Liberalism, Public Morality, and Constitutional Law: Prolegomenon to a Theory of the Constitutional Right to Privacy

Abstract

The legitimacy of the criminal law rests on the conception of public morality that a society regards as justly enforceable.' This conception of public morality has two components: a theory of morally wrong acts and a theory of culpability attributing blame for such acts.2 It also defines a corresponding theory of the moral virtues that the society praises and the moral vices that it condemns, because moral virtue is, at least in part, the effective desire and capacity to be free of culpable wrongdoing, and moral vice is the propensity to be guilty of such wrongdoing.3 Societies differ in their conceptions of public morality, defining the moral universe of wrongdoing, culpability, and vice in correspondingly different ways. What is the conception of enforceable public morality appropriate in a liberal society? John Stuart Mill gave the classic liberal answer to this question in the terms of his harm principle.4 According to this principle, subject to background duties of justice and fair contribution, the coercive power of the state can only be imposed for acts causing harms to other persons. Harms to self do not suffice.5 Mill justified the harm principle in terms of a doctrinal utilitarianism that is, in fact, inconsistent with the stringent demands that the principle imposes on the proper scope of the