Privacy and constitutional theory

Social Philosophy and Policy

Volumn 17, Issue 2, 2000, Pages 165-185

  Gerber, Scott D ^a  

^a NONE

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EID: 0043189243     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0265052500002156     Document Type: Article

References (123)

1. Griswold v. Connecticut, 381 U.S. 479 (1965). The initial analysis in the scholarly literature of the concept of privacy - albeit one undertaken in the context of tort law - was by Samuel D. Warren and Louis D. Brandeis; see their "The Right of Privacy," Harvard Law Review 4, no. 5 (December 1890): 193-220. See also Thomas MacIntyre Cooley, A Treatise on the Law of Torts, or, the Wrongs Which Arise Independent of Contract, 2d ed. (Chicago: Callaghan and Company, 1888), 91 (noting a "right to be let alone").
2. Griswold v. Connecticut, 381 U.S. 479 (1965). The initial analysis in the scholarly literature of the concept of privacy - albeit one undertaken in the context of tort law - was by Samuel D. Warren and Louis D. Brandeis; see their "The Right of Privacy," Harvard Law Review 4, no. 5 (December 1890): 193-220. See also Thomas MacIntyre Cooley, A Treatise on the Law of Torts, or, the Wrongs Which Arise Independent of Contract, 2d ed. (Chicago: Callaghan and Company, 1888), 91 (noting a "right to be let alone").
3. See, for example, Stefano Scoglio, Transforming Privacy: A Transpersonal Philosophy of Rights (Westport, CT: Praeger, 1998), 1-2. "Physical" privacy is a property concept (e.g., "a man's home is his castle"). "Decisional" privacy concerns a person's decisions and choices about his or her private actions. "Informational" privacy speaks to the control of information about oneself. "Formational" privacy refers to privacy as interiority.
4. Charles L. Black, Jr., "The Unfinished Business of the Warren Court," Washington Law Review 46, no. 1 (October 1970): 32.
5. See, for example, Scott Douglas Gerber, ed., Seriatim: The Supreme Court before John Marshall (New York: New York University Press, 1998) (arguing for methodological self-consciousness when examining specific questions of public law).
6. The taxonomy is from Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1982). See also Bobbitt, Constitutional Interpretation (Oxford, UK: Blackwell, 1991). Bobbitt's taxonomy is the standard one. See, for example, Michael J. Gerhardt and Thomas D. Rowe, Jr., eds., Constitutional Theory: Arguments and Perspectives (Charlottesville, VA: Michie, 1993); and also Mark V. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988).
7. The taxonomy is from Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1982). See also Bobbitt, Constitutional Interpretation (Oxford, UK: Blackwell, 1991). Bobbitt's taxonomy is the standard one. See, for example, Michael J. Gerhardt and Thomas D. Rowe, Jr., eds., Constitutional Theory: Arguments and Perspectives (Charlottesville, VA: Michie, 1993); and also Mark V. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988).
8. The taxonomy is from Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1982). See also Bobbitt, Constitutional Interpretation (Oxford, UK: Blackwell, 1991). Bobbitt's taxonomy is the standard one. See, for example, Michael J. Gerhardt and Thomas D. Rowe, Jr., eds., Constitutional Theory: Arguments and Perspectives (Charlottesville, VA: Michie, 1993); and also Mark V. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988).
9. The taxonomy is from Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1982). See also Bobbitt, Constitutional Interpretation (Oxford, UK: Blackwell, 1991). Bobbitt's taxonomy is the standard one. See, for example, Michael J. Gerhardt and Thomas D. Rowe, Jr., eds., Constitutional Theory: Arguments and Perspectives (Charlottesville, VA: Michie, 1993); and also Mark V. Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988).
10. In Search of the Constitution, vol. 4, "Mr. Justice Brennan" (Chicago: Films Incorporated, 1987), videotape.
11. There are many interesting approaches to textualism, but space constraints require me to discuss only a few. For another interesting approach, see Frederick Schauer, "Easy Cases," Southern California Law Review 58, no. 2 (January 1985): 399-440.
12. See, for example, Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston, IL: Northwestern University Press, 1988). "Hermeneutics" is the study of the methodological principles of interpretation and explanation.
