The home is about more than property

Please note that this post is from 2018. Evaluate with care and in light of later events.

While the “medieval home was a public, not a private place,”¹ by the eighteenth century, the “home” in English law increasingly assumed the role of the ultimate of private sanctums:

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!²

That the home is a fortress to be defended both by law and by action is evident in protections for do-it-yourself home defense:

[T]he criminal law of many states, like traditional English law, allows a person to use deadly force in defense of one\’s home even in some circumstances that do not meet the usual requirements of self-defense. Indeed, it was in this context that Sir William Coke made popular the maxim “a man’s home is his castle,” by which he meant “castle” in a military sense, describing the legal right of an Englishman to use deadly force in defense of home.³

Property

This privileged status is deeply connected to a much broader conception of the “sanctity of private property,” a view of property rights derived from, among other sources, the political theories of John Locke (1632-1704) and the common-law analyses of Edward Coke (1552-1634) and William Blackstone (1723-1780).⁴

Edward Coke

Coke, an influential sixteenth-to-seventeenth-century English common-law jurist, emphasized property protection, along with “due process,” as a key component for protecting liberties more generally.⁵ For Coke, English common law was characterized “above all by land law and due process, which together formed the basis of English liberties.”⁶ Liberties for Coke are broad and relatively imprecise, covering “the whole of the fundamental laws of the realm,” all of which together ‘make men free.’”⁷ Liberty did not mean a kind of laissez-faire freedom from government or society; liberty was not “limited to a right to be left alone and ignored by the larger world.”⁸

William Blackstone

In the eighteenth century, Blackstone argued that the common law provided nearly impregnable protections for property rights: “the law … will not authorize the least violation of [private property]; no, not even for the general good of the community.”⁹ Blackstone’s position both overstated the “absoluteness” of private property as allowing for the “total exclusion of the right of any other individual in the universe”¹⁰ and understated the actual practices of the government of his time in violating private property in the interests of the community.¹¹ Still, the “right to exclude others,” either by the use of force or through actions for trespass,¹² nonetheless continued to be a key property-law formulation that became deeply intertwined with a later nineteenth-century articulations of the right to privacy as a “right to be let alone.” Blackstone’s overly absolutist language rejecting “the least violation … even for the general good” has been deeply influential for Anglo-American legislatures and judges from the eighteenth century onwards, even though it has not always been followed absolutely.¹³

John Locke

By the late seventeenth century, “property” had become part of an interrelated trio—life, liberty, and property¹⁴—that constituted the core of what Anglo-American political theorists of the eighteenth century, the intellectual descendants of Locke, thought government ought to protect.¹⁵ Locke, whose influence is evident in foundational American documents like the Declaration of Independence,¹⁶ made property protection a key requirement of just government in his 1689 work Two Treatises of Government:

The reason why men enter into society, is the preservation of their property. … [M]en, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society … with an intention in every one the better to preserve himself, his liberty and property.¹⁷

Political scientist James R. Stoner, Jr., summarizes Locke’s core position as being that “the end of government is the preservation of property.”¹⁸

Entick v. Carrington

The English judiciary, a primary source of American legal precedent until well into the nineteenth century, drew on theorists like Locke and jurists like Blackstone to situate legal protections for the home in property rights. For example, in Entick v. Carrington, a foundational English case from 1765, Lord Camden, sitting in judgment of the search and seizure of letters kept in a private home, wrote:

The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. … By the laws of England, every invasion of private property, be it ever so minute, is a trespass. … Papers are the owner’s goods and chattels; they are his dearest property … where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass. (Emphasis added.)¹⁹

Later, referring back to Entick, the United States Supreme Court in 1886 (and then again in 1965) argued that these principles “affect the very essence of constitutional liberty and security …; they apply to all invasions on the part of the government and its employés [sic] of the sanctity of a man’s home and the privacies of life.”²⁰

More than Property Alone

As the Supreme Court’s statements about Entick imply, though, property alone was not the only value at issue when courts acted to protect “the sanctity of a man’s home and the privacies of life.”²¹ When it came to domestic privacy, something even more fundamental is apparent, as one modern legal commentator explained:

The special status of the home in many areas of law is consistent with philosophical accounts of property as an extension of personhood. … When a person’s identity becomes closely bound up with certain things with society’s acquiescence, as in the example of a wedding ring, there arises a moral expectation and presumptive entitlement to the continuation of that thing. Some objects of property are more closely bound up with personhood than others, and therefore entitled to greater protection under the law. In the range of property assets, the private home generally rests at the highly personal end of the spectrum, thus explaining why autonomy, security, privacy, memory, and expression are so valued in this personal space … Its highest value is not as a commodity.²²

In short, property rights may have been critical for liberty generally and for home protection specifically, but the ideology behind the private domestic home extends beyond property protections alone.

In 1789, when the Fourth Amendment to the United States Constitution—“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”—was ratified as a means to protect against the kinds of invasions by the English government the colonists had witnessed in the lead-up to war, Entick, along with Coke, Blackstone and Locke, provided a common foundational understanding. As such, in true common-law fashion, American courts applied—and later extended—concepts of property and trespass drawn from these older English views to interpret the meaning of the amendment.

Although interpretations and applications of the Fourth Amendment have evolved since 1789, two broad themes remain relatively consistent. First, the amendment is commonly interpreted as being “predicated on a spatial conception of privacy” because of its deep association with property.²³ Second, and even more critically, American courts have typically agreed that it is “intended to protect the sanctity of private property from intrusions by public officials” because of the history of its development in England and then the colonies: the Fourth Amended was written in response to actions by public officials from the fifteenth century onwards who had used broad powers to search homes to hunt for “libel, heresy and political dissent,” and then, in the American colonies, to enforce the collection of taxes and duties.²⁴

Drawing on this history of the Fourth Amendment, courts have often turned to English decisions from the eighteenth century to support the broad, deeply felt contention that “that homes were protected from arbitrary action by government officials.”²⁵

The Fourth Amendment was therefore a product of the same concerns that resulted in the law of trespass being applied to public actors: “to guard individuals against improper intrusion into their buildings where they had the exclusive right of possession.”

[It] was intended to preserve privacy by discouraging law enforcement trespasses, and that conception of privacy prevailed unchallenged until the second decade of the Twentieth century when the Supreme Court heard its first wiretap case.”²⁶

In modern American law, the home still remains a special place: for example, the Supreme Court in 1961, citing Entick (1765) and Boyd v. United States (1886) wrote, “At the very core of the [Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”²⁷

And in any hierarchy of American liberties and freedoms, the home continues to be central, as it has been from before the country was founded—even if the details and contours of that centrality have varied along with societal and technological changes.