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Unformatted text preview: s a result of this predicament, our only generally definable option is to ground the moral authority of states on the consent of the governed, rather than in arguments on behalf of a particular canonical, content-rich moral vision. Governments, then, lack the moral authority to intrude upon or govern individuals absent their consent. Thus, rights to privacy can sustain spheres of privacy within which consenting individuals may pursue views of the right, the good, the just, and the virtuous in ways that are at odds with the understanding of the larger society. Rights to privacy lie at the root of democracies limited by the consent of the governed. INDIVIDUAL LAWS THAT ABRIDGE THE RIGHT TO PRIVACY HAVE INSIDIOUS CONDITIONING EFFECTS Jed Rubenfeld, Associate, Wachtell, Lipton, Rosen & Katz, New York City, HARVARD LAW REVIEW, 102 Harv. L. Rev. 737, February 1989, p. 805-806. It will likely be replied that the laws invalidated by the right to privacy, as I have developed it, have no such thoroughgoing conditioning effects that would deprive people of the ability to exercise their democratic freedom. Laws against abortion, it will be said, in no way impede women from exercising their suffrage; nor do laws against homosexual sex impede homosexuals from doing the same. To put things this way is similar to criticizing applications of the first amendment on the ground that proscribing a particular bit of speech will not genuinely threaten the democratic process or that permitting a particular governmental expression of faith will not genuinely establish religion. More than this, however, the laws implicated by the right to privacy do indeed have a discernible conditioning effect that should not be overlooked. The centuries-long prohibitions of contraception and abortion, precisely by assuring that women's lives would be substantially taken up with the functions of child-bearing, must have made it difficult, if not impossible, for many women to discover or to assert their political will and for men and women alike to reconceive women's societal role. Similarly, the prohibi...
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This document was uploaded on 11/20/2013.
- Fall '13