Northwestern Pritzker School of Law professor Steven Gow Calabresi published a legal commentary on Monday arguing that the U.S. Constitution does not contain a specific "right to privacy." Calabresi contended that legal protections often attributed to privacy, such as those regarding contraception, should instead be viewed through the "born free and equal" clauses found in the Declaration of Independence and many state constitutions. He suggested this framework provides a clearer historical basis for individual rights than the legal reasoning currently used by federal courts.
The argument is part of a series examining the relevance of these foundational clauses to modern constitutional law. Calabresi noted that while the "right to privacy" lacks deep historical roots in state bills of rights, "born free and equal" language was present in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868. By 2018, this number had grown to 37 out of 50 states. The 14th Amendment, ratified in 1868, addresses citizenship rights and equal protection under the law.
Calabresi specifically addressed the 1965 Supreme Court case Griswold v. Connecticut, which overturned a state ban on contraceptive use for married couples by citing a right to privacy. While Calabresi agreed the law was unconstitutional, he disputed the Court's reasoning, calling the "penumbras" and "emanations" described by Justice William O. Douglas ahistorical. He argued the law was invalid because it was an extreme outlier that did not serve the general good and lacked a rational connection to its stated goal of discouraging adultery.
For the average citizen, this change in legal philosophy could determine which personal choices remain protected from government interference and which are left to political processes. Under the proposed framework, laws regarding abortion and assisted suicide would be treated as political questions for legislatures rather than constitutional rights for individuals. Calabresi argued that because there was no historical consensus for these practices in 1791 or 1868, they do not qualify for the same constitutional protection as the rights he believes are "deeply rooted" in American tradition.
The knock-on effect of this interpretation would be the potential for increased variation in civil rights across different states, as more issues would be categorized as "political questions" for state legislatures to decide. It would reinforce the precedent set in Dobbs v. Jackson, which returned abortion regulation to the states, and could set the stage for similar challenges to other unenumerated rights. Calabresi stated he intends to apply this "born free and equal" framework to the issue of same-sex marriage in a future article, indicating that the debate over these legal definitions is ongoing.