¹ Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar 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 (12 1890): 193–220.Google Scholar See also Cooley, Thomas MacIntyre, A Treatise on the Law of Torts, or, the Wrongs Which Arise Independent of Contract, 2d ed. (Chicago: Callaghan and Company, 1888), 91Google Scholar (noting a “right to be let alone”).

² See, for example, Scoglio, Stefano, Transforming Privacy: A Transpersonal Philosophy of Rights (Westport, CT: Praeger, 1998), 1–2.Google Scholar “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.

³ Black, Charles L. Jr., “The Unfinished Business of the Warren Court,” Washington Law Review 46, no. 1 (10 1970): 32.Google Scholar

⁴ See, for example, Gerber, Scott Douglas, ed., Seriatim: The Supreme Court before John Marshall (New York: New York University Press, 1998)Google Scholar (arguing for methodological selfconsciousness when examining specific questions of public law).

⁵ The taxonomy is from Bobbitt, Philip, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1982).Google Scholar See also Bobbitt, , Constitutional Interpretation (Oxford, UK: Blackwell, 1991).Google Scholar Bobbitt's taxonomy is the standard one. See, for example, Gerhardt, Michael J. and Rowe, Thomas D. Jr., eds., Constitutional Theory: Arguments and Perspectives (Charlottesville, VA: Michie, 1993)Google Scholar; and also Tushnet, Mark V., Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988).Google Scholar

⁶ In Search of the Constitution, vol. 4, “Mr. Justice Brennan” (Chicago: Films Incorporated, 1987), videotape.Google Scholar

⁷ There are many interesting approaches to textualism, but space constraints require me to discuss only a few. For another interesting approach, see Schauer, Frederick, “Easy Cases,” Southern California Law Review 58, no. 2 (01 1985): 399–440.Google Scholar

⁸ See, for example, Levinson, Sanford and Mailloux, Steven, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston, IL: Northwestern University Press, 1988).Google Scholar “Hermeneutics” is the study of the methodological principles of interpretation and explanation.

⁹ See, for example, Levinson, Sanford, “Privacy,” in Hall, Kermit L., ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 71–76.Google Scholar

¹⁰ See, for example, Rakove, Jack N., ed., Interpreting the Constitution: The Debate over Original Intent (Boston: Northeastern University Press, 1990).Google Scholar

¹¹ Posner, Richard A., Law and Literature: A Misunderstood Relation (Cambridge, MA: Harvard University Press, 1988), 209–68.Google Scholar There are, of course, variations—and often disagreementss—within the law and literature movement itself. I have discussed Levinson's approach because it is among the most extreme articulated to date.

¹² Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law, ed. Gutmann, Amy (Princeton, NJ: Princeton University Press, 1997).Google Scholar

¹³ Scalia, Antonin, “Common-Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws,”Google Scholar in Scalia, , A Matter of Interpretation, 3–47.Google Scholar

¹⁴ Ibid., 23.

¹⁵ 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” (Tribe, Laurence H., “Comment,”Google Scholar in Scalia, , A Matter of Interpretation, 77Google Scholar; and Dworkin, Ronald, “Comment,”Google Scholar in ibid., 122).

¹⁶ See Scalia, Antonin, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57, no. 3 (1989): 849–65.Google Scholar

¹⁷ See, for example, McIntyre v. Ohio Elections Commission, 514 U.S. 334, 371–85 (1995)Google Scholar (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).

¹⁸ Romer v. Evans, 116 S.Ct. 1620, 1629–37 (1996) (Scalia, J., dissenting).Google Scholar

¹⁹ Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 979–1002 (1992)Google Scholar (Scalia, J., concurring in the judgment in part and dissenting in part).

²⁰ Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

²¹ See also Scalia, , “Common-Law Courts in a Civil-Law System,” 13Google Scholar (criticizing the judicial creation of a right of privacy).

²² Ibid., 23.

