The right of privacy: Interpretive versus positivist dynamics in the post-'Griswold v. Connecticut' Supreme Court era.

摘要

Important United States Supreme Court decisions in cases involving privacy issues since the early 1960s can be approached from different liberal and conservative vantage points. Defining comparative elements common to all privacy claims poses a significant difficulty. Privacy case law spans numerous topics and ideas, and upon introductory investigation, seems to be characterized by a significant amount of disarray in both theories applied and decisions made.;The purpose of this project is to demonstrate that the right of privacy is supportable under provisions in the U.S. Constitution, by showing that the basic philosophical and historical concepts which form the outlines of privacy in rights theory are inseparable from certain constitutional provisions. Such concepts, in fact, should form the basis for privacy jurisprudence.;This dissertation proposes a privacy paradigm based on criteria drawn from the historiography of rights theory--criteria constitutive of a sanctum right based on the principle of avoidance of harm to human beings and the principle of endogeny, or "internality" of actions supposed as private.;Court decisions are subsequently categorized by topic and indexed in relation to the paradigm through four essential parameters found in the theory: formalism, pragmatism, provisionalism, and absolutism. The result of this effort yields a topical and ideological order to privacy jurisprudence and provides a portrait of the prevailing theoretical and ideological character of privacy jurisprudence in terms of the possible impacts on new privacy cases during the 1990s.