In 1890 Louis Brandeis and his law partner Sam Warren wrote an article for the Harvard Law Review entitled The Right to Privacy. In view of the appointment process to the Supreme Court today perhaps looking at this article in the context of Brandeis as a Justice would help. Remember it was 1890, almost 120 years ago, and quite a different world.
The article was written because Brandeis felt his and his family's privacy was violated by the Boston Press who invaded his daughter's wedding. There frankly is no right to privacy in the Constitution in a clear and unambiguous manner. Also when Brandeis got to the bench he actually overturned any please for rights to privacy. Thus this one paper brings to the fore many of the interesting issues we see again today. I have no opinion regarding the current state of affairs but I am a frequent reader of Brandeis and especially of this paper.
The paper starts out saying:
"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society."
Thus to Brandeis the law evolves and is not static. Is this all law, is it the Constitution, or just common law, or is it a reflection of the ongoing legislative process as we know it? He continues:
"It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is."
He at least presents the case that he will examine whether the law deals with privacy at all. He continues:
"The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others."
Now he uses precedents, starting with English Law, which given this was an argument from common law principles is most likely acceptable. He states:
"Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London...In Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings ....In Tuck v. Priester, 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies."
Now what rights is he discussing. He states:
"We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense."
He states that these rights are rights as against the world, and this in itself is a broad and new statements. He in effect creates common law rights as extensions of English Court extensions.
The to all those who object to the use of foreign law, possibly excluding English Common Law, he states:
"The right to privacy, limited as such right must necessarily be, has already found expression in the law of France."
He interjects the use of French Law, circa 1890 as a basis for his argument. In today's world this would fly in the face of many legal scholars and jurists. He ends with:
"The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?"
Here it is clear he uses Common Law and not Constitutional Law. When he ascended to the Bench at the Supreme Court he in many ways on this issue of privacy, time and again, found it lacking in the Constitution. Yet he found the fundamental right to exist, and perhaps the Common Law Right could arguable be covered under the Constitution's extension to such rights as being those un-enumerated rights. Remember the 9th Article of the Bill of Rights says:
"Article [IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Thus the Brandeis argument could be that if one could justify privacy via Common Law, and Common Law is what the 9th Article is referring to then there is a Constitutional right via this nexus. This was not the argument in Roe v Wade and its predecessors such as Griswold. Nor did Brandeis argue this when faced with similar issues.
However we see Brandeis: (i) allowed for interpretation, (ii) permitted the current milieu as a means to judge, (iii) allowed for use of foreign precedents as a basis for US precedent, and (iv) used his personal relationship to the legal matter to drive his judicial judgment. In today's world that may very well be a disqualification from sitting on the highest bench.
In 2002 I wrote a paper on Privacy in the Internet Environment and I argued even for anonymity. I believe that Brandeis was not only correct in the context of Common Law but in Constitutional law, penumbra not withstanding.
The article was written because Brandeis felt his and his family's privacy was violated by the Boston Press who invaded his daughter's wedding. There frankly is no right to privacy in the Constitution in a clear and unambiguous manner. Also when Brandeis got to the bench he actually overturned any please for rights to privacy. Thus this one paper brings to the fore many of the interesting issues we see again today. I have no opinion regarding the current state of affairs but I am a frequent reader of Brandeis and especially of this paper.
The paper starts out saying:
"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society."
Thus to Brandeis the law evolves and is not static. Is this all law, is it the Constitution, or just common law, or is it a reflection of the ongoing legislative process as we know it? He continues:
"It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is."
He at least presents the case that he will examine whether the law deals with privacy at all. He continues:
"The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others."
Now he uses precedents, starting with English Law, which given this was an argument from common law principles is most likely acceptable. He states:
"Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London...In Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings ....In Tuck v. Priester, 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies."
Now what rights is he discussing. He states:
"We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense."
He states that these rights are rights as against the world, and this in itself is a broad and new statements. He in effect creates common law rights as extensions of English Court extensions.
The to all those who object to the use of foreign law, possibly excluding English Common Law, he states:
"The right to privacy, limited as such right must necessarily be, has already found expression in the law of France."
He interjects the use of French Law, circa 1890 as a basis for his argument. In today's world this would fly in the face of many legal scholars and jurists. He ends with:
"The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?"
Here it is clear he uses Common Law and not Constitutional Law. When he ascended to the Bench at the Supreme Court he in many ways on this issue of privacy, time and again, found it lacking in the Constitution. Yet he found the fundamental right to exist, and perhaps the Common Law Right could arguable be covered under the Constitution's extension to such rights as being those un-enumerated rights. Remember the 9th Article of the Bill of Rights says:
"Article [IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Thus the Brandeis argument could be that if one could justify privacy via Common Law, and Common Law is what the 9th Article is referring to then there is a Constitutional right via this nexus. This was not the argument in Roe v Wade and its predecessors such as Griswold. Nor did Brandeis argue this when faced with similar issues.
However we see Brandeis: (i) allowed for interpretation, (ii) permitted the current milieu as a means to judge, (iii) allowed for use of foreign precedents as a basis for US precedent, and (iv) used his personal relationship to the legal matter to drive his judicial judgment. In today's world that may very well be a disqualification from sitting on the highest bench.
In 2002 I wrote a paper on Privacy in the Internet Environment and I argued even for anonymity. I believe that Brandeis was not only correct in the context of Common Law but in Constitutional law, penumbra not withstanding.
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