²³ Bobbitt discusses Justice Black as the prime champion of textualism. See Bobbitt, , Constitutional Fate, 26–38.Google Scholar

²⁴ Griswold, 381 U.S. at 484. Justice Douglas alluded to the First, Third, Fourth, Fifth, and Ninth Amendments.

²⁵ Ibid., at 508, 510 (Black, J., dissenting). See also Black, Hugo L., A Constitutional faith (New York: Alfred A. Knopf, 1968), 9.Google Scholar

²⁶ Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), 99.Google Scholar

²⁷ See, for example, Meese, Edwin III, “Address before the American Bar Association,” reprinted in The Great Debate: Interpreting Our Written Constitution (Washington, DC: The Federalist Society, 1986), 1–10.Google Scholar

²⁸ See Perry, Michael J., The Constitution in the Courts: Law or Politics? (New York: Oxford University Press, 1994), 215 n. 15Google Scholar (arguing that the “activist” Brennan was committed to enforcing the “aspirational” principles of the Constitution's text).

²⁹ See, for example, Brennan, William J. Jr., “The Constitution of the United States: Contemporary Ratification,” reprinted in Anzovin, Steven and Podell, Janet, eds., The U.S. Constitution and the Supreme Court (New York: H. W. Wilson, 1988), 166–79.Google Scholar

³⁰ I argue elsewhere for what I call “liberal originalism.” See Gerber, Scott Douglas, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995).Google Scholar Liberal originalism maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence.

³¹ See, for example, Bork, , The Tempting of America.Google Scholar 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]).Google Scholar

³² Bork, Robert H., “Original Intent and the Constitution,” Humanities 7, no. 1 (01/02 1986): 26.Google Scholar

³³ Bork, Robert H., “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal 47, no. 1 (Fall 1971): 2.Google Scholar

³⁴ See, for example, Levy, Leonard W., Original Intent and the Framers' Constitution (New York: Macmillan, 1988).Google Scholar

³⁵ See, for example, Murphy, Paul L., ed., The Right to Privacy and the Ninth Amendment, 2 vols. (New York: Garland, 1990).Google Scholar

³⁶ Griswold, 381 U.S. at 488 (Goldberg, J., concurring).

³⁷ Testimony of Robert H. Bork, as quoted in Wall Street Journal, 10 5, 1987, A22.Google Scholar 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).Google Scholar

³⁸ U.S. Constitution, amend. 9.

³⁹ As reprinted in Meyers, Marvin, 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.Google Scholar

⁴⁰ See, for example, Berger, Raoul, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977).Google Scholar

⁴¹ See, for example, Caplan, Russell L., “The History and Meaning of the Ninth Amendment,” Virginia Law Review 69, no. 2 (03 1983): 223–68CrossRefGoogle Scholar; and Cooper, Charles J., “Limited Government and Individual Liberty: The Ninth Amendment's Forgotten Lessons,” Journal of Law and Politics 4, no. 1 (Summer 1987): 63–80.Google Scholar

⁴² Berger, Raoul, “The Ninth Amendment,” Cornell Law Review 66, no. 1 (11 1980): 8.Google Scholar

⁴³ U.S. Constitution, amend. 10.

⁴⁴ Patterson, Bennett B., The Forgotten Ninth Amendment: A Call for Legislative and Judicial Recognition of Rights Under Social Conditions of Today (Indianapolis, IN: Bobbs-Merrill, 1955), 55.Google Scholar

⁴⁵ Ibid., 19.

⁴⁶ See Gerber, Scott D., “Roger Sherman and the Bill of Rights,” Polity 28, no. 4 (Summer 1996): 521–40, esp. 530–31.CrossRefGoogle Scholar See generally Gerber, , To Secure These Rights.Google Scholar

⁴⁷ See, for example, Hutson, James H., “The Bill of Rights and the American Revolutionary Experience,” in Lacey, Michael J. and Haakonssen, Knud, eds., A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law—1791 and 1991 (New York: Cambridge University Press, 1991), 71.Google Scholar

⁴⁸ Barnett, Randy E., ed., The Rights Retained by the People: The History and Meaning of the Ninth Amendment (Fairfax, VA: George Mason University Press, 1989)Google Scholar, 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 RightsGoogle Scholar (arguing for “liberal originalism”).

