachers in parochial institutions (for non-religious instruction) it is sometimes possible for the Court to reverse itself on controversial matters, and these could one day include either sodomy or abortion.]
Perhaps Romer will deter courts from allowing other abuses or cultural extensions of sodomy laws. In April, 1997, an appellate court in Alabama ruled that a state-funded school could not deny funding for a gay student group on the grounds that it advocated illegal behavior; the First Amendment, at least, permits arguing that criminal laws be repealed and possibly for advocating the behavior itself.
summer of 1996, I was enjoying outdoor brunch with two friends at the Lobster
The International Bill of Human Rights was adopted in 1948. Article 2 stipulates, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, political or other opinion, national or social origin, property, birth, or other status.” Article 7 states, “All are equal before the law and entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
bounced this idea off of some attorneys litigating the military ban cases. They
think this is far-fetched and improbable, but could be useful to bring moral
pressure. Congress, or a state legislature, could be told it really is
(indirectly) violating international law and treaties in keeping sodomy laws on
the books. In some situations, various kinds of anti-gay discrimination could
be arguably found “unconstitutional” under international law. In
sodomy laws, civil asset forfeitures, in which government seizes property
(without compensation) associated with illegal business activity (usually the
sale of illegal drugs, obscenity, child pornography, or even prostitution) have
sometimes grossly violated citizens’ rights and seem at least morally
suspicious, particularly when the individual is never convicted of a specific
crime. The Supreme Court has upheld civil forfeiture several times, most
recently in 1996 when the State of
Renovate the Bill of Rights
It is time for progressive and libertarian interests to get into the ring and propose an amendment of our own, an addition to the Bill of Rights. It starts by clearly identifying “privacy” with the individual, removing the dependence on family context, and then must move to other areas such as speech and civil forfeiture. We need a Right to Privacy, Intimate Association, Life, and Pursuit of Happiness amendment. This effort should address mainstream privacy concerns, as well as those of gay men and lesbians who obviously want to repeal sodomy laws. For example, it should reinforce the right of parents to control the content of their kids’ educations. It should offer to protect the right to give birth, even by insemination, and protect the legal “choice” of abortion for pregnant women during the first trimester only (when the unborn infant is unlikely to have become sentient). It should force government to decriminalize private possession and use of most drugs (although not sale, transport, and trafficking). It would outlaw government’s drafting persons into any kind of servitude, military or not.
Such an privacy amendment would only prevent a government (even including the military) from criminalizing “victimless” behavior, not private interests from investigating and “discriminating” because of perceived inclinations or “propensities” for behavior. It would effectively prohibit government itself from engaging in irrational exclusion or discrimination, and from suborning discrimination or animosity in the private sector. It would not create any “suspect classes” or provide a basis for entitlements. Government would punish those who directly injure others, with even more certainty. Government would not, however, pass laws for which it has no reasonable expectation of gaining convictions under our notions of “due process.”
Douglass Ohmen, who ran for nomination of the Libertarian Party for president in 1996, suggests verbally a simple wording: “The right to privacy in adult intimate association shall not be infringed.”
Then Peter McWilliams proposes a similar amendment, but almost as an afterthought towards the end of his book on “the absurdity of consensual crimes in our country”: Neither the Congress nor any state could make any act committed by a citizen of the United States a crime unless the act “physically harms the person or property of a non-consenting other.” Presumably, McWilliams means “adult” when he says “other.” This sounds succinct enough; however, one can certainly harm non-consenting others without physical damage (such as by embezzlement or fraud), and one can endanger others (as with driving while intoxicated) without the result of immediate harm in a specific case.
pursuit of happiness, in libertarian thought, correlates closely to property
ownership and use. Indirectly, at least, such an amendment will enlarge the
role of property as an element of constitutional deliberation. Yet, property
does not always imply unfettered individualism. Real estate definitely invokes
community and “collective” values, as any condo owner knows. What is increasing is our notion that
property ownership implies personal responsibility. We are breaking away from
the mindset that wanted to penalize people for the sins of their
My proposal for the text of this amendment follows now.
PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
TWENTY-EIGHTH AMENDMENT ¾ To be known as number eleven of The Bill of Rights
THE RIGHT TO PRIVACY, INTIMATE ASSOCIATION,
In the following sections, “covered jurisdiction” means the
No covered jurisdiction may pass any legislation defining any conduct occurring in privately-owned space as criminal when there is no reasonable chain of events that could lead to an actor's actual conviction of the (specific occurrence of the) crime. Obtaining witness testimony in consideration for immunity will be considered a legitimate method of obtaining conviction for a crime when (1) the witness is victimized by the crime, or (2) there is immediate threat of injury or death to persons.
No covered jurisdiction may pass any legislation which criminalizes private, consensual, non-fraternal intimate conduct between adults, unless a specific occurrence of the conduct results in provable infliction of injury upon or transmission of disease to a person.
No covered jurisdiction may pass any legislation or administrative rules whose only purpose is to “stigmatize” persons based on a perception of their participation in the intimate conduct as just defined.
In this provision, "fraternal" refers to persons related by blood, by military rank, or by a similar reporting relationship in government employment.
No covered jurisdiction may pass any legislation which criminalizes or otherwise prohibits cohabitation between any consenting adults, except for reasonable requirements for per-person living space.
