The Supreme Court’s reversal of the right to abortion has significantly changed reproductive rights in the United States, and adversely affected the lives of potentially pregnant persons. The political fragility of the privacy right to abortion also raises questions about the practice and epistemic rules of American constitutionalism itself. In this essay, I situate the history of privacy under the Fourteenth Amendment’s due process clause in the tradition of legal reasoning. With Ludwig Wittgenstein’s On Certainty, I argue that the majority in Dobbs v. Jackson (2022) departs from this tradition. The upshot of this departure is that we now have a new interpretive language game battling a long established language game of interpretation–battling, that is, a constitutional tradition–in a contest to redefine how disagreement is transacted among justices and between the people and their government.

Mass surveillance involves the collection and storage of vast amounts of information, such as DNA samples from the general population, or location data from cell phones towers, aerial surveillance, and other sources, to then be used when a future crime occurs. For example, DNA from a crime scene could be checked against the database to identify a suspect; location data could identify suspects who were at the scene of a crime. Mass surveillance implicates important privacy interests, but it would surely reduce crime and therefore has been defended by those who reject “privacy at all costs.” I also reject “privacy at all costs.” However, while agreeing that privacy is a value that must be balanced against competing values, I argue that requiring everyone to provide a sample of their DNA or keeping track of everyone’s movements would limit the autonomy of vast numbers of people who there is no reason to suspect will pose a threat, and though such policies would make society safer, that is not worth the cost to individual autonomy. After explaining why individuals can have a substantial interest in privacy even if they are not guilty of a crime, by linking that interest to the value of individual autonomy, and drawing on a political theory of liberal pluralism to restrict what counts as a legitimate public interest that might justify mass surveillance, I articulate a method of balancing these competing interests that is more feasible than a utilitarian approach.

Over the last century and a half, appeals to “privacy” have become common in American law. The result is a rather chaotic mix of concepts, which philosophers might be able to help bring into some kind of order. But I want to discuss one kind of privacy that isn’t discussed much in the law literature, what I call “natural privacy.” I strongly suspect that unlike cricket or checkers or bridge with respect to our concept of game (Wittgenstein’s example) there is something very basic about natural privacy that can illuminate, at least to a certain extent, part of the web of concepts for which we have come to use the term “privacy.” The basis of this hunch is that two aspects of natural privacy, imagination and contemplation, seem to be a very important part of what it is to be a human being. The privacy we seek by building houses, fences and private offices seems to bear a close kinship with the kind of privacy with which nature endows us. And so does the sort of privacy we seek to provide, often in vain, for things we do with the help of modern technology, from the printing press to the internet.

The attempt by the digital forces to ‘naturalize’ the digital and thus to make it one with our ontology raises a whole host of issues about how to identify the Self. The multi-pronged processes of naturalization are driven by a particular dynamic: the ‘more’ of data. Data is not a static pile of information, but only works within strategies of accumulation. Businesses and academe have bought into this strategy – addicted to its potential for control – in ways that make it impossible to see ‘an outside’. This ‘more’ is, however, hardly foolproof, and is in fact designed around a wide range of fallibilities – some visible, but most not - that are also now part of the new natural. The resultant dialectic is unstable and as it operates to re-engineer our sense of Self it faces its own destiny.

Elections are generally considered the only way to create a democratic legislature where direct democracy is not an option. However, in recent years that assumption has been challenged by individuals who claim that lotteries are a democratic way of selecting people for office, elections are aristocratic or oligarchic, not democratic, and that elections as we know them are inadequate if true democracy is prioritized. In opposition to this wave, my paper argues that the assertions made to support the democratic merits of lotteries are unpersuasive. Current evidence that sortition is either more egalitarian or produces epistemically better results than elections is poor. Instead, these assertions illuminate the importance of elections in enabling the constituents of a democracy to reconcile the personal and political dimensions of their lives and, therefore, better reflect citizens’ claims to privacy and equality. The paper begins by recapping the main arguments for treating sortition as a democratic way to select a legislature, outlines their deficiencies, and then turns to what these perceived failings actually suggest about the democratic value of elections.