⁴⁹ Black, Charles L. Jr., Structure and Relationship in Constitutional Law (Baton Rouge, LA: Louisiana State University Press, 1969), 7.Google Scholar

⁵⁰ McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).Google ScholarMcCulloch, 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 Beer, Samuel H., To Make a Nation: The Rediscovery of American Federalism (Cambridge, MA: Harvard University Press, 1993).Google Scholar 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.

⁵¹ Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).Google Scholar See generally a symposium on Ely's work in “Democracy and Distrust: Ten Years Later,” Virginia Law Review 77, no. 4 (05 1991).Google Scholar

⁵² See, for example, Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984)Google Scholar; Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Ear of Politics (Indianapolis, IN: Bobbs-Merrill, 1962)Google Scholar; and Choper, Jesse H., Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980).Google Scholar

⁵³ Chemerinsky, Erwin, “Foreword: The Vanishing Constitution,” Harvard Law Review 103, no. 1 (11 1989): 74–75.Google Scholar

⁵⁴ West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943).Google Scholar

⁵⁵ As quoted in Farrand, Max, ed., The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1911), 1:48Google Scholar (remarks of Elbridge Gerry). See generally Billias, George Athan, Elbridge Gerry: Founding Father and Republican Statesman (New York: McGraw Hill, 1976), 160Google Scholar (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”).

⁵⁶ Rossiter, Clinton, ed., The Federalist Papers (New York: New American Library, 1961), no. 10, p. 82Google Scholar (Madison). See also ibid., no. 39, p. 241 (Madison).

⁵⁷ See Macedo, Stephen, The New Right v. the Constitution, rev. ed. (Washington, DC: Cato Institute, 1987), 97–115.Google Scholar

⁵⁸ Ibid., 32.

⁵⁹ Ibid., 112.

⁶⁰ 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.Google Scholar

⁶¹ As quoted in Macedo, , The New Right v. the Constitution, 108–9.Google Scholar See generally McDowell, Gary L., Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge, LA: Louisiana State University Press, 1988).Google Scholar

⁶² See Black, , “The Unfinished Business of the Warren Court,” 44–45Google Scholar (“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”).

⁶³ See, for example, Gerber, , To Secure These Rights, 70–74, 187–88.Google Scholar

⁶⁴ See, for example, Ely, , Democracy and Distrust.Google Scholar 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 Ely, John Hart, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82, no. 5 (04 1973): 928–33.CrossRefGoogle ScholarPubMed 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 Garrow, David J., Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994), 236–37.Google Scholar

⁶⁵ See Blasi, Vincent, “Creativity and Legitimacy in Constitutional Law,” review of Structure and Relationship in Constitutional LawGoogle Scholar, by Black, Charles L. Jr., Yale Law Journal 80, no. 1 (11 1970): 182.Google Scholar

⁶⁶ See Bobbitt, , Constitutional Fate, 170–71.Google Scholar

⁶⁷ Justice Douglas contended that Pierce v. Society of Sisters, 268 U.S. 510 (1925)Google Scholar, and Meyer v. Nebraska, 262 U.S. 390 (1923)Google Scholar, 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.

⁶⁸ See generally Stone, Geoffrey R., “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).Google Scholar

⁶⁹ See, for example, Abraham, Henry J., 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.Google Scholar

⁷⁰ Justice Brennan had a large hand in the formulation of Justice Douglas's opinion. See Garrow, , Liberty and Sexuality, 246–48.Google Scholar

⁷¹ Currie, David P., The Constitution in the Supreme Court: The Second Century, 1888–1986 (Chicago: University of Chicago Press, 1990), 458 (citations omitted).Google Scholar

⁷² See Kauper, Paul G., “Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case,” Michigan Law Review 64, no. 2 (12 1965): 235–58.CrossRefGoogle Scholar

⁷³ 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).