Nothing in Sections 1, 2 and 3 requires any covered jurisdiction to recognize any group of individuals as a "suspect class" (requiring “heightened scrutiny” or “disparate impact” consideration) according to their preferred forms of adult intimate behavior. Nothing in these sections requires Congress or any state or subordinate jurisdiction to recognize any particular intimate relationship as a legal marriage.
No covered jurisdiction may require involuntary servitude, even with pay, of anyone.
The expression of a voluntary silent prayer or spiritual practice in a public place will not constitute government or public endorsement of a particular religious expression. The voluntary, incidental display of a religious object or artifact in a public place likewise will not constitute public endorsement of religion.
No covered jurisdiction, for purposes of employment, loan subsidies, housing, licensing, or admission to public educational institutions, may establish preferential treatment or quota assignment for members of any social group, defined by race, ethnicity, gender, or age. This provision does not preclude preferential consideration by public agencies due to income or economic circumstances. No covered jurisdiction may exclude from employment, education admission, access to government information, or professional license, anyone because of race, ethnicity, gender, age, or (apart from observed inappropriate conduct) sexual orientation. This provision does not preclude the application of bona fide medical, physical or intellectual job qualifications by public, intelligence, law enforcement or protective agencies, and the Armed Forces.
When anyone is charged with an offense of making indecent or otherwise unsuitable material available to minors, a successful defense is made when the actor makes a good-faith effort to publish in an area not normally or immediately accessible to minors, or to use customer age-screening technologies available at reasonable effort and cost.
All of these proposals would apply to the federal government and states alike. The concept of federalism, in which states can experiment with different systems of subtle "moral values," does not extend to the rights of states to invade the intimate home life of adults or shame them with criminal labels applicable only with the "presumption" device. All of these provisions express the notion that government primarily serves to stop “aggression” of unscrupulous people upon others. Although these suggestions would not completely limit federal government to what libertarians see as legitimate federal functions (providing for common defense, foreign policy, oversight of interstate commerce, and a judiciary), they move in that direction. Many of these provisions expand the notions of fundamental rights and substantive due process ¾ the notion that laws and regulations, as well as the procedures that implement them, must be inherently fair and reasonable.
Section 2 would not automatically decriminalize drugs or weapons possession, because laws against "possession" can be reasonably enforced by search warrants issued under probable cause; on the other hand, "catching" someone at consensual sodomy in private, "in the act," is most unlikely, even with a warrant. (That is, unless civilian society copies the military's practice of witch-hunts and "naming names.”) It would not always prevent prosecution for "conspiracy," which can normally be proven by sworn testimony. It would not negate the legal notion of “intent,” which is the law’s way to deal with a child’s notion of doing things “on purpose” or of saying, “I didn’t mean to!”
But Section 2 should help bring back respect for law, once citizens believe that laws are reasonable, respect their privacy, and can really be enforced. One sidebar concerns hate crime legislation, which should be opposed because it leaves the impression that some violent crime is less reprehensible than other.
Section 3 would protect members of the Armed Forces, and would require that UCMJ Article 125 (sodomy) be amended to apply only when there are aggravating circumstances, as proposed in Chapter 4. It would not directly prevent administrative (not criminal) discharges for “homosexual conduct.” The rules I proposed in Chapter 4 are intended to prohibit administrative actions that unreasonably invade the privacy of servicemembers.
Section 3 would also prevent a state from criminalizing
adultery, or even incest between consenting adults (not involving minors).
However distasteful to our culture, this should not be a crime when confined to
legal adults. Polygamy would not be a crime; the state simply would not
recognize more than one marriage at a time (there could be civil or criminal
penalties for fraud involved in multiple partnerships). States could maintain
age-of-consent laws for consensual sex (as well as automobile operation, child
labor, alcohol, tobacco, or other substance purchase) but could still try
violent criminal offenders only as adults. [It is worth remembering that some
communist nations, such as
Section 6, protecting reproductive rights, explicitly codifies Roe v. Wade, but only for the first trimester of pregnancy. This seems like the best reconciliation of liberty and human life interests, to protect life as human (in preference to the “privacy” of the mother) when there is a reasonable basis for presuming that the unborn knows that she exists. The Section does not address the possibility of “cloning” human beings (indeed severing procreation from sexuality), a possibility so recently raised by science that it obviously needs careful debate on its own. Libertarians probably would shy away from the notion that rich people can spend their own money on spare parts factories and recognize that the human beings so cloned are indeed “victims.” Would cloning would deny the meaning of individuality? After all, genetic twins raised apart are separate (however spiritually bonded) persons, so would be non-contemporary twins. Still, these issues remind us that a democracy can never avoid completely the “moral” notions that undergird our foundation of individual rights. [If we can manufacture perfect people to order, will we become unable to care about the more human and ordinary people?]
For lesbians and gay men, the right to life issue goes beyond the suddenly commonplace arguments about testing for imagined gay genes. Gay teenage men are more than twice as likely to attempt suicide than straight teenage men.
Section 8 expands the provisions of the Thirteenth Amendment, which had prevented private entities from owning slaves, to government itself. (There are some libertarians who believe the Thirteenth Amendment already precludes an income tax.) In particular, the Selective Service System would be abolished. However, voluntary national service programs could be continued, and it is easy to imagine some employers preferring candidates who had done a stint of some kind of service. Congressional interest in protecting volunteers from tort liability is to be encouraged. Jury duty might become voluntary. Would the exploitation of migrant workers become unconstitutional?