13. See, for example, Sanford Levinson, "Privacy," in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 71-76.
14. See, for example, Jack N. Rakove, ed., Interpreting the Constitution: The Debate over Original Intent (Boston: Northeastern University Press, 1990).
15. Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge, MA: Harvard University Press, 1988), 209-68. There are, of course, variations - and often disagreements -within the law and literature movement itself. I have discussed Levinson's approach because it is among the most extreme articulated to date.
16. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1997).
17. Antonin Scalia, "Common-Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws," in Scalia, A Matter of Interpretation, 3-47.
18. Ibid., 23.
19. The other contributors to the Scalia book do not appear to know what to make of Justice Scalia's textualism either. For example, Tribe and Dworkin - two of the most egalitarian constitutional theorists writing today - both profess an unflinching commitment to textualism. Tribe claims to "share with Justice Scalia the belief that the Constitution's written text has primacy and must be deemed the ultimate point of departure," while Dworkin calls the idea of a nontextualist approach to interpreting the Constitution "hardly even intelligible" (Laurence H. Tribe, "Comment," in Scalia, A Matter of Interpretation, 77; and Ronald Dworkin, "Comment," in ibid., 122).
20. The other contributors to the Scalia book do not appear to know what to make of Justice Scalia's textualism either. For example, Tribe and Dworkin - two of the most egalitarian constitutional theorists writing today - both profess an unflinching commitment to textualism. Tribe claims to "share with Justice Scalia the belief that the Constitution's written text has primacy and must be deemed the ultimate point of departure," while Dworkin calls the idea of a nontextualist approach to interpreting the Constitution "hardly even intelligible" (Laurence H. Tribe, "Comment," in Scalia, A Matter of Interpretation, 77; and Ronald Dworkin, "Comment," in ibid., 122).
21. See Antonin Scalia, "Originalism: The Lesser Evil," University of Cincinnati Law Review 57, no. 3 (1989): 849-65.
22. See, for example, McIntyre v. Ohio Elections Commission, 514 U.S. 334, 371-85 (1995) (Scalia, J., dissenting). Justice Scalia attempts to avoid appearing methodologically inconsistent by redefining terms of art. For example, he sometimes calls "textualism" "originalism." They are, of course, not the same (see the next section).
23. Romer v. Evans, 116 S.Ct. 1620, 1629-37 (1996) (Scalia, J., dissenting).
24. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 979-1002 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).
25. Roe v. Wade, 410 U. S. 113 (1973).
26. See also Scalia, "Common-Law Courts in a Civil-Law System," 13 (criticizing the judicial creation of a right of privacy).
27. Ibid., 23.
28. Bobbitt discusses Justice Black as the prime champion of textualism. See Bobbitt, Constitutional Fate, 26-38.
29. Griswold, 381 U.S. at 484. Justice Douglas alluded to the First, Third, Fourth, Fifth, and Ninth Amendments.
30. Ibid., at 508, 510 (Black, J., dissenting). See also Hugo L. Black, A Constitutional Faith (New York: Alfred A. Knopf, 1968), 9.
31. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), 99.
32. See, for example, Edwin Meese III, "Address before the American Bar Association," reprinted in The Great Debate: Interpreting Our Written Constitution (Washington, DC: The Federalist Society, 1986), 1-10.
33. See Michael J. Perry, The Constitution in the Courts: Law or Politics? (New York: Oxford University Press, 1994), 215 n. 15 (arguing that the "activist" Brennan was committed to enforcing the "aspirational" principles of the Constitution's text).
34. See, for example, William J. Brennan, Jr., "The Constitution of the United States: Contemporary Ratification," reprinted in Steven Anzovin and Janet Podell, eds., The U.S. Constitution and the Supreme Court (New York: H. W. Wilson, 1988), 166-79.
35. I argue elsewhere for what I call "liberal originalism." See Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995). Liberal originalism maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence.
36. See, for example, Bork, The Tempting of America. This interpretive approach did not originate (no pun intended) with modern-day conservatives such as Bork. As early as 1838, for example, the Supreme Court declared that interpretation of the Constitution must rely on "the meaning and intention of the convention which framed and proposed it for adoption and ratification" (Rhode Island v. Massachusetts, 37 U.S. [12 Pet.] 657, 721 [1838]).
