Theoretically, the right to privacy is an individual’s right to space away from the public gaze to make life choices that are best for her or him, regardless of the beliefs of the majority. Yet the right to privacy in the United States has proven problematic for both political theorists and constitutional scholars, as it does not conform to theoretical conceptions of privacy or to existing theories of constitutional development.
Mary McThomas provides a new model that helps us to think about both the right to privacy as well as constitutional development. She first divides privacy issues into two categories, and then illustrates how the two categories are treated differently. The first category, proprietary privacy, covers such issues as medical records and wiretapping. The second category, decisional privacy, involves making decisions about intimate matters such as the right to die, same-sex marriage, and abortion. McThomas tracks and assesses higher court cases in conversational privacy, representative of proprietary privacy, and court cases in marital privacy, representative of decisional privacy. She concludes that the most notable difference between the different types of privacy is that decisional privacy has evolved more slowly towards constitutionalization, and so is much more likely to be limited by community standards and social norms.
This book brings the theoretical conceptions and the practice of privacy rights together, explaining what has happened in the area up until this point, and offering ways to predict how the courts will handle some of today’s most contentious issues.
"Mary McThomas has accomplished the impossible: a fresh new reading of American privacy doctrine. I urge my fellow constitutionalists to read this book."
—Judith Baer, Texas A&M University
"The Dual System of Privacy Rights in the United States is a wonderful addition to the literature on the constitutional law of privacy. Combining a rich and sophisticated approach to political and legal theory with compelling case studies of the evolution of privacy law on the U.S. Supreme Court, Mary McThomas achieves the uncommon – she changes the way that we think about both privacy law and the role of courts in a democratic society. It is an excellent example of how theory and empirics should be combined in studies of law and courts."
—Jack Knight, Duke University
1. Introduction. 2. Legal History and Theoretical Development: The Different Foundations and Formations of Decisional and Proprietary Privacy. 3. Marital Privacy. 4. Conversational Privacy. 5. Theoretical and Political Implications. 6. Conclusion.
In Democracy in America, Alexis de Tocqueville famously noted that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." The importance of courts in settling political questions in areas ranging from health care to immigration shows the continuing astuteness of de Tocqueville’s observation. To understand how courts resolve these important questions, empirical analyses of law, courts and judges, and the politics and policy influence of law and courts have never been more salient or more essential.
Law, Courts and Politics was developed to analyze these critically important questions. This series presents empirically driven manuscripts in the broad field of judicial politics and public law by scholars in law and social science. It uses the most up to date scholarship and seeks an audience of students, academics, upper division undergraduate and graduate courses in law, political science and sociology as well as anyone interested in learning more about law, courts and politics.