Section 10 denies politicians and school boards the right to force controversial materials (such as those dealing with gender roles, or “creationism”) upon students, or likewise to deny them access to such materials. These decisions belong with parents. This section would be implemented by requiring school boards to draw up plans allowing school choice within five years of enactment, or by school privatization and charter schools. If a controversial item were offered only by a private school in an area, a school taxing authority would have to allow relief for a parent who wanted to use the private curriculum. The amendment does not shield parental child abuse. The rights of grandparents, however sympathetically portrayed by an ABC News report, would not be the business of the state.
repeals old-fashioned affirmative action at the stroke of “my” pen, and
comment supplementary to Section 12, I note that “murder manuals,” as
reprehensible as they are (I certainly would never write one or deal with a
publisher who produces them), are protected by Free Speech as long as
reasonable attempts are made to sell them only to adults. Should authors of
novels dealing with terrorism be accused of (or be held liable for) giving a
deranged person ideas? It is the person who actually commits a violent crime
who should be solely responsible for his own act.
If public policy authorizes censorship based on the idea that unstable people
can’t answer for themselves, then why not ban the publication of sex manuals
on the theory that they encourage the spread of AIDS and, say, ultimately
endanger blood transfusion recipients?
With the nagging threats to valuable public speech, we should realize
that we have come along way from the sedition acts in the past in both
But more important than the extreme applications of free speech is to grow a culture that welcomes the presentation and discussion of new ideas. In the past, many subjects (especially those dealing with sexuality) were simply not to be discussed; authoritarian mentality considered them downright dangerous to sexual competence. Even today, the threat of obscenity and indecency laws, as well as the complicated torts of libel and publicity, can hinder the credible presentation of and standing for radical proposals, and force one to have the bureaucratic approval of others before being listened to. The free public debate to which conservative justices now implore us when they refuse on their own to invent “new fundamental rights” or otherwise to hamstring the state, demands that people of average means be able to put everything on the table without first paying “loyalty” tribute to family, corporation, labor union, political party or candidate. This is my answer to radical, adversarial politics carried out by those with nothing to lose! Readiness to speak up is an essential component of healthy identity and even of honor. This process provides a healthful example of the commercial “profit” motive, where an individual, a team or a power of “one,” invests his own money to be heard rather than just to demonstrate a quick and facile return on a trial balance sheet. The rapidly falling cost of self-publishing (whether in books, web pages, even CD-roms) creates the potential for changing the mechanics of political debate, and this opportunity should not be jeopardized. Good debate requires that the truth be whole and that it be addressable.
Our mainstream culture accepts the presentation of controversial political ideas in historical period contexts (such as in Arthur Miller’s play The Crucible, dealing with the Salem witchcraft trials in 1692 and containing a great “naming names” scene where the women fall in a line in collective hysteria), but has more difficulty applying them in modern settings dealing with sensitive topics like sexual identity. While some of the problem is personal insecurity, much of it is also intellectual laziness. People need to be more open to learning, which is hard work and requires real mental agility ¾from the speed-reading machines of the 1950’s to today’s open “object oriented” information systems. Otherwise, politicians and religious demagogues, to keep themselves in power, will continue to exploit their ignorance. Intellectual laziness is dangerous for national security; it lets wars start. One needs to cherish challenge, difficulty, paradox, and even moral ambiguity.
Conservative, “family values,” and religious ideas are certainly most welcome at the table of public debate. If former Vice President Quayle would prefer to see a religious program to counter the public Meinhold-style public outing of Ellen DeGeneres, that’s fine. I watch Biography, History, and religious cable channels myself all the time¾and I usually prefer them to silly comedies and to violence. But the real point is to localize debate and give everyone a voice. Perhaps people, deep inside, understand “family values,” better than I think they do, and what they need is the cultural freedom to talk about it. It is, by the way, a form of speech when one volunteers and chooses her cause; it is also a form of speech when one starts a business and makes it work big (like Microsoft), even if that business consists of watching a particular industry on the stock market on the Internet and making a fortune by short selling.
Almost as a footnote, I also propose a second amendment to clarify the marriage issue for constitutional purposes.
TWENTY-NINTH AMENDMENT ¾ Marriage
No state will be required, under the Full Faith and Credit Clause, to honor a marriage made in another state if that marriage would not have been valid in the subject state.
The federal government is not bound by the marriage laws of any state in characterizing a marriage relationship for purposes of defining any federal tax liabilities or benefits or entitlements under federal law.
Constitutional law obviously should not try to define what is or is not a real “marriage”; this would be silly. The policy focus should, as discussed previously, consider reducing or eliminating subsidy of adult relationships that do not support children or other dependents.
renovation of the Bill of Rights, with the final authority of the United States
Constitution directly limits the prerogative of government to criminalize
“victimless” behaviors and to invade into areas of personal life. It
strengthens directly the protections for
A mainstream liberal may say, fine. We should have an amendment protecting adult sexuality and reproductive rights; but we need the power of government to extend these protections into the “pseudo-private” areas of the corporate state, just as we need government to prevent unjust exploitation of the working classes by the rich, to protect the environment, to prevent monopoly, and to provide a social safety net. Government, in this paradigm, still retains the responsibility for the “moral values” of a decent society where the strong do not exploit the disadvantaged. My immediate reaction to a liberal’s indignation is, run with it! We need the privacy concept to be taken up by all reasonable sectors of political interests. The effort to implement it must be truly non-partisan.
