by Tim Sommers
In Bowers v Hardwick (1986), the Supreme Court Case that affirmed the government’s right to criminalize sodomy, Justice Antonin Scalia famously insisted there that there was no “right to homosexual sodomy.” This was disingenuous in more than one way. First, the statue in question criminalized sodomy in general and not homosexual sodomy in particular. But, more fundamentally, no one was arguing for sodomy as a basic right. They were arguing for a basic right to be free to make their own decisions about their own bodies, consensual intimate relations, and families – including intimate relations and the families shared by people of the same sex.
Such a right, if it exists, is unenumerated. That is, it’s not specifically mentioned in the Bill of Rights. On the other hand, the Ninth Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The tricky bit, of course, is how to know which other rights might be retained by the people though unenumerated.
In Roe v. Wade, Justice Douglas cited a “line of decisions” that established a “penumbra” of privacy. He was much lampooned for his language, “penumbra” in particular, but there’s a relatively straight forward line of reasoning available here. One way to derive an unenumerated right is to show that it is implied by, or follows from, an enumerated right. The enumerated right of citizens to be secure in their persons, houses, and papers and effects (the 4th), for example, makes no sense without the underlying assumption that you have a right to be in control of your person in the first place. Further, the “liberty” and “property” that the 14th Amendment says shall not be denied “without due process of law” surely includes the right to some degree of control over your own body.
One of the few things that Justice Alito gets right in the Dobbs (2022) decision (allowing States to criminalize any kind of abortion and, to some extent, birth control) is that he doesn’t describe the issue primarily as “privacy” – but rather as an appeal “to a broader right to autonomy.”
The relevant string of cases that develop and extend this right to autonomy and, yes, privacy, too, includes (at a minimum) Loving v The State of Virginia (the most aptly named SCOTUS case in history since it decriminalized interracial marriage), Griswold v Connecticut (access to birth control for married people), Roe v Wade (abortion decisions are left to pregnant people), Lawerence v Texas (reversing Hardwick, it decriminalized same-sex intimacy), and Obergefell v Hodges (legalized same-sex marriage). Defenders of this tradition argue that it, like the Bill of Rights itself, this is not part of a haphazard list of freedoms, but what follows from a cohesive conception of liberty. “The only freedom which deserves the name,” John Stuart Mill wrote, “is that of pursuing our own good in our own way.” Read more »