37. Robert H. Bork, "Original Intent and the Constitution," Humanities 7, no. 1 (January/ February 1986): 26.
38. Robert H. Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47, no. 1 (Fall 1971): 2.
39. See, for example, Leonard W. Levy, Original Intent and the Framers' Constitution (New York: Macmillan, 1988).
40. See, for example, Paul L. Murphy, ed., The Right to Privacy and the Ninth Amendment, 2 vols. (New York: Garland, 1990).
41. Griswold, 381 U.S. at 488 (Goldberg, J., concurring).
42. Testimony of Robert H. Bork, as quoted in Wall Street Journal, October 5, 1987, A22. Ironically, Goldberg, a liberal justice, employed conservative originalism in Griswold and reached a liberal result. This might explain why Bork wishes to ignore the Ninth Amendment. For a more recent example of a liberal justice employing conservative originalism and reaching a liberal result, see Justice John Paul Stevens's opinion for the Court in U.S. Term Limits, Inc. v. Thornton, 115 S.Ct. 1842 (1995).
43. U.S. Constitution, amend. 9.
44. As reprinted in Marvin Meyers, ed., The Mind of the founder: Sources of the Political Thought of James Madison, rev. ed. (Hanover, NH: University Press of New England, 1981), 171.
45. See, for example, Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977).
46. See, for example, Russell L. Caplan, "The History and Meaning of the Ninth Amendment," Virginia Law Review 69, no. 2 (March 1983): 223-68; and Charles J. Cooper, "Limited Government and Individual Liberty: The Ninth Amendment's Forgotten Lessons," Journal of Law and Politics 4, no. 1 (Summer 1987): 63-80.
47. See, for example, Russell L. Caplan, "The History and Meaning of the Ninth Amendment," Virginia Law Review 69, no. 2 (March 1983): 223-68; and Charles J. Cooper, "Limited Government and Individual Liberty: The Ninth Amendment's Forgotten Lessons," Journal of Law and Politics 4, no. 1 (Summer 1987): 63-80.
48. Raoul Berger, "The Ninth Amendment," Cornell Law Review 66, no. 1 (November 1980): 8.
49. U.S. Constitution, amend. 10.
50. Bennett B. Patterson, The Forgotten Ninth Amendment: A Call for Legislative and Judicial Recognition of Rights Under Social Conditions of Today (Indianapolis, IN: Bobbs-Merrill, 1955), 55.
51. Ibid., 19.
52. See Scott D. Gerber, "Roger Sherman and the Bill of Rights," Polity 28, no. 4 (Summer 1996): 521-40, esp. 530-31. See generally Gerber, To Secure These Rights.
53. See Scott D. Gerber, "Roger Sherman and the Bill of Rights," Polity 28, no. 4 (Summer 1996): 521-40, esp. 530-31. See generally Gerber, To Secure These Rights.
54. See, for example, James H. Hutson, "The Bill of Rights and the American Revolutionary Experience," in Michael J. Lacey and Knud Haakonssen, eds., A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law - 1791 and 1991 (New York: Cambridge University Press, 1991), 71.
55. Randy E. Barnett, ed., The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Fairfax, VA: George Mason University Press, 1989), demonstrates how a host of thoughtful scholars can disagree about the meaning of the same historical record. I argue elsewhere that the historical record is clear on the principles to which the Framers dedicated the regime. See Gerber, To Secure These Rights (arguing for "liberal originalism").
56. Randy E. Barnett, ed., The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Fairfax, VA: George Mason University Press, 1989), demonstrates how a host of thoughtful scholars can disagree about the meaning of the same historical record. I argue elsewhere that the historical record is clear on the principles to which the Framers dedicated the regime. See Gerber, To Secure These Rights (arguing for "liberal originalism").
57. Charles L. Black, Jr., Structure and Relationship in Constitutional Law (Baton Rouge, LA: Louisiana State University Press, 1969), 7.
58. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). McCulloch, which advanced a broad reading of congressional power in general and of the Bank of the United States in particular, remains the Supreme Court's most important statement on the relationship between the national government and the state governments. In that case, Chief Justice Marshall articulated what has come to be known as the "national theory" of federalism. See generally Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge, MA: Harvard University Press, 1993). The "national theory" identifies the people of the United States, collectively, as the source of the legitimate powers of any and all governments in the republic. The "compact theory," by contrast, posits that the national government was brought into existence by a compact among sovereign states.
59. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980). See generally a symposium on Ely's work in "Democracy and Distrust: Ten Years Later," Virginia Law Review 77, no. 4 (May 1991).
60. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980). See generally a symposium on Ely's work in "Democracy and Distrust: Ten Years Later," Virginia Law Review 77, no. 4 (May 1991).
61. See, for example, John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962); and Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980).
62. See, for example, John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962); and Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980).
63. See, for example, John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill, 1962); and Jesse H. Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980).
64. Erwin Chemerinsky, "Foreword: The Vanishing Constitution," Harvard Law Review 103, no. 1 (November 1989): 74-75.
65. West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943).
66. As quoted in Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1911), 1:48 (remarks of Elbridge Gerry). See generally George Athan Billias, Elbridge Gerry: Founding Father and Republican Statesman (New York: McGraw Hill, 1976), 160 (explaining that "[w]hat Gerry meant by 'an excess of democracy' was that the mixed constitution, at the time, was weighted too much in favor of the democratic branch of government").
67. As quoted in Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1911), 1:48 (remarks of Elbridge Gerry). See generally George Athan Billias, Elbridge Gerry: Founding Father and Republican Statesman (New York: McGraw Hill, 1976), 160 (explaining that "[w]hat Gerry meant by 'an excess of democracy' was that the mixed constitution, at the time, was weighted too much in favor of the democratic branch of government").
68. Clinton Rossiter, ed., The Federalist Papers (New York: New American Library, 1961), no. 10, p. 82 (Madison). See also ibid., no. 39, p. 241 (Madison).
69. Clinton Rossiter, ed., The Federalist Papers (New York: New American Library, 1961), no. 10, p. 82 (Madison). See also ibid., no. 39, p. 241 (Madison).
70. See Stephen Macedo, The New Right v. the Constitution, rev. ed. (Washington, DC: Cato Institute, 1987), 97-115.
71. Ibid., 32.
72. Ibid., 112.
73. McDowell's use of both historical and structural arguments demonstrates well how the various approaches to constitutional interpretation sometimes overlap. See, for example, Bobbitt, Constitutional Fate, 7.
74. As quoted in Macedo, The New Right v. the Constitution, 108-9. See generally Gary L. McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge, LA: Louisiana State University Press, 1988).
75. As quoted in Macedo, The New Right v. the Constitution, 108-9. See generally Gary L. McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge, LA: Louisiana State University Press, 1988).
76. See Black, "The Unfinished Business of the Warren Court," 44-45 ("our polity has bound itself to respect all those rights which can be thought to stand in sound analogy to the rights named in the Constitution, as these may be read and reasoned from in the light of our concept of ordered liberty").
77. See, for example, Gerber, To Secure These Rights, 70-74, 187-88.
78. See, for example, Ely, Democracy and Distrust. Interestingly, Ely does claim that there is some sort of right of privacy in the Constitution, albeit not one that can be extended to legitimate Roe v. Wade. See John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law Journal 82, no. 5 (April 1973): 928-33. Ely served as a law clerk to Chief Justice Earl Warren when Griswold was decided. In a bench memorandum on the case, he argued against there being a constitutional right of privacy. See David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 236-37.
79. See, for example, Ely, Democracy and Distrust. Interestingly, Ely does claim that there is some sort of right of privacy in the Constitution, albeit not one that can be extended to legitimate Roe v. Wade. See John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law Journal 82, no. 5 (April 1973): 928-33. Ely served as a law clerk to Chief Justice Earl Warren when Griswold was decided. In a bench memorandum on the case, he argued against there being a constitutional right of privacy. See David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 236-37.
80. See, for example, Ely, Democracy and Distrust. Interestingly, Ely does claim that there is some sort of right of privacy in the Constitution, albeit not one that can be extended to legitimate Roe v. Wade. See John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," Yale Law Journal 82, no. 5 (April 1973): 928-33. Ely served as a law clerk to Chief Justice Earl Warren when Griswold was decided. In a bench memorandum on the case, he argued against there being a constitutional right of privacy. See David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 236-37.