I believe, however, that it is impossible for government to do many of these things without selling the spoils to the highest bidders, and without encouraging convenient and blind tribal allegiance and conflicts, [particularly in such deep-seated problems such as race]. Government entitlements and over-regulation tend to corrupt the incentive for people to be responsible for themselves and their own intimate or familial associates. Since the line between private acts (or values that lead to acts) and public consequences varies like a shoreline with the tides, determinations of what are legitimate “fundamental rights” will themselves remain subjects for political barter. If the public is going to have to pay for the health care or safety hazards for sexual, dietary, substance-abusing or even psychologically addictive behaviors, is it not arguably necessary for government to regulate some of these behaviors, at least when their occurrences, if not always directly observed, seem inevitable by “common sense?” Doesn’t it become necessary to declare as “public policy” what is right and wrong in these personal matters, if only to guide the young and more vulnerable? The only principled answer is to emphasize personal accountability for the consequences of one’s own actions, for any adult, without exception, regardless of background or inherited or congenital disability even when due to parental neglect or abuse. No insanity defenses! Accordingly, I have built up to this amendment proposal with discussions that would have government bowing out of favoristic policies not just in family life but also in economic marketplaces which have increasing incentives to accommodate families. The process of letting¾even making¾people chart our their own courses will provide an interesting experiment: will people find the time and resources to care more about deeper, motivational moral values; will they drift towards narrow, darwinian meritocracy; or will they just focus on everyday adaptive, necessary “tribal” loyalties? I’m optimistic they’ll pick “option A.”
The “conservative” knee-jerk reaction will be that we need government to regulate personal morality and, specifically, proscribe certain private acts and compel certain communal obligations, because human beings, as a whole, need to be told definite standards of right and wrong, even if they know these standards can hardly be consistently enforced. Young people need to be told, by the legal system, that using drugs is wrong, whether perpetrators get caught or not. This is essentially a collectivist view, and a pessimistic one. It does make the definition of “wrong” very vulnerable to political tides, especially with an area as sensitive as private, adult, consensual sexual behavior; it would preclude using the market to select one’s own moral universe. Sometimes, it takes the attitude, “we’ll leave you alone if we don’t know about it, but we need a way to tell others your lifestyle is wrong and bad for the good of the community as a whole.” It leads, at best, to delirious circles, such as maintaining sodomy laws to deny same-sex marriage or even cohabitation, to maintain the desired result, often gender-conformist behavior. It is hardly confined to just sexual behavior or even drugs and gambling; during the insider-trading scandals of the late 1980’s, we actually heard “liberals” (suddenly talking like social conservatives) proposing compulsory national service as a way to force young people to unlearn “greed.” [My thesis for lesbians and gay men, of course, is that even with much less state-mandated regulation, society will discover it can’t afford to continually treat us unfairly.]
Volunteerism and service has been seen more as morally cleansing than just as a way to reduce dependence on government. But there is tension between the obligation to help those less fortunate and possibly self-effacing servitude. Today, ex-military officers sometimes tell me we should return to the draft, and some writers propose a “national service lottery” or national volunteer program with federal benefits similar to the GI Bill. Michael Lerner has a much better suggestion, of a voluntary national service program (hopefully privately run) which would encourage persons to volunteer small amounts of time throughout life. Former President Carter often speaks publicly about “service” and his Habitat for Humanity is surely one of the best programs. Colin Powell stresses volunteerism which targets disadvantaged and endangered young people. Some public high schools now require “community service” for graduation (an idea unknown during my youth, during the era of the draft and the Cold War). Generally, when government or large mainstream organizations sponsor volunteerism individuals tend to feel they have less choice in the specific clients they will help or the tasks they will perform. Bureaucrats contemplating running “volunteers” programs should remember that children often insist, “I did it because I wanted to, not because you made me.” Some gay men volunteering as buddies for persons with AIDS are less enthusiastic when their clients are drug addicts. The common proverb of volunteerism is “find a need and fill it.” But personal choice of arena of service (even the military)¾in a grateful manner that fits one’s goals¾gives one a chance to earn his own social justice.
Representative democracy has always been predicated on the amalgamation of otherwise adversarial individual interests and has assumed that people, while going about their own personal and business lives, are willing to leave some political calculations and discourse to paid (“professional”?) representatives whom they elect. Perhaps I see this fact as a necessary “evil” that comes from our need to all get along. I have indeed leveraged my own opinions and hijacked the process by presenting this book. But if government gives up favoring some people at the expense of others, most controversies would be resolved in local and private hands where people can have real voices. My own personal history, from college through my involvement with the military, shows what happens when a person injects expression of his own identity and values into environments where most people are caught up in adaptive or, at best, self-recreative efforts; furthermore, my odyssey encountered others, in settings ranging from psychological “communes” to the military, who tried to vent the same kinds of expression. Getting government out of at least the most personal issues¾and the process of exorcising government, most of all from speech areas (and from its contingent power to require young men to yield their lives)¾will tend to give more people incentive for personal growth. [Belief that rigid cultural rules, often centered in “religious” morality, will really be enforced by the state, tends to provide facile, sour-grapes rationalizations for personal mediocrity.] But the fluid broadcast of ideas, some of which seem disruptive to young people or less intact adults, still sounds very much up in the air.
