Foreword: Private and Public Revisited Once Again

Mark A. Graber

Once upon a time, American lawyers knew the difference between private and public. Private law concerned relationships between individuals. Public law concerned the structure and powers of government institutions. Contracts was a private law subject. The Contracts Clause of Article I, Section 10 was a public law subject.

Constitutional law policed the boundaries between the private and the public. Government regulations had to have public purposes. Governments could regulate only business “affected with a public interest.” Lochner v. New York and other cases implementing the freedom of contract said to be protected by the Due Process Clauses of the Fifth and Fourteenth Amendments focuses on whether the law under constitutional attack was a legitimate exercise of the police power or an illegitimate attempt to support one party in a private bargain. The religion clauses protected private belief but not public actions.5 The state action requirement of the Fourteenth Amendment entailed that Congress could prohibit public discrimination, but not private discrimination.6 The New Deal and Great Society obliterated some public/private distinctions while erecting new ones. Government cannot search without a warrant in places where people have a “reasonable expectation of privacy.” The right of privacy protected by the Due Process Clauses of the Fifth and Fourteenth Amendments encompasses rights to birth control, abortion and intimate behavior.

These and other public/public private distinctions are constantly being deconstructed and reconstructed. New Dealers demonstrated that private law was really public law. The freedom of contract made sense only in light of state-made property rules that authorized persons to acquire holdings in certain ways, but not others, and to use those holdings in certain ways, but not others. Progressive and New Deal reformers insisted that the public was deeply interested in regulations that were formerly thought only to concern private interests. Nevertheless, rather than abandon privacy, privacy moved from economics to the First Amendment and lifestyle choices. Religion became the epitome of a private choice protected from government regulation, as did the right to decide whether to bear or beget a child, and the right to decide who to invite into one’s home.