Thinking Big On Civil Rights

Casting about for something interesting to opine on today, I came across Kevin Drums' challenge to "think big" on the issue of civil rights:

BIG IDEAS....PART 1....Here's a question for you. I am going to choose a series of broad subjects and ask my readers what single thing they would like to see done about them. Today's subject is....civil rights.

You may interpret that broadly to mean race issues of any kind. So here is my question: if you could pass any single piece of federal legislation related to civil rights, what would it be? Think big! Assume we have a liberal president and big liberal majorities in Congress. Don't worry overmuch about the Supreme Court. The only real rule is that you only get to choose one thing.

What would it be?

UPDATE: Quick note: the subject is "civil rights," not "civil liberties." I'm thinking primarily of race issues, but you're welcome to suggest legislation dealing with other aspects of civil rights if you wish. I do intend to address feminist issues separately, though.

As the quote indicates, Kevin was thinking primarily in terms of race. But I agree with several of his commenters that race is probably not the "big" civil rights issue anymore, especially if you are talking about what might be accomplished through legislation. This is not to say that racism has ceased to exist or is no longer a concern. It does exist and it is a concern. But it is hard to see what more could be accomplished legislatively at this point. At best, laws can only regulate overt conduct. Racism and, with one notable exception, other forms of suspect class discrimination (gender, religion, national origin, etc.) are today much more a matter of attitude that they are of overt action, and the law is a very poor instrument by which to seek to change attitudes. Indeed, seeking to use law to change attitudes is when civil rights and civil liberties come most clearly into direct conflict.

As noted, there is one exception to this: gays. Discrimination based on sexual orientation is probably the last form of de jure discrimination still widely practiced in this country. As such, it is a form of discrimination where legislation could make a huge difference. So, my first reaction to Kevin's question was that what I would most want to see (ignoring as he suggests the practicalities of achieving this) would be legislation outlawing discrimination based on sexual orientation.

But, as I thought about it, what I would really like is something broader; something that would achieve the same result for gays and yet offer benefits to us heteros as well. That something is an explicit and general right of privacy: a right to be "let alone" both by the government and by private institutions with respect to my personal, private actions and activities so long as those actions and activities do not unreasonably interfere with the correlative right of others to be similarly left alone. In fact, as long as we are thinking big, I would eschew legislation and incorporate that right into the Constitution itself. Something along the following lines:

Section 1. The right of privacy being the cornerstone of liberty, neither the United States nor any State shall make any law prohibiting, regulating, or authorizing inquiry into the private activities of any person who is 18 years of age or older, except insofar as such a prohibition, regulation or inquiry is shown by the United States or the State to be reasonably necessary to protect the health, safety, welfare, or property of another person or the rights guaranteed to such other person under the Constitution.

Section 2. Except as may be authorized by legislation consistent with Section 1 of this article, no person shall unreasonably discriminate against another person based on that person's private activities or inquire into the private activities of another without consent.

Section 3. The Congress shall have power to implement and enforce this article by appropriate legislation.

Sex is the area in which a need for such a right is most obvious. Nothing could be more personal or private than sex. And, so long as the sex is between consenting adults, nothing could have less of an impact on the rights of others to be similarly left alone. Thus, the right of privacy I have in mind would be explicitly designed to invalidate most state and private regulation of adult, consensual, sexual activity and would make both government and private discrimination based on those choices unlawful.

The right to marry the person of one's choosing, even if of the same gender, would also be protected. This too is a quintessentially private matter and there is no evidence to suggest that such marriages have any adverse impact on the health, safety, welfare or property or rights of any third party.

Even laws against such things as prostitution and polygamy would be inherently suspect and before the state would be permitted to ban or regulate such activities, it would have to show (a) that such activities posed an appreciable threat to the safety, health, welfare or property of third parties and (b) that the a ban or lesser methods chosen to regulate such activities imposed no greater constraint on the right of privacy than was necessary to protect such third parties.

But what I have in mind is broader than sex. For instance, laws criminalizing possession or use of drugs vel non would also be suspect, although laws banning or regulating the trafficking in such drugs would be acceptable. Also, it would still be permissible for the government and private entities to exclude drug users from certain positions based on a demonstrated potential for harm to third parties that might result from drug use in those positions.

Also, the right of privacy would extend to government and private investigations into private activities, except as authorized by legislation that has itself been shown to be necessary to protect third parties.

I am sure that this proposal is fully subject to the law of unintended consequences, and I will not pretend to have thought through all of the problems that might arise under such an amendment. But, I do believe that the right of privacy is by far the single most important right inherent in the concept of freedom, and I would like to at least hear a debate on ways to better protect that right.