Author:Epstein, Richard A.
Position::Thirty Sixth Annual Federalist Society National Student Symposium on Law and Public Policy

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.


    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. (10) To get some sense of the sweep and grandeur that they brought to the subject (and for which they have been frequently and extravagantly praised), (11) it is worth quoting the opening passages:

    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, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. 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. Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault. Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed. So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose. (12) One seductive feature of this article is how it indulges in what I like to call "imagined history." Warren and Brandeis write very much in a whiggish tradition, which is characterized by a view "that holds that history follows a path of inevitable progression and improvement and which judges the past in light of the present." (13) The passage quoted from Warren and Brandeis portrays just this historical arc. This vision of history allows for no false steps, no backward movements, no unexpected ambiguities, and no corrupting influences. There is just an inexorable progression in which the law "grows" so that gaps left by an earlier generation are filled by the far-sighted innovations of the next. Privacy, which had had an imperfect and unrealized history up to 1890, is next on the runway for full legal protection as an apparently worthy successor to all the previous notable advances. (14)

    It is important to note how Warren and Brandeis set up this system. Their perspective contains no room for any kind of moral skepticism. Instead, the world begins with this large truth: the protection of person and property has been timeless. The article reinforces that impression by mentioning not a single date on which any particular doctrine began, and by giving no details about or how, when, or why any particular doctrine developed. Everything is written in such a grand, magisterial fashion--careful to proclaim only universal truths--as if, as long as nothing is specified, the account cannot be wrong. But let the reader try to figure out exactly what the critical arguments are and how they develop, and the story gets a lot muddier, making it that much harder to anticipate the next major step.

    It is therefore necessary to unpack some of this inexorable progression. What I plan to do, therefore, is draw from my Roman and medieval background to explain which legal transitions make sense, and which do not. The point of the exercise is to see what can be learned about the right of privacy by a closer examination of the various transitions between earlier states of the law. At this point, the first analytical mistake of Warren and Brandeis is that they start from an implicit assumption that it is always easy, if not inevitable, to expand the set of rights without adverse social consequences. But they never confront the quid pro quo that is implicit when rights are expanded: exactly what correlative duties are imposed on various individuals and why. On that crucial question, Warren and Brandeis are silent.

    In this discussion, I do share with Warren and Brandeis the useful assumption that we are talking about general rules, so that we do not have to worry, at least initially, about specialized relationships such as those between a doctor and a patient, or a seller and a buyer, which in practice often fall on the contract side of the tort-contract line. (15) This point is of great importance because, under any general rule, all individuals have both rights against others and correlative duties to them. Once it is recognized that individuals are necessarily both bound and benefited, then the articulation of the correct set of rights is harder to come by, given the constant trade-offs that have to be made with each new adjustment to the underlying rules. What any individual gains in the role of a future claimant is offset by what that person loses in the role of a future defendant. For the system to work well, the recognition of a particular claim against others must produce a net benefit for all individuals. And where it does not, then the net advantage lies in increasing the freedom of action that all persons enjoy in their role as future defendants.

    Of course there are variations among persons, which is why the usual construct of Adam Smith's ideal observer (16) or John Rawls' veil of ignorance (17) takes over as the analytical framework in which libertarian (and other) approaches to rights are generated. The analysis tends to ignore fine...

To continue reading