The most recent effort of the Supreme Court of the United States to define the judicially created constitutional right to privacy has demonstrated once again why that contrived right poses such a pronounced threat to constitutional self-government. In writing for the majority in Lawrence v. Texas (2003) to overrule a case of only seventeen years' standing that allowed the states to prohibit homosexual sodomy, Justice Anthony Kennedy insisted that the idea of liberty in the Constitution's due process clauses is not limited to protecting individuals form "unwarranted governmental intrusions into a dwelling or other private places" but has "transcendent dimensions" of a more moral sort. The essence of the Constitution for Justice Kennedy and his ilk is that it falls to "persons in every generation [to] invoke its principles in their own search for greater freedom." Put more simply, there is nothing permanent in the constitution, no fundamental, unalterable principles; its meaning comes only from the changing moral views of successive generations of justices.
Copyright © 2005 Hoover Institution Press. This book chapter first appeared in "A Country I Do Not Recognize": The Legal Assault on American Values.
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McDowell, Gary L. "The Perverse Paradox of Privacy." In A Country I Do Not Recognize: The Legal Assault on American Values, by Robert H. Bork, 57-84. Stanford, CA: Hoover Institution Press, 2005.