Dan Savage has a very good common-sense suggestion in today's NYT:
Problematically, however, a right to privacy is not explicitly mentioned in the Constitution. The majority in Griswold held that it was among the unenumerated rights implied by the Constitution's "penumbras".... The Griswold case didn't settle the matter, and the right to privacy quickly became the Tinkerbell of constitutional rights: clap your hands if you believe.
Liberals clap. We love the right to privacy because we believe adults should have access to birth control, abortion services and pornography as well as the right to engage in gay sex. Social conservatives hate the right to privacy for the very same reason, as they seek to regulate private behaviors from access to birth control to masturbation.
Well, if the right to privacy is so difficult for some people to locate in the Constitution, why don't we just stick it in there? Wouldn't that make it easier to find?
If the Republicans can propose a constitutional amendment banning gay marriage, why can't the Democrats propose a right to privacy amendment? Making this implicit right explicit would forever end the debate about whether there is a right to privacy. And the debate over the bill would force Republicans who opposed it to explain why they don't think Americans deserve a right to privacy - which would alienate not only moderates, but also those libertarian, small-government conservatives who survive only in isolated pockets on the Eastern Seaboard and the American West.
I think this is a great idea. Not only would such an amendment reinforce the Bill Of Rights, but, as Savage notes, the effort to pass it would put Republicans on the record as opposing something that I believe most people consider eminently reasonable (much like election reform, which is why I'm baffled that the Democrats don't make a bigger deal about it).
Ironically, I suspect that the defense that the Republicans will use is that the right to privacy is already in the Constitution, and an amendment to further codify it would just be unnecessary clutter to This Great And Hallowed American Document. That approach sure would make future judicial confirmation hearings entertaining...