Furthermore, social utilitarianism is statist and collectivistic in that it requires an agency that can act in behalf of society. Unfortunately for social utilitarianism, there is no agency that has permission from all the people in society to act as their agent, and social utilitarianism has no basis for judging the opinions and preferences of the majority.
Posner makes a good point about privacy as a Constitutional guarantee. Privacy and sexual freedom are not mentioned in the Constitution, but liberty and property are given protection in the 5th, 9th, and 14th Amendments. The Supreme Court wanted to legalize abortion, which they could have done on the ground of liberty, but if they recognized sexual liberty they would be under logical pressure to recognize economic liberty, since property is specifically mentioned in the Constitution. They didnít want to recognize the Constitutional limits on regulating property and economic activity, so they looked for a way to separate sexual freedom from economic freedom, and they accomplished this by inventing the right to privacy, which is implicit in the right to liberty.
Year Read: 2002
Libertarian Essays by Roy Halliday
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