Some right-wing legal theorists are fond of referring to "the Constitution in exile," a phrase referring to the supposed judicial activism that began in the New Deal era and continues to this day. I don't intend to deal directly with that argument other than to say that it is rank BS.
Instead, I want to focus on the true Constitution in exile, the Privileges and Immunities Clause of the 14th Amendment. That Clause, too long neglected by the courts, provides all of the textual and historical support necessary for recognizing a right to privacy. In other words, the Privileges and Immunities Clause, properly interpreted and applied, should prevent intellectually honest "originalist" judges from overturning landmark cases like Griswold and Roe.
First, the text. The Privileges and Immunities Clause provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
The Priviliges and Immunities Clause was effectively dead on arrival. A bare majority of the Supreme Court interpreted any potential meaning out of the Clause in The Slaughter-House Cases, decided in 1873 (five years after the Fourteenth Amendment was ratified). (Justice Thomas's opinion in Saenz v. Roe discusses the Slaughter House opinion and the near-consensus among legal scholars that the Slaughter-House Court was wrong)
As a result, the courts have never made a serious attempt to interpret and apply the Clause. Even worse, the premature death of the P&I Clause has made many aspects of Fourteenth Amendment jurisprudence far more uncertain than they ever should have been.
The debate over incorporation (whether the 14th Amendment "incorporated" the Bill of Rights against the states) is the prime example, and bears directly on the debate over the right to privacy. Because the Slaughter-House Court prematurely killed the P&I Clause, the Supreme Court dawdled before applying the grants in the Bill of Rights to strike down state laws that infringed on rights protected therein. And when the Court finally did get around to incorporating the Bill of Rights, it had to do so by relying on the Due Process Clause in a way that the text of that clause won't logically support (what does "process" have to do with substantive rights).
However, it is plain as day from the congressional debates over the drafting of the 14th Amendment that the P&I Clause was expressly intended to do the work of incorporation.
For example, there's this comment from Rep. Norwood of Georgia:
The question may be asked, [i]s [the Fourteenth Amendment Privileges and Immunities Clause] not dangerous to the States? My answer is, no; that it involves no danger to the States or to State rights. For what does it amount to . . . ? Simply this: that rights which the citizen of the United States enjoys under the Federal Constitution, and which the Federal Government cannot deprive him of, shall not be abridged by the State. In other words it is an extension of the guarantees of liberty and of the Bill of Rights . . . preventing the States themselves from depriving their citizens of those guarantees . . . . If [that] is not the true reading of that amendment, then [the Privileges and Immunities Clause] either means nothing, or it means much more than the people of the United States ever intended . . . .
As alluded to in the Norwood quotation, however, the P&I Clause did not stop at the guarantees of the Bill of Rights, but also included other rights (what Norwood refers to as "the guarantees of liberty." What did Norwood mean? Ample evidence in the historical record suggests that Congress's views of the "guarantees of liberty" had to do with certain fundamental rights that had been recognized by the common law. In particular, and as noted by Justice Thomas, Congress frequently referred to the opinion of Justice Washington in the case of Corfield v. Coryell. As Professor Akhil Amar explains in "The Bill of Rights and the Fourteenth Amendment," 101 Yale L.J. 1191, 1229-30:
In Corfield, Washington identified "privileges and immunities" as those which
are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union ... [including] the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess *1230 property of every kind, and to pursue and obtain happiness and safety.
Quoting to Corfield of course doesn't end the discussion, because the question then becomes what rights are "fundamental" such that they fall under the headings identified by Justice Washington. For my purposes, I'm really only interested in whether privacy fits the bill, and less interested in the full scope of the P&I Clause.
The famed Harvard Law Review article entitled "The Right of Privacy" by Samuel Warren and Louis Brandeis provides some evidence that privacy does qualify as one of the privileges and immunities that should be characterized as fundamental. In the article, Warren and Brandeis trace the common law roots of a right to privacy they saw as fundamental (though their focus was largely on scurrilous rumormongering in the press).
Even more fundamentally, and much further back in history, Aristotle recognized that "the public sphere of politics and political activity, the polis, and the private or domestic sphere of the family, the oikos, [were] two distinct spheres of life." John Locke's Second Treatise of Government set forth the thesis that each person has an inviolable right in his or her own body. Kantian ethics (my favorite) provide strong support for the recognition of a right to privacy.
Perhaps more to the point, and as illustrated by Warren and Brandeis's article, many other rights recognized at common law can be traced back to a more fundamental right -- the right of privacy. Indeed, Griswold's penumbra analysis, long mocked by legal scholars, may be the Court's best exposition of the issue yet. Specifically, particular, enumerated rights can be shown to flow from the prior existence of a right to privacy, without which the other rights lack a logical foundation.
In any case, analyzing the P&I Clause is not, IMO, a purely academic exercise. The Saenz Court indicated an interest in revisiting the issue, and the "academy" is essentially unanimous in the view that The Slaughter-House Cases got it wrong. Bush's stated intention is to nominate Justices like Scalia and Thomas, meaning Justices who put a premium on historical analysis. The P&I Clause, because its history supports the recognition of a constitutional right to privacy, may well provide our best defense of cases like Roe and Griswold.