Academic journal article Harvard Journal of Law & Public Policy

A Not Quite Contemporary View of Privacy

Academic journal article Harvard Journal of Law & Public Policy

A Not Quite Contemporary View of Privacy

Article excerpt

Oftentimes the way in which a writer defines a problem will give powerful clues as to how he thinks it is best solved. This Symposium, dedicated to the "First Amendment in Contemporary Society," states the problem in what I think is the wrong way. The use of the term "contemporary" carries the not-too-subtle implication that the solutions that we need to respond to major problems of First Amendment law today are somehow qualitatively different from those applicable, for example, at the time of the Founding. There are, of course, many technological developments that can be easily invoked to support that position. But in general, whether one is an originalist or not, it is best to take such claims of theoretical novelty with a grain of salt.

I am generally predisposed to take this skeptical stance because my intellectual grounding, after these many years, is still in Roman law and English common law. My continued work (1) in these areas has led me to think that the opposite is often true--the solutions to the major problems of today can be found in the enduring principles of the past. Some years ago, I wrote an essay titled "The Static Conception of the Common Law," (2) in which I took the position that the fundamental legal relations developed in early times concerning the acquisition of property, the law of tort, and the law of contract had great durability, such that many of the self-conscious changes in modern legal doctrine introduced judicial or legislative mischief by creating rules that, even by any modern standard of social welfare, worked less well than the Roman or common law rules they displaced. (3)

One such misguided reform was the doctrine of unconscionability as applied to contracts of sales and leases. (4) Another was the rule of occupier liability as applied to residential properties. (5) The very same risk of overzealous modernization also applies in modern constitutional law. For instance, the (relatively) narrow reading of the Commerce Clause that (roughly speaking) restricted its scope to interstate transactions was as sound in the New Deal Period as when it was first announced in Gibbons v. Ogden (6) in 1824. Modern technology has brought us automobiles, steamships, jet planes, telephones, and the internet, but the line between local and interstate commerce does not vary with the type of technology involved. Moving from an interstate journey into local commerce is the same over time, whether by horse-drawn carriage or taxi. So if there was no reason to junk the principle of enumerated powers in 1824, there was none in 1937 either. (7) In both cases, the central task of the federal government was to keep open the arteries of inter state commerce to facilitate competition among the states. The nationalization of commerce that leads to cartelization is as dangerous in the twenty-first century as it was at the time of the Founding. (8)

When I think of the term "contemporary," therefore, I think of it in the same way that I did in 1960 when I took the standard first-year sequence in Contemporary Civilization at Columbia College. (9) As students, our study of contemporary work began with the writings of the Greek philosophers, where our responsibility was to figure out which of their arguments carried over to modern times, and which of them faltered. On this view, the great thoughts of the ancients are always contemporary, and anyone who cuts themselves off from earlier studies removes one of the pillars on which proper analysis rests.

I. THE WARREN AND BRANDEIS SYNTHESIS

The proposition that the term "contemporary," properly understood, includes the best of the past holds, I believe, across all fields of law. But regrettably this position is far too often neglected in favor of modern advances. For the purposes at hand, let us consider the law and privacy. It is instructive in this regard to begin with the most famous article on the subject, Samuel Warren and Louis Brandeis's The Right to Privacy. …

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