Our rights are constantly being recast. For example, the right to free speech meant much less before 1920, and the constitutional right to privacy did not exist until 34 years ago. This is why I dare suggest major changes in legal doctrines governing privacy in public and private lives.

Our right to privacy against the government should be squarely based on the Fourth Amendment, instead of on the mishmash of rights that now support it. As fashioned in reproductive rights cases, the privacy right deals with choice, with who controls the act–the state or the person. It does not deal with privacy commonly understood as legitimate exceptions from scrutiny–the right to act out of sight and earshot.

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