Looking Forward with the Right of Privacy

Abstract

Where is the right of privacy today? The uncertainty and controversy regarding the present and future of personal liberties protected by the Constitution was sharply evident in the recent advocacy and debate regarding the constitutionality of state bans against physician-assisted suicide. In a novel theory of the right of privacy, advocates before the Supreme Court sought recognition of a constitutional right to avoid suffering. This article explores four different theses of the right of privacy. It argues that both the classic "personhood" thesis and the more recent "anti-totalitarian" thesis advanced by Jed Rubenfeld fail to appreciate the ways in which state restrictions on personal liberties are experienced by individuals in immediate and concrete ways. While the "suffering" thesis suggested by the advocacy of the Supreme Court physician-assisted suicide cases does not share this weakness, it falters because it overlooks the fundamental fact that the avoidance of suffering and liberty are two separate, and at times, opposing, concepts. Rather than the avoidance of suffering, at the heart of liberty is the opportunity to find meaning in our lives. This suggests that the right of privacy should be understood under the "meaning thesis," where intrusions into personal liberties are examined for the effect they may have on an individual's pursuit of a meaningful life.