THE UNIVERSITY OFCHICAGO 9 EECORDJuly 19, 1976 An Official Publication Volume X, Number 4CONTENTS107 THE PRIVATE I: SOME REFLECTIONS ON PRIVACY ANDTHE CONSTITUTION124 REPORT ON THE OPERATIONS OF THE LIBRARY, 1974-75129 THE CURMUDGEON CORRESPONDENCE: LETTERS FROMAN OLD DON TO A YOUNG PROFESSOR132 STUDENT CONVOCATION ADDRESSES136 SUMMARY OF THE 359TH CONVOCATION136 QUANTRELL AWARDS137 THE UNIVERSITY OF CHICAGO MEDAL CREATED137 BOARD OF TRUSTEES ELECTS NEW OFFICERS137 NEW TRUSTEE ELECTED137 DEPARTMENTS OF PHYSICAL EDUCATION FOR MENAND FOR WOMEN MERGE138 BOARD OF ATHLETICS AND RECREATIONAL SPORTSESTABLISHED138 ERRATATHE UNIVERSITY OF CHICAGOFOUNDED BY JOHN D. ROCKEFELLER©Copyright 1976 by The University of Chicago. All rights reserved.THE UNIVERSITY OF CHICAGO RECORDTHE NORA AND EDWARD RYERSON LECTURETHE PRIVATE ISOME REFLECTIONS ON PRIVACY AND THE CONSTITUTIONBy PHILIP B. KURLANDThe Nora and Edward Ryerson Lectures wereestablished by the Trustees of the University inDecember 1972. They are intended to give amember of the faculty the opportunity each yearto lecture to an audience from the entire University on a significant aspect of his research andstudy. The President of the University appointsthe lecturer on the recommendation of a facultycommittee which solicits individual nominationsfrom each member of the faculty during the winterquarter preceeding the academic year for whichthe appointment is made. The lectures are presented under the auspices of the Center for PolicyStudy.The lecturers have been:1973-74— John Hope Franklin1974-75— s. Chandrasekhar1975-76— Philip B. KurlandApril 27, 1976Introductory RemarksThe Nora and Edward Ryerson Lecture was established in the University by the Trustees in 1972to commemorate two of the best friends this placeever had and to remind us of them in a most fittingway. The lecturer is chosen from nominationssubmitted by the entire faculty of the Universityand is asked to speak to the whole University about something of vital interest out of his or herlife's experience and work. The first lecturer,John Hope Franklin, set a high standard indeed;the second, Professor Chandrasekhar, reinforcedthat high standard. And so, being the Nora andEdward Ryerson lecturer has already become anhonor no one here can refuse — an honor which isaccepted with pride tempered by humility.Nora and Edward Ryerson touched Chicago inalmost every aspect of its life. They were, mostconspicuously, good citizens, in themselves andin what they did. Individual responsibility andpersonal integrity were characteristic of them: inbusiness, in public service, in the life of the city,in their own lives.It was in the life of the University that I came toknow them best. Mrs. Ryerson was a foundingmember of the Women's Board and one of itsmost devoted members. By the time we met shehad been involved in the activities of the University for more than a generation and I was able tosee what was already legend around here: hergreat personal interest in individual members ofthe faculty and their work, in the students, in thepresence and reputation of the University.Edward Ryerson was a Trustee of the University for 48 years and Chairman of the Board ofTrustees for five. In this lifetime of service he wason almost every committee the Board could thinkof and, as one might expect, he was a powerful,although never an inhibiting, force in all of them.He assumed always that what is best is what thisUniversity pursues and accomplishes, and so hehad the great distinction of being a Trustee who107was a personal inspiration to many people in theUniversity.That the Ryerson lectureship is a nomination ofsuch import — and I should say that this year thefaculty in its submissions sent in the names ofnearly 200 individuals — derives in great measurefrom the personal and the spiritual legacy of theRyersons, a legacy continued through their children and their children's children.I think Mr. and Mrs. Ryerson would have beenvery happy with this year's lecturer, Philip B.Kurland, the Kenan Professor in the College andProfessor in the Law School. The pronouncementof James Beaver that "Philip B. Kurland is undoubtedly the most astute living student of theUnited States Supreme Court" has become theopinion of a good part of the world. His reputationis so great that one is led sometimes to wonderhow the constitutional convention managed towrite the document without him. Some of his admirers would reply that, when Kurland points outthe contradictions and inadequacies of that document, we know indeed that they only just managed.Phil was born in New York and took his baccalaureate degree from the University of Pennsylvania and his law degree from Harvard LawSchool where he was the editor of the HarvardLaw Review. He served as a law clerk to JudgeJerome Frank and then to Justice Felix Frankfurter. He worked for a time in the Department ofJustice and then practiced law in New York Citybefore he was appointed to the faculty of Northwestern University Law School in 1950. Threeyears later he was appointed to the faculty of theLaw School of The University of Chicago,through the persuasive power of the then-dean,Edward H. Levi. In 1973 he became the KenanProfessor in the College.Phil is a very public man, in this place and in thenation. His consultations to the Congress are agreat tribute to him and a compliment to thejudgment of that legislative body. Now Congressmen are not noted for their modesty. But, inmany cases for many years, Phil's deliberate,careful counsel has been heard more widely thanvarious committee proceedings, so that he hasoften been more notable than the committees, ortheir hearings. Yet, Congress keeps asking him tocome back. In the University, we know why thegovernment should keep seeking his help, but Itake it as a tribute to Congress that it is willing tobe enlightened, guided, corrected by him.I do not mean to suggest that he has neglectedhis opportunities and duties here, either. Indeed, his joy in teaching undergraduates at the timewhen he is at the peak of his own discipline andprofession is characteristic of him. In the LawSchool for 20 years he has produced a generationof the top lawyers of this region and the country.His classes were famous among students from thebeginning.When he began to teach in the College, the firstcourse he offered had at least 30 times as manyundergraduate applicants as seats. And that figuredoes not count an equivalent number from amonggraduate students, students in the professionalschools, and some people who turned up mysteriously from that vast invisible army of admirerswho walk through our doors but not past the Admissions Office.He has written 1 1 major volumes on the law andgreat lawyers, and he was the founder of The Supreme Court Review, which, since 1960, has beenone of the few reviews lawyers and legal scholarsjudge as absolutely necessary in their studies. Theenergy and the productivity of his mind and handare models in a University that has unusually highstandards for everyone.He contributes something else which is terriblyimportant in the life of any university: he is apopular figure, a hero. Students in every part ofthe University know him, quote him, meet him,argue about him, listen to him. The strength of histotal personage is illustrated by the strength ofeven a small part of him. He had a moustache fora period during the past year, but now it is gone. Itis gone from his face, but not from the mythologyof the University. Ancient Oxford had Ockham'srazor. We have Kurland' s moustache.For some of us, there is a quality about PhilKurland which can be realized only in the knowledge of his family: Mary Jane, and his threebeautiful daughters, Julie, Martha, and Ellen. Imight say that Phil's characteristic expertness hasbeen transmitted to all three, each of whom isexpert in her own way: on peanut butter, onbrownies, or on practically anything else you canmention.Philip Kurland has had a lot of honors in hislife, but it is his particular honor that to anyonewho knows him, all those things do not matter.Now we have done ourselves the honor to choosehim as the Ryerson lecturer for this year and hewill do us the honor to tell us about "The Privatei."John T. Wilson is President of the University andProfessor in the Department of Education. TheRyerson Lecture was given in Mandel Hall.108This is the third of the Nora and Edward RyersonLectures. The Lecture, as President Wilson hastold you, honors a member of the faculty by asking him to speak to his peers and superiors about asubject with which he purports to be familiar. AndI have received no greater honor. But, as GeorgeStigler might have told me, had I asked, there isno such thing as a free honor. It has to be earnedand in this case, according to mandate of the lectureship, the honor is to be earned by making "asignificant statement about [the lecturer's] mostimportant work or interests."That charge rested easily on the shoulders ofmy predecessors, Professors Franklin and Chandrasekhar, both Distinguished Service Professorsat this University, who, between them, probablyhave as many honorary degrees as there are universities in this country. The historian and theastronomer and astrophysicist, between them,take all knowledge for their province. All the pastbelongs to Franklin, and the future, which lies inthe stars, is the realm of Chandrasekhar. Thatleaves me only the present, and as Shakespeareonce put it: "Past and to become seem best;things present worst."1The audience will surely find what I am aboutto say neither "significant" nor "important." Allthat I hope to achieve here is to reveal somethings that I am thinking, or think I am thinking,about a subject that is frequently the object ofSupreme Court judgments. I would invoke threeexcuses for failing to afford you the "important"or the "significant."The first is Mr. Justice Holmes's justificationfor banality, that "at this time we need educationin the obvious more than investigation of theobscure."2The second excuse derives from the nature ofthe medium. For a lecture, like an essay, at best,must be "tentative, reflective, suggestive, contradictory, and incomplete." Its vindication, ifany, depends on whether it adequately reflects"the perversities and complexities" of thesubject.3 Its function is to invite thought, not toforeclose