Evangelical Reform and the Paradoxical Origins of the Right to Privacy

John W. Compton

The story of how American constitutional law came to recognize a right to privacy in matters pertaining to sex and reproduction has been told many times. The most familiar version of the story follows a “whiggish” trajectory, and describes a century-long struggle between two fundamentally incompatible philosophies or worldviews. The older philosophy held that republican government was impossible in the absence of what William Novak has called a “well-regulated society”—that is to say, in the absence of broadly shared, and legally enforced, moral standards. The newer philosophy, which follows the basic contours of John Stuart Mill’s harm principle, maintains that the state should permit citizens to follow their own inclinations in the realm of sexual intimacy, at least so long as their conduct is consensual and does not involve direct harm to others.

Over time, we are told, the Millian philosophy gradually displaced the older, republican philosophy and its institutional manifestations. In the truly whiggish version of the story, the emergence of the modern right to privacy is celebrated; in critical versions, it is taken as evidence of the nation’s social and intellectual decline. But in both versions, the journey’s major landmarks are the same.

The first signs of change can be seen in the decades following the Civil War, when a handful of state courts struck down moral laws that were deemed overly restrictive of personal liberty. By the end of the century, legal commentators from Christopher Tiedeman to Louis Brandeis had endorsed some version of “the right to be let alone”—though this right was not always defined in constitutional terms. In the 1920s, Justice Brandeis, by then a member of the Court, described (in dissent) a constitutionally protected private sphere that extended to citizens’ “beliefs,” “thoughts,” and “emotions.” By the early 1970s, the Court had recognized the existence of a constitutional right to privacy in “matters so fundamentally affecting a person as the decision whether to bear or beget a child.” And in recent decades, the Court has reaffirmed and extended this right, often using language that evokes the argument of Mill’s On Liberty. In its landmark 2003 decision invalidating a criminal ban on sodomy, for example, the Court described a constitutionally protected “autonomy of self” that includes the right to “define the meaning” of one’s “personal relationship[s].”