“Liberal” observers often insist that some personal “sacrifice” will always be demanded in democracy as a result of the “just” consent (a notion associated with the federal “enumerated powers” of Article I, Section 8) implied by representative election of government with police powers. But people don’t generally install others in office with the intention of having their own freedom or earned wealth taken away without their immediate, personal consent.
libertarians will want to extend these privacy, liberty and procedural
protections to other areas. My amendment would probably protect possession on
private property of most substance defined
as illegal, but not the transportation of them through public spaces (or
importation into the
The militias notwithstanding (I was once bold
enough to drive a rental car slowly past the entrance to Aryan Nation
headquarters), no one in the mainstream takes seriously the idea today that
there is a right to overthrow government by force. All right, how did we have
an American Revolution? And did not little insurrectionist people (whether in
I have gotten mixed reviews from the proposal as far as I float it. One attorney, who works on military ban cases, says, surprisingly, that her concern is not “being private,” but obtaining categorically equal protection for gays and lesbians. The “privacy” paradigm used to be the easy way to deal with “gay rights,” and libertarians today still like it; they tend to look at everyone’s life as “private.” But privacy is after all, a bit of a mirage; people “know” who you are. I find otherwise; privacy helps me regroup, and maintain complete control over what I say.
Another libertarian friend (from GLIL) played devil’s advocate with the attempt to get rid of state sodomy laws. All we need be concerned with, he said, is eliminating federal invasions of privacy and regulations; then the states can compete among themselves. Bad, I say. A state, to an individual, can be every bit as oppressive as the Federal government. I definitely believe in the Incorporation Doctrine (based on the Fourteenth Amendment, it applies the Bill of Rights to state governments as well as federal). Of course, sometimes the distinction between government and “corporate state” becomes facetious. A homeowner’s association is a bit of both: a private corporation, and the lowest level of local government.
state supreme courts, including
I recently called Washington, D.C. “liberal” talk show host Joe Palka, when he was talking about “third party” presidential candidates being shut out of the debates (an unethical manipulation of electoral process by the Democrats and the Republicans), and floated my privacy amendment proposal, and then identified my connections with GLIL. “How can a gay person be a libertarian,” he asked. To me, that’s obvious now; but he never let me finish an explanation, coming back with claims that homosexuals will be safe only if they are protected from the outside world by “strong, national anti-discrimination” laws. “Your amendment would require a strong national effort.” True, but the effort would be aimed at reducing the power of government, not expanding it.
Bottom line is this: if we want to be freer to lead our own inner lives as we choose, we must depend much less on government to rescue us (or even our children) from our own mistakes.
A “Constitutional” Convention?
An ad-hoc, non-partisan group should be formed
to consider the content and language of such an amendment. Constitutional scholars would need to be
recruited. I would personally be interested in active participation. If it were
up to me, a good place for the first brainstorming session might be the Raleigh
My formulation of this amendment would leave the existing portions of the Bill of Rights in place; but certain concepts (due process, privacy, parental rights, free speech) would be defined more precisely. Others, such as freedom from cruel and unusual punishment, would be left totally untouched. An obvious alternative to adding another long amendment to the Bill of Rights is to rewrite the entire set of amendments. This effort would have to clarify the reach of Equal Protection (Fifth and Fourteenth Amendments), and consider federal taxation powers (Sixteenth amendment). The early steps in the process would consist of citizens’ deciding on how they want all of the revised amendments to read, well before trying to introduce them.
We would do well to draft a supplementary “Bill of Responsibilities,” too. It would not have legal force, and it could be drafted with a bottom-up, grass-roots approach like “The Area of Mutual Agreement,” but eventually it could become another national document, to be stored in a privately run, not-for-profit museum, somewhere among all the monuments in Washington. [I can recapitulate the subtle of “responsibility” from reviewing my own life. As a graduate-student math instructor, I had actually looked upon the making up of quizzes and the giving of grades as a “power” (in view of the draft) rather than (what the university called it even then) “my responsibility.” Later, as a programmer, I would learn to live with the knowledge that an undetected mistake could send out thousands of checks in whole dollars rather than dollars and cents. I would never experience a more intimate kind of responsibility, to give a two-year-old potty training.]
