Beyond the Privacy Principle†

This chapter develops a conceptual compass that will enable critical constitutional analysis of homosexual sodomy statutes to move beyond the privacy paradigm. When Hardwick is viewed in the light of this history, it becomes possible to argue—indeed impossible to deny—that the case presents a number of issues that require a more realistic analysis than the privacy principle can provide. Privacy doctrine's reliance on the concept of personhood is not surprising; after all, personhood is the predominant category employed in the rights-granting provisions of the Constitution. In "The Right of Privacy," Jed Rubenfeld seeks to build an "anti-totalitarian" case against the constitutionality of the homosexual sodomy law upheld in Hardwick. The fact that the intersection of homosexual sodomy law and homophobic violence overruns the abstract legal and political rationality of American constitutionalism ought not blind us to its real and practical effects.