Older than the Bill of Rights: The Ancient Origins of the Right to Privacy
Posted: 11 Jan 2010
Date Written: January 10, 2010
The origin of a legal right to privacy is usually traced to the late 19th Century, when a highly influential article of the same name appeared in the Harvard Law Review by Charles Warren and Louis Brandeis. The belief that a legal right of privacy did not exist before Warren and Brandeis appears to have led many “originalists” to argue that no such right is to be found in the U.S. Constitution. On this reasoning, claims such as those made by Justice Douglas in Griswold that there exists a right of privacy “older than the Bill of Rights,” are anachronistic and absurd. Recently, however, prominent social historians have traced, beginning in the 16th Century, an increasing appreciation of the value of individual privacy in many different areas of European culture. The growing social importance of the value of privacy is reflected by changes in religious practices, in artistic expression, in eating habits, in architecture, in clothing, and in growing sexual modesty. Paralleling these cultural developments are legal debates beginning in the early 16th Century, and rulings by common law Courts beginning in the 17th Century, challenging the practice of inquisitorial courts to compel an accused person to testify against himself; the investigational use of torture; and the prosecution of individuals based on heretical or treasonous thoughts. At the same time, judges begin to place increasing limits on the ability of state officials to search private homes for evidence. By the middle of the 18th century, as the concept of a sphere of privacy becomes widely recognized in society, one finds a judicial scholar like Blackstone treating as settled law the idea that “private vices” and “particular modes of belief or unbelief” are beyond the jurisdiction of the magistrate to punish. More generally in Blackstone’s work, one can see the concept of individual privacy begin to be developed as an integral part of his understanding of liberty. Blackstone’s concept of liberty in turn bears a surprisingly close relationship to the much later notion of “ordered liberty,” developed in 20th Century Supreme Court jurisprudence, where Constitutional limits were placed on the power of the state to intrude into various aspects of the private lives of individuals.
Keywords: legal history, privacy, constitutional law, criminal law
JEL Classification: K19, K49
Suggested Citation: Suggested Citation