it.And my third excuse is to be found in remindingyou of Richard Steele's catechism on lawyers:"What's the first excellence in a lawyer? Tautology. What the second? Tautology. What thethird? Tautology."41. Shakespeare, II Henry IV, I, c.2. Holmes, Collected Legal Papers 292-93 (1920).3. Frankfurter, Book Review, 11 U. Pa. L. Rev. 436, 437(1929).4. Steele, The Funeral 1 (1701). I expect that I have put off the moment of truthabout as long as I can. Let me tell you then whatmy subject is. The title of this paper was concocted some months ago, long before the paperwas composed. I selected the title because itwould allow almost anything that I could find tosay to fit the rubric. My subtitle is an afterthoughtand not much less opaque. It is: "SomeReflections on Privacy and the Constitution."And I must emphasize that I propose to addressonly constitutional aspects of privacy, a subjectboth more arcane and less learned than thesociological, psychological, or political treatments that have been given the subject of privacyby those more erudite than I.5The problem of privacy in politico-legal terms isa part of, if it does not exceed, the basic controversy that has troubled this nation from thebeginning. It is concerned essentially with thecompeting interests of society, usually actingthrough government, on the one hand, and theindividual acting on his own, on the other. But inthis context, society is not merely its formalizedorganization, that is, government, but all of itscomponents and institutions, private as well aspublic. The problem presented by the right toprivacy is to establish the protection of the individual against intrusion on his freedom of action,freedom of choice, and freedom of thought, notonly by government, but by others, particularlyby others combined in association to multiply thepower — physical, economic, moral — that wouldbe available to an individual.The task of protecting one individual's privacyagainst invasion by another individual or group isassigned to the government. The problem of protecting an individual's privacy against invasion bythe government is a\so,faute de mieux, assignedto the government. And so the greatest, but notthe exclusive, problem of privacy is the questionhow. to contain the government which is its ownregulator. Here, as elsewhere, we have turned tothe courts to establish some protections by purporting to interpret the Constitution. All branchesof all government, state and federal, must abidethe constitutional limitations on their authority.When the states or the national executive or legislature violate the Constitution, appeal is to thecourts. When the federal courts themselves violate the Constitution, the only appeal is to publicopinion.For many, the Constitution is a text that should5. See, for example, Shils, Privacy and Power, in Pool, ed.,Contemporary Political Science 228 (1967).109be construed like a deed of real property or atleast like a contract. Strict construction has beenthe rhetorical demand of such disparate practitioners of the black art of government as Mr.Justice Hugo Black, Senator Sam J. Ervin, andPresident Richard M. Nixon. But strict constructionists are only those who are gifted to see thetrue meaning of the exalted words of the Constitution, in the same way that it was given to Calvinand Luther to know that Rome was in error. It isnot so much a matter of proof as it is a matter offaith or revelation.For some, strict construction means not thatthe original words of the Constitution aredefinitive but only that the first construction giventhose words by the Supreme Court is definitive.Thus, precedents are to be deemed unchangeableexcept by the process of amendment provided inthe Constitution itself. There are other strictconstructionists — most of them — who would require adherence only to those precedents andjudgments that conform to their personal predilections.In whatever form, strict construction has neverbeen anything more than a rhetorical tool. In part,this is due to the fact that many of the phrases ofthe Constitution do not lend themselves to simplistic readings. The document is not a series ofrules— even abstract rules. It always has beenread — and has to be read — in terms of the constantly changing political, social, and economicconditions that give rise to the issues that comebefore the Court. Constitutional limitations, likeall law, are a reflection of the needs of a society.The law does not create the society, the societycreates the law.The arcane aspect of American constitutionallaw, then, derives from the fact that the Constitution is largely a document of the imagination but isalways treated as if it were real. And over a periodof time it has become the imagination of the Justices of the Supreme Court that has come to beconsidered definitive in the changing constructionof words that have remained constant. And this isneither more nor less true of the so-called constitutional doctrine of privacy, of which I speak,than of other parts of an instrument that wasframed as a fundamental and living charter ofgovernment.Once the authority for ultimate construction ofthe meaning of the Constitution was conceded tothe courts, as it seems to have been, thepeculiarities of the common-law system of adjudication affords the only restraints on the Court'sfreedom of choice among competing arguments as to the appropriate reading of the basic document.And this restraint, as Chief Justice Stone long agotold us, is essentially self-restraint.6 But thecommon-law process means, among other things,that the rule pronounced by a court is not an abstract rule but one composed to resolve a particular case or controversy. It may be applied to future cases that fall within its ambit, but it is notdesigned as a general rule of conduct for all withinthe national realm. Although the Justices do notacknowledge or always realize that the judicialapproach necessitates the resolution of a particular dispute between particular litigants, the constitutional requirement in Article III of a case orcontroversy — an adversary judicial proceeding — does impose restrictions on judicial behavior that are, more or less, controlling.Thus, if the Court has been appropriately labelled "a continuing constitutional convention,"its method of doing business is different from thoseof an actual constitutional convention. It is not arepresentative body; it is not politically responsible to any constituency. If we cannot demand ofthe Supreme Court a "true" reading of the Constitution, or even a consistent one, we have a rightto a reasoned one.The concept of a constitutional right of privacyremains largely undefined. There are at least threefacets that have been partially revealed, but theirform and shape remain to be fully ascertained.The first is the right of the individual to be free inhis private affairs from governmental surveillanceand intrusion. The second is the right of an individual not to have his private affairs made publicby the government. The third is the right of anindividual to be free in action, thought, experience, and belief from governmental compulsion.Obviously, none of these rights as so stated isabsolute. And the questions addressed by the laware to what degree these constitutional rights mayor must be conditioned.While the rights to be free from governmentalsurveillance and publicity and command are problems of constitutional law, they are also subject toprotection by legislative action, by statutes whichreflect the judgment of the lawmakers rather thanthe compulsion of the Constitution. Moreover,there may be rights to be free of surveillance andpublicity and command by others than governmental actors. The legislative and common-lawrights protecting against imposition by nongovernmental actions fall outside the scope of this6. "... the only check upon our own exercise of power is ourown sense of self-restraint." United States v. Butler, 297 U.S.1,78(1936).110effort, although the principles that may guide theformation of appropriate law are not irrelevant tothe constitutional rights of privacy.The origins of the constitutional doctrine of privacy are not difficult to discover. At least for alawyer, they are to be found in two specific judicial controversies that preceded our Constitutionand even the Declaration of Independence. Theywere encapsulated by Mr. Justice Frankfurter in1946:Indeed, so unhappy was the experience with policesearch for papers and articles "in home or office". . . that it was once maintained that no search andseizure is valid. To Lord Coke has been attributedthe proposition that warrants could not be securedeven for stolen property. . . . Under early Englishdoctrine even search warrants by appropriate authority could issue only for stolen goods. . . . Certainly warrants lacking strict particularity as to location to be searched or articles to be seized weredeemed obnoxious. ... An attempt to exceed thesenarrow limits called forth the enduring judgment ofLord Camden in Entick v. Carrington ... in favor offreedom against police intrusions. And when appealto the colonial courts on behalf of these requisitesafeguards for the liberty of the people failed ... ahigher tribunal resolved the issue. The familiarcomment of John Adams on Otis' argument inPax ton's case can never become stale: "Americanindependence was then and there born; the seeds ofpatriots and heroes were then and there sown, todefend the vigorous youth, the non sine diis animusinfans. Every man of a crowded audience appearedto go away, as I did, ready to take arms against writsof assistance. Then and there was the first scene ofthe first act of opposition to the arbitrary claims ofGreat Britain. Then and there the child Independence was born. In fifteen years, namely 1776, hegrew up to manhood and declared himself free."7In Paxton's case in the Superior Court of theColony of Massachusetts, with the soon to become infamous Thomas Hutchinson presiding,the judiciary held that writs of assistance, generalwarrants that specified neither place to besearched nor persons or goods to be seized, werevalid against the colonial merchant smugglers' —whom we now call "patriots" — claim for freedom. The principle which caught the fancy of thecolonial audience and particularly the merchantsmugglers was not that announced in the