Constitutional Privacy, Religious Disestablishment, and the Abortion Decisions
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Description
This essay examines a problem about punishment which intersects the theory and practice of both constitutional and criminal law in the United States. It comes as no surprise to an American, though it would to citizens of other liberal democracies, that a central issue of justice in punishment—namely, the limits on the application of the criminal sanction—should take the form not only of public debate over legislative policy but of arguments of principle over the meaning of constitutional values. In this study, I explore why and how these questions properly interconnect for us, and propose a novel account within political and constitutional theory of the terms in which they should be connected. My aim in to identify and explore what I take to be the seminal injustice in American criminal law—namely, overcriminalization. It is seminal in the sense that it is the predicate on which many of the other injustices of American Criminal law depend—for example, the abuse of discretion, wasteful and often barbarous use of police and prison resources, the distortion of the dignity of criminal justice by the prejudices of race, class, gender, and the like. If we could become clearer in our collective understanding of this seminal injustice, we could redirect the forms and scope of the criminal sanction to their properly limited and humane purposes and deal with other national problems in ways more sensible and more consistent with both social justice and respect for human rights. I address this subject through the prism of intellectual focus on two interconnected puzzles at the core of contemporary political and constitutional controversy: first, the status and provenance of the elaborations by the Supreme Court of the constitutional right to privacy; and second, the application of that right to abortion in Roe v. Wade, the failure of its application to consensual adult sexuality by the Supreme Court, its application thereto by state supreme courts, and other controverted issues. After addressing the various perspectives that may justify these developments, I shall urge the fertility of a mode of analysis, neither deeply addressed in the philosophical or legal literature nor coherently developed by the judiciary. The analysis involves a philosophical interpretation of the moral value of respect for persons. The right to this respect is central to the reasonable elaboration of the values of the religion clauses of the First Amendment. My objective is to urge the utility and promise of fundamental philosophical and historical work in support of the further elaboration of this mode of analysis.
Source Publication
Abortion: Moral and Legal Perspectives
Source Editors/Authors
Jay L. Garfield, Patricia Hennessey
Publication Date
1984
Recommended Citation
Richards, David A. J., "Constitutional Privacy, Religious Disestablishment, and the Abortion Decisions" (1984). Faculty Chapters. 1924.
https://gretchen.law.nyu.edu/fac-chapt/1924
