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86 Tul. L. Rev. 1243 (2011-2012)

handle is hein.journals/tulr86 and id is 1255 raw text is: Capitalism, Liberalism, and the Right to Privacy Ofer Raban* The constitutionalnght toprvacyis a doctrnal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or- more likely-is simply unwiling to do so. And yet them is an obvious candidate for that job: the philosophy of liberalism. But liberlism is a notoriously complicated and contested philosophy Thus, this Article proposes a succict and functional articulation of liberalism, which it then applies to Supreme Court cases dealmg ith the nght to privacy As we shall see, the Courth failuw to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of libealism, and grater wilhligness to respect this political theory so deeply rooted in American history and tradition, could bnog much needed coherence to this body of constitutional law INTRODUCTION .................................... ..... 1243 I. CAPITALISM AND LIBERALISM ................... ...... 1244 A. Capitaism............................... 1244 B. Liberalism. ......................... ..... 1247 C Briefly on the Reladon Between Capitalism and Liberalism ................................... 1252 D. Skepticism ........................ .....1 254 E. Liberalism and Constitutional Doctrne...... ........ 1258 II. THE RIGHT TO PRIVACY .............................. 1259 A. Three Early Cases: Parents and Children .... ..... 1260 B. The Modern Cases........................ 1262 1. Contraception ................... ......1 262 2. Abortion ........................... 1266 3. Cohabitation ................... ......1 271 4. Sodomy ....................... .....1274 5. Assisted Suicide ................. ..... 1277 III. CONCLUSION WITH SEX TOYS ..................... .....1281 INTRODUCTION The philosophy of liberalism lies at the heart of America's political creed, from the time of its founding to the very present.' It is * 0 2012 Ofer Raban. Associate Professor of Law, Elmer Sahlstrom Senior Fellow, University of Oregon. I would like to thank Oliver Beige, Eric Ghosh, Dan Tichenor, and the participants of the Oregon Law School Lectures & Awards Series for their helpful comments 1243

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