The debate over the amendment itself, of course, will focus on the resulting policy choices on personal areas, and show that, increasingly, people want to be allowed to be responsible for themselves. This amendment would be no call for cultural license. But, in proposing that the government largely butt out of codifying abstract “moral notions” and out of related social engineering, it would intensify the moral and, indeed, psychological debate, particularly over personal surplus and autonomy and its connection to the process of human commitments and to protecting our children. Gradually, this town-hall dialogue would migrate from Congress, the statehouses and courts to private spheres. Hopefully, the public would start to see that “self-actualization” is much different from “gratification,” as it requires knowing how to meet the real needs of other people; it will see the counter-productivity of government’s trying to divide society into the “self-indulgent” versus the “family friendly” as competitors for a finite pie, for which politicians have every incentive to roll its flaky crust. It will see how freedom progresses from personal honor and psychological attachments to outreach in public and civic affairs. It will demand that government respect its bounds by not invading the psychological space of the individual, even when it believes there is a democratic mandate to carry out its best intentions to encourage people to make and keep commitments to others and to mediate a wholesome culture for children. The public will realize that such an amendment and related restriction to statutory discretion is indeed in the best interests of all Americans. Still, the American people face a debate on how much freedom (in personal sexuality, use of property, speech, and child rearing) they believe they must give up in order to defend the community, provide a safe environment, to motivate the most vulnerable members of society, and maybe to be protected from themselves. The conversation will require intellectual precision and detail. It will call on reading comprehension¾college level on the Flesch scale¾and redeem those English teachers of my youth who sought to instill “appreciation” of real “literature.” It will require the good intellectual intentions of a Jimmy Carter, not the keep-it-simple and feel-good of a Great Persuader (however better Reagan was a manager and delegator of other policymakers). It demands critical thinking that obliterates old-fashioned partisanship and “good old boy” mentality. It will match up our healthy instinct for moral absolutes, often religious in nature (and sometimes demonstrated by the urge to defer to religious practice) against our need to think for ourselves. It will demand we reconcile our highest principles¾liberty, equality before the law of all citizens¾with the practical limits of a dangerous but growing world. It will urge us, at least mentally, to envision our limits; after all, given unlimited freedom to make certain “private” choices, such as the precise genetic specifications for one’s children, people of means could resurrect the abuses and a certain utilitarian callousness that in the past led to slavery, child labor, conscription, and even homohatred. We have to trust ourselves.
precepts¾of what is true and right¾seem like they ought to be simple, but when
one looks in detail at all the issues (family values, the workplace, free
speech, military) one finds enormous complexity of inter-connections. One has
to look at everything before knowing what’s right or true. The deepest moral
conflicts have to do with an individual’s choosing his own ends and balancing
those choices with the real needs of others. The
We should decide what we want the Bill of Rights to say in the new millennium. I’ve given it my best shot. Maybe we can strengthen our rights sufficiently by repealing prohibitionist statutes, or through more court actions, such as on Hardwick. But we must have on paper a plan for what we want.
My own life probably comes across as that of a wanna-be gumshoe, one of psychological (more than sexual) voyeurism, roaming and running around as much committed participation; yet I have seen enough kinky things, miniature episodes almost unusual enough for Twin Peaks, to piece together a thread of truth that runs through it all. I have led simultaneously within and outside the mainstream, and gained unusual perspectives. I certainly have not earned publicity (or notoriety) as a swimmer, war hero, politician, journalist or business man before starting to write. Perhaps my deliberate avoidance of conventional career advancement (with promotions and formal authority over others) and my moderation (though not poverty) as a consumer as well as my not having children of my own, all make me feel more smug¾enough to administer this enjoyable tongue-lashing!¾in judging the behavior and integrity of others, both as individuals and as loyal members of their familial and economic interest groups. I am struck by how much most people give up of themselves just to be accepted by others and be comfortable with this acceptance; for all the respect I have for marriage and family, I don't think straight America really finds importance to others through it. Political solutions like The Ban and DOMA (with ENDA as a bone) keep a lot of people more comfortable¾or less uncomfortable, and less anxious. People find psychological sanctuary within the general welfare, and become giddy as they branch out for longer day hikes “away from home,” from their own special worlds. I have presented social strategies which encourage people to grasp how others psychologically and culturally very different think, to be more aware of others’ feelings. For us all to get along, we need to see beyond our own comforts.
But I want to replay my main thread of thematic development. A lot of people are falling through the cracks, failing and dying and taking others with them; and today (compared to the past) this happens as much because of personal moral failure as from economic exploitation by others. People are lured by the glitter of personal gratification, believing this will bring fulfillment, and simply lose all interest in the real needs of others. Of course, we need to reaffirm “family values,” but we don’t do this by snubbing people who don’t fit our ideas of the proper sex roles. Sexism at best coarsens our daily communication with others and, at worst, leads to outright hatred and violence. A culture that reaffirms commitment to others will stress finding special value in others as individuals, not just in proving that everyone is “equal.” Government can uplift by facilitating global cooperation according to our best democratic ideals, but government must stop trying to tell people how they “ought” to conduct their personal lives. For gays and lesbians, this means government must not categorically exclude them from sharing the most visible responsibilities in civilization, parenting and defending liberty; at the same time, government cannot force private citizens to “accept” homosexuals or make homosexuals equal in terms of group rights. Morality is achieved only when people first accept, and then make and keep commitments to others willingly (a favorite term of my own mother) and out of their own identities. Debating the privacy amendment will demonstrate all of this; and, conversely, the Amendment can succeed only if the American people live as if they believe in themselves.
For America to publicly and visibly commit itself two congruent principles¾a clear line to fence out government intervention in private lives, and a consistent cultural imperative to personal responsibility and commitment¾would set a good example for the rest of the world which, given our rejoicing over the end of the Cold War which so shaped my life, seems as dangerous and unstable as ever. Imagine the next century, when men and women just being born will contemplate voyages into space months or years long, and then the settlement of other worlds, and will have to get along, personally and politically, in conditions of “intimacy” unimagined even today. Perhaps the American frontier, in its early days, knew the benefits of cooperation and self-reliance, because privacy was literally built into the homestead, better than any age since. In a modern, more entrepreneurial age, we should be ready again for the optimism that comes with personal responsibility.
