Wednesday, January 13, 2021

A Note On Whether Liberty In The 14th And 5th Amendments Entails Privacy

Justice Douglas in Griswold said that a zone privacy is a “penumbra” from emanations from certain guaranteed rights in the Bill of Rights. 

This has always seemed backwards to me.

I’d say rather that a zone of privacy is logically entailed by “liberty” in the 14th Amendment and in the 5th Amendment.  

If so, then it’s a core idea not a penumbral one. 

I’d argue that this idea is at the foundation of Justice Kennedy saying, perhaps floridly, in Casey, 

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state." 

How can any notion of human liberty not entail, albeit within limits, an idea of privacy.

And how can any notion of privacy privacy not entail, albeit within limits,  the idea of freedom to do with one’s body what one wishes? 


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