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60 Tex. L. Rev. 175 (1981-1982)
Constitution and Autonomy

handle is hein.journals/tlr60 and id is 197 raw text is: Texas Law Review Volume 60, Number 2, February 1982 The Constitution and Autonomy Rogers M. Smith* At least since Philip Kurland's 1964 Foreword to the HarvardLaw Review's annual Supreme Court survey,I it has been customary to refer to the central theme of the Warren Court as egalitarianism.2 While it is true that newly expansive notions of political and social equality per- vade the decisions of those years, the Warren Court also infused a range of doctrines with a distinguishable and equally pivotal constitu- tional value, never given any single, precise definition but most often referred to as autonomy.3 The rise of autonomy as a fundamental value can be discerned not only in cases involving contraception,4 abor- tion,5 and other family and life-style issues, and in the reliance on pri- vacy conceptions in recent fourth and fifth amendment cases.6 It is also evident in the increased solicitude given expanded free exercise claims in the 1960's,7 the broadening of free speech guarantees to novel forms * Assistant Professor of Political Science, Yale University. B.A. 1974, Michigan State Uni- versity; M.A. 1978, Ph.D. 1980, Harvard University. I would like to thank Bruce Ackerman and Bernard Yack for their comments on an earlier draft of this Article. 1. Kurland, The Supreme Court, 1963 Term-Foreword Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government, 78 HAv. L. Rv. 143 (1964). 2. See, e.g., A. BiCCEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 13 (1970); A. CoX, THE WAREN COURT 5-8 (1968); Karst, The Supreme Court, 1976 Term-Foreword Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REv. 1, 26 (1977). 3. The term's popularity is ultimately traceable to Kant, see generally I. KAr, FouNDA- TIONS OF THE METAPHYSICS OF MORALS (L. Beck trans. 1959) (1st ed. Riga 1785); I. KANT, THE METAPHYSICAL ELEMENTS OF JUsTICE (J. Ladd trans. 1965) (1st ed. Konigsberg 1797); I. KANT, THE METAPHYsICAL PRINCIPLES OF VmRTU (J. Ellington trans. 1964) (1st ed. Konigsberg 1797), but I will argue that its current usage reflects a variety of distinct later conceptions. 4. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 684-90 (1977); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479, 482-86 (1965). 5. See, eg., Roe v. Wade, 410 U.S. 113, 152-56 (1973). 6. See, eg., Smith v. Maryland, 442 U.S. 735 (1979); Katz v. United States, 389 U.S. 347 (1967); Miranda v. Arizona, 384 U.S. 436, 460 (1966); see also Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). 7. See, eg., Thomas v. Review Bd., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); United States v. Seeger, 380 U.S. 163 (1965); Sherbert v. Verner, 374 U.S. 398 (1963). 175

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