The Organizational Roots of the Right to Privacy

This project grew out of a graduate research seminar on the public/private distinction in American history that Ruth Bloch and I co-taught at UCLA. Ruth’s expertise in gender history enriched my own understanding of business history and vice versa, and we found that our comparisons of the private sphere of the family with the private sector of the business corporation had a transformative effect on our understanding of the history of privacy. We discovered, for example, that the legal position of abused wives in families was remarkably similar by the middle of the nineteenth century to that of abused minority shareholders in corporations. The common element was the autonomy that families and businesses corporations (and, it turns out, other private organizations) had been able to wrest from the state in the decades following the American Revolution. Before the Revolution, most organizations—including the family and the corporation—were hierarchically structured and in law, if not always in fact, were subject to higher levels of authority (ultimately to the king). The Revolution severed the connection with the king and encouraged an ideology that disapproved of state meddling in associational life. But despite the Revolution’s commitment to equality, in its aftermath most organizations remained hierarchically structured and the rights of citizens still belonged primarily to the white men who headed them. Legal decisions protecting the family and the corporation from government interference, as a consequence, had the effect of reinforcing hierarchical authority. Wives who were abused by their husbands and minority shareholders whose interests were disregarded by corporate directors now found themselves with less legal recourse than they had possessed during the colonial era.

Following this analytical thread forward, Ruth and I found that the autonomy that families and corporations achieved after the Revolution was remarkably resilient deep into the twentieth century. Although these organizations were increasingly subject to government regulation, they were able to a large extent to resist the intrusion of the state in their internal affairs. In the meantime, tensions were mounting over the rights of organizations relative to those of the individuals who made them up, with voluntary associations exploiting their own autonomy vis á vis the state to attack inequality within families and corporations. When the Supreme Court finally articulated a constitutional right to privacy in Griswold v. Connecticut in 1965, it relied on precedents that had reinforced the autonomy of organizations, but the growing concern for the wellbeing of the subordinate members of these associations encouraged the Court speedily to reinterpret privacy as an individual right.

Our book, tentatively entitled “Private Sector/Private Sphere: Organizations and the Right to Privacy in American History,” is in progress. In the meantime, we have published two spinoff articles that draw out some of the implications of our research for related topics. The first, “Voluntary Associations, Corporate Rights, and the State: Legal Constraints on the Development of American Civil Society, 1750-1900” (published by the University of Chicago Press in 2017 in Organizations, Civil Society, and the Roots of Development, edited by John Joseph Wallis and me) challenges the standard Tocquevillian account of associational freedom in the early United States by highlighting the role of state courts and legislatures in the creation and regulation of nineteenth-century American nonprofit corporations. Corporate status gave organizations valuable privileges that went beyond the basic right to associate, and in the early nineteenth century, government officials selectively used their power to grant these privileges to reward favored groups while denying equivalent rights to groups they viewed as politically or socially disruptive. Over time, the passage of general incorporation laws eroded officials’ power to discriminate in this way. Although nearly all associations gained the right to incorporate at will, analogous biases survive to the present day in the structure of the income tax.

The second spinoff article, “Corporations and the Fourteenth Amendment” (published by Harvard University Press in 2017 in Corporations and American Democracy, edited by William J. Novak and me), traces the development of Fourteenth Amendment jurisprudence as it applied to corporations. In a series of decisions stretching from Santa Clara v. Southern Pacific Railroad in 1886 to Northwestern National Life Insurance v. Riggs in 1906, the US Supreme Court articulated a distinction between the Fourteenth Amendment’s safeguards for property, which applied to corporations, and its protections for liberty, which did not. The Court steadfastly enforced this distinction until the post-World War II period, but the line became more difficult to draw as the number and type of nonprofit corporations grew exponentially and increasingly included organizations, like the NAACP and the ACLU, whose purpose was to assert the liberty rights of powerless citizens. Since the 1970s, a small number of justices on both the left and the right have attempted the difficult task of distinguishing between those kinds of corporations that are entitled to liberty as well as property rights and those that are limited to the latter. We describe these efforts and show that, in Citizens United v. Federal Election Commission (2010) and subsequent decisions, conservative justices have run roughshod over these efforts, as well as over the long set of precedents that hitherto strictly limited corporations’ constitutional rights.