Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution

This chapter attempts to explicate the jurisprudential foundations of the constitutional right to privacy and to explain, pari passu , wherein Doe errs . The constitutional power of judicial review is marked by two salient structural features. First, such review is intrinsically countermajoritarian. Second, the basis of this countermajoritarian appeal appears to be ideas of human rights that, by definition, government has no moral title to transgress. Autonomy, in the sense fundamental to the theory of human rights, is an empirical assumption that persons as such have a range of capacities that enables them to develop, and act upon plans of action that take as their object one&s;s life and the way it is lived. To see human autonomy in this deeper way and to understand the powerful role of sexuality as an independent force in the imaginative life and general development of the person is to acknowledge the central role of sexual autonomy in the idea of a free person.