⁷⁴ Kauper, , “Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten,” 253.Google Scholar

⁷⁵ See, for example, Hutcheson, Joseph C. Jr., “The Judgment Intuitive,” Cornell Law Quarterly 14, no. 3 (04 1929): 274–88.Google Scholar

⁷⁶ 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.Google Scholar

⁷⁷ 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.”

⁷⁸ 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 against 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.”

⁷⁹ Boyd v. United States, 116 U.S. 616, 630 (1886).Google Scholar

⁸⁰ Justice Douglas did quote this language from Boyd. However, the doctrinal portion of his opinion was limited to a brief discussion of Meyr and Pierce.

⁸¹ See Bobbitt, , Constitutional Fate, 61.Google Scholar

⁸² See Aleinikoff, T. Alexander, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96, no. 5 (04 1987): 943–1005.CrossRefGoogle Scholar

⁸³ Ibid., 946. Aleinikoff cites New York v. Ferber, 458 U.S. 747 (1982)Google Scholar, 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 outweighs the expressive interests, if any, at stake” (Ferber, 458 U.S. at 763–64).

⁸⁴ 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)Google Scholar, 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.

⁸⁵ Griswold, 381 U.S. at 505–7 (White, J., concurring in the judgment).

⁸⁶ Tushnet, , Red, White, and Blue, 1.Google Scholar

⁸⁷ Bickel, Alexander M., The Supreme Court and the Idea of Progress (New Haven, CT: Yale University Press, 1978), 41.Google Scholar See generally Lochner v. New York, 198 U.S. 45 (1905).Google Scholar 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.

⁸⁸ Posner, Richard A., The Economics of Justice (Cambridge, MA: Harvard University Press, 1981), 345.Google Scholar

⁸⁹ Strum, Philippa, Privacy: The Debate in the United States Since 1945 (Fort Worth, TX: Harcourt Brace College Publishers, 1998), 202–3.Google Scholar

⁹⁰ See Gerber, , To Secure These Rights, 175.Google Scholar

⁹¹ 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.

⁹² See, for example, Bobbitt, , Constitutional Fate, 94.Google Scholar

⁹³ See Tushnet, , Red, White, and Blue, vii–viiiGoogle Scholar (describing the rise of ethical arguments in constitutional law as a liberal reaction to conservative attacks on the decisions of the Warren Court).

⁹⁴ 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)Google Scholar fame, “the greatest book ever written.” See generally Corbin, Arthur L., Corbin on Contracts: A Comprehensive Treatise on the Rules of Contract Law, 8 vols. (St. Paul, MN: West, 1950)Google Scholar; and Gilmore, Grant, The Death of Contract (Columbus, OH: Ohio State University Press, 1974).Google Scholar

⁹⁵ See, for example, Ackerman, Bruce A., We the People: foundations (Cambridge, MA: Harvard University Press, 1991)Google Scholar; Dworkin, Ronald, Law's Empire (Cambridge, MA: Harvard University Press, 1986)Google Scholar; and Sunstein, Cass R., The Partial Constitution (Cambridge, MA: Harvard University Press, 1993).Google Scholar

⁹⁶ Richards, David A. J., Toleration and the Constitution (New York: Oxford University Press, 1986), x.Google Scholar

⁹⁷ Ibid., 252.

⁹⁸ See, for example, MacKinnon, Catharine A., Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987), 87–89.Google Scholar

⁹⁹ MacKinnon, Catharine A., Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), 193–94.Google Scholar

¹⁰⁰ See for example, Richards, David A. J., Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (Chicago: University of Chicago Press, 1998), 362–65.Google Scholar See generally Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar

¹⁰¹ See, for example, MacKinnon, , Feminism Unmodified, 93–102.Google Scholar MacKinnon's solution, concisely stated, is to give women more power in political and social life.

¹⁰² For more on this theme, see Gerber, Scott Douglas, First Principles: The jurisprudence of Clarence Thomas (New York: New York University Press, 1999).Google Scholar