court,but that put forth by their counsel, James Otis,as reported by John Adams:This writ is against the fundamental principles ofEnglish law. . . . Only for felonies may an officerbreak and enter — and then only by special not gen-7. Davis v. United States, 328 U.S. 582, 603-4 (1946). eral warrant. For general warrants there is only theprecedent of the Star Chamber under the Stuarts.An act against the Constitution is void. An actagainst general equity is void. If an act of Parliamentshould be passed in the very words of this petitionfor writs of assistance, it would be void.8Obviously then — and perhaps even now — likebeauty, constitutional principles lie in the eyes ofthe beholder.Entick v. Carrington,9 the decision at CommonPleas in England, by a good friend of the American colonists, Lord Camden, later reached a conclusion opposite to that of the Massachusettscourt. Following upon successful attacks on general warrants by Wilkes, also an ally of theAmericans in the Revolutionary period, LordCamden in Entick outlawed general warrants unauthorized by legislation where the objective ofthe search was not smuggled goods but seditiouslibel. His prijftiary reliance was on the sacredrights of property:The great end, for which men entered into society,was to secure their property. That right is preservedsacred and incommunicable in all instances, where ithas not been taken away or abridged by some publiclaw for the good of the whole. . . .Papers are the owner's goods and chattels; theyare his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papersare removed and carried away, the secret nature ofthose goods will be an aggravation of the trespass,and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there isnone; and therefore it is too much for us withoutsuch authority to pronounce a practice legal, whichwould be subversive of all the comforts of society.10Both Otis' s argument in Paxton and the argument for Wilkes resorted to appeals to "the constitution." Mr. Recorder Eyre asserted: "Nolegal authority [exists], in the present case, to justify the action. No precedents, no legal determinations, not an act of parliament itself, issufficient to warrant any proceeding contrary tothe spirit of the constitution."11 Lord Camden refused to go so far. His proposition was simply thatif the acts of the ministers in issuing and effectinga general warrant were valid, it would be au-8. Bowen, John Adams and the American Revolution216 (1950).9. 19 How. St. Tr. 1209 (1765).10. Id. at 1065.11. Wilkes v. Wood, 19 How. St. Tr. 1153, 1155 (1763).Illthorized by law. "If it is law, it will be found inour books. If it is not to be found there, it is notthe law."12The English courts then and still are committedto legislative supremacy rather than judicialsupremacy as the prime rule of their constitution.The constitutional principle then, as now, wasstated in Dicey: "For liberty of the individual isnothing more than the residue of his conductwhich remains unfettered by law."13Events take on a different image when viewedunder the lens of time. It was fifty years afterPaxton's case that Adams recorded the observation that in Otis' s arguments against the writs ofassistance "the child Independence was born." Ifthis were true in fact, it is passing strange thatthere was no reference in the Declaration of Independence, in the composition of which Adamshad a hand, to the abuses of general warrants. Theban on general warrants did, however, show up inMadison's bill of rights and became the FourthAmendment to the American Constitution, withthis language:The right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and noWarrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons orthings to be seized.In its language, the Amendment, whichclosely followed those already in effect in theStates of the new nation, did little more than outlaw the general warrant which, after all, was theissue contested in Paxton, Wilkes, and Entick.But courts also behave in retrospect as Adams didin his romantic reading of Paxton's case. And toward the end of the nineteenth century, in a landmark case, Boyd v. United States,14 the Courtinvalidated a federal statute calling for productionof private books, invoices, and papers. Mr. Justice Bradley enlarged upon Entick v. Carrington:The principles laid down in this opinion affect thevery essence of constitutional liberty and security.They reach farther than the concrete form of thecase then before the court, with its adventitious circumstances; they apply to all invasions on the part ofthe government and its employes of the sancity of aman's home and the privacies of life. It is not thebreaking of his doors, and the rummaging of hisdrawers, that constitutes the essence of the offense;but it is the invasion of his indefeasible right of per-12. 19 How. St. Tr. at 1066.13. Dicey, Law of the Constitution lvii (9th ed. 1939).14. 116 U.S. 616(1886). sonal security, personal liberty and private property,where that right has never been forfeited by his conviction of some public offense.15In 1928 Mr. Justice Brandeis dissented from ajudgment of the Supreme Court that wiretappingdid not violate the Fourth Amendment.16 In dissent, Brandeis offered the broadest reading of theright of the people to be free from governmentsnooping. He wrote there that the authors of theConstitutionrecognized the significance of man's spiritual nature,of his feelings and of his intellect. They knew thatonly a part of the pain, pleasure, and satisfactions oflife are to be found in material things. They sought toprotect Americans in their beliefs, their thoughts,their emotions and their sensations.17And then he went on to state his conception of thelimits on governmental interference:[The authors of the Constitution] conferred, asagainst the Government, the right to be let alone— the most comprehensive of rights and the rightmost valued by civilized men.18One of my more perspicacious students suggested that were we to translate Brandeis 's "rightto be let alone" into French, it might come out"laissez faire." But laissez faire had alreadytaken on a different connotation — or at least a different clientele — from that which Brandeis intended. In Olmstead, Brandeis was speaking ofthe rights of individuals, not business entities. Hisfirst use of this phrase — "the right to be letalone" — could be found in what is always described as a seminal article he had written as ayoung lawyer, not on the right to be free fromgovernment inhibition, but on the right to be freefrom newspaper publicity, the publication bynongovernment agencies of matters of privateconcern. Although Brandeis's language datesfrom 1890, it is equally apposite today. Indeed,that is the problem. We have not advanced verymuch on the front of the private right of privacyany more than we have on the front of the publicright of privacy. The early Brandeis paper openedthis way:... the question whether our law will recognize andprotect the right to privacy in this and in other respects must soon become before the courts for consideration.15. Id. at 630.16. Olmstead v. United States, 277 U.S. 438 (1928).17. Id. at 478.18. Ibid.112Of the desirability — indeed of the necessity — ofsome such protection, there can, it is believed, be nodoubt. The press is overstepping in every directionthe obvious bounds of propriety and of decency.Gossip is no longer the resource of the idle and of thevicious, but has become a trade, which is pursuedwith industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spreadbroadcast in the columns of the daily papers. Tooccupy the indolent, column upon column is filledwith idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity andcomplexity of life, attendant upon advancing civilization, have rendered necessary some retreat fromthe world, and man, under the refining influence ofculture, has become more sensitive to publicity, sothat solitude and privacy become more essential tothe individual; but modern enterprise and invention,through invasions upon his privacy, subjected him tomental pain and distress, far greater than could beinflicted by mere bodily injury. Nor is the harmwrought by such invasions confined to the sufferingof those who may be made the subjects of journalistic or other enterprise. In this, as in other branchesof commerce, the supply creates the demand.Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion toits circulation, results in a lowering of societal standards and morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittlesby inverting the relative importance of things, thusdwarfing the thoughts and aspirations of a people.When personal gossip attains the dignity of print,and crowds the space available for matters of realinterest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to thatweak side of human nature which is never whollycast aside by the misfortunes and frailties of ourneighbors, no one can be surprised that it usurps theplace of interest in brains capable of other things.Triviality destroys at once robustness of thought anddelicacy of feeling. No enthusiasm can flourish, nogenerous impulse can survive under its blightinginfluence.19The right of privacy from nongovernmentalintrusion has never flourished, despite Brandeis'shopes and anticipation.20 This has been due in nosmall part to the public commitment to voyeurismrevealed not only in the news stories but in thenewspaper columns giving advice to thewoebegone and to the ill and in the gossip columns. (Even the mighty New York Times has succumbed to publishing gossip columns.) To a greater degree, however, the doctrine has failed because of judicial expansion of the concept of free-19. Warren and Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193 (1890).20. See, for example, Kalven, The Reasonable Man and theFirst Amendment: Hill, Butts, and Walker, 1967 SupremeCourt Review 267. dom of the press. The Court has rightly perceivedthat the Constitution provides for a free press butmakes no demands for a responsible press. And inthis case freedom arid responsibility are antonyms. The press itself, which rejects privacy ofothers, however, is outraged at the refusal to accord it privacy in its own affairs. Its claim forconstitutional protection against the necessity toreveal sources of its news stories was