The Right of Privacy, 102 HARVARD LAW REVIEW 737 (1989)
For three decades, the right to privacy has served as a constitutional limit on governmental power. Despite the importance of this doctrine and the attention that it has received, there is little agreement on the most basic questions of its scope and derivation. What does the right to privacy really protect? What principle underlies it? In this Article, Mr. Rubenfeld critically examines the prevailing approach to these questions, which is based on talk of "fundamental rights" and "personhood," and then advances an alternative approach. In Rubenfeld's view, privacy analysis must not look to what a law prohibits, which forms the starting point of prevailing analysis, but rather to what the law affirmatively brings about. A few legal prohibitions, such as that of abortion, have such profound affirmative consequences that their real effect is to direct a person's existence along a very particular path and substantially shape the totality of her life. Such laws, the author argues, are properly viewed as totalitarian in nature. They implicate the right to privacy not because the supposed "fundamentality" of the conduct they forbid, but rather because of the degree to which their actual consequences dictate the course of a person's life.
Date of Authorship for this Version
Rubenfeld, Jed, "The Right of Privacy" (1989). Faculty Scholarship Series. Paper 1569.