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Autonomy (of Individuals and Private Associations)

Abstract and Keywords

This chapter examines the concept of autonomy in American constitutional law as it applies to the freedom of individuals and some private associations to make certain important choices without undue intervention from the government. It first traces the origins of the understanding of autonomy as personal freedom before turning to the autonomy principle found in Supreme Court decisions applying the Constitution’s First and Fourteenth Amendments, with occasional references in the jurisprudence of the Second, Fourth, Fifth, and Sixth Amendments. It then analyzes the tension between personal autonomy to waive constitutional protections (e.g., the Fifth Amendment right against self-incrimination) and the government’s legitimate role in encouraging autonomous actions. It also considers autonomy in relation to what the Court has called the “personal” realm, which involves matters of privacy, family life, sexual relations, reproduction, education, self-defense within the criminal justice system, religious belief and practice, and freedom of thought and speech.

Keywords: autonomy, constitutional law, personal freedom, Supreme Court, Constitution, First Amendment, Fourteenth Amendment, jurisprudence, Fifth Amendment, freedom of speech

*Before the 1970s, “autonomy” in American constitutional law referred mainly to the independence and sovereignty of the states as protected by the Tenth Amendment and by the enumeration of specific and limited federal powers.1 It also referred to the sovereignty of the Indian tribes.2 Although such uses of the word continue, in modern American constitutional law autonomy increasingly refers to the freedom of individuals and some private institutions to make certain important choices without undue government intervention. This chapter deals with the latter idea.

Justice Kennedy described the late twentieth-century concept of autonomy in the opening paragraph of Lawrence v. Texas,3 which struck down a state law criminalizing “homosexual conduct” even when the forbidden sexual acts occurred between consenting adults (p. 566) in the privacy of the home. Setting up the Court’s conclusion that such conduct is constitutive of individual identity, Justice Anthony Kennedy wrote:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.4

Autonomy has both spatial and decisional dimensions. It protects both individuals and some institutions and associations, which are understood to exercise the collective choices of the individuals comprising them.

This understanding of autonomy as personal freedom emerged explicitly only in the 1970s, though its roots go back much further. It can, for example, easily be traced to John Stuart Mill’s On Liberty. Mill and others5 viewed autonomy, in negative terms, as freedom from state regulation. Autonomy understood in this way does not command the government to assist individuals or associations in making choices, and indeed is mostly suspicious of paternalistic efforts by government to do so.6

The modern concept of autonomy in constitutional law is found most commonly in decisions applying the First and Fourteenth Amendments, with occasional references in the jurisprudence of the Second, Fourth, Fifth, and Sixth Amendments. This chapter will examine autonomy in each of these areas.

I. Personal Autonomy

An early statement of what might now be called personal or physical autonomy appeared in a Supreme Court decision in 1891, Union Pacific Railway Co. v. Botsford,7 which held that a court could not order a personal injury plaintiff to submit to a surgical examination in advance of trial. The Court outlined the important individual interests at stake in resisting such an order:

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: “The right to one’s person may be said to be a right of complete immunity; to be let alone.” [citation omitted]8

(p. 567) Personal autonomy is closely tied, at least for lawyers, to the right to privacy, famously described by Louis Brandeis and Samuel Warren the year before Botsford as “the right to be let alone.”9 Brandeis and Warren advocated that the state create a new tort of “invasion of privacy” that would protect aggrieved individuals against other individuals claiming a right to invade that privacy. Their work illustrates an early version of conflicting autonomies.

Numerous scholars have traced the development of autonomy principles in constitutional law. In an exploration of the intersection of privacy and autonomy in 1974, Louis Henkin characterized the “right to privacy” as a “zone of autonomy.”10 For him, autonomy was “freedom from regulation.”

In One Hundred Years of Privacy,11 Ken Gormley identified the roots of privacy in the Fourth Amendment’s protection from unreasonable searches. But it was within the First Amendment and what Gormley termed “fundamental-decision privacy” where the concept of autonomy was tied to privacy. Gormley noted as well that technological developments raised special concerns about protecting individuals from new means of state intrusion into what had been perceived as protected domains.

Although many scholars have viewed the right to privacy as constitutionally suspect, Gormley defended it as stemming from the social contract that established a limited government with the primary purpose of protecting the liberties of the contracting individuals. “[F]undamental-decision privacy has in fact amounted to a clarification by the judiciary of the original social contract, as it relates to issues of personal autonomy,” Gormley maintained.12 He found two main categories of cases: relatively uncontroversial “marriage-family-home” cases and an unnamed category seeking to clarify additional specific details of the social contract. He noted that decisions involving reproduction, the right to die, and homosexuality are in this latter category as they are seeking the protection of rights unanticipated by the original social contract. He predicted that autonomy and privacy jurisprudence would continue to evolve in realms where technology and societal viewpoints change.

II. The Fourteenth Amendment

Explicit recognition of personal autonomy in constitutional law began in a series of cases establishing what the Court termed a “right to privacy.” The main decision laying the groundwork was Griswold v. Connecticut (1965),13 striking down a Connecticut ban on the use of contraceptives, even by married couples. Relatively quickly (for the Supreme Court), the right was extended to unmarried individuals in 1972.14 It was then further expanded to protect a right to abortion just a year later in Roe v. Wade.15 Justice Harry Blackmun, (p. 568) writing for seven justices, almost casually placed the right to privacy in the Fourteenth Amendment’s due process clause, which instructs that states may not “deprive any person of life, liberty, or property, without due process of law.”16 None of these decisions, however, used the word “autonomy,” preferring instead the term “privacy” to describe the interest invaded by state law.17

By 1977, the Court for the first time mentioned autonomy explicitly to justify its privacy jurisprudence. In a decision striking down a state’s regulation of contraceptives, it reaffirmed that while liberty protected the reproductive choices of married couples, “the constitutional protection of individual autonomy in matters of childbearing is not dependent on that [marital] element.”18

The move from “privacy” to “autonomy” in the Court’s cases is not simply linguistic. “Privacy” might refer only to certain spaces, such as one’s bedroom. It might thus be understood to protect only aspects of one’s sexual intimacy, such as a person’s use of contraceptives, and only in certain nonpublic spaces, such as the home. Expanding it a bit more, it might refer to sensitive personal information, allowing people to keep certain matters secret.19

But “autonomy” suggests a broader realm of personal decision-making, whether or not those decisions are made known or are manifested in public acts. As a matter of spatial privacy, a same-sex couple may enjoy no freedom to demand that the state issue them a public marriage license and afford them the legal rights and protections of marriage, which involve demands on the public fisc and protection from public authorities in public spaces. “Autonomy” more accurately describes their claim than does “privacy.”

Abortion is another area in which “autonomy” more accurately describes the stakes than does “privacy.” While the use of contraceptives may well take place in completely private settings, abortions almost always require the participation of strangers in regulated medical settings, even though, to be sure, the procedures take place out of general public view.