effectivelydenied — with good reasons — by the SupremeCourt.21But I have strayed from my subject. Brandeis'sposition in Olmstead in 1928, that wiretappingconstitutes the same kind of invasion of privacy asdoes the physical entry, search, and seizure of thecommon law, became the law by Supreme Courtdecision in 1967:We conclude that the underpinnings of Olmsteadand Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine thereenunciated can no longer be regarded as controlling.The Government's activities in electronically listening to and recording the petitioner's words violatedthe privacy upon which he justifiably relied whileusing the telephone booth and thus constituted a"search and seizure" within the meaning of theFourth Amendment. The fact that the electronic device employed to achieve that end did not happen topenetrate the wall of the booth can have no constitutional significance.22It should be seen, then, that two hundred yearsof litigation did not really advance the privacydoctrine much beyond the limits originally afforded by the Court of Common Pleas in Entick v.Carrington in 1765, except that a "taking" by eyeor ear was also forbidden by the Fourth Amendment. All that Katz provided was an equation between electronic invasion and physical invasion.The underlying concepts were stated by LordCamden both in terms of trespass, as alreadyquoted,23 and in terms that accord more with ourFifth Amendment than our Fourth:It is very certain, that the law obligeth no man toaccuse himself; because the necessary means ofcompelling self-accusation, falling upon the innocentas well as the guilty, would be both cruel and unjust;and it should seem that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.24The constitutional law of privacy, deriving fromthe Fourth and Fifth Amendments, had generally,21. Branzenburg v. Hayes, 407 U.S. 665 (1972).22. Katz v. United States, 389 U.S. 347, 353 (1967).23. See ttxt supra, at note 10.24. 19 How. St. Tr. at 1073.113therefore, afforded little scope for the promulgation of the Brandeisian doctrine of a right to be letalone. The fact is that the search and seizure protections have primarily served those guilty ofcrime as a means for evading punishment. Insome measure that is because, until recently, theFourth Amendment has not been seen as a properpredicate for private suit against wrongdoingofficials who have engaged in such gross forms ofinvasion of privacy as would constitute illegalsearches and seizures.25 At the same time, theCourt has refused relief when a plaintiff 's claim isthat he had been subjected to "mere surveillance" by the military.26 But the Fourth Amendment has been utilized essentially by criminal defendants seeking to exclude from evidence thosematters secured by invalid searches and seizures.The law on the subject is immense but technical.It rests on the dubious hypothesis that the policewill be chastened by their inability to secure convictions where they have behaved improperlyand, therefore, will abstain from such improperbehavior not only against the guilty but, as LordCamden said, against the innocent as well.Whether the "exclusionary rule" has been effective in this respect is a debated question. Most,however, will now concede that the police will beeffectively chastened only by more direct meansthan protecting defendants against convictions.Mr. Justice Cardozo long ago stated the inadequacy of the exclusionary rule.27 His analysis remains cogent, but ineffective. The Supreme Courthas imposed the exclusionary rule on all theStates.28I don't mean to diminish the importance of thejudicial applications of the Fourth Amendment.Anyone who has read Orwell's 1984 must be cognizant of the necessity for all possible restraintson governmental oversight of individual activity.As Mr. Justice Frankfurter stated in 1946:The course of decision in this Court has thus far jealously enforced the principle of a free society securedby the prohibition of unreasonable searches andseizures. Its safeguards are not to be worn away by aprocess of devitalizing interpretation. ... It is notonly under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistenceon scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It istoo easy. History bears testimony that by such disregard are the rights of liberty extinguished, heed-25. Bivens v. Six Unknown Named Agents, 403 U.S. 388(1971).26. Laird v. Tatum, 408 U.S. 1 (1972).27. People v. Defore, 242 N.Y. 13 (1926).28. Mapp v. Ohio, 367 U.S. 643 (1961). lessly at first, then stealthily, and brazenly in theend.29Judge Hand put the same proposition in thesewords: "Nor should we forget that what seemsfair enough against a squalid huckster of bad liquor may take on a very different face, if used bya government determined to suppress politicalopposition under the guise of sedition."30With the recent revelations about Plumbers andWatergate, and FBIs and Kings, and CIA covertactivities — with vivid memories of Gestapo andOgpu— the purpose of the Fourth Amendment isnot abstract or amorphous but real and immediate. The present question is whether existentrestraints are adequate. No, I would not demeanthe concept of the Fourth Amendment's barriersagainst search and seizure and wiretapping. Butthey rest on the slender reed of judicial refusal toauthorize searches and seizures, or to condemnbroad administrative and judicial subpoenas, andon the effectiveness of the exclusionary rule, at atime when almost any activity can be asserted tobe criminal and justify a warrant and when theexclusionary rule is hardly a deterrent at all.Government imposition on individuals, however, goes far beyond the improprieties coveredby the judicial gloss on the Fourth Amendment.And a broader concept of privacy, such as thatsuggested by Brandeis, would have implicationsthat would ward off that kind of totalitarianism forwhich the secret police and government surveillance are only means and not ends. If somethingmore than trespass and self-crimination underlaythe judgment in Entick v. Carrington, it was thefact that the writ was issued by a ministry that hadcreated its own authority to do so, that the writwas returned to the ministry's own functionariesfor determination of proper action against the person and materials seized. The executive — not thelegislature — made its own rules and executedthem. Kafka's Trial was hardly worse.It should, however, be obvious that the problems of government administration have changedonly in quantity and not in quality in the two centuries between English autocratic bureaucraciesand American democratic bureaucracies. Onceagain — if not still — we are enmeshed by legislation without representation. Once again appointed government officials make the laws— byway of regulations and guidelines and executiveorders, when not by simple ukase; once again the29. Davis, 328 U.S. at 597.30. United States v. Kirchenblatt, 16 F.2d 202, 203 (CA2d,1926).114same agents determine the liability of individualsunder the rules that they have created and theremedies that are to be exacted from the haplessobject of their benignity. Usually, these days, thegoal is accomplished with the assistance ratherthan the resistance of the judiciary.A concept of privacy limited to the Fourth andFifth Amendment privileges against search andseizure and self-crimination and preventing inappropriate publicity of information that it hascommandeered offers little defense against ever-increasing government encroachment. But surelythere is possibility in the Brandeisian notion of aright to be let alone. And there has been a recentflurry of opinions by the Supreme Court to suggest that the Brandeis concept might have somemerit. In 1965, in a case called Griswold v.Connecticut, 31 the Supreme Court broke loose itsprivacy doctrine from Fourth and Fifth Amendment moorings. There was in the case no trespasson person or property, either literal or figurative;there was no issue of self-crimination; there wasno real question of improper publicity. The question was about the capacity of the State of Connecticut to inhibit the conduct of its adult citizensby forbidding them the use of contraceptives. Noteven the nine men in the marble palace couldbring the case within the search-and-seizurecanon. But, if not the Fourth Amendment,where? Ordinarily no Supreme Court Justice willopenly pronounce the possibility that he is beingtotally creative of constitutional rights or that heis exercising judgment based on personal values.What the Justices seemed to believe, however— probably because they were all over forty andnone had yet been converted by the precepts ofProfessor Marcuse and the Berkeley "free speechmovement" — was that sexual intercourse, especially between married couples, was a private affair. And so, Mr. Justice Douglas, speaking for amajority, held that a ban on the use of contraceptives by married couples was an invasion of privacy that the Constitution could not condone. Ifone asked where in the Constitution such a doctrine of privacy might be found, the answer wasthat it would be found in the "penumbras" and"emanations" of various parts of the Bill ofRights:Various guarantees create zones of privacy. Theright of association contained in the penumbras ofthe First Amendment is one, as we have seen. TheThird Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace31. 