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Unformatted text preview: t viewed as a "political" right. However, Rubenfeld offers a very different conception of the political field from which the right emerges. As I have shown above, Professor Michelman traces the political source of privacy doctrine to American republican thought and its commitment to strong citizenship. For Rubenfeld, the political character of the constitutional right to privacy derives from American democratic thought and its commitment to weak statism. In Rubenfeld's view, privacy doctrine is the constitutional expression of a democratic, anti-totalitarian impulse: it seeks to check "the extent of control and direction that the state exercises over the day-to-day conduct of individual lives." The crucial step in Rubenfeld's argument is a methodological claim. He argues that the assumptions that inform most discussions of the right of privacy "[have] invariably missed the real point." Rubenfeld contends that privacy analysis has mistakenly placed undue emphasis on what the laws with which the doctrine is concerned forbid or prohibit. Rubenfeld sets out to discredit this methodology. He takes his theoretical bearings from the critique of the "repressive hypothesis" of Michael Foucault, whose outlines I have already sketched. Adapting Foucault, Rubenfeld argues that the privacy analysis must abandon its formalist obsession with the superficial "negative aspect" of the laws to which the doctrine has traditionally been applied and attend instead to their "positive aspect." For Rubenfeld, this methodological shift requires a careful micrological account of the "real," quotidian effects that flow from the law in question. As Rubenfeld conceives it, "[t]his affirmative power in the law, lying just below its interdictive surface, must be privacy's focal point." PRIVACY RIGHTS ARE A CRUCIAL CHECK AGAINST TOTALITARIAN GOVERNMENT Frank I. Michelman, Professor of Law, Harvard Law School, et al, Brief for 885 Law Professors in Support of Maintaining Adherence to the Roe Decision, AMERICAN JOURNAL OF LAW & ME...
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This document was uploaded on 11/20/2013.
- Fall '13