Peter Winn, The Protestant Origins of the Anglo-American Right to Privacy

Peter Winn, The Protestant Origins of the Anglo-American Right to Privacy

Comment by: Andrew Odlyzko

PLSC 2013

Workshop draft abstract:

In 1606 Attorney General Edward Coke and Chief Justice of the Kings Bench Sir John Popham, at the request of Parliament and the King’s Council, issued an opinion addressing the narrow question of when an ecclesiastical officer was authorized to administer the “oath ex officio” during proceedings at cannon law.  They held that, except in very narrow circumstances, the accused in such proceedings could not be compelled to take such an oath and testify against himself.  This opinion, representing a clear break from earlier medieval practice where such procedures were common and unexceptionable, is traditionally understood as one of the great landmarks which eventually resulted in the establishment of a right to remain silent, now embodied in the Fifth Amendment of the U.S. Constitution.  In this article, I argue that placed in its proper historical context, the Coke & Popham opinion also recognizes an enforceable legal right of privacy—a right of privacy to one’s thoughts.  Today, the right to keep one’s thoughts to oneself is so ingrained in our understanding of the world, that it is difficult to imagine how radical this idea was at the time.  But in the medieval period, it was taken for granted that the jurisdiction of the authorities extended to the utmost limits of the human mind.  Furthermore, at the time Coke and Popham wrote, the most important affairs of the state were ecclesiastical in nature; and prosecution of the crime of heresy was as much a concern of the civil as the religious authorities.  Although the holding of the opinion made it more difficult to prosecute heresy, the authors of the opinion were by no means soft on heretics.  Furthermore, by limiting the jurisdiction of ecclesiastical authorities, in a country where the King was also the head of the Church, Coke and Popham were also limiting the power of the sovereign state itself.  The opinion thus recognized in a very limited way the legal right of an individual to control access to a private sphere beyond the jurisdiction of the sovereign; a development which begins the process of establishing what Brandeis was later to call, the “right to be let alone.”  This important step in the law was not driven by utilitarian rationale (nothing could be more effective a means to prosecute heretics than administration of the oath); nor was it compelled by earlier medieval precedents (the authors tortured medieval case law to reach the desired outcome).  But in the text of the opinion, itself, one can see what drove Coke and Popham to what at the time was such a counterintuitive result—the remorseless logic of a quintessentially Protestant theology.  The authors were concerned that in a panoptic state with the power to intrude into an individual thoughts, the first victim would be the authenticity of individual conscience, which, according to Protestant teaching, was so critically necessary for religious salvation.