:Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law.

Abstract

This is a relentlessly interesting book, one that cannot help but change the way the reader understands twentieth‐century American constitutional development. As Ken I. Kersch persuasively argues, for much of the late twentieth century American constitutional history was dominated by a whiggish narrative in which progressive forces consistently supportive of civil rights and civil liberties triumphed over the dark forces of reaction. This whiggish narrative, however, is full of holes. For example, progressives of the early twentieth century fought mightily against privacy rights protected by the Fourth and Fifth Amendments, in the name of the right of publicity. More specifically, the state‐building project supported by progressives required that American businesses be subjected to intrusive and unprecedented inspection by regulatory and other legal authorities. Even future Supreme Court Justice Louis Brandeis's famous 1890 article supporting a constitutional “right to privacy“—later cited as the progenitor of modern “right to privacy” cases such as Griswold v. Connecticut (1965)—actually did not advocate a right to privacy that modern civil libertarians would even begin to recognize. Quite to the contrary, the article advocated recognition of a tort for invasion of privacy as a means of censoring even rather tepid tabloid journalism. Only after progressives had soundly defeated the “old” right to privacy in the economic sphere and established the modern bureaucratic state did they reimagine the right to privacy in terms congenial to modern liberalism, as an island of personal autonomy in a sea of statism. This victory also allowed them to revive the Fourth and Fifth Amendments in the service of protecting street criminals.