Classical music, from the sonata and symphony to opera, accomplishes the weaving together of apparently unrelated or even contradictory motives and logically working them out into a final cadence of either triumph or peace, but sometimes tragedy. So it is with freedom, as we come to the end of a millennium. Freedom, like my own symphonic manifesto, finally seeks its tonic triad. We should celebrate a renovation of the Bill of Rights with an event on the Mall, a Million-person March surpassing all in history.
We fought and won the Second World War, a great and horrifying adventure, so that people could hold the state accountable and put their own family lives on a par with patriotism and even politics. We set into motion a civil rights movement so that, for the convenience of the “normal” or privileged establishment, people would not have to “pass” as Christians, as white, or, now, as straight. The fall, or at least stumble, of communism, shows the failure of the values behind collectivism, even as fundamentalist religious forces try to reinstate an authoritarian, external morality. In the 1960’s we saw our freedom tested by social divisions and imperial war; in the 1970’s, by our own over-consumption, in the 1980’s, by an epidemic. We did not fail. In the 1990’s, we have reversed ourselves enough to feel the growing pains over personal identity, particularly as symbolized by two “gay” issues: the military ban, and same-sex marriage (and parenting). Early in the next century, perhaps in only another decade, we will face squarely the question of whether our human species is really unique and alone (and whether perhaps some cetacean species with whom we share our oceans are our intellectual equals). We’re certainly going to look! Man in Space, as we termed it at Understanding back in the 1970’s, would call for unprecedented communal ark-style cooperation! The gentle winds of a more prosperous future, with more personal freedom, rise up upon us as the new millennium approaches. Yet, we may enjoy neither if we do not take from government its still excessive prerogatives to hollow out from us our own moral commitments. We must recognize the weak points of individualism, such as the skipping of obligations and the ignorance of consistent personal limits, but we must not give back to government our own sense of personal honor. Debating this amendment will force us all, and not just the kids, to grow up.
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 Warren Farrell, op. cit., p. 367.
 Robert Bork, op. cit., p. 117. Taken literally, Article II Section 2 gives
Congress the authority to modify the appellate jurisdiction of the Supreme
Court in both fact and law. See also
Bork’s “The Conservative Case for Amending the Constitution,” The Weekly Standard,
 HJ Res 121/SJ Res 45: Religious Equality Amendment proposed (Henry Hyde)
would prohibit denial of federal or state benefits because of practice of
religion; HJ 127: Religious Liberties Amendment (Istook) would permit
student-composed prayer in public schools but forbid official prayers; HJ 184: Religious Freedom
Amendment (Armey) is similar to Hyde but would “legitimate the direct public
subsidy of religious activities and of pervasively religious institutions.”
David Ackerman and James Sayler, “School Prayer and Other Church-State
Issues: Proposals to Amend the Constitution,” Congressional Research Service,
 Boaz, Libertarianism, op. cit., p. 125.
 Actually, a local Democratic
party caucus in the heavily gay
 David Kluge, The People’s Guide to the United States Constitution (New York: Citadel, 1994), pp 150-155. Such a convention might be limited to the Balanced Budget Amendment, but then I could sue to get my changes to the Bill of Rights introduced! Maybe that would keep things tied up for a while. Most likely, the Supreme Court would allow only the issue that brought on the convention to be addressed. The practical consequence of this “threat” is that Congress should itself pass a Balanced Budget Amendment and send it to the states once a constitutional convention had really become credible. This is looking unlikely in 1997, so there is at least considerable statutory pressure on Congress to stay on track for a balanced budget by 2002. Some libertarians even insist that a federal budget should be balanced against prior year’s revenues, not just expected revenues.
 Frank Whitworth, of
 In 1991, the
 Nicholas Riccardi,
Jeff Leeds, “Megan's Law Calling Up Old, Minor Offenses,” The
 David Frum, “The Courts, Gay Marriage, and the Popular Will,” Sullivan, Same-Sex Marriage, op. cit., p. 360.
 Timothy Lynch, “Dereliction
of Duty: The Constitutional Record of President Clinton,” Policy Analysis, No, 271, Cato Institute,
 Irwin Schiff, The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes (Las Vegas: Freedom, 1990/92). Schiff bases much of his constitutional reasoning on the premise that compliance with federal income tax laws is entirely voluntary.
 Leslea Newman, Heather Has Two Mommies (Boston: Alyson, 1989). Also Michael Willhoite’s Daddy’s Roommate (Alyson, 1990). Both booklets try to teach mainstream children respect for peers who grow up in unconventional homes.
 Michael Pallan, “Opium Made Easy: One Gardener’s Encounter with the War on Drugs,” Harpers, April 1997, p. 35. Maybe Harpers itself could be in jeopardy for running this 10,000 word piece!
 Ronald Goldfard and Gail Ross, The Writer’s Lawyer (New York: Times, 1989), p. 36. In the mid-1980’s, it was sometimes possible to seize the entire stock of a bookstore for the sale of one book or magazine portraying child pornography.
 Robert Corn-Reves: “New-Age Comstockery: Exon
vs. the Internet,” Cato Policy Bulletin,
Sincere, “Act Deserved to Be Struck Down,”
 Paul Wallich,
 ABC “Turning Point,”
 Although the delays at some
airports after the 1996
 Steven King, The Stand, (New York: Signet, 1990), p. 779.
 Jeffrey Rosen, “Orginalist Sin,” New
 There is also a similar recent decision, Planned Parenthood vs. Casey , 505 U.S. 833 (1992).
