More on the Right to Privacy

Cumberland law prof David Smolin responds to my query on the right to privacy with some helpful resources:

First, there is an "originalist" theory of constitutional privacy as an unenumerated right which has not been articulated by the Court; this theory would be based specifically on the views of the framers of the Fourteenth Amendment regarding slavery, the family, and related questions. I outline some of this in the following article: Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg v. Carhart, 24 Harvard Journal of Law & Public Policy 815 (Summer 2001). More broadly, I think it is possible to clearly separate the positive and negative strands of the doctrine: I did this in another article: The Jurisprudence of Privacy in a Splintered Supreme Court, 75 Marquette Law Review 975 (1992).