progressivism, individualism, and the public ... - Telmarc Group

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The Telmarc Group PROGRESSIVISM, INDIVIDUALISM, AND THE PUBLIC INTELLECTUAL "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." They then go on to develop the basis of privacy in a well presented case. Regrettably when Brandeis was later to face this issue on the Court he did not confront it with the vigor of this paper. In fact the issue of privacy as a right seems still to be held at arm's length except for women's rights. One would suspect that such is rather one sided. (See my paper on privacy, Privacy). The authors, Warren and Brandeis, then state: "Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible." The "right to be left alone" is in many ways a unique American right, which we unfortunately have abandoned. The Government has become more intrusive regarding what we do, say, how we do things, how we interact. There once was a time one could live alone, not the Government intrudes on what Warren and Brandeis saw as a right. This fundamental paper seems to be glossed over at best by Urofsky. It is a pity. Whereas Lepore sees through the fog and makes it clear, Urofsky takes clarity as in the above quote and obfuscates it. Brandeis had massive strengths and several failings. The Taylor case is a major failing indeed. It sets forth a pattern of Government intervention of at best weak grounds. However the "right to be left alone" was a brilliant insight into what makes America great. Pity is has been neglected and abused. In 1890 Louis Brandeis and his law partner Sam Warren wrote an article for the Harvard Law Review entitled The Right to Privacy 113 . 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: 113 See http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html Page 104
The Telmarc Group PROGRESSIVISM, INDIVIDUALISM, AND THE PUBLIC INTELLECTUAL "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. Page 105
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