81. See Vincent Blasi, "Creativity and Legitimacy in Constitutional Law," review ot Structure and Relationship in Constitutional Law, by Charles L. Black, Jr., Yale Law Journal 80, no. 1 (November 1970): 182.
82. See Bobbitt, Constitutional Fate, 170-71.
83. Justice Douglas contended that Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923), stood for the proposition that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge" (Griswold, 381 U.S. at 482). The "available knowledge" in question in Griswold was information about birth control for married persons.
84. See generally Geoffrey R. Stone, "Precedent, the Amendment Process, and Evolution of Constitutional Doctrine," Harvard Journal of Law and Public Policy 11, no. 1 (Winter 1988): 70 (discussing the reasons).
85. See for example, Henry J. Abraham, The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France, 7th ed. (New York: Oxford University Press, 1998), 360.
86. Justice Brennan had a large hand in the formulation of Justice Douglas's opinion. See Garrow, Liberty and Sexuality, 246-48.
87. David P. Currie, The Constitution in the Supreme Court: The Second Century, 1888-1986 (Chicago: University of Chicago Press, 1990), 458 (citations omitted).
88. See Paul G. Kauper, "Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case," Michigan Law Review 64, no. 2 (December 1965): 235-58.
89. Ibid. Not surprisingly, Kauper gave high marks to the concurring opinions of Justices John Marshall Harlan II and Byron R. White for relying upon substantive due process analysis. See generally Griswold, 381 U.S. at 499-502 (Harlan, J., concurring in the judgment), 502-7 (White, J., concurring in the judgment).
90. Kauper, "Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten," 253.
91. See, for example, Joseph C. Hutcheson, Jr., "The Judgment Intuitive," Cornell Law Quarterly 14, no. 3 (April 1929): 274-88.
92. Historian David J. Garrow argues that Justice Douglas's own prior doctrinal pronouncements provided ample support for declaring that there is a right of privacy in the Constitution - pronouncements that Douglas inexplicably failed to mention in his Griswold opinion. See Garrow, Liberty and Sexuality, 260-63.
93. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
94. The Fifth Amendment states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness agains himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
95. Boyd v United States, 116 U.S. 616, 630 (1886).
96. Justice Douglas did quote this language from Boyd. However, the doctrinal portion of his opinion was limited to a brief discussion of Meyer and Pierce.
97. See Bobbitt, Constitutional Fate, 61.
98. See T. Alexander Aleinikoff, "Constitutional Law in the Age of Balancing," Yale Law Journal 96, no. 5 (April 1987): 943-1005.
99. Ibid., 946. Aleinikoff cites New York v. Ferber, 458 U.S. 747 (1982), as an example of this type of balancing. In that case the Court upheld a statute criminalizing the distribution of child pornography because "the evil . . . restricted [by the statute] so overwhelmingly out-weighs the expressive interests, if any, at stake" (Ferber, 458 U.S. at 763-64)
100. Aleinikoff, "Constitutional Law in the Age of Balancing," 946. Aleinikoff cites as an example of this type of balancing Tennessee v. Garner, 471 U.S. 1 (1986), in which the Court did not recognize as paramount either the state's interest in preventing the escape of criminals or an individual's interest in life, but rather held that a police officer may not use deadly force unless such force is necessary to prevent escape and the officer had probable cause to believe that the suspect poses a threat of serious physical harm.
101. Griswold, 381 U.S. at 505-7 (White, J., concurring in the judgment).
102. Tushnet, Red, White, and Blue, 1.
103. Alexander M. Bickel, The Supreme Court and the Idea of Progress (New Haven, CT: Yale University Press, 1978), 41. See generally Lochner v. New York, 198 U.S. 45 (1905). In Lochner, a bare majority of the Court struck down New York's labor law limiting the number of hours bakers could work as an interference with their "liberty of contract." And in one of the most famous dissenting opinions in the history of the Court, Justice Oliver Wendell Holmes, Jr., sharply criticized his brethren for reading their own economic philosophy into the Constitution.