 Vincent Samar, The Right to Privacy: Gays, Lesbians, and the Constitution (Philadelphia: Temple University, 1991), p. 24. Without a “penumbra,” a Bill of Rights might defeat its own purpose by circumscribing rights. Justice Ginsburg has pointed out that other rights, such as suffrage, spelled out in various other articles and amendments are also fundamental rights.
 Marian Faux, Roe v. Wade (New York, Mentor, 1989). The plaintiff, in 1994, announced publicly that she now opposes abortion.
 Harold Spaeth and
Conrad Smith, The Constitution of the
 Linda R. Monk, The Bill of Rights, A User’s Guide (Close Up, 1991), p. 215.
 Richard Posner and Katharine Silbaugh, A Guide to America’s Sex Laws (University of Chicago Press, 1996), p. 65.
 Posner, op. cit., p. 71.
 Dave Edmondson, “Run Down by
 Hardwick vs. Bowers, 760 F. 2d 1202 (11th Cir., 1985), note 1, p.
Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989), pp 9-43.
 Chai Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, (Washington, Georgetown University Law School, 1996).
Chai Feldblum, Brief to the Supreme Court, Romer vs. Evans, Oct., 1995. This paper lists five “warnings to the courts” regarding scrutiny level, such as immutability, benignness, and history of discrimination.
Melinda S. Cooper, “Equal Protection and
Sexual Orientation in Military and Security Contexts: An Analysis of Recent
Decisions,” Law and Sexuality, a Review
of Lesbian and Gay Issues, Vol. 3,
 Robert Wintemute, Sexual
Orientation and Human Rights: The
compares the various arguments: privacy (or liberty) and equal protection in
 Barry Lynn, “What’s Wrong with ‘Parental Rights’” Gay and Lesbian Parents International Network, Summer 1996. This editorial refers to the “Parental Rights Amendment” as proposing “the right of parents to direct the upbringing and education of their children shall not be infringed.” The writer believes that such an amendment would dumb down public education, but actually it could force school privatization, or at least school “choice.”
 Peter McWilliams, Ain’t Nobody’s Business If You Do (Los Angeles: Prelude Press, 1996), p. 641.
 Amniocentesis today is
generally not available to check for birth defects or unwanted genes until
about the fifteenth week, after the ninety-day period above. David Brown: “Late
Term Abortions,” The
 The film Parts, The Clonus Horror (1978).
 Boaz (Libertarian Primer) notes that slavery was once called “man stealing.”
 ABC 20-20
 Much has been made of the
fact that Timothy McVeigh had read the novel The Turner Diaries, and a murder victim in
Jonathan Rauch, “Offices and Gentlemen,” New Republic,
 David Loomis, Gay Spirit: A Guide to Becoming a Sensuous Homosexual (New York: Strawberry Hill/Grove, 1974).
 It used to be conventional wisdom that writers needed to prove they could earn their way writing genre trash before they dared to write what they really wanted., because they would often create conflicts with their real jobs or risk lawsuits by making enemies.
 A healthy example of free
speech was the reaction of sponsors to the self-outing of “Ellen” in May, 1969.
Many sponsors replaced the ones which “jumped ship” and the show, despite a
TV-14 rating, earned terrific ratings. Christopher Jones, “Ellen’s Biggest Sponsors
all Jumped Ship,” The Washington Blade,
 Sometimes in heterosexual rape cases, “sodomy” is charged because it is easier to convict the accused of something if the he maintains the victim gave “consent.” This is a dishonest judicial practice and gets back to the jury manipulation issues of some notorious trials.
 Waldman, op.
cit., p. 33. Waldman suggests that those not meeting military standards
(gays??) would do civilian service. Possibly, military service would be
required as a pre-requisite for some public offices. But civilian service
programs (AmeriCorps) are serious competition for
military recruits. See also Harris Wofford,
Steven Waldman, Doug Bandow, “AmeriCorps
the Beautiful,” Policy Review, Sept
1996, p. 28; “Americans Won’t Face
Another Draft,” Newsweek,
The very recent sexual harassment scandal
which forces the Army to encourage female soldiers to adopt a self-chaperoning
buddy system, while a welcome sign that the military may finally be ready to
give up “lesbian baiting,” raises the troubling possibility that combat units
simply will not resolve their sexual tensions and that the all-male draft could
again appear necessary. Paul Simon, in
his remarks supporting ENDA, hinted he believed a draft could be reinstituted (Congressional Digest, Nov. 96, p. 282)
In 1996, the Marine Corps failed to meet its recruiting goals.
 Steven Waldman, “The Case
for Paid Volunteering,”
 Lerner, op. cit., pp 294-295.
 Jonathan Alter, “Powell’s
new War,” Newsweek,
 Patterson and Kim, op. cit., p. 246.
 Monk, op. cit., p.91, discussion of “Collective Rights v. Individual Rights.”
 Some communities have passed laws outlawing gun ownership even at home, and the Supreme Court has not incorporated the Second Amendment.
 Lambda Legal Defense and Education Fund, Lambda Update, Fall 1994, p. 20. The police had tried to use the presumption argument.
 Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989), p. 25.
 A similar process was described by Perot in 1992, and by Patterson and Kim, op. cit., pp 269-273.
 Harry Browne (Why Government Doesn’t Work) does support a missile defense; see pp 146-158.
 And, please, don’t present Ebonics, with its vagueness about time and causality, as a real “language.”