Foreword: I wrote this article when I worked for the Cato Institute in the early 1990s. I post it here because I think it is relevant to the recent Supreme Court decision on abortion in Dobbs v Jackson and other landmark cases, including those concerning contraception and gay rights. I could write a critique of my own thesis today, but I still think it is worth sharing in light of the raging controversy regarding the constitutional status of privacy. Where I’ve used the word liberal, please imagine I wrote progressive. I prefer to reserve the word liberal for those — in contrast to progressives and conservatives — who embrace all the implications of self-ownership.
No question in jurisprudence is as muddled as that of privacy. Conservatives refuse to recognize a general legal right to privacy. Big‐government liberals misconstrue the concept and apply it arbitrarily and opportunistically. They would protect a woman’s decision to abort a fetus but not two business competitors who wished to discuss their pricing strategies.
The dominant liberal and conservative approaches to privacy are unsatisfactory because they are essentially unprincipled. Liberals, such as Laurence Tribe, envision a right of privacy radiating from express provisions of the Constitution, but that right is so narrow that it is self‐subverting. Conservatives, such as Robert Bork, reject that vision of a right to privacy because they believe that the method used to find it will allow judges to invent rights. Conservatives seem to assume that there is no alternative vision. But there is an alternative vision, one that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.
The Liberal‐Conservative Debate