Chapter 12: Reappraising the Constitutional Past: Rights of Personal Autonomy
Informational privacy is endangered, but constitutional protection for the autonomous conduct of personal life has been substantially enlarged over the course of the last half-century. These two facets of privacy rights are indeed in tension with one another. However, the different trend-lines should not occasion surprise, for in talking about informational privacy we have to think about the increasingly sophisticated technology available for tracking individual behavior, whereas in thinking about autonomy in personal life we need only consider relatively straightforward prohibitions or mandates the government must honor to permit individuals to conduct their personal affairs on their own terms. Some autonomy-in-personal-life conclusions reached by the modern Court are compatible with the extended Madisonian framework for interpretive supplementation of the text. Lawrence v. Texas, for instance, the 2003 decision that recognizes a constitutional right to engage in consensual sodomy, was decided in the context of supermajority national support for its conclusion, as evidenced by state law. In contrast, other personal autonomy decisions—in particular, Roe v. Wade’s recognition of an abortion right and Obergefell v. Hodges’s recognition of a right of same-sex marriage—were not accompanied by similar support. The justification for each—a qualified justification, it should be emphasized, since it is far better for the Court to engage in interpretive supplementation in the context of supermajority national support—is to be found in a conception of equality that insures individuals they won’t be treated as second-class citizens.