Peter Winn, History of the Law of Privacy in the 16th & 17th Century
Comment by: Neil Richards
PLSC 2010
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1534309
Workshop draft abstract:
The origin of a legal right to privacy is usually traced to the late 19th Century when an 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 — and that claims by the Court in Griswold that there exists a right of privacy “older than the Bill of Rights,” are anachronistic and absurd. Recently, however, several 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 increased social importance of privacy is reflected by changes in religious practices, in artistic expression, in understandings of sexuality, in eating habits, in architecture, and in clothing. Paralleling these social 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 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 privacy developed as an integral part of his concept of liberty. Blackstone’s concept of liberty in turn bears a surprisingly close relationship to the notion of “ordered liberty,” which was developed in late 20th Century Supreme Court decisions, placing Constitutional limits on the power of the state to intrude into the private lives of individuals.