381 U.S. 479 (1965). without the consent of the owner is another facet ofthat privacy. The Fourth Amendment explicitlyaffirms the "right of the people to be secure in theirpersons, houses, papers, and effects against unreasonable searches and seizures." The FifthAmendment in its Self-incrimination Clause enablesthe citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "Theenumeration in the Constitution of certain rights,shall not be construed to deny or disparage othersretained by the people." . . . We have had manycontroversies over these penumbral rights of "privacy and repose." . . . These cases bear witness thatthe right of privacy which presses for recognitionhere is a legitimate one. The present case, then, concerns a relationship lying within the zone of privacycreated by several fundamental constitutionalguarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulatingtheir manufacture or sale, seeks to achieve its goalsby means having a maximum destructive impactupon that relationship. Such a law cannot stand inlight of the familiar principle, so often applied by thisCourt, that a "governmental purpose to control orprevent activities constitutionally subject to stateregulation may not be achieved by means whichsweep unnecessarily broadly and thereby invade thearea of protected freedom." . . . Would we allow thepolice to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?The very idea is repulsive to the notions of privacysurrounding the marriage relationship.We deal with a right of privacy older than the Billof Rights — older than our political parties, older thanour school system. Marriage is a coming together forbetter or for worse, hopefully enduring, and intimateto the degree of being sacred. The association promotes a way of life, not causes; a harmony in living,not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for asnoble a purpose as any involved in our priordecisions.32Mr. Justice Harlan's concurring opinion wouldhave relied on the meaning implicit in the Fourteenth Amendment's — and thereby the FifthAmendment's — prohibition against depriving anyperson of his life, liberty, or property without dueprocess of law. His emphasis, too, was upon thesacred nature of the marital relationship. And likeChief Justice Warren and Justices Brennan andGoldberg, he would rule that where the government attempts to regulate such a valued right ofprivacy, it must justify its actions by whatamounts to an almost insuperable burden ofproof. And therein lies whatever hope there maybe for a developing law of privacy, the transfer ofthe burden, as has occurred frequently in freespeech and equal protection cases, from the indi-32. Id. at 484-86.115vidual to prove the irrationality of a statute to thestate to prove the necessity for the statute.An astute observer of the judicial process, Professor Paul Brest, has asked, "If the Constitutiondoes not enact Herbert Spencer's Social Statics,does it enact John Stuart Mill's On Liberty(1859)?"33 Brest was referring to Mill's "one verysimple principle": "That the sole end to whichmankind are warranted, individually or collectively, in interfering with the liberty of action ofany of their number is self-protection"; that government may control the individual only "to prevent harm to others"; "His own good, eitherphysical or moral, is not a sufficient warrant. . . .Over himself, over his own body and mind, theindividual is sovereign."34Brest's question was intended to be rhetorical. In the famous Lochner case, Holmes had toldus that the Constitution did not incorporate Herbert Spencer's Social Statics.35 I am arrogantenough to suggest that Holmes was wrong, thatthe Fourteenth Amendment, as read by the Courtin the last third of the nineteenth century and forsome time thereafter, did "enact Mr. HerbertSpencer's Social Statics."36 1 should like to thinkthat the Court would now incorporate Mill's OnLiberty, but I have no hope. In part my lack ofhope derives from subsequent decisions in thisarea, in part from the considerations I shall detailat more length very shortly.The law in this area has not been dictated byprinciple or precedent. Mr. Justice Cardozo longago described the ailment to which the SupremeCourt has succumbed in the further developmentof the constitutional right of privacy. He wrote:A fertile source of perversion in constitutionaltheory is tyranny of labels. Out of the vague preceptsof the Fourteenth Amendment a court frames a rulewhich is general in form, though it has been wroughtunder the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly,if at all, to the reasons that brought the rule intoexistence.37And so, despite the emphasis in Gr is wold onsacredness of marriage, the Court decided that anequally compelling situation for invoking the con-33. Brest, Processes of Constitutional Decision-Making c. 7 (1975).34. Quoted in Gunther, Individual Rights in Constitutional Law 264, n. 6 (1975).35. Lochner v. New York, 198 U.S. 45, 75 (1905).36. See Kurland, Guidelines and the Constitution, in Shultzand Aliber, eds., Guidelines 212 (1966).37. Snyder v. Massachusetts, 291 U.S. 14 (1934). cept of privacy was afforded when the sexual intercourse that was inhibited by the state was thatof unwed couples. The reasoning in the secondcase was set forth by Mr. Justice Brennan:It is true that in Griswold the right of privacy inquestion inhered in the marital relationship. Yet themarital couple is not an independent entity with amind and heart of its own, but an association of twoindividuals each with a separate intellectual andemotional make-up. If the right of privacy meansanything, it is the right of the individual, married orsingle, to be free from unwarranted governmentalintrusion into matters so fundamentally affecting aperson as the decision whether to bear or beget achild.38The opinion thus contains a marked advance onthe establishment of a doctrine, even as it markeda retreat from the rationalization that brought thedoctrine into existence in the first place. Privacyis an attribute of the individual: his right "to befree from unwarranted . . . intrusion into matters[that] fundamentally affect a person." Perhaps itextends beyond the individual to the household,as our founding fathers might have thought. Indeed, it was thus that Jefferson spoke of privacy:Happiness, Jefferson too would insist, lies outsidethe public realm, "in the lap and love of my family,in the society of my neighbors and my books, in thewholesome occupation of my farms, and my affairs," in short, in the privacy of a home upon whoselife the public has no claim.39If the Declaration of Independence which we areso assiduously celebrating this year were a constitutional document, the basis for the doctrine ofprivacy might properly be found in the phrase"the pursuit of happiness."Whether it is confined to individuals, as suggested in Baird, or extends to households, as originally stated in Griswold, it does not pertain togroups or organizations less limited than the family. There may be, as David Reisman has told us,a "lonely crowd," but it cannot be a "private"crowd.Mr. Chief Justice Burger dissented in the Bairdcase, suggesting that the conclusion smacked of"substantive due process," that is, it wasnothing more than the Justices substituting theirjudgment for the judgment of the legislature. Andin the abortion cases, the next explication of theprivacy doctrine — one more consistent with theMill doctrines than with any other — Mr. Justice38. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).39. Arendt, On Revolution 125 (1963).116Stewart, joining the judgment of the Court, displayed an honesty of expression seldom indulgedby members of the Court:So it was clear to me then, and it is equally clear tome now, that the Griswold decision can be rationallyunderstood only as holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the FourteenthAmendment. As so understood Griswold stands asone in a long line of cases under the doctrine of substantive due process, and I now accept it as such.40If, therefore, one looks for a home for a developing constitutional doctrine of privacy, it willmost likely be found where Justices Harlan andStewart have placed it: in the Due ProcessClauses of the Fifth and Fourteenth Amendments.Whether this particular orphan of constitutionaladjudication will ever grow to maturity and findany home at all is more dubious. So far, its growthhas been less than promising. Outside the realm ofFourth Amendment rights, the Court seems tohave found a constitutionally protected privacyonly with regard to sexual intercourse and theconsequences thereof, such as abortion. And, itshould be noted, in recent days the Court has refused to interfere — it has not, as the newspaperswould have it, stamped its imprimatur — in a statelaw that makes a crime of sexual intercourse between consenting adults of the same sex.41Whether this portends a retreat even from the limited concessions to the Brandeis notion of theright to be let alone remains to be seen. Only onething is certain and that is that there is no assurance that the Supreme Court will ever feel obligedto adhere to any of its precedents except thoseenlarging its own jurisdiction.There is flux in other areas of privacy adjudication. Whether a State may ever publish a list ofalcoholics who should not be sold packaged liquors is unclear, but it is certain that it cannot doso without first affording a hearing to the personto be labelled a drunk.42 On the other hand, it hasbeen recently decided that a policeman is not precluded by civil rights laws or the Constitutionfrom circulating a picture of a person accused butnever convicted of shoplifting.43The future of any constitutional privacy doctrine is in grave doubt. My own expectations arenegative. For American constitutional law is, ul-40. Roe v. Wade, 410 U.S. 113, 167-68 (1973).41. Doe v. Commonwealth's Attorney, 44 U.S.L. Week 3543(29 March 1976).42. Wisconsin v. Constantineau, 400 U.S. 422 (1971).43. Paul v. Davis, 44 U.S.L. Week 4337 (23 March 1976). timately if not immediately, a consequence of thesocial conditions and values and needs and desires of the American people. What Holmes declared to be true of the common law in 1881 remains true of constitutional law today:The felt necessities of the time, the prevalent moraland political theories, intuitions of public policy,avowed or unconscious, even the prejudices whichjudges share with their fellow-men, have had a gooddeal more to do than the syllogism in determining therules by which men should be governed.44My own view is that the constitutional right ofprivacy, especially in Brandeis's sense of a rightto be let alone, will always be a minimal and nevera major force in constitutional law. ("What,never? Hardly ever.")