On Sir Edward Coke and the Right to Privacy

The Founders were not lawless men. Instead, they recognized a set of laws that exist in nature, regardless of the dictates of tyrants. By studying these natural laws came to believe themselves justified in seeking independence from the British Empire. The ideas of natural law and natural liberties were scarcely known in England before the 1600’s. It is not explicit in the Magna Carta. Rather, over the course of many years, and citing ancient authorities, learned men demonstrated that these natural laws and natural liberties exist. In this essay, particular attention will be given to Sir Edward Coke (pronounced ‘cook’), who was among the earliest English jurists to expound on natural laws and liberties and integrate them into English jurisprudence. 

Sir Edward Coke

In this postmodern age, it may seem quaint or far-fetched to believe in these natural laws and liberties. However, the pox on sound philosophy that is postmodernism has arisen only because equivocating and deracinated reason has gained supremacy over the manly and vigorous exercise of will, in the form of a spirit of justice. 

Coke identified two traditions in British law. The first, which he called the Gothic or Anglo-Saxon tradition, was grounded in the principles of popular consent. The second, Tudor tradition conferred arbitrary power on the monarch. He championed the former and courageously opposed -- even after being accused of treason -- the latter. 

Habeas Corpus; Due Process

In the 1628 Petition of Right, Coke complained before the Crown, 

… divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.

In this, Coke invoked the ancient constitution and argued in favor of the supremacy of law and due process. These ideas would later find their way into the U.S. Constitution. Coke understood, better perhaps than we understand today, that the denial of due process is a harbinger of tyranny.

Quartering Troops

Coke also articulated what would later appear as the Third Amendment guarantee that citizens would not be required to quarter troops in their homes. Today, the Third Amendment may seem antiquated and irrelevant, but as will be discussed, this is a mistaken idea. Coke said,

… of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and vexation of the people.

Martial Law

Coke spoke out against the arbitrary imposition of martial law. In the early 1600s, representatives of the king invoked martial law when imprisoning or executing civilians, even when martial law was redundant with criminal law. The difference being, that martial law does not require due process or a jury of one’s peers. 

… sundry grievous offenders, by color thereof claiming an exemption, have escaped the punishments due to them by the laws and statutes of this your realm, by reason that divers of your officers and ministers of justice have unjustly refused or forborne to proceed against such offenders according to the same laws and statutes, upon pretense that the said offenders were punishable only by martial law, and by authority of such commissions as aforesaid; which commissions, and all other of like nature, are wholly and directly contrary to the said laws and statutes of this your realm.

The Home is A Castle

Coke declared “the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose.” This was, at the time, an audacious claim. It was taken up by William Pitt the First, “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement!”

Thus, Coke stood at an early point in the historical evolution of what would become the Fourth Amendment of the Bill of Rights. And when Coke’s writings are viewed as a whole, it is apparent that the protection of citizens against the demand that they quarter troops in their homes, and the protection of citizens against any arbitrary intrusion by government agents in their homes, stem from the same idea of liberty. Property, as in the right to ownership, is fundamental.

The Right to Privacy

In the latter half of the 20^th century, conservative Supreme Court justices have been relentless in whittling away the Right to Privacy that earlier justices believed is implicit in the Constitution. People who disagree with Roe vs. Wade understand that the decision was predicated on a Right to Privacy, and for this reason, are prejudiced in their attitudes, and feel compelled to voice doubts that such a right exists. I suggest that, regardless of how one may feel about Roe vs. Wade and abortion rights, it is a mistake to allow government to usurp the natural right to privacy. 

In the Boyd vs. United States decision of 1886, it was declared, “It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the 4^th Amendment; a compulsory production of a party's private books and papers to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the Amendment.” The seizure of potentially incriminating materials from the home is also a violation of the Fifth Amendment right to be protected against self-incrimination. The 4^th and 5^th Amendments relate to each other. Both amendments,

… relate to the personal security of the citizen. They nearly run into, and mutually throw light upon, each other. When the thing forbidden in the Fifth Amendment, namely, compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is an “unreasonable search and seizure” within the Fourth Amendment (source).

In the case of Silverman vs. United States, the justices decided, "The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion … This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard (source)."

Stupefied by television crime dramas, many Americans have come to believe that these 4^th and 5^th Amendment protections are useful only to criminals seeking to avoid punishment for their crimes. However, it is essential for Americans to reacquaint themselves with the origins of these natural rights. These rights have always been intended to protect citizens from becoming powerless against their own government. 

Black domes that conceal security cameras continue to sprout like vile pustules in our public spaces, our government is increasingly bold in allowing warrantless surveillance of law-abiding citizens, and our emails are no longer considered private if they exist on an Internet Service Provider’s server. Our cell phones relate our location at all times, like an electronic leash. There are words that citizens can write or speak that will invite harassment by government agents. Millions of Americans are criminals without realizing it, and subject to prosecution for inadvertently violating a website's terms of service (more info here). We can assure ourselves that these encroachments are designed for our security. But to permit such encroachments by government is to invite abuses, and it will tempt the powerful with the opportunity to further increase their power, and be answerable to no one.

For further reading on this important topic, go here.