Two Constitutional Rights, Two Constitutional Controversies

This Article is my contribution to the Festschrift celebrating the distinguished scholarly career of Richard S. Kay, Wallace Stevens Professor Emeritus, and Oliver Ellsworth Research Professor, University of Connecticut School of Law. My overarching aim in the Article is to defend a particular understanding of two constitutional rights and, relatedly, a particular resolution of two constitutional controversies. The two rights I discuss are among the most important rights protected by the constitutional law of the United States: the right to equal protection and the right of privacy. As I explain in the Article, the constitutional right to equal protection is, at its core, the human right to moral equality, and the constitutional right to privacy is best understood as a version of the human right to moral freedom.

The two controversies I discuss, each of which implicates the two rights, are among the most divisive constitutional controversies of our time: the controversies concerning, respectively, abortion and same-sex marriage. Arguments of the two sorts I make in this Article—arguments defending a particular understanding of one or more constitutional rights and arguments defending a particular resolution of one or more constitutional controversies— necessarily presuppose a theory of judicial review. The theory of judicial review on which I rely, and whose basic features I rehearse in the Article, is the theory I defend at length in my most recent book, A Global Political Morality: Human Rights, Democracy, and Constitutionalism (Cambridge Univ. Press 2017).