American Constitutionalism in Historical Perspective (packet)

Democratic subjugation of minorities/background justice: (Mill) increased concern over emergence of mass society. Fear that democratic majorities may exercise powers in ways that subjugate minorities (racism, sexism, etc). If democracy subjugates human rts it is illegitimate—need free speech and privacy.

Harm principle: if someone is being harmed it is in the state’s interest to protect them. (Mill) Crimlaw can be used to advance justice (protect race, gender, etc) but if there is no issue of justice, must det if conduct harms others or if harms self (but women may stultified by paternalistic policies) If not justified by above, mere offense to dominant majorities is never enough. Critical of law in sexual domain (contraception, abortion, gay/lesbian sex)

Consent principle: the state should protect those who cannot consent.

Privacy: to respect the inalienable right of moral individuality in a free society must recognize individuals’ right to exclude the public from their private lives. Brandeis advocated a rt of info control, rts vs. surveillance

1. 
   Private v. private: Warren, Brandeis
   
2. 
   Private v. state: Olmstead: 4^th A interpreted broadly to electronic bugging; Meyer, Pierce, Skinner, Griswold
   

Depravation: dehumanize people by depriving them of control over their intimate lives. (slavery).

Cases leading to recognition to constitutional right of privacy:

1. 
   Meyer: unconstitutional to outlaw the teaching of German in public schools. Favor interests of teachers & parents to provide students w/ whatever they want to learn. No compelling state interest to the contrary.
   
2. 
   Pierce v. Establishment of Sisters: unconstitutional to force Catholic children to attend Protestant schools. Infringes upon the liberty of the parents to raise their kids as they want. Free exercise terms: parents need exemption from public school. Court concerned about intrusions into the parent/child relationship and state purposes are not compelling.
   
3. 
   Skinner: strikes down a crim statute that req sterilization after 3 sexual convictions. Privacy interest is extremely high & state’s justification is inadequate. Rt of marriage and procreation.