The right to privacy is the centerpiece of modern liberal constitutional thought in the United States. But liberals rarely invoke “the Founding” to justify this right, as if conceding that the right to privacy was somehow a radical departure from “original meaning,” perhaps pulled out of the hat by “activist” judges taking great interpretive liberties with the constitutional text. Far from being an unorthodox and modern invention, I argue here that privacy is a principle grounded in the very architecture of the Constitution as enumerated in its Articles, perhaps even more so than in particular sections of the Bill of Rights, as is currently understood. More specifically, modern liberalism’s articulation of the right to privacy in the twentieth century against state legislative leviathans bears a family resemblance to three principles in the Federalists’ political theory, which introduced the new federalism, the new liberalism, and the new republicanism, which in turn are embedded in three interrelated structural innovations that would presage the modern turn to privacy: (1) the establishment of a stronger union would nationalize rights and introduce the radical idea that the federal government was not antithetical to liberty but would better guarantee it (the new federalism); (2) the creation of a large republic would acknowledge that fellow citizens, even more so than kings, can threaten our liberties (the new liberalism); and finally, (3) the introduction of the separation of powers would reverse the classical commitment to homogeneity and affirm instead the virtue of heterogeneity in understanding and constituting the republican commonweal (the new republicanism).
75 MD. L. REV. 415 (2015)