104. Richard A. Posner, The Economics of Justice (Cambridge, MA: Harvard University Press, 1981) 345
105. Philippa Strum, Privacy: The Debate in the United States Since 1945 (Fort Worth, TX: Harcourt Brace College Publishers, 1998), 202-3.
106. See Gerber, To Secure These Rights, 175.
107. Under "strict scrutiny" review - the Court's most exacting standard of review - the Court endeavors to determine, in the language of the test, whether there is a "compelling state interest" in the legislative classification in dispute; under "strict rationality" review -the intermediate test - the Court attempts to decide whether there is a "substantial relationship" in fact between the means and ends of the legislation at issue; and under "rational basis" review - the most lenient of the three levels - the Court assesses whether there is a "reasonable basis" for the legislation in question.
108. See, for example, Bobbitt, Constitutional Fate, 94.
109. See Tushnet, Red, White, and Blue, vii-viii (describing the rise of ethical arguments in constitutional law as a liberal reaction to conservative attacks on the decisions of the Warren Court).
110. Corbin (1874-1967) taught for decades at Yale Law School, was a leading figure in the drafting of the Restatement of Contracts, and his 1950 treatise on contract law was called, by no less a figure than the late Grant Gilmore of The Death of Contract (1974) fame, "the greatest book ever written." See generally Arthur L. Corbin, Corbin on Contracts: A Comprehensive Treatise on the Rules of Contract Law, 8 vols. (St. Paul, MN: West, 1950); and Grant Gilmore, The Death of Contract (Columbus, OH: Ohio State University Press, 1974).
111. Corbin (1874-1967) taught for decades at Yale Law School, was a leading figure in the drafting of the Restatement of Contracts, and his 1950 treatise on contract law was called, by no less a figure than the late Grant Gilmore of The Death of Contract (1974) fame, "the greatest book ever written." See generally Arthur L. Corbin, Corbin on Contracts: A Comprehensive Treatise on the Rules of Contract Law, 8 vols. (St. Paul, MN: West, 1950); and Grant Gilmore, The Death of Contract (Columbus, OH: Ohio State University Press, 1974).
112. Corbin (1874-1967) taught for decades at Yale Law School, was a leading figure in the drafting of the Restatement of Contracts, and his 1950 treatise on contract law was called, by no less a figure than the late Grant Gilmore of The Death of Contract (1974) fame, "the greatest book ever written." See generally Arthur L. Corbin, Corbin on Contracts: A Comprehensive Treatise on the Rules of Contract Law, 8 vols. (St. Paul, MN: West, 1950); and Grant Gilmore, The Death of Contract (Columbus, OH: Ohio State University Press, 1974).
113. Corbin (1874-1967) taught for decades at Yale Law School, was a leading figure in the drafting of the Restatement of Contracts, and his 1950 treatise on contract law was called, by no less a figure than the late Grant Gilmore of The Death of Contract (1974) fame, "the greatest book ever written." See generally Arthur L. Corbin, Corbin on Contracts: A Comprehensive Treatise on the Rules of Contract Law, 8 vols. (St. Paul, MN: West, 1950); and Grant Gilmore, The Death of Contract (Columbus, OH: Ohio State University Press, 1974).
114. See, for example, Bruce A. Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991); Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986); and Cass R. Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993).
115. See, for example, Bruce A. Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991); Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986); and Cass R. Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993).
116. See, for example, Bruce A. Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991); Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986); and Cass R. Sunstein, The Partial Constitution (Cambridge, MA: Harvard University Press, 1993).
117. David A. J. Richards, Toleration and the Constitution (New York: Oxford University Press, 1986), x.
118. Ibid., 252.
119. See, for example, Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987), 87-89.
120. Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge MA: Harvard University Press, 1989), 193-94.
121. See, for example, David A. J. Richards, Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (Chicago: University of Chicago Press, 1998), 362-65. See generally Bowers v. Hardwick, 478 U.S. 186 (1986).
122. See, for example, MacKinnon, Feminism Unmodified, 93-102. MacKinnon's solution, concisely stated, is to give women more power in political and social life.
123. For more on this theme, see Scott Douglas Gerber, First Principles: The Jurisprudence of Clarence Thomas (New York: New York University Press, 1999).