Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview
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Chapter 7
THE RIGHT TO BE LET ALONE

The right of privacy, like economic liberty, is not specified by the Constitution. Unlike marketplace freedom, which was abandoned as a constitutional concern earlier this century, privacy has evolved and endured as a fundamental right secured by the Fourteenth Amendment. In Lochner v. New York, Justice Holmes expressed his opposition to the constitutionalization of contractual liberty. For the rest of his career, as discussed in Chapter 4, he strenuously objected to recognition of economic rights as an incident of due process. Criticism of modern privacy rights, by detractors such as Justice Black in Griswold v. Connecticut and Justices White and Rehnquist in Roe v. Wade and other decisions, reflects a sense akin to Holmes' that the Court has forgotten its limited range and the Constitution's spaciousness. Despite such protest, the right of privacy has evolved to a level of acceptance never achieved by economic liberty. Even if its source and scope are debated, the basic right seems reasonably settled. For all the controversy generated by its development, it is notable that only one justice dissented from the Court's acknowledgment in 1990 of a fundamental privacy interest broad enough to include the liberty to refuse life-supporting medical care.


Origins of the Right of Privacy

Before its constitutional dimensions were established, privacy traditionally had been a concern of tort law. By common law and statute, states traditionally have afforded rights of action against unreasonable intrusion into personal zones of privacy, disclosure of intimate personal details, por

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