At SCOTUSblog, in his new “Born Free and Equal” column, Steven Calabresi: There is no constitutional “right to privacy”. From the introduction:
… I want in this second column to argue that the born-free-and-equal idea, unlike ideas such as the “right to privacy,” so permeates the Constitution that it is “deeply rooted in American history and tradition” as that phrase is used in such landmark, correctly-decided, cases as Washington v. Glucksberg (rejecting a right to assisted suicide), McDonald v. City of Chicago (recognizing that the Second Amendment’s right to own a handgun for self-protection extends to the states), Timbs v. Indiana (recognizing that the Eighth Amendment’s excessive fines clause applies to the states), and Dobbs v. Jackson Women’s Health Organization (rejecting the constitutional right to an abortion). Unlike the so-called right to privacy, the born free and equal clauses were specifically enumerated in the bills of rights of 24 out of 37 states when the 14th Amendment was ratified in 1868, and this right was enumerated in 37 out of 50 state bills of rights when I last checked in 2018.
At the same time, the born free and equal clauses, constitutionalized by the 14th Amendment in 1868, are subject to an important caveat. As Senator Jacob Howard, in his Report to the U.S. Senate on Behalf of the Joint Committee on Reconstruction delivered on May 23, 1866, explicitly stated:
It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. … [W]e may gather some intimation of what probably will be the opinion of the judiciary by returning to a case adjudged many years ago in one of the circuit courts of the United States by Judge Bushrod Washington of the Supreme Court; and I will trouble the Senate but for a moment by reading what the very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield v. Coryell.
Judge Washington says:
The inquiry is, what are the privileges and immunities of citizens in the several states? … What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].
The language above in bold face is Justice Washington’s paraphrase of the born free and equal clauses. But, as noted, the language above in italics imposes a very important limit on the individual rights that courts can find. It is the language in italics that gives us the rational basis test whereby “just” laws, enacted “for the general good of the whole [people]” must nevertheless be upheld if they survive what I would call rational basis review “with bite.”
This all contrasts markedly with the supposed right to privacy recognized in some of the court’s landmark cases. A substantial majority of the American people in 1791, 1868, and 2018 lived in states which had born free and equal clauses, but almost no Americans in 1791, 1868, or 2018 lived in states whose bills of rights guarantee a right to privacy….
SCOTUSblog has enlisted an impressive number of originalist-oriented commentators, now including Professor Calabresi.
Posted at 6:09 AM