*There are two reasons for my conclusion, bothof which require some explication. The first is thata constitutional concept of privacy is undefinedand consequently confused with a great manyother notions that are related but should not beidentified with it, because such identification bothdistorts and demeans it. The second is that "thefelt necessities of the time, the prevalent moraland political theories" are inconsistent with theBrandeis conception and are moving away from itrather than toward it.The right of privacy is undefined, perhaps, because it is undefinable. Like the grand concepts ofliberty and equality, privacy may be too large tobe clearly identified. Indeed, privacy may be onlyanother name for the freedom of the individual.Judge Learned Hand once essayed an attempt atdefinition of liberty. At the outset he rejected asunworthy the assurance that it means the avoidance of "license and anarchy on the one hand,and tyranny and despotism on the other."45 Hestarted, instead, with the proposition that "I thinkI am free when I can do what I want; this tinyprotoplasmal center of radiant energy demandsthat alien impacts shall not thwart its insistencesand its self-assertions."46 He concluded:It is the faith that our collective fate in the end depends upon the irrepressible fertility of the individual, and the finality of what he chooses to callgood. It is the faith that neither principalities, norpowers, nor things present, nor things to come, canrightfully suppress that fertility or deny that good. Itis the faith in the indefectible significance of each oneof us . . .47* Gilbert and Sullivan, H.M.S. Pinafore, Act 1.44. Holmes, The Common Law 5 (Howe ed. 1963).45. Hand, Liberty, in The Spirit of Liberty 144 (2d ed. 1953).46. Id. at 145.47. Id. at 154.117Learned Hand was, however, a realist. And herecognized that the odds were heavy against "thepossibility of the individual expression of life onthe terms of him who has to live it."Liberty is so much latitude as the powerful choose toaccord to the weak. So much perhaps has to be admitted for abstract statement; anything short of itappears to lead to inconsistencies. At least no otherformula has been devised which will answer. If acommunity decides that some conduct is prejudicialto itself, and so decides by numbers sufficient to impose its will upon dissenters, I know of no principlewhich can stay its hand. . . .And yet, so phrased, we should all agree, I think,that the whole substance of liberty has disappeared.It is intolerable to feel that we are each in the powerof the conglomerate mass of Babbitts, whose intelligence we do not respect, and whose standards wemay detest. . . . [T]here was a meaning inJefferson's hatred of the interposition of collectivepressure . . . [S]hall we not feel with him that it ismonstrous to lay open the lives of each to whatevercurrent notions of propriety may ordain.48The essence of Brandeis's notion was that therewere some areas of personal, individual conductthat were not subject to the kind of coercion thatHand was talking about. And the very notion ofthe national Constitution is that there are aspectsof individual behavior that no government, federalor state, could subject to control. To the best oftheir not inconsiderable ability, the authors of theConstitution and the Bill of Rights detailed thoseareas. And among the guarantees was that contained in the Fifth Amendment, that no personshall be deprived of life, liberty, or property without due process of law.There was an emphasis in the MassachusettsDeclaration of Rights of 1780 that reinforces thenotion of the right to be let alone. "It is essentialto the preservation of the rights of every individual, his life, liberty, property, and character,that there be an impartial interpretation of thelaws, and administration of justice."49 The emphasis differs from the national constitution in theuse of the word "individual," rather than "person," for it is to the individual that rights of privacy pertain, and "individual" might never havebeen translated, as the Supreme Court was to interpret "person," to include corporations.50 And48. Hand, Sources of Tolerance, id. at 71-73.49. Art. XXIX, in Perry and Cooper, eds., Sources of OurLiberties 377 (1952).50. See the cases holding that the "liberty" provision of theFourteenth Amendment protects natural persons rather thanartificial ones. Northwestern Life Ins. Co. v. Riggs, 203 U.S.243, 255 (1906); Western Turf Association v. Greenberg, 204 the individual and human nature of the rights werealso emphasized by the addition to "life, liberty,and property" of the word "character," whichmight well be translated as "personality."Sir Isaiah Berlin was also speaking about theindividual, the human criterion of privacy, whenhe suggested that a controlling principle for thegovernance of society was that "there are frontiers not artificially drawn, within which menshould be inviolable, these frontiers being definedin terms of rules so long and widely accepted thattheir observance has entered into the very conception of what is a human being."51 And it is theidea of the uniqueness of the human quality thatmakes the concept of privacy so important.The difference between being a person andbeing an object is, I submit, also of the essence ofthe concept of privacy. T. S. Eliot captured thedifference and the notion of the loss of privacy insome lines in his play The Cocktail Party:Yes, it's unfinished;And nobody likes to be left with a mystery.But there's more to it than that.There's a loss of personality;Or rather, you've lost touch with the personYou thought you were. You no longer feel quite human.You're suddenly reduced to the status of an object —A living object, but no longer a person.It's always happening, because one is an objectAs well as a person. But we forget about itAs quickly as we can. When you've dressed for a partyAnd are going down stairs, with everything about youArranged to support you in the role you have chosen,Then sometimes, when you come to the bottom stepThere is one more step than your feet expectedAnd you come down with a jolt. Just for a momentYou have the experience of being an objectAt the mercy of the malevolent staircase.Or, take a surgical operation.In consultation with the doctor and the surgeon,In going to bed in the nursing home,In talking to the matron, you are still the subject,The centre of reality. But, stretched on the table,You are a piece of furniture in a repair shopFor those who surround you, the masked actors;All there is of you is your bodyAnd the "you" is withdrawn. . . .52Privacy is being a person, an individual, ahuman being and not an object. But in the relationship between individual and government, theindividual is almost always an object to be controlled and not an individual to be set free. So allgovernment control of human behavior is an invasion of privacy, an infringement of personality.U.S. 359, 363 (1907); Pierce v. Society of Sisters, 268 U.S. 510,535 (1925).51. Berlin, Two Concepts of Liberty 51 (1958).52. Eliot, Complete Poems and Plays 307 (1952).118Yet, some government is, of course, necessary.And, as Eliot said, "one is an object as well as aperson." But where government control is notnecessary or essential to the function of the state,it ought not to be acceptable to the constitutionallimits implied in Brandeis's "right to be letalone." This will usually be true wherever thegovernment inhibits a person's actions "for hisown benefit." Or where the government grants abenefit on a condition that it could not otherwiseimpose. It is not a proper governmental functionto buy up personal rights. Every law that compelsa person to do what he would not choose to do isor should be constitutionally suspect.Surely some such compulsion is more suspect than others. It would be difficult to argue thata distaste for paying taxes should exempt a personfrom doing so, even if the taxes are spent for purposes regarded by the taxpayer as odious. Andcompulsions relating to property may be less suspect than compulsions relating to personal action,although there is little doubt that originally theConstitution spoke in Lockean terms of propertyas an essential ingredient of liberty. Moreover,there will obviously be greater justification forsome invasions of personal privacy than* forothers. The lines will be hard to draw. But thegoal is worth seeking and the judiciary may yetmake its contribution. For, to quote still anotherpoet:... a man's reach should exceed his grasp,Or what's a heaven for.53Certainly the Supreme Court's reach has always,in its brightest moments, exceeded its grasp. And,in recent times, it has more and more sought toresolve a free society's most serious difficulties.Why not this one?If I must, then, leave to the evolution of judicialdecisions the definition of constitutional privacy,I would offer some suggestions about distinctionsthat ought to make the task a little easier.It is of the first importance, I should submit,that a distinction be drawn between the idea ofprivacy and the idea of secrecy. Edward Shils inhis postmortem analysis of the problems of theMcCarthy era, in his book The Torment of Secrecy, pointed out that: "Privacy is the voluntarywithholding of information reinforced by a willingindifference. Secrecy is the compulsory withholding of knowledge, reinforced by a prospect of53. Robert Browning, Andrea del Sarto, in Kenyon, ed.,Collected Works 117 (1912). sanctions for disclosure."54 There is, for my purposes, a more important distinction to be noted,especially because Shils was speaking of only oneaspect of privacy, the right against unauthorizeddisclosure of information. When one recognizesthe potential for constitutional privacy in Bran-deisian terms, then the distinction must also befound in the fact that privacy is an individual rightwhile secrecy is a governmental, or at least a corporate, concern. Obviously the right of theindividual — in his individual capacity — not tohave his affairs publicized and to be let alone mustrest on a different rationalization than the right orpower of a government to be let alone or to conceal data from its own citizens or others. Individual liberty is not the same as, indeed it is frequently the opposite of, governmental authority.Not only is secrecy not the same as privacy,events since World War II, if not before, make itapparent that the demand for secrecy is frequentlythe cause for invasion of privacy, both in theBrandeisian sense and in the more familiar termsof the Fourth Amendment concepts of search andseizure. Government spying, both in the McCarthy and Nixon eras, has been justified in terms ofthe necessity for maintaining government secrecy. Government secrecy has only twojustifications. Neither of them is individual liberty. The first is raison d'etat, for which the current rubric is "national security." The second isadministrative convenience, including both thenotion of the necessity for confidential communications and the high nuisance costs of disseminating all information that any one may demand.Any attempt to cover both secrecy and privacyunder one constitutional definition must necessarily work to the diminution of the individual protection or the expansion of the secrecy power,and possibly both. But, it should be noted that ifthe Supreme Court can find a constitutional basis,made up of whole cloth, for executive privilege,55which is a secrecy proposition, it should evenmore readily find in the Constitution the basis foran expansive privacy doctrine. The latter— individual privacy — is consistent with theConstitution's primary function of limitation onarbitrary governmental power. The former— government secrecy — is not; indeed, it is inconsistent with it.A second kind of confusion is frequently effected by the use of the label of privacy to coverthe opposite of secrecy, the movement for "free-54. Shils, The Torment of Secrecy 26 (1956).55. United States v. Nixon, 418 U.S. 683 (1974).119dom of information."56 There is a relationship between privacy and freedom of information, butagain there is certainly no identity. The essence ofthe one is publicity, which is anathema to theother. Freedom of information imposes on thegovernment and others the duty to produce datain their possession, but particularly data that hasbeen collected about an individual. Certainly oneof the reasons for requiring disclosure is to permitan individual whose privacy has been invaded tolearn about the invasion and, presumably, to takeappropriate steps to secure redress for past incursions and to prevent the future use of the data forimproper purposes, that is, for breaches of one ormore of the three aspects of individual privacy.At the same time, freedom of information mayitself result in invasion of privacy, as where thedata to be published to the applicant authorized tosecure it reveals information of a private natureabout other individuals. Thus, when the BuckleyAmendment compels the disclosure to a studentof the contents of his school records, it may compel the disclosures of confidential data of anotherindividual,57 such as a professor's confidentialcommunications about that student. This isequally true of an unedited FBI file, which maycontain information about others than the subjectof the file.This problem does not exist where the compulsory disclosure — freedom of information — relatesto governmental actions. Here the invasion, ifany, is not of privacy but solely of secrecy. Evenhere, however, the line is a fine one. For everygovernment official is also a private individual.We have become enamoured of compulsory disclosure of financial and other data about government employees. When there is no connection between the information to be secured and the corruption to be prevented or corrected, it is clearlyan invasion of the government employee's privacy. The more so when the data sought are notthose of the individual employee but those of hisrelatives and associates.58 Publicity may be ahealthy preventative of, or corrective for, governmental malfeasance, but only to the degree that itactually relates to possible malfeasance and notwhen it simply exposes the private affairs of an individual because he happens to be a governmentemployee. Some of the psychological tests administered to actual or putative government employees are clearly an unwarranted invasion of theirprivacy.56. 5 U.S.C. § 552.57. 20 U.S.C. § 1232(g).58. Casper v. Walker, #75 C. 4047, U.S. Dist. Ct. N.D. 111. Again, we should not confuse Brandeis's rightof the individual to be let alone with what wasonce known as "laissez-faire." In the nineteenthcentury and well into the twentieth, the concept ofindividuals and individual freedom was pervertedinto a form of constitutional protection against theregulation of corporate and organizationaleconomic activities. It should be clear that privacy is an individual's right and not that of a corporation, or a class, or an association. When theaffairs regulated are not those of individuals butthose of groups, the concern is not privacy. Thisis not, of course, to suggest that corporations,classes, organizations, and associations are notentitled to constitutional protections, includingcertainly those of due process of law and freedomof speech and press and political activities. It issimply to say that the right of privacy is essentially the right of a person, an individual, a humanbeing.The right of privacy cannot bear the burden ofincluding freedom of corporations and unionsfrom regulation. To broaden it so is to destroy it.The rejection of substantive due process in theeconomic regulation cases has been too strong tobe overcome now. But those cases, with the possible exception of Belle Terre,59 which upheld anordinance limiting the use of private houses to onefamily, were all directed against interference withstate regulation of economic enterprises,60 notpersonal behavior. It is economic due processthat has been rejected, not substantive due process, which implies a judgment that the state orfederal legislature has not carried its burden ofpersuading the Court of the necessity for the legislation. As Mr. Justice Stewart said, Griswold andDoe are in fact substantive due processdecisions,61 but they are not economic due process cases. The same standard of judicial review,requiring the government to prove the necessityfor its legislation rather than indulging a presumption of validity, has been established in the area ofequal protection of the laws,62 in the area of FirstAmendment rights,63 and even in the right-to-travel cases,64 where the constitutional authority59. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).60. See McCloskey, Economic Due Process and the SupremeCourt, 1962 Supreme Court Review 34.61 . Epstein, Substantive Due Process by Any Other Name: TheAbortion Cases, 1973 Supreme Court Review 159.62. See, for example, Cleveland Bd. of Educ. v. LaFleur, 414U.S. 632 (1974).63. See Stone, Fora Americana: Speech in Public Places, 1974Supreme Court Review 233.64. See Rosenheim, Shapiro v. Thompson: "The Beggars AreComing to Town," 1969 Supreme Court Review 303.120is as undefinable as it is in the "privacy" area.Again, "laissez-faire" was a claim by corporations for freedom from economic regulation, privacy is a claim by individuals for freedom of personal behavior. The two may overlap, but shouldnot be confused.It is, however, neither the lack of clarity in theconcept of privacy nor its confusion with equallyimportant and related ideas that makes me doubtits future growth or even its preservation. For tome it appears — as I have said — that "constitutional privacy" is not a "felt necessity of thetime." Rather it is a demand for freedom that runsagainst the current of most of the major socialmovements and changes that are receiving theSupreme Court's imprimatur as well as those ofthe legislature, the executive, and even mostacademics.I am saying that I think the right of privacy isnot now a highly valued one in our society and ofdecreasing rather than increasing popularity. Although of ancient vintage — it derives perhapsfrom the first bite of the apple of the Tree ofKnowledge — it cannot be said to be pervasivelyregarded as a necessity or even an affordable luxury by most American citizens. It was an earliergeneration that thought: "The world is too muchwith us; late and soon." Our own demands seemto be for more rather than less.Privacy is a factor of decency and civility whichare waning — perhaps waned — elements in a society where sadism and violence constitute ourprimary form of entertainment; where guns arecherished and butter damned, because butterkills; where politeness is regarded as superfluousat best and male chauvinism at worst; where language is debased and becomes meaningless;where the criminal is regarded as the victim ofsociety rather than society the victim of the criminal; where Andy Warhol is art and Pierre Bon-nard is "kitsch"; where music is reduced tomathematical formulas, produced by mechanicalair pumps, played by a computer; where adultsare more concerned with the gossip columns andsports pages of the newspaper than any others;where learning is valueless if it is not "practical";where reason is suspect and emotion is king. (Excuse me, my biases are showing.) The OxfordProfessor of Poetry recently described our times:"An age that puts its trust in the ordering intellectwill distrust and underplay the instincts. An agelike ours which worships the instinctual will become anti-rational. It is no accident that our agehas seen reason and lucidity sink to their lowestlevels of esteem since man came down from the trees."65 And, in such a society, the right of privacy is esteemed no greater than lucidity andreason.In such a society, privacy is valued highly bysome self-styled intellectuals and by some petitbourgeois, but mostly by those who, in the greattradition of the Fourth and Fifth Amendments,seek protection against arrest and conviction forcrime. Gerald Heard once told us why the intellectual demands privacy. "We can only understand the intellectual's intellectualization of theirown emotion when we realize that what theysense and dread is their individuality's destruction."66Those concerned with Learned Hand's sacred-ness of the individual are a rapidly diminishingnumber. So, too, are those capable of feelingshame, or embarrassment, or guilt, or fear, whichare so often the consequence of invasion of privacy. All of these old-fashioned emotions arebeing exorcized from our society, individually andcollectively, by our modern witch doctors.There are, too, more potent forces at work diminishing the possibility of constitutional privacy.And foremost among these is the service state,that form of government that came upon us directly after the New Deal and the Second WorldWar. (One need only describe the chronologywithout assigning cause and effect.) It is since thattime that so much more of our lives has increasingly become the objects of governmental control.The essence of understanding the English constitutionalists is to be found in the premise that"Liberty of the individual is nothing more thanthe residue of