Origins of the right to privacy

Although not mentioned in the Constitution, the right to privacy has been invoked by its enormous following as thoroughly American and indispensable to our conception of liberty and freedom.

Its partisans have expressed numerous reasons for its exalted status in the hearts and minds of the citizenry. It prevents the government from spying on the people. It protects personal data. It protects freedom of speech and freedom of religion. It protects one’s reputation, voting rights and participation in politics.

While not everyone agrees with the application, enforcement and scope, the right to privacy, the Supreme Court has held, also encompasses the use of contraception, access to abortion and, of course, privacy in our homes.

The right to privacy is not enumerated in the Constitution. Its lack of textual paternity is not unique; the right to travel, the right to marriage and the freedom of association, universally valued by Americans, are other examples of unenumerated rights. Nor does the textual omission make them less important than enumerated rights; invariably, every right and liberty requires interpretation by the courts.

For many, the puzzling part of the right to privacy is its origins. Like other rights and liberties, the right to privacy enters the annals of Anglo-American legal history through mere assertions that form a rhetorical tradition, embraced and prized by its beneficiaries which, in this instance, refers to those who, centuries ago, were fortunate enough to have homes. The immediate gateway is the Fourth Amendment, which provides protection from unreasonable searches and seizures of one’s property.

Prior to the American Revolution, there was scant evidence of a right to be secure in one’s home from unreasonable search and seizure. English law and practice permitted governmental ransacking of private homes and places of business upon the flimsiest pretexts of illegal possessions, especially whenever the prospects for British revenue gleaned from taxation schemes were at stake.

Through the mists of time, we can discern a tradition that forges a path to the Fourth Amendment and the right to privacy. The majestic Magna Carta, written in 1215, and exalted as the basis for English liberty, as well as the legal conceptions of due process and equal protection, both fundamental to American Constitutionalism, was linked in the 16th Century to the fiction that a man’s home is his castle.

A clerk of the Privy Council — Robert Beale — connected the dots in 1589, when he asked, rhetorically, what had happened to Chapter 39 of Magna Carta, which provided the basis for the law of the land, when agents of the prerogative courts could, on the basis of general search warrants, enter men’s homes, “break up chests and chambers” and cart away as evidence whatever they pleased. Beale’s conversion of Chapter 39 into a ban on general search warrants influenced Americans’ thinking about privacy rights in their homes.

It was a masterful speech to Parliament by William Pitt in 1763 that summoned the idyllic symbol of a “man’s castle” assaulted by unlawful governmental intrusions that played upon the heartstrings of Americans in defending the privacy of their homes. Pitt famously stated, “The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”

The repetition of this argument against general search warrants by great English legal scholars and statesmen created a tradition that was eagerly embraced by Americans, striving for ways to limit English assaults on their homes and businesses. In 1756, the Massachusetts Bay colony passed legislation that prohibited general searches and required some elements of particularity. This landmark legislation would pave the way for the Fourth Amendment to the Constitution. What was missing on the American scene, however, was the sort of drama embodied in William Pitt’s speech to Parliament, a moment that might captivate the citizenry and become a cause.

That moment, that drama, was supplied by a brilliant young Boston attorney, James Otis Jr. who, in 1761, in Paxton’s Case, represented American colonists offended by the British practice of issuing writs of assistance, a kind of general warrant, issued in the name of the King, that empowered the agent to enlist the help of English subjects — American colonists—to aid the search.

Otis’ arguments rehearsed those presented by Beale and Pitt, and other English statesmen, and followed the familiar rhetorical tradition of asserting that the right in question had existed since time immemorial. Otis’ plea was futile, of course, for he was arguing before a panel of English judges committed to pleasing King George III, but he made history and, in the words of John Adams, who had decided to attend the argument so that he could watch the brilliant young lawyer at work, “Otis was a flame of Fire!” He later wrote of Otis’ argument and eloquence: “Then and there the child Independence was born.”

Otis told the court that the only legitimate and constitutional warrant was a “specific” one, directed to specific officers, to search “certain” houses, upon an oath sworn by the person who believes certain goods to be concealed in those places. A writ that permitted a customs officer to enter private homes upon bare suspicion violated the essential liberty of every English subject, that of enjoying the benefits of a “man’s castle.” With an eye to history yet to unfold, Otis declared that such a writ represented a violation of the English Constitution and should be held by the court to be null and void.

Otis’ constitutional arguments lit the way for subsequent state legislation that required specificity in search warrants. His influence on American Constitutionalism, immeasurable in so many ways, was easily calculated in its impact on specific requirements for searches and seizures. Adams borrowed Otis’ learned courtroom reasoning in writing Article XIV of the Massachusetts Declaration of Rights of 1780. James Madison also drew upon Otis in his introduction of what became the Fourth Amendment.

While the right to privacy entered American law through the Fourth Amendment, it found expression and defense in other provisions of the Bill of Rights. We turn to that discussion next week.