(p. 569) It should not be surprising, then, that abortion soon became the center of disputes over constitutional autonomy protection. In Thornburgh v. American College of Obstetricians & Gynecologists,20 the Supreme Court held a Pennsylvania law unconstitutional because it interfered with a woman’s freedom to choose abortion. “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision … whether to end her pregnancy.”21 Autonomy was thus tied, for the first time, to modern ideas about individual “dignity.”

In 1992, a decision involving several state abortion regulations afforded the Court an opportunity to articulate its broadest vision of autonomy. Although Planned Parenthood of Southeastern Pennsylvania v. Casey22 overruled Thornburgh by allowing certain informational provisions and other restrictions on the right to abortion under an undue burden standard,23 it nonetheless reaffirmed the link between constitutionally protected personal liberty and the ability to choose an abortion. Thus the Court declared:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education… . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.24

This passage captures several elements of the Court’s autonomy jurisprudence: its focus on protecting a litany of “personal” choices, the connection of autonomy to individual dignity, the emphasis of autonomy on individual self-rule and self-determination, and its essentially negative function to keep the state out of this personal realm.

Justice Scalia mocked the Casey court’s formulation of the judicial protection of autonomy in his dissent in Lawrence v. Texas, calling it the “sweet-mystery-of-life passage.” To him and to other critics, the Court’s idea of autonomy is vacuous, announcing principles that are more poetic or philosophical than legal. “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts,” Scalia wrote, “and if the [Casey] passage calls into question the government’s power to regulate actions based on one’s self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.”25

Scalia’s critique helps to clarify what the Court objected to in Casey and in other autonomy decisions: in regulating certain conduct (such as the use of contraceptives, the practice of abortion, or sexual conduct) the state was not simply regulating conduct but was significantly intruding on citizens’ own inner thoughts and beliefs about that conduct. In regulating fundamental attributes of personhood, as the Court understood those attributes, the state was shaping citizens’ lives by reaching indirectly into their minds.

In Casey, the Court also discussed “physical autonomy,” the right to bodily integrity: “The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right (p. 570) to physical autonomy.”26 The right to bodily integrity had long-standing roots in the common law.27 However, the Court referred to “economic autonomy” in a context that disapproved constitutional protection for individual economic decisions.28

In addition to reproduction, individual decisions about marriage also involve the exercise of protected autonomy. In a decision striking down a state law requiring court approval of marriage by persons with outstanding child-support obligations, the Court held that “the guarantee of personal privacy or autonomy secured against unjustifiable governmental interference by the Due Process Clause ‘has some extension to activities relating to marriage.’ ”29

The Court’s most straightforward attempt to define autonomy appears in the opening passage of its decision striking down state sodomy laws, Lawrence v. Texas.30 In his majority opinion, Justice Kennedy wrote that “autonomy of self … includes freedom of thought, belief, expression, and certain intimate conduct.”31 Although directed at acts, the Court held, the effect of state laws intruding on intimate conduct is much broader. Such laws “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”32 After quoting Casey’s broad language, the Court declared that “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”33

The autonomy protected in Lawrence broadly incorporated areas that the government controls both indirectly, such as thought or belief, and those that it controls directly, such as sexual conduct. Further, Lawrence and Casey reinforced a distinction between “intimate conduct” (sexual acts) and other conduct not seen as intimate—such as entering contracts, buying and selling property or goods, and even deploying one’s skills in labor markets. The government has freer rein to control one’s purchases than one’s sexual partners. Lawrence was the first and so far only decision in which the Court struck down a regulation of specific sexual conduct, but it did so in a way that suggests broad protection for sexual freedom.

But Lawrence implicitly cabined individual autonomy even over personal sexual choices: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.”34 The Court did not explain the basis for these limits, which involve matters of capacity to consent, lack of consent, and public-regarding justifications that may be stronger than simple “moral disapproval,” which is all Texas had offered in defense of its sodomy law. Thus the Court suggests that one’s autonomy rights are limited by the autonomy interests of others, and possibly by strong regulatory interests that go beyond nosy preferences about how others should conduct their lives. As Mill himself suggested, a person’s autonomous right to wave his or her (p. 571) fist stops at the point of another’s nose. Privacy tends to suggest a spatial separation from others, but autonomy can well be asserted in domains that inevitably involve others claiming their own rights. In order to adjudicate these potential disputes, a vague “harm principle” has begun to emerge in the autonomy cases.

One area of potentially conflicting autonomies is parental control over their minor children, which raises the issue of precisely when we are willing to view individuals as autonomous and not in need of paternalistic guidance or control. In Parham v. J.R. the Supreme Court upheld a Georgia statute allowing parents to commit their minor children to mental hospitals.35 In a concurring and dissenting opinion joined by justices Thurgood Marshall and John Paul Stevens, Justice William Brennan agreed that parents should have authority to commit kids, but argued that the Court should require at least one post-admission hearing in every case.36 He pointed to tension between parental control and minors’ rights, which the Court had also refereed in abortion cases requiring minors to notify parents before terminating a pregnancy:

Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor’s right to secure an abortion on attaining her parents’ consent since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture family autonomy.37

Justice Brennan highlighted a variety of cases and statutes where states had intervened to protect minors’ own autonomy interests against parental decisions that would immediately harm them or impair their development as adults—including action “on behalf of abused or neglected children,” limitations on “parental authority to alienate their children’s property,” requirements of necessary medical treatment, and limitations on parents’ decisions “to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.”38

On occasion, the Court has sharply limited judicial protection of autonomous choices by individuals. Personal autonomy can be restricted in certain institutional settings where the government has especially strong regulatory interests, such as the military and prisons.39 The Supreme Court, for example, has held that a county has strong regulatory (p. 572) interests in regulating its police officers’ hair length and in controlling other matters of their personal appearance40—regulations that would be unconstitutional if imposed by the state outside of such employment.

But even outside of institutional settings, one’s autonomy to make basic decisions affecting oneself has been restricted. In Washington v. Glucksberg, the Supreme Court upheld a state’s ban on assisted suicide, declaring that there was no fundamental right involved and that Washington’s ban was rationally related to the state’s legitimate interests.41 The majority distinguished the right of terminally ill patients to refuse treatment recognized in Cruzan v. Missouri Department of Health:42 “The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy.”43 Personal autonomy had limits. “That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected and Casey did not suggest otherwise.”44 The majority held that only matters of personal autonomy whose protection was deeply rooted in history and tradition could be called fundamental rights protected by the Constitution.

Glucksberg appears to be an aberration in recent autonomy jurisprudence. It is not clear how its narrow definitional and historical methodology can be squared with other decisions protecting autonomy over matters not historically protected, such as abortion or nontraditional sexual conduct. Indeed, the Lawrence decision did not even mention Glucksberg, much less rely on its methodology. Perhaps Glucksberg is best understood as deferring to substantial public-regarding justifications: the fear that seemingly terminally ill persons would be pressured by family members or physicians, concerned about the sheer cost of contemporary medical care, to take advantage of the possibility of assisted suicide.

III. The First Amendment—Freedom of Speech and Association

The most thoroughgoing and aggressively libertarian version of autonomy appears in First Amendment doctrine protecting the freedom of speech. The First Amendment commands: “Congress shall make no law … abridging the freedom of speech.”45 In free-speech jurisprudence, Justice Louis Brandeis captured the essence of autonomy as a basis for (p. 573) protecting free speech in his famous concurrence in Whitney v. California, saying that “[t]hose who won our independence believed that the final end of the State was to make men free to develop their faculties.”46 The first explicit reference to autonomy in a related context came in 1957 in a concurring opinion by Justice Felix Frankfurter, who called “political autonomy” one of the basic rights shielded from state regulation.47

Many scholars have tied free-speech doctrine to autonomy interests.48 For Charles Fried, the freedom of expression followed from the right to be an autonomous individual.49 Fried defined autonomy as “the Kantian right of each individual to be treated as an end in himself, an equal sovereign citizen of the kingdom of ends with a right to the greatest liberty compatible with the like liberties of all others.”50 Because he found autonomy to be a foundational principle, Fried addressed why the government cannot assert authority over an individual’s thoughts, beliefs, or associations. Fried maintained that the autonomous individual is inherently endowed with these rights and that the First Amendment merely codifies them.

David Strauss found autonomy rights embedded in the First Amendment through what he called the “persuasion principle,51 which prohibits government from restricting speech because it believes people might otherwise be persuaded to think in harmful ways. The only remedy for the government is counter-messaging, which suggests that government itself enjoys a certain autonomy to express “its” own point of view on public issues. While Strauss refrained from assigning a precise definition to autonomy, he likened it to “a person’s control over her own reasoning processes.” Thus, the government cannot interfere with one’s autonomy by limiting speech—an individual has the right to determine for herself what is correct.

The Court has regularly invoked “speaker autonomy” as a ground for striking down regulations restricting speech. Content-based regulations of speech “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”52 This means that speakers must be given the freedom to choose the content of their own speech, even when that choice means not speaking on a particular subject. It applies, for example, when parade organizers decide not to include a contingent that expresses a message on a subject they do not want to include within the larger theme of the parade. “[W]hen dissemination of a view contrary to one’s (p. 574) own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.”53

Beyond direct coercion of individual speech, government generally may not invade a speaker’s autonomy through “triggering requirements” that compel the speaker to host or sponsor others’ speech. Faced with a trigger requirement, the speaker is forced to choose whether to speak in a way that triggers government-enforced support for an opposing message, to change one’s speech to avoid the trigger, or not to speak at all. This burdens speech based on its content. In the campaign-finance context, where the Court has long considered campaign expenditures a form of protected expression, this choice imposes an intolerable burden on political speech. “[F]orcing that choice—trigger matching funds, change your message, or do not speak—certainly contravenes ‘the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.’ ”54

Free-speech autonomy also extends to those who hear and read speech (“listener autonomy”). Any reasonable understanding of individual autonomy would have to include the freedom to refuse to listen to speech one does not want to hear in circumstances, such as the home, where escape is either impossible or unfair to ask of someone. At the same time, the paradox is that people who refuse to consider ideas with which they disagree undermine their own capacity for rational judgment and thus undermine the effective exercise of their own autonomy. The Supreme Court has recognized the dilemma but has come down firmly on the side of the “captive” listener’s freedom to choose the content of his informational environment.

In today’s complex society we are inescapably captive audiences for many purposes, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the effect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider.55

The Court has extended the concept of listener autonomy to consumers’ interest in hearing commercial advertisements. Beginning in the mid-1970s, as the Court’s autonomy doctrine was emerging in Fourteenth Amendment cases, the justices began protecting commercial speech that provides information about product prices. In the first of these cases, the Court struck down a Virginia law that forbade pharmacists to advertise the prices of prescription drugs. Virginia defended the law by arguing that price advertising lead to price competition, which would cause pharmacists to sacrifice quality. The Court replied to Virginia with a defense of listener autonomy:

There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best (p. 575) interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.56

The First Amendment presumes that citizens can exercise their own judgment to make rational decisions, but that means they must have the information necessary to make informed choices. In some tension with this conclusion is the Court’s idea that government may ban misleading advertisements, which suggests that in the commercial-speech realm government may help consumers exercise their commercial choices by regulating to improve the quality of information they receive. A similar justification for regulating “misleading” political speech would not succeed.

First Amendment protection for the dissemination of ideas also extends to curricular and admissions decisions made by educational institutions such as colleges and universities. Even a public university’s decision to use race among its admissions criteria, suspect in Fourteenth Amendment jurisprudence, is justified by the school’s “educational autonomy” to create a diverse student body.57

At the same time, a college’s autonomy may run afoul of students’ autonomy to speak, which is also protected. This has been dramatically illustrated in a number of cases testing so-called “hate-speech” regulation by colleges and universities, though none of them reached the Supreme Court itself. Another aspect of the tension is presented in cases involving a mandatory activity fee imposed on students that serves to facilitate other students’ speech (even if opposed by the fee-payer). The Court has upheld such fees but Justice David Souter sounded a caution in a concurring opinion:

While we have spoken in terms of a wide protection for the academic freedom and autonomy that bars legislatures (and courts) from imposing conditions on the spectrum of subjects taught and viewpoints expressed in college teaching (as the majority recognizes), we have never held that universities lie entirely beyond the reach of students’ First Amendment rights.58

“Corporate autonomy” has developed a strong foothold in the Court’s free-speech jurisprudence, especially inasmuch as the Court considers corporations “persons” entitled to many of the same protections as natural persons. Gregory Mark has explained the appeal of corporate personhood as a concept in American law:

In American legal and economic history, personification has been vital because it (1) implies a single and unitary source of control over the collective property of the corporation’s members, (2) defines, encourages and legitimates the corporation as an autonomous, creative, self-directed economic being, and (3) captures rights, ultimately even constitutional rights, (p. 576) for corporations thereby giving corporate property unprecedented protection from the state.59

Corporations, in this view, are thought to constitute a counterweight to the government’s massive power. Protecting corporate speech can thus be seen as serving the interests of individual autonomy.

Finally, under the rubric of “freedom of association,” the Court has extended significant control over membership decisions to private organizations. In Boy Scouts of America v. Dale,60 the Court held that the Boy Scouts had a right to exclude a gay scoutmaster who had been a leader of local gay-rights causes. The group thus did not have to comply with a state anti-discrimination law protecting gay men and lesbians from private discrimination. While the Court did not specifically mention autonomy in its opinion, it did emphasize that the group was entitled to control its own message through its membership policies.

IV. The First Amendment— Freedom of Religion

The First Amendment provides: “Congress shall make no law … prohibiting the free exercise” of religion.61 Although the Court initially suggested that the Free Exercise Clause protects only “beliefs” and not “actions,” it has gone on to protect a number (though certainly not all) of the latter as well.62

The free exercise clause, like the free speech clause, has been understood to protect the autonomy of religious associations as well as individuals. Thus, the Court has written:

[I]t is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.63

Institutional religious autonomy includes, at a minimum, the power to control what the Court calls “objective functions” such as “religious leadership, worship, ritual, and expression.”64 The Court has identified its role as “chart[ing] a course that preserved the (p. 577) autonomy and freedom of religious bodies while avoiding any semblance of established religion.”65

The First Amendment, of course, includes the establishment clause as well as the earlier quoted free exercise clause. In a survey of Supreme Court jurisprudence protecting religious freedom, Carl Esbeck noted the role that church autonomy plays in protecting First Amendment rights.

In a fully mature separationist model, there is more to be done than just preventing government from improperly helping religion. Borrowing from the familiar metaphor of Roger Williams, later used by Thomas Jefferson, the ‘wall of separation between church and state’ prohibits overreaching from either side of the divide.66

In an article discussing the implications of Employment Division v. Smith, which upheld a state criminal prohibition on the use of peyote even for sacramental purposes, Perry Dane argued that church autonomy emerged from the overlap of the two religion clauses.

If the truth be told, institutional autonomy is, strictly speaking, neither a matter of free exercise nor of establishment; rather, it can most sensibly be understood as a distinct third rubric, grounded in the structural logic of the relation between the juridical expressions of religion and the state. But in our constitutional dispensation, the least antipositivist way to express that distinct logic is by situating institutional autonomy at the intersection of the macroconcerns of the Establishment Clause and the microconcerns of the Free Exercise Clause. To try to find refuge for it in one clause as against the other is just false.67

Religious autonomy also extends to corporations under the Religious Freedom Restoration Act, which was a congressional response to Smith. The majority and dissent in Burwell v. Hobby Lobby briefly touched on the concept of religious autonomy for corporations. The majority extended the concept of religious autonomy of nonprofits to closely held for-profit corporations.68 While Hobby Lobby involved the application of a federal statute, a similar rationale might well protect the constitutional autonomy of corporations to teach and follow religious precepts.

V. The Second Amendment

Perhaps the most fundamental rationale for the initial social contract, offered by both Thomas Hobbes and John Locke, is the desire of individuals to protect their own security. The twenty-first century has seen a heated debate within the Court (and, of course, outside its walls) about the relationship between this desire and the state’s ability to control (p. 578) firearms. Thus the Court in District of Columbia v. Heller69 read the Second Amendment as protecting the basic individual right to self-defense and, therefore, invalidated the attempt by the District of Columbia effectively to prohibit the private possession of firearms even in one’s home. McDonald v. City of Chicago subsequently held that the Second Amendment was applicable to the states via the Fourteenth Amendment. In their respective concurring and dissenting opinions in McDonald, Justices Scalia and Stevens discussed the right to own a gun as a part of personal autonomy. Perhaps surprisingly in light of his comments in other contexts, Justice Scalia dismissed what he viewed as Justice Stevens’ narrow understanding of autonomy in the Second Amendment context. “Even though [Justice Stevens] does ‘not doubt for a moment that many Americans … see [firearms] as critical to their way of life as well as to their security,’ ” Scalia wrote, “he pronounces that owning a handgun is not ‘critical to leading a life of autonomy, dignity, or political equality.’ ”70 The Court’s developing Second Amendment doctrine, though, has gone out of its way in dicta to endorse many existing governmental constraints on the autonomy of convicted felons or the mentally ill to keep and bear firearms, and to endorse bans on bringing weapons into certain settings such as courts.

VI. The Sixth Amendment

The right to defend oneself in a criminal prosecution is central to the Sixth Amendment, which provides: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”71 As early as 1965 a federal court referred to the right to present one’s own defense as an autonomy-based right.72

In 1975, the Supreme Court decided in Faretta v. California73 that the Sixth Amendment right to self-representation includes the accused’s right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta conceived the right as a personal one, not subject to paternalistic restriction by society or a judge:

The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’74

In Martinez v. Court of Appeals of California,75 the Court clarified that the right to defend was a matter of personal autonomy. However, the Court held that a defendant does not (p. 579) have a constitutional right to represent himself on direct appeal. The Court distinguished the autonomy interests of an accused defendant from those of a post-conviction appellant: “Considering the change in position from defendant to appellant, the autonomy interests that survive a felony conviction are less compelling than those motivating the decision in Faretta.76 Martinez did not further explain “autonomy,” and only mentioned it in conjunction with the choice of pro se representation or assistance of counsel.77

VII. Economic Autonomy

The modern Court distinguishes sharply between personal and economic autonomy. But that has not always been the case. Beginning in the late nineteenth century, faced with increasing progressive state regulation of labor and business, the Supreme Court afforded significant protection to individual contract rights under the “liberty” protected by the due process clause of the Fourteenth Amendment. This doctrine had roots in the view, going back to the Founding Period, that natural rights included the right to pursue a calling, a trade, or a profession. Indeed, economic autonomy thus defined was at least as important to the Framers as political autonomy. Several provisions of the Constitution explicitly protect property and contract rights in specific ways.78

The Court struck down a New York law setting maximum hours for bakers in Lochner v. New York.79 The Court held that the law violated the “freedom to contract” of the employer and employee to negotiate wages and hours. The majority wrote:

The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.80

The state thought it knew better than individuals what was good for them. The Court flatly rejected such a paternalistic justification:

There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.81

(p. 580) Using Lochner-fueled doctrine, the Court also struck down state bans on foreign- language instruction in schools82 and a requirement that students attend public schools.83 These were foundational decisions that were ultimately cited by the Court to protect personal autonomy, in cases beginning with Griswold. Echoes of Lochner’s anti-paternalism can be seen in the modern Court’s protection of privacy, family decisions, and speech.

The Lochner era’s aggressive protection of economic liberty came to an end in cases decided during and immediately after the Great Depression. The most notable of these was West Coast Hotel v. Parrish, which upheld a state’s minimum wage law.84 No decision better captures the Court’s distinction between personal and economic autonomy than Casey, which defended the end of judicial protection of the freedom to contract in West Coast Hotel and subsequent case law. Casey claimed that West Coast Hotel was based on “the clear demonstration that the facts of economic life were different from those previously assumed.”85 The Court concluded that economic autonomy, embodied in laissez-faire economic policy, did not serve human welfare.

The Court now reviews business regulations under a highly deferential form of rational-basis review, which upholds a law as long as it is rationally related to a legitimate interest of the government.86 Whatever autonomy individuals have in the market for goods and services is largely a matter of legislative and political grace rather than judicial protection.

This is not to say that the Court has completely abandoned protection where business or economic interests are exercising liberties otherwise protected by the Constitution. The government has no greater power to regulate otherwise protected speech produced by for-profit entities or produced because of some profit-making purpose than it does the speech of individuals. For example, the Court invalidated a law requiring mushroom growers to fund advertisements for mushrooms because the speech mandate was not ancillary to a more comprehensive program restricting marketing autonomy.”87 The negative implication was that a broader regulation of “marketing autonomy” would have generated significant constitutional concern.

VIII. Waivers of Autonomy

To what extent may government limit one’s autonomy to waive one’s autonomy? Some autonomy rights cannot be waived. The classic example is the prohibition on a person’s decision to submit himself to slavery, even in cases where his decision is unquestionably free of economic vulnerability or subtle coercion. This prohibition, enshrined in the (p. 581) Thirteenth Amendment,88 is often justified on the ground that slavery in effect negates the very idea of autonomy by making one the property of someone else, who is given complete dominion.

Waivers might also be denied in cases where mental deficiencies seriously undermine rational choice, and in ones where proving that a waiver is truly autonomous is too costly or error-prone, or where the risk of error is unusually high. In Cruzan, the Court held that a state could require extraordinary proof that an incapacitated person in a vegetative state had intended to authorize family members to end her life in such circumstances.89

It is broadly accepted that individuals can waive most of their autonomy rights in the criminal justice system. Jessica Wilen Berg90 has argued that principles of autonomy are expressed through waiver. She defined autonomy as an instrumental value allowing individuals to lead their own lives through a distinctive sense of self and rational choice.

Still, there is some tension between personal autonomy to waive constitutional protections—such as the Fifth Amendment right against self-incrimination—and the government’s legitimate role in encouraging autonomous actions. The government has an interest in ensuring due process of law for all defendants. In Berg’s view, when a defendant waives a right to assistance of counsel or voluntarily confesses, the government must permit these actions in order to preserve the defendant’s autonomous choice. But Berg herself noted that “[w]aivers often involve both a gain in autonomy (from the exercise of the autonomy through the waiver) and a loss of autonomy (from having sacrificed the right that is being waived).”91

In the context of criminal procedural rights, the government has a framework to evaluate when an individual is appropriately exercising a waiver, particularly a waiver of rights against unreasonable search and seizure and against self-incrimination. Berg concluded that a waiver of these constitutional protections should be presumed to be made autonomously. On this view, waivers can be useful in the practice of law as an instrument that respects the autonomy of the individual, and should be prohibited only in extraordinary circumstances.

IX. Conclusion

The kinds of choices protected by the autonomy principle are expansive but not unlimited. For individuals, autonomy protects what the Supreme Court has called the “personal” realm, involving matters of privacy, family life, sexual relations, reproduction, education, self-defense within the criminal justice system, religious belief and practice, and freedom of thought and speech.

Even in the realms of personal liberty where autonomy has emerged as especially prominent, it does not guarantee freedom from all state regulation. Autonomy is not freedom to do whatever one pleases whenever one pleases to do it. For example, federal courts have (p. 582) not so far understood it to include an individual or collective associational freedom to use drugs, have a doctor assist one’s suicide, resist compulsory military service, refuse a mandatory vaccination, or avoid all education. Outside of this personal realm, autonomy is also not robustly protected in the area of individual or institutional economic choices, where what was once termed the “liberty to contract”—the freedom to deploy one’s property and labor unfettered by paternalistic state regulation—has lost the place of privilege it once held in American law.92

Further complicating matters is the existence of overlapping or conflicting autonomies, which involve one person’s or institution’s exercise of its freedom in a way that affects another person’s or institution’s autonomy, as when a university exercising educational autonomy demands that students pay to sponsor the speech of others through a mandatory activities fee.

Autonomy is not a fully theorized and consistently applied idea in American constitutional law. It is fair to say that the Court has been an autonomy tourist, dropping in from time to time, but never really staying long enough to familiarize itself or to develop a larger perspective. There is no single statement tying the threads together into a single fabric. By itself, this omission is not unusual. The Court rarely dives deeply into theoretical concepts such as “autonomy,” “justice,” or “equality.” This fact may be attributed to the complexities of seeking agreement in multi-member bodies or to the limits of judges’ legal—as opposed to philosophical—training, or to the appropriate limits of their institutional role. Still, over the past few decades autonomy in its basic libertarian form has become a persistent theme in American constitutional law.

Selected Annotated Bibliography: Personal/Individual Autonomy Under The U.S. Constitution

The following articles discuss constitutional doctrine related to personal autonomy generally and in specific contexts.

Baker, C, ‘Autonomy and Free Speech’ (2011) 27 Constituional Commentary 251 (providing a broad discussion of the concept of autonomy).

Brest, P, ‘The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship’ (1981) 90 Yale Law Journal (1981) (linking personal privacy and autonomy to the fundamental rights controversy).

Eichbaum, J, ‘Towards an Autonomy-Based Theory of Constitutional Privacy: Beyond the Ideology of Familial Privacy’ (1979) 14 Harvard Civil Rights-Civil Liberties Law Review 361 (argues that only a privacy right grounded in notions of individual autonomy is normatively acceptable.)

Fallon Jr., R, ‘Two Senses of Autonomy’ (1993-1994) 46 Stanford Law Review 875. (argues that autonomy-based First Amendment theory should recognize two alternative conceptions: descriptive autonomy, which considers the impact of external causal factors on individual liberty, and ascriptive autonomy, which represents each person’s sovereignty over her moral choices.)

(p. 583) Feinberg, J, ‘Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?’ (1983) 58 Notre Dame Law Review 445 (argues that the Court’s use of the term “privacy” is actually just “personal autonomy” and proposes a different way of applying moral concepts).

Fleming, J, ‘Securing Deliberative Autonomy’ (1995) 48 Stanford Law Review 1 (discusses the right of autonomy within a constitutional constructivism, with two fundamental themes: first, securing the basic liberties that are preconditions for deliberative democracy, to enable citizens to apply their capacity for a conception of justice to deliberating about the justice of basic institutions and social policies, and second, securing the basic liberties that are preconditions for deliberative autonomy, to enable citizens to apply their capacity for a conception of the good to deliberating about and deciding how to live their own lives).

Gormley, K, One Hundred Years of Privacy (1992) 1992 Wisconsin Law Review 1335 (examines the evolution of privacy law in the United States, arguing that scholars have been unable to agree upon a one-size-fits-all definition of legal privacy because it actually consists of five distinct species: The Privacy of Warren and Brandeis (Tort Privacy), Fourth Amendment Privacy, First Amendment Privacy, Fundamental-Decision Privacy, and State Constitutional Privacy).

Hafen, B, ‘Individualism and Autonomy in Family Law: The Waning of Belonging’ (1991) 1991 Brigham Young University Law Review 1 (offers a general perspective on what has become a dominant background theme underlying many specific family law issues, including divorce and children’s rights: individualistic autonomy versus the idea of “belonging”).

Henkin, L, ‘Privacy and Autonomy’ (1974) 74 Columbia Law Review 1410 (discusses the development of the jurisprudence of privacy and autonomy law).

Karst, K, ‘The Freedom of Intimate Association’ (1980) 89 Yale Law Journal 624 (1980) (discusses Griswold and its protection of the autonomy of a “couple’s association”).

Lawrence, M, ‘Reviving a Natural Right: the Freedom of Autonomy’ (2006) 42 Willamette Law Review 123 (2006) (explores the historical foundations of the individual right of equality and free choice on matters of natural private concern (collectively, “freedom of autonomy”) in America).

Lee, Y, ‘Valuing Autonomy’ (2007) 75 Fordham Law Review 2973 (discussing constitutional autonomy and its relationship to criminal law).

McConnell, M, ‘Religious Freedom at a Crossroads’ (1992) 59 University of Chicago Law Review 115 (rejects the idea that personal autonomy is the basis for the free exercise clause).

Niles, M, ‘Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights’ (2000) 48 University of California-Los Angeles Law Review 85 (2000) (argues that Ninth Amendment jurisprudence would be a significant improvement over substantive due process adjudication of issues of personal freedom and government regulation, because it would provide the textual and normative foundations for a concept of personal autonomy that substantive due process cannot provide).

Rao, N, ‘Three Concepts of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 (analyzes constitutional dignity as an aspect of personal autonomy).

Rao, R, ‘Property, Privacy, and the Human Body’ (2000) 80 Boston University Law Review 359 (explores the connections between privacy and property in the context of the human body).

Rappaport, A, ‘Beyond Personhood and Autonomy: Moral Theory and the Premises of Privacy’ (2001) 2001 Utah Law Review 441 (examines the relationship between moral principle and privacy. Concludes that the Court’s privacy jurisprudence is based on a series (p. 584) of interlocking premises: a moral principle of perfectionism, a political premise of liberty, an institutional premise of judicial review, and a prudential concern for tradition).

Safranek, J and Safranek, S, ‘Can the Right to Autonomy Be Resuscitated after Glucksberg?’ (1998) 69 University of Colorado Law Review 731 (examines the Court’s rejection of the autonomy-based right to assisted suicide in Glucksberg against the matrix of its historical affirmation of the right to autonomy).

Smith, R, ‘The Constitution and Autonomy’ (1982) 60 Texas Law Review 175 (discusses how the notion of autonomy has yet to be conceived in a manner that generates consistent and persuasive limits on what can be claimed in its name).

Winick, B, ‘On Autonomy: Legal and Psychological Perspectives’ (1992) 37 Villanova Law Review 1705 (portion of the article analyzes how several areas of constitutional doctrine reflect autonomy values: substantive due process right of privacy/autonomy; First Amendment rights to freedom of religion, expression, and association; Fifth and Sixth Amendment rights of criminal defendants to exercise control over their defense)/

Notable Federal Cases on Autonomy in Constitutional Law.

Right to Procreate:

Griswold v. Connecticut, 381 U.S. 479 (1965) (defendants’ convictions for violating a law prohibiting the sale, dispensing, or use of birth control drugs or devices to married persons were reversed because the law was held to violate the fundamental right of privacy).

Eisenstadt v. Baird, 405 U.S. 438 (1972) (a state statute that criminalized the provision of contraceptives to unmarried people violated the equal protection clause, as there was no rational reason for the dissimilar treatment for married and unmarried persons who were similarly situated. Expanded sexual privacy rights by allowing individuals to purchase contraceptives).

Roe v. Wade, 410 U.S. 113 (1973) (personal liberty under the due process clause of the Fourteenth Amendment was extended to woman’s abortion decision, but was subject to regulation aimed at compelling state interests of maternal health and human life potentiality; abortion laws that did not distinguish between early and later abortions and limited legal justification to saving mother’s life were unconstitutional).

Planned Parenthood v. Casey, 505 U.S. 833 (1992) (the Court held that the husband notification provision of the Pennsylvania Abortion Control Act placed an undue burden on a woman’s right to have an abortion in a large fraction of cases and was unconstitutional. But the Court upheld twenty-four-hour waiting period, a parental notification requirement for minors seeking abortion, and clinic reporting requirements).

Right to Marital Privacy:

Griswold v. Connecticut, 381 U.S. 479 (1965) (defendants’ convictions for violating a law prohibiting the sale, dispensing, or use of birth control drugs or devices to married persons were reversed because the law was held to be unconstitutional as it violated the fundamental right of privacy).

Loving v. Virginia, 388 U.S. 1 (1967) (Virginia state law banning interracial marriages was unconstitutional because it violated equal protection and due process clauses of Fourteenth Amendment).

(p. 585) Zablocki v. Redhail, 434 U.S. 374 (1978) (Wisconsin statute limiting the right to marry to those who were current in their child support obligations violated equal protection and impinged on a fundamental right. Right to marry is part of fundamental “right of privacy” implicit in the Fourteenth Amendment’s due process clause).

Right to Sexual Privacy:

Bowers v. Hardwick, 478 U.S. 186 (1986), rev’d. 539 U.S. 558 (2003) (Georgia statute criminalizing sodomy was upheld as constitutional because the due process clause of the Fourteenth Amendment did not create a fundamental right for homosexuals to engage in consensual sodomy, even in privacy of their own homes).

Lawrence v. Texas, 539 U.S. 558 (2003) (Texas had no legitimate interest under the due process clause to criminalize sexual conduct between two persons of the same sex).

Right to Parental/Family Privacy:

Pierce v. Society of Sisters, 268 U.S. 510 (1925) (an Oregon act that mandated children’s attendance at public schools unreasonably interfered with the liberty of parents and guardians to direct the education of their children and with the business interests of private schools threatened with destruction).

Moore v. City of East Cleveland, 431 U.S. 494 (1977) (Cleveland’s housing ordinance that regulated which family members could live together violated due process clause, as family sanctity was to be preserved and the ordinance bore no relationship to permitted state objectives. Freedom of personal choice in matters of marriage and family life is one of the liberties protected by due process).

Right to Die:

Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (petitioner parents’ request to withdraw their vegetative daughter’s feeding and hydration equipment was denied where there was no clear and convincing evidence of patient’s desire to have life-sustaining treatment withdrawn. A competent person has a liberty interest under the due process clause in refusing unwanted medical treatment).

Washington v. Glucksberg, 521 U.S. 702 (1997) (Washington State’s ban on assisted suicide promoted an important and legitimate government interest and did not offend the Fourteenth Amendment to the United States Constitution. Right to assistance in committing suicide is not a fundamental liberty interest protected by due process clause).

Vacco v. Quill, 521 U.S. 793 (1997) (New York’s statute outlawing physician-assisted suicide was not unconstitutional because the distinction between assisting suicide and withdrawing life-sustaining treatment had a rational basis. Prohibition on assisting suicide does not violate the equal protection clause).

Right to Refuse Medical Treatment:

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (the Oklahoma Habitual Criminal Sterilization Act violated the equal protection clause because it laid an unequal (p. 586) hand on those who had committed intrinsically the same offense (larceny and embezzlement) by sterilizing one and not the other).

Right to Privacy of Medical Records:

Whalen v. Roe, 429 U.S. 589 (1977) (a law that required record-keeping of names and address of everyone receiving a prescription for controlled substances that were legal but which had a potential for illegal abuse did not violate constitutional privacy rights).

Right to Possess and Distribute Obscene Materials:

Stanley v. Georgia, 394 U.S. 557 (1969) (Georgia law that criminalized mere possession of obscene materials in the home violated the First and the Fourteenth Amendments to the U.S. Constitution).

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) (there was no constitutional right to see obscene films in an adult-only theater. The state had a legitimate interest in and was entitled to regulate displays of obscenity in public settings).

Notes:

(*) Distinguished University Teaching Professor, Earl R. Larson Professor of Civil Rights & Civil Liberties Law, University of Minnesota Law School. I would like to thank the Faculty Research Service at the library of the University of Minnesota Law School, as well as my research assistants Sam Light, Alison Rochford, Brian Towne, and Chris Wysokinski. For their helpful comments, I’d also like to thank the editors.

(1) The concept of autonomy has been used to refer to the states’ power to control certain aspects of state government and policy free of mandates by the federal government. The Supreme Court has long held that the Tenth Amendment preserves a degree of autonomy for the States. Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315, 337 (1935) (“[T]he Tenth Amendment preserves a field of autonomy against federal encroachment.”) A large body of federalism jurisprudence and scholarship has addressed the idea that the states enjoy some autonomy as self-governing entities, which is much closer to the traditional idea of autonomy as a reference to the sovereignty of a nation. For examples, see Merritt, D, ‘The Guarantee Clause and State Autonomy: Federalism for a Third Century’ (1988) 88 Columbia Law Review 1; Merritt, ‘Three Faces of Federalism: Finding A Formula for the Future’ (1994) 47 Vanderbilt Law Review 1563; and Stewart, R, ‘Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy’ (1977) 86 Yale Law Journal 1196, 1227.

(2) Oklahoma Tax Commission v. United States, 319 U.S. 598, 603 (1943) (referring to a principle of “tribal autonomy” dating back to Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483 (1832)).

(3) 539 U.S. 558 (2003).

(4) ibid 562.

(5) Isaiah Berlin helpfully distinguished between positive and negative liberty in his essay Two Concepts of Liberty. Autonomy in the modern constitutional sense is most closely associated with what Berlin would have called “negative liberty,” which answers the question: “What is the area within which the subject—a person or group of persons—is or should be left to do or be what he is able to do or be, without interference by other persons.” Berlin, I, Two Concepts of Liberty (1958, reprt 1959) 7.

(6) Emily Zackin’s essay on “positive rights” suggests that American state constitutions may be less autonomy-centered than the United States Constitution.

(7) 141 U.S. 250 (1891).

(8) ibid 251.

(9) Warren, S and Brandeis, L, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193.

(10) Henkin, L, ‘Privacy and Autonomy’ (1974) 74 Columbia Law Review 1410, 1411.

(11) Gormley, K, ‘One Hundred Years of Privacy’ (1992) 1992 Wisconsin Law Review 1335.

(12) ibid 1413.

(13) 381 U.S. 479 (1965). There were antecedents to Griswold in some early twentieth- century cases, including Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925).

(14) Eisenstadt v. Baird, 405 U.S. 438 (1972).

(15) 410 U.S. 113 (1973).

(16) U.S. Const., amend. XIV, section 1.

(17) Commentators did refer to autonomy in connection with the right to privacy. See, e.g., Henkin, n 10 above 1429–1432. The earliest use of the term “personal autonomy” came in Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (1970). In a footnote, the district court cited to an earlier case, which discussed the concept of personal autonomy, but did not use the exact term. ibid n.4.

(18) Carey v. Population Services, International, 431 U.S. 678, 687 (1977) (invalidating New York law that prohibited distribution of contraceptives to any person under the age of sixteen, prohibited the distribution of contraceptives by anyone other than a licensed pharmacist, and banned the advertising of contraceptives). Justices Marshall, Stewart, and Brennan articulated rights of individual autonomy in a series of concurring and dissenting opinions in the 1970s and early 1980s. See, e.g., Kelley v. Johnson, 425 U.S. 238, 251 (1976) (Marshall, J., dissenting) (arguing that the Constitution was designed to protect autonomy and personal integrity); Whalen v. Roe, 429 U.S. 589, 608 (1977) (Stewart, J., concurring) (linking the constitutional protection of privacy to the protection of an individual or family unit’s autonomy); Herbert v. Lando, 441 U.S. 153, 183 n.1 (1979) (Brennan, J., dissenting in part) (discussing the “equal and incommensurate respect” afforded to individuals’ autonomy in the United States in a First Amendment case); Jones v. Barnes, 463 U.S. 745, 763 (1983) (Brennan, J., dissenting) (arguing that the “values of individual autonomy” are central to many constitutional rights, especially the Fifth and Sixth Amendment rights relevant to the criminal process); and Whisenhunt v. Spradlin, 464 U.S. 965, 971 (1983) (Brennan, J., dissenting from the denial of certiorari). (recognizing that the right to be free from unwanted governmental intrusion into one’s privacy includes “a broad range of private choices involving family life and personal autonomy”).

(19) See, e.g., Levinson, S, ‘Privacy’ in Hall, K (ed), Oxford Companion to the Supreme Court of the United States (1992) 671–678.

(20) Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

(21) ibid 772.

(22) 505 U.S. 833, 882 (1992).

(23) ibid 872–874.

(24) ibid 851 (citations omitted).

(25) 539 U.S. 558, 588 (2003) (Scalia, J., dissenting).

(26) Casey, n 22 above, 884.

(27) Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891).

(28) 505 U.S. at 861 (“The first example is that line of cases identified with Lochner v. New York, which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes’s view, the theory of laissez-faire.”) (citations omitted).

(29) Zablocki v. Redhail, 434 U.S. 374, 397 (1978). See also Loving v. Virginia, 388 U.S. 1 (1967) (striking down state ban on interracial marriages).

(30) Lawrence v. Texas, 539 U.S. 558 (2003). For more about the background of Lawrence, see Carpenter, D, Flagrant Conduct: The Story of Lawrence v. Texas (2012).

(31) ibid 562.

(32) ibid 567.

(33) ibid 574.

(34) ibid 578.

(35) 442 U.S. 584, 620–621 (1979).

(36) ibid 625–626 (Brennan, J., concurring in part and dissenting in part).

(37) ibid 631 (Brennan, J., concurring in part and dissenting in part).

(38) ibid 630–631 (citations omitted). The potential conflict between the rights of parents to raise their children and the children’s own rights was present as well in Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court limited the ability of Wisconsin to require that Amish children be educated against the wishes of their parents to hasten their full socialization into the work life of the Amish community. Though the majority opinion, by Chief Justice Warren Burger, emphasized the religious freedom of the parents, Justice William Douglas, in dissent, focused instead on the extent to which the parents, by depriving their children of additional education, were in effect making it impossible for their children to participate in non-Amish society should that be their ultimate choice. Although the justices did not speak directly in terms of “autonomy,” the case vividly raised the problem of conflicting autonomies.

(39) The government’s unusually strong regulatory needs “do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment. [citation omitted] But ‘within the military community there is simply not the same [individual] autonomy as there is in the larger civilian community.’ ” Goldman v. Weinberger, 475 U.S. 503, 507 (1986), quoting Parker v. Levy, 417 U.S. 733 (1974) (military could forbid wearing of yarmulke while service member was on duty and in uniform).

(40) Kelley v. Johnson, 425 U.S. 238 (1976).

(41) Washington v. Glucksberg, 521 U.S. 702, 728–736 (1997).

(42) 497 U.S. 261 (1990).

(43) Glucksberg, n 41 above, 725 (discussing that right to refuse treatment is based on principles of tort law and battery).

(44) ibid 727–728 (citations omitted).

(45) U.S. Const., amend. I. Richard Fallon introduced to First Amendment autonomy theory the notion of two types of autonomy: ascriptive and descriptive. Fallon defined the two types of autonomy in the following way: descriptive autonomy “considers the impact of external causal factors on individual liberty,” and ascriptive autonomy “represents each person’s sovereignty over her moral choices.” Fallon Jr., R, ‘Two Senses of Autonomy’ (1994) 46 Stanford Law Review 875.

(46) 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

(47) Sweezy v. New Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter, J., concurring in the result) (discussing political autonomy as a basic liberty protected by the Fourteenth Amendment).

(48) Examples are Redish, M, ‘The Value of Free Speech’ (1982) 130 University of Pennsylvania Law Review 591 (1982); and Baker, C E, Human Liberty and Freedom of Speech (1992).

(49) Fried, C, ‘Speech in the Welfare State: The New First Amendment Jurisprudence: A Threat to Liberty’ (1992) 59 University of Chicago Law Review 225.

(50) ibid 233.

(51) Strauss, D, ‘Persuasion, Autonomy, and Freedom of Expression’ (1991) 91 Columbia Law Review 334, 334. See also Carpenter, D, ‘The Antipaternalism Principle in The First Amendment’ 37 Creighton Law Review 579 (2004).

(52) Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (gay, lesbian, and bisexual group sued parade organizers, based on public accommodation law prohibiting discrimination after being excluded from participating in a parade; the law was invalidated).

(53) ibid 576. West Virginia State Board of Education v. Barnett famously exemplified the principle that individuals have a protected right not to speak, which in that case involved students’ refusal to recite the Pledge of Allegiance. 319 U.S. 624 (1943).

(54) Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2819–2820 (2011) (invalidating the Arizona Citizens Clean Elections Act), quoting Hurley, n 52 above, 573. See also Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 63 (2006) (quoting the “fundamental rule” of Hurley).

(55) Rowan v. U.S. Post Office Department, 397 U.S. 728, 730 (1970) (upholding law that allowed addressees to complain to the Postmaster General about unwanted mail and for the Postmaster General to then prohibit the sender from mailing the addressee).

(56) Virginia State Pharmacy Board v. Virginia Citizens Consumers Council, 425 U.S. 748, 770 (1976).

(57) “In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: ‘The freedom of a university to make its own judgments as to education includes the selection of its student body.’ ” Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (quoting Regents of University of California v. Bakke, 438 U.S. 265, 312 (1978)).

(58) Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 238–239 (2000) (Souter, J., concurring).

(59) Mark, G, ‘The Personification of the Business Corporation in American Law’ (1987) 54 University of Chicago Law Review 1441, 1443.

(60) 530 U.S. 640, 642 (2000).

(61) U.S. Const., amend I.

(62) See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).

(63) Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 712 (2012). In a recent case interpreting the Religious Freedom Restoration Act, the Court extended the logic of institutional religious autonomy to for-profit corporations: “The dissent suggests that nonprofit corporations are special because furthering their religious ‘autonomy … often furthers individual religious freedom as well.’ [citation omitted] But this principle applies equally to for-profit corporations” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2769 (2014).

(64) ibid.

(65) Walz v. Tax Commission, 397 U.S. 664, 672 (1970) (upholding against establishment clause challenge property-tax exemption for religious associations).

(66) Esbeck, C, ‘A Restatement of the Supreme Court’s Law of Religious Freedom: Coherence, Conflict, or Chaos?’ (1995) 70 Notre Dame Law Review 581, 635.

(67) Dane, P, ‘ “Omalous” Autonomy’ (2004) 2004 Brigham Young University Law Review 1715, 1718–1719.

(68) Burwell, n 63 above, 2769.

(69) 554 U.S. 570 (2008).

(70) McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3055 (2010) (Scalia, J., concurring) (citations omitted).

(71) U.S. Const., amend. VI.

(72) United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965) (holding that respect for individual autonomy is one of the reasons for the right of self-representation).

(73) 422 U.S. 806 (1975).

(74) ibid 834 (quoting Illinois v. Allen, 397 U.S. 337, 350–351 (1970) (Brennan, J., concurring)).

(75) 528 U.S. 152, (2000). Only the dissent in Faretta explicitly referred to “autonomy.”

(76) ibid 163.

(77) See also McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (“the right to appear pro se exists to affirm the accused’s individual dignity and autonomy”) and Indiana v. Edwards, 554 U.S. 164, 176 (2008) (reasserting that the autonomy of the individual underlies the right of self-representation, but holding that states may insist that the mentally ill do not represent themselves).

(78) See U.S. Const., art. I, section 10, cl. 3 (“No State shall … pass any … Law impairing the Obligation of Contracts.”); ibid amend. V (“No person shall [be] deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”); ibid at amend. XIV, section 1 (“No State shall … deprive any person of life, liberty, or property, without due process of law.”).

(79) 198 U.S. 45 (1905).

(80) ibid 53, citing Allgeyer v. Louisiana, 165 U.S. 578 (1897).

(81) ibid 57.

(82) Meyer v. Nebraska, 262 U.S. 390 (1923) (state law restricted foreign language instruction in public or private schools).

(83) Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state law mandating children’s attendance at public schools unreasonably interfered with the liberty of parents and guardians to direct the education of their children and with the business interests of private schools threatened with destruction).

(84) 300 U.S. 379 (1937).

(85) Casey, n 22 above, 862.

(86) Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (upholding Oklahoma law favoring optometrists over opticians).

(87) United States v. United Foods, Inc., 533 U.S. 405, 411 (2001).

(88) “Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const., amend. XIII, section 1.

(89) See n 43 above.

(90) Berg, J, ‘Understanding Waiver’ (2003) 40 Houston Law Review 281.

(91) ibid 293.

(92) See Fleming, J and McClain, L, Ordered Liberty: Rights, Responsibilities, and Virtues (2013).