his conduct which remains unfettered by any Law."67 This, too, it should be seen,is the definition of the third aspect of constitutional privacy, the right to be let alone, to remainungoverned, "unfettered by any law." In a service state, such as our nation has now become,that residue is declining at a rapid rate. AndAmericans are no longer fettered only by lawsmade by elected legislatures, the fetters are farmore frequently chains that are forged by individuals and bureaus, often without legislative authority and sometimes in the face of legislativepolicy to the contrary. (In recent days, The NewYork Times has reported the unedifying spectacleof several Senators petitioning an administrativeagency to promulgate a rule of law for which theseSenators are unable to secure the support of a65. Wain, Samuel Johnson 157 (1974).66. Quoted in Rosenbaum, ed., The Bloomsbury Group 25(1975).67. See note 13 supra.121majority of the Congress. Administrative agencies no longer go to Congress for authority to act;they are now recipients of pleas from Congressmen that the agencies make the laws.) Thus liberty is no longer limited by laws alone, but farmore frequently by executive orders, by administrative regulations, by bureaucratic guidelines, bysimple exercise of discretion at the lowest level ofthe pyramid, and even by judicial actions forgingmajor policy determinations for society withoutconstitutional or legislative authority. Everywhere we hear — to the chagrin and cost of theindividual citizen and his freedoms — of inherentconstitutional powers of government not to beseen in, and most difficult to infer from, the Constitution: inherent powers of the President, inherent powers of the Congress, inherent powers ofthe judiciary.Allow me a long quotation from Professor Edward Shils, who, because he knows far more onthis subject than I do, should have been deliveringthis lecture. Writing of privacy and the servicestate, he said:The night watchman state is now only a dim trace ofthe past. The area of what is public has grown, andthe domain of the private has retracted. . . . Governments believe that they must be responsible forthe enhancement of the economic strength of theirsocieties and the physical well-being of their peoples. Doing or trying to do so much, they think theymust increase their knowledge proportionately. . . .They also wish to know more about those whomthey rule. They believe that they need to know moreto confer on them the benefits they desire. They believe they must know about them to protect the orderfrom which they wish to move forward to furtherimprovements. The acquisition of knowledge neededfor these purposes increases the desire for moreknowledge. The knowledge which is sought is knowledge of particular individuals and institutions andgeneral knowledge about social and economic systems. . . .This expansion diminishes the sphere of the private. To restriction by regulation it adds intrusion byknowledge. The diminution of privacy by intrusiveperception of the personal and corporate privatespheres is greatly aided by the development of newprofessions for the acquisition of knowledge abouthuman beings, by the growth in the numbers ofeconomists, sociologists, anthropologists, educationists, psychologists, political scientists, andby the techniques of research cultivated by theseprofessions. It is also aided by the strengthening ofold professions (or occupations) such as those attending to detection, intelligence, and counterintelligence.6868. Shils, Privacy and Power, in Pool, ed.? ContemporaryPolitical Science 232-34 (1967). Yes, the universities, too, contribute to the barriers we continually erect against individual privacy. And, like all invaders of privacy, they sharea self-righteousness that affords self-justification.But, as Mr. Justice Frankfurter once noted:"Self-righteousness gives too slender an assurance of Tightness. "69Let me touch on just one more major socialmovement that surely inhibits the growth of aright of individual privacy. This time the immediate sponsor was not the legislature or thebureaucracies, although they have come round tosupporting the movement, but the judiciary. Irefer to the egalitarian movement that derived itsoriginal impetus from the Supreme Court's decision in Brown v. Board of Education, 70 a judgment with which I have no quarrel, indeed, whichI wholeheartedly endorse. There was a timewhen, as Mr. Justice Holmes told us, the EqualProtection Clause was the "usual last resort ofconstitutional arguments."71 It has since becomethe primary resort for those who would changethe social structure through judicial action. Butmore has changed than lawyer's rhetoric.Brown v. Board of Education and its successors mark the fundamental shift of constitutionallimitations from protection of individual rights toprotection of class rights. They have helped destroy the objective of a classless society which, Ibelieve, was of the essence of a democraticdream. They moved the constitutional concept ofequality from Jeffersonian political equality,which was a means, to substantive equality, whichis an end. They moved the measurement fromequality of opportunity to equality of condition.They spawned what Daniel Boorstin has called,in a book of that title, The Sociology of theAbsurd, which is no longer sociology, but jurisprudence, and which is no longer absurd, but real.But most important, for my immediate purposes,was the implied rejection, by the enlargement ofthe Equal Protection Clause in the way the Courthas done it, of the importance of the individual,the rights of the individual, the integrity of theindividual.Daniel Bell has recently written of this phenomenon:It is this erosion of the immediate, the personal, andthe individual, and the rise of bureaucratic authority,which lead to so much irritation and disquiet. In the69. Joint Anti-Fascist Refugee Committee v. McGrath, 341U.S. 123, 171 (1951).70. 347 U.S. 483 (1954).71. Buck v. Bell, 274 U.S. 200, 208 (1927).122United States, the tension between liberty and equality, which framed the great philosophical debates inEurope, was dissolved by an individualism whichencompassed both. Equality meant a personal identity, free of arbitrary class distinctions. It is the lossof that sense of individuality, promised by equality,which gives rise to a very different populist reactiontoday, both among the "left" and the "right," thanin the past.72Without individuality, there is no function forprivacy. When we become fungibles to be manipulated by government, there can be no recognition of idiosyncracies, no private realms to husband against intrusion. We are reduced to extirpating differences, not maintaining them. Distinctions, in fact, become discriminations in law andare labelled invidious and therefore unconstitutional.With the lack of popular demand, with thebureaucracies of the service state expanding theirken, with egalitarianism the dominant jurisprudential theme,73 it seems to me that the Private Iis a phantom, not the ghost of an actuality, but thespecter of a dream never to be realized.I continue to think, however, that privacy as aconstitutional concept is fundamental to a freepeople. It inhibits government surveillance andsearch and seizure, electronic and otherwise; itinhibits publicizing personal data and papers andevents; it commands that men be free ofunjustified governmental control, the right "to belet alone." In its pristine form, it is certainly aconstitutional concept beyond realization. It iscertainly beyond the puny powers of the judiciaryto effect, assuming they wanted to do so, whichthey don't. For, from the beginning, this countryhas seen the contest between the ideals of Jefferson and the principles of Hamilton resolved infavor of the latter.The question, then, is whether the mood of thecountry — what older historians once called "theclimate of opinion" — can yet be enlisted in thecause of privacy, or individuality, or personality,or liberty, however you would label it. As I havealready said, my answer is negative. The presentZeitgeist is against the enhancement of theindividual's authority over himself and in favor ofthe authority of Big Brother. Current political no-72. Bell, The End of American Exceptionalism, in Glazer andKristol, eds., The American Commonwealth — 1976 209-10(1976).73. The academic bible that expresses the creed ofegalitarianism is Professor Rawls's A Theory of Justice(1971). Its essential premise is that all men are equal, and to theextent this is so, the function of the state is to keep them so; tothe extent the premise is false, it is the function of the state tomake them equal. tions from left and right call for the sacrifice ofindividuals to the demands of society.Judge Learned Hand, however, whose wisdomwas greater than most, certainly greater thanmine, spoke with more hope in an even less hopeful period of our history. It was in 1942, when theconflict between totalitarianism and freedom wasbeing waged by force of arms, that Judge Handmemorialized Mr. Justice Brandeis and concludedin these words:This, the vastest conflict with which mankind hasever been faced, whose outcome still remains undecided, in the end turns upon whether the individualcan survive; upon whether the ultimate value shallbe this wistful, cloudy, errant You or I, or that GreatBeast, Leviathan, that phantom conjured up as anignis fatuus in our darkness and a scapegoat for ourfutility.We Americans have at last chosen sides; we believe that it may be idle to seek the Soul of Manoutside Society; it is certainly idle to seek Societyoutside the Soul of Man. We believe this to be thetranscendent stake. . . . But our faith will need againand again to be refreshed; and from the life of[Brandeis] we may gain refreshment. A great peopledoes not go to its leaders for incantations or liturgiesby which to propitiate fate or to cajole victory; itgoes to them to peer into the recesses of its own soul,to lay bare its deepest desires; it goes to them as itgoes to its poets and its seers. And for that reason itmeans little in what form this man's message mayhave been; only the substance of it counts. If I haveread it aright, this was the substance. "You maybuild your Towers of Babel to the clouds; you maycontrive ingeniously to circumvent Nature by devices beyond even the understanