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Subject Area: Political Theory

Autonomy, Privacy, & the Family - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Autonomy, Privacy, & the Family

June A. Eichbaum

  • Associate, Coudert Brothers

“Towards An Autonomy-Based Theory of Constitutional Privacy: Beyond the Ideology of Familial Privacy.” Harvard Civil Rights-Civil Liberties Law Review 14(Summer 1979):361–384.

This article focuses on the question of “what interest does the right of privacy protect?” Eichbaum argues that a familybased right of privacy is constitutionally and philosophically unsound. It is contended that a privacy right grounded in “conventional” interests of marriage and family (rather pejoratively, it seems, styled as “ideology” since the more desirable grounding in “individual autonomy” is not so labelled) seriously limits the “human dignity protected by constitutional guarantees” in that it “champions societal institutions and values and therefore perpetuates the status quo” rather than fostering freedom “to choose and adopt a lifestyle which allows expression of...uniqueness and individuality.”

According to the author, while a family-based right fits harmoniously with majoritarian sentiments, a family-based privacy right ultimately disserves both privacy and the family. Not only does it perpetuate the myth of family as haven from society, it shields the family from just damnation which it deserves both for its inadequacy in living up to the hallowed concepts with which it is intrinsically associated and accorded deference, but also for its utility as a backdrop of conventionality by which alternative lifestyles are judged as less than desirable and/or appropriate or acceptable.

Conversely, an autonomy-based right of privacy is a potent force for protection against discrimination or for remedying lack of official favor based on sex preference and behavior and other styles of normative deviance. Philosophically, this frees the notion of privacy from entrapment in the vision of a person as an instrumentality toward the higher goal of the abstract family unit (thereby violating the basic principal of individual equality and autonomy which is at the core of a civil right) and counteracts the discriminatory conceptualization of individuals as members of a family unit “by reducing their human significance vis-à-vis the abstraction of which they are a part.”

The Supreme Court's decisions are said to manifest a disturbing ambivalence toward the autonomy-based formulation of privacy in the indication that certain forms of perversion may be regarded as beyond the outer limits of that which will be adjudged as acceptable behavior according to the normative principles of the judges. For example, it appears that the Court, at least for the time being, has chosen to avoid extension of the “right of constitutional privacy” to cover consensual sexual conduct between adult homosexuals. Recent Court decisions have “clearly served to extend the autonomy-based right of privacy” by invalidating state legislation that prohibits the distribution of contraceptives to children. The author finds it nevertheless a disturbing indication that “the reproductive autonomy of minors and unmarried individuals is protected only because it is somehow incidental to the protection of marital privacy, while consensual sexual conduct between adults of the same sex is not protected because it does not implicate reproduction or other incidences of marriage.” Eichbaum concludes that:

“...The Court's apparent attitude toward consensual sexual relations...is in need of change in order to conform to an autonomy-based conception of privacy. It is to be hoped that the Court will, in time, fully commit itself to the autonomy-based conception of privacy which many of its decisions already suggest. Anything short of an autonomy-based right, whether or not its expression occurs in the context of the family, is a sham when advanced as a civil right....”