About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

58 Notre Dame L. Rev. 445 (1982-1983)
Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution

handle is hein.journals/tndl58 and id is 457 raw text is: Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution? Joel Feinberg* Seventy-five years after Lochner v. New York 1 most of us are pre- pared to cheer Holmes' famous quip that the Constitution does not enact Herbert Spencer's Social Statics. But does the Constitution stay neutral with respect to all conflicting social philosophies? Until re- cently, the direction of United States Supreme Court decisions en- couraged many liberals to think that perhaps the first amendment enacts John Stuart Mill's On Liberty. In addition, philosophers might suggest (if we were not so diffident) that the eighth amendment in- corporates Immanuel Kant's philosophy of punishment, and the fourteenth amendment presupposes the framework of Aristotle's the- ory of justice. Holmes' sarcastic term enact, of course, is mislead- ing as a name for the relation between the Constitution and a particular social philosophy. Politically impotent philosophy profes- sors may be entitled to their power fantasies, but they are not so de- luded to think of themselves as actual legislators of the law of the land. It would be much less misleading to claim only that the Con- stitution, insofar as it uses fundamental ethical terms without explic- itly stating how to interpret them, tacitly incorporates some particular moral theories, namely the most plausible ones. The idea is that certain philosophical accounts of liberty, justice, equality, and fair dealing are closer to the objective truth than others, and the Constitution embodies the correct accounts of these moral notions, whatever they should happen to be. You will not be surprised to learn that, as a professional philosopher, I am disposed to be sympa- thetic to this approach, despite some obvious difficulties, since it makes moral philosophy the foundation of constitutional jurispru- * A.B., 1949, M.A., 1951, Ph.D., 1957, University of Michigan. Professor of Philosophy, The University of Arizona. This article is the text of the eleventh annual Notre Dame Civil Rights Lecture given at Notre Dame Law School on December 2 and 3, 1982. 1 198 U.S. 45 (1905). In Lochner, the Supreme Court held that a New York statute limiting employment in bakeries to sixty hours a week and ten hours a day was an arbitrary interference with the freedom to contract guaranteed by the fourteenth amendment. The statute, the Court held, could not be sustained as a valid exercise of the state's police power to protect the public's safety, morals, or welfare.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most