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Privacy, Police Power, and the Growth of Public Power in the Early Twentieth Century: a Not So Unlikely Coexistence Carol Nackenoff

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Privacy, Police Power, and the Growth of Public Power in the Early Twentieth Century: a Not So Unlikely Coexistence Carol Nackenoff Maryland Law Review Volume 75 | Issue 1 Article 11 Privacy, Police Power, and the Growth of Public Power in the Early Twentieth Century: A Not So Unlikely Coexistence Carol Nackenoff Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Constitutional Law Commons, Fourth Amendment Commons, and the Legal History Commons Recommended Citation 75 MD. L. REV. 312 (2015) This Symposium is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. PRIVACY, POLICE POWER, AND THE GROWTH OF PUBLIC POWER IN THE EARLY TWENTIETH CENTURY: A NOT SO UNLIKELY COEXISTENCE ∗ CAROL NACKENOFF The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.1 Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent.2 Louis Brandeis and Samuel Warren published The Right to Privacy in the Harvard Law Review in 1890 because they were concerned that the modern era provided inadequate safeguards for protection of the private realm and the “right to one’s personality.”3 With the emerging recognition of a “man’s spiritual nature,” feelings, and intellect, came the acknowledgement of “the right to enjoy life—the right to be let alone.”4 Brandeis and Warren argued that if thoughts, emotions, and sensations demanded legal protection, that the common law was beautifully capable of © 2015 Carol Nackenoff. ∗Richter Professor of Political Science at Swarthmore College; Professor of Constitutional Law, American Politics, and Environmental Policy. Author of The Fictional Republic (Oxford Univ. Press 1994). Co-editor (with Marilyn Fischer and Wendy Chmielewski) of Jane Addams and the Practice of Democracy (Univ. of Ill. Press 2009) and (with Julie Novkov) of Statebuilding from the Margins (Univ. of Pa. Press 2014). I would like to thank Jay Clayton and Allison Hrabar, Swarthmore Class of 2016, for research assistance, and Ken I. Kersch and Ronald Kahn for comments on an earlier draft of this Paper. 1. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 196 (1890). 2. Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). 3. Warren & Brandeis, supra note 1, at 207. 4. Id. at 195. The authors cite Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract for the concept of the right “to be let alone.” From the 1880 edition: “The right to one’s person may be said to be a right of complete immunity: to be let alone.” THOMAS M. COOLEY, A TREATISE ON THE LAW OF TORTS OR THE WRONGS WHICH ARISE INDEPENDENT OF CONTRACT 29 (Chicago, Callaghan & Company, 1880). 312 2015] A NOT SO UNLIKELY COEXISTENCE 313 growing to afford such protections, and judges could “afford the requisite protection, without the interposition of the legislature.”5 The notion of battery, for example, was expanded to offer “a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration,” and the law of nuisance developed.6 The common law was vibrant, useful, and far from dead. Influential from the time it was published at the outset of the Progressive Era, the Warren and Brandeis article was a harbinger of a new wave of concern for personal privacy and for legal protections thereof. It is noteworthy—but not surprising—that this escalating interest in the right to be let alone developed alongside expanded use of common and statutory law to extend state power over children, juveniles, and families of poor and working class residents and citizens, as well as over Native American families and others who were seen as economically dependent, vulnerable, or irresponsible. Eileen McDonagh has even characterized the Progressive Era as an era of negative civil rights, with legislatures actively curtailing the civil rights of particular groups.7 Ken Kersch argues that progressive reformers did not so much discover individual rights, as displace and marginalize pre-existing rights claims with their own (and constitutionally enshrined) rights conceptions.8 He further points to “the tension at the heart of liberal political cultures between their animating commitment to the prerogative of the individual concerning his conscience and his choices, and the recognition . that the essence of government is to guide and to coerce.”9 At certain times, the question of when it is justifiable to coerce individuals—because of perceived reform imperatives and perceived threats—in order to protect or advance public morals becomes highly politicized, implicating the boundaries between public and private.10 And, “[a]s a practical matter, these arguments will often be subsumed within arguments about law, be it (judge-made) common, statutory, or 11 constitutional.” The Progressive Era was just such a period of 12 contestation, involving redefinition of public and private. 5. Warren & Brandeis, supra note 1, at 195. 6. Id. at 194. 7. Eileen L. McDonagh, The “Welfare Rights State” and the “Civil Rights State”: Policy Paradox and State Building in the Progressive Era, 7 STUD. AM. POL. DEV. 225, 236 (1993). 8. KEN I. KERSCH, CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW (2004). 9. Ken I. Kersch, The Right to Privacy, in THE BILL OF RIGHTS IN MODERN AMERICA 217 (David J. Bodenhamer & James W. Ely, Jr. eds., rev. & expanded ed. 2008). 10. Id. 11. Id. 12. Carol Nackenoff, The Private Roots of American Political Development: The Immigrants’ Protective League’s “Friendly and Sympathetic Touch,” 1908–1924, 28 STUD. AM. POL. DEV. 129 (2014); see also Kersch, supra note 9, at 217–19, 240. 314 MARYLAND LAW REVIEW [VOL. 75:312 Despite the near-certainty of many progressive activists that acute social and economic problems would yield to advances in the social sciences and social ethics, there was pushback from those who had differing understandings of rights, whether parental rights or rights of business owners.13 Contestation between groups over the redefinition of boundaries between public and private is hardly surprising. However, the fact that Brandeis both supported many progressive initiatives that might be seen as privacy-limiting and was also an early leader in the call for more privacy rights begs for further investigation. According to Neil Richards, Brandeis’s views evolved, and he changed his mind about privacy and free speech after co-authoring The Right to Privacy.14 However, in David Bernstein’s assessment, Brandeis was “far from a consistent civil libertarian” when viewed from the position of those living in post-Warren Court America. For Bernstein, Brandeis was “a transitional figure in writing opinions that served as a bridge between the statist Progressives of the early twentieth-century and mid-century legal liberals.”15 I contend that it is productive to consider the nature of the balance Brandeis struck, not only because it provides clues into the worldviews of a subset of progressive reformers, but also because it reveals something more about how distinctions between public and private were being drawn— distinctions with legacies. The intersection of new governmental capacities and new conceptions of rights must be closely interrogated in any attempt to understand changing notions of private and public in this period. How were changing borderlands between private and public understood, and what was the role of common law, criminal law, and constitutional law in policing them, given that the progressive agenda of reform included expanding the role of the state? Acknowledging the existence of different strains within progressivism can help when thinking about tensions between rights, including rights to a private sphere and a private self: Walter Weyl was not Jane Addams, and Woodrow Wilson was not Theodore Roosevelt. This much is true, but insufficient for our purposes. Progressive reform did not love unalloyed appeals to rights, despite Brandeis’s defense of privacy rights. 13. See DAVID M. RABBAN, LAW’S HISTORY: AMERICAN LEGAL THOUGHT AND THE TRANSATLANTIC TURN TO HISTORY 430 (2013) (citing Roscoe Pound, Law in Books and Law in Action 44 AM. L. REV. 12, 30–31 (1910)); see also JANE ADDAMS, DEMOCRACY AND SOCIAL ETHICS (1902). On resistance to the reform agenda, see Kathleen S. Sullivan & Carol Nackenoff, Family Matters as Public Work: Reformers’ Dreams for the Progressive Era Juvenile Court, American Political Science Association 2013 Annual Meeting (Aug. 22, 2013), http://ssrn.com/abstract=2303396; KERSCH, supra note 8, at ch.2; Kersch, supra note 9. 14. Neil M. Richards, The Puzzle of Brandeis, Privacy, and Speech, 63 VAND. L. REV. 1295, 1298–99 (2010). 15. David E. Bernstein, From Progressivism to Modern Liberalism: Louis D. Brandeis as a Transitional Figure in Constitutional Law, 89 NOTRE DAME L. REV. 2029, 2033 (2014). 2015] A NOT SO UNLIKELY COEXISTENCE 315 The recognition of a private sphere that was insulated from state oversight or intrusion depended on a judgment about what kind of citizen the judges, legislators, or public administrators confronted. While Warren and Brandeis spoke of “inviolate personality” or the “right to one’s personality” in universal terms, they seemed to rely upon particular notions of moral personhood.16 This Paper considers the development of privacy alongside robust rationales for state intrusions on what opponents saw as family or individual prerogatives—matters of the private sphere—during the waning years of the nineteenth century and the early decades of the twentieth.
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