This is the second of five introductory articles on the relevance for U.S. constitutional law of the “born free and equal” clauses, which appeared in the Declaration of Independence and six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791. The Massachusetts Constitution of 1780, for example, provided that:
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
In my inaugural column, I showed that the born-free-and-equal idea is also reflected in, among other places: 1) Justice Bushrod Washington’s seminal 1823 opinion in Corfield v. Coryell; 2) 1848’s Seneca Falls Declaration of Sentiments, adapting the language of the Declaration of Independence in defense of sex equality; 3) President Abraham Lincoln’s Gettysburg Address; 4) the 1948 Universal Declaration of Human Rights; and 5) Dr. Martin Luther King, Jr.’s “I have a Dream” speech.
I want in this second column to argue that the born-free-and-equal idea, unlike ideas such as the “right to privacy,” so permeates the Constitution that it is “deeply rooted in American history and tradition” as that phrase is used in such landmark, correctly-decided, cases as Washington v. Glucksberg (rejecting a right to assisted suicide), McDonald v. City of Chicago (recognizing that the Second Amendment’s right to own a handgun for self-protection extends to the states), Timbs v. Indiana (recognizing that the Eighth Amendment’s excessive fines clause applies to the states), and Dobbs v. Jackson Women’s Health Organization (rejecting the constitutional right to an abortion). Unlike the so-called right to privacy, the born free and equal clauses were specifically enumerated in the bills of rights of 24 out of 37 states when the 14th Amendment was ratified in 1868, and this right was enumerated in 37 out of 50 state bills of rights when I last checked in 2018.
At the same time, the born free and equal clauses, constitutionalized by the 14th Amendment in 1868, are subject to an important caveat. As Senator Jacob Howard, in his Report to the U.S. Senate on Behalf of the Joint Committee on Reconstruction delivered on May 23, 1866, explicitly stated:
It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. … [W]e may gather some intimation of what probably will be the opinion of the judiciary by returning to a case adjudged many years ago in one of the circuit courts of the United States by Judge Bushrod Washington of the Supreme Court; and I will trouble the Senate but for a moment by reading what the very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield v. Coryell.
Judge Washington says:
The inquiry is, what are the privileges and immunities of citizens in the several states? … What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].
The language above in bold face is Justice Washington’s paraphrase of the born free and equal clauses. But, as noted, the language above in italics imposes a very important limit on the individual rights that courts can find. It is the language in italics that gives us the rational basis test whereby “just” laws, enacted “for the general good of the whole [people]” must nevertheless be upheld if they survive what I would call rational basis review “with bite.”
This all contrasts markedly with the supposed right to privacy recognized in some of the court’s landmark cases. A substantial majority of the American people in 1791, 1868, and 2018 lived in states which had born free and equal clauses, but almost no Americans in 1791, 1868, or 2018 lived in states whose bills of rights guarantee a right to privacy.
Let us take the 1965 case of Griswold v. Connecticut, in which the supposed right to privacy was partially established. In Griswold, the court considered the constitutionality of a state law which banned the use of contraceptives by married couples. Writing for the majority, Justice William O. Douglas determined that this violated a right to privacy found in “penumbras, formed by emanations from [the Bill of Right’s] guarantees that help give them life and substance.” I disagree: 1) with Douglas’ opinion with its embarrassing reference to a right to privacy with no historical antecedents and to the so-called “emanations and penumbras” of the Bill of Rights; 2) with Justice Arthur Goldberg’s embarrassing position that such a right can be found in the Ninth Amendment instead, which is totally ahistorical as to how it applies to the 14th Amendment; and 3) with Justice John Marshall Harlan’s evolving common law substantive due process opinion. The opinion in Griswold which comes the closest to being correct is Justice Byron White’s concurrence, which stresses the lack of means-end fit between a highly intrusive ban on the use of contraceptives by married couples and its goal to discourage adultery.
The ban by Connecticut on the use of contraceptives by married couples was not unconstitutional because it violated a right to privacy, but on the basis that it was a law which the government may not “justly prescribe for the general good of the whole [people].” This was because: 1) Connecticut was the only state out of 50 with a ban on the use of contraceptives by married couples, making it an extreme outlying jurisdiction; 2) Connecticut’s law criminalizing contraceptive use by married couples was never enforced, and the plaintiff himself had to go to great lengths even to get prosecuted; 3) the rationale advanced to defend the Connecticut law that it discourages adultery was absurd on its face (for the reasons given in White’s concurrence); 4) married couples cannot “enjoy and defend liberty” or “seek and obtain safety and happiness” if their access to birth control is denied for the state’s preposterous reason that doing so might somehow inhibit adultery; and 5) the Connecticut law was passed a long time ago and was not a recent attempt by a single state to experiment with a reform that it hoped would catch on in other states.
Given this, it would be a great advance in constitutional law were the Supreme Court to revisit its holding in Griswold v. Connecticut and make it clear that that case was rightly decided under the privileges or immunities clause of the 14th Amendment and not under the absurd doctrine of substantive due process or under the Ninth Amendment.
To take a more recent case, Chief Justice William H. Rehnquist was correct in holding that there is no unenumerated right to assisted suicide as was claimed by the plaintiff in Washington v. Glucksberg. There was an overwhelming consensus in 1791 and 1868 that laws banning assisted suicide were desirable for a whole host of reasons. Along those lines, Justice Samuel Alito in Dobbs was correct in holding that there was an overwhelming consensus in 1791 and 1868 that laws prohibiting abortion were “just[] … laws prescribed for the general good of the whole [people].”
At the same time, I do not think that the born free and equal clauses mean that Lochner v. New York or Roe v. Wade were incorrectly decided simply because liberty in the abstract was implicated in those cases. Laws setting maximum working hours (as in Lochner) or restricting abortion (unlike the contraceptives law at issue in Griswold) are “restraints [which] the government may justly prescribe for the general good of the whole [people].” Such laws thus easily pass a rational basis with bite test.
With respect to abortion or assisted suicide, I think that the question of when life begins, and ends, is inherently a political question. It is a question which people of different religious or secular backgrounds can and will resolve differently. The life-tenured Article III federal courts simply have no business second-guessing legislative decisions on such political issues. Federalizing and constitutionalizing the rule on these political questions is a gross abuse of power by the Supreme Court, bound to convulse the body politic (which, indeed, is what we saw in the case of Roe v. Wade).
To put it differently, cases like Lochner and Roe raise what former Judge Robert H. Bork called the counter-majoritarian difficulty in a way that a case like Griswold v. Connecticut simply does not. The law Griswold struck down was barely related at all to the burdens which Connecticut’s defunct, old statute imposed.
Griswold v. Connecticut is thus an exceptional and rare case in which the born free and equal clauses were violated, but not because of any constitutional right to privacy. Lochner and Roe were wrongly decided for that reason. In my next article, I will apply the born free and equal clauses with regard to whether there is a constitutional right to same-sex marriage.
Recommended Citation: Steven Gow Calabresi, There is no constitutional “right to privacy” , SCOTUSblog (Aug. 24, 2026, 10:00 AM), https://www.scotusblog.com/2026/08/there-is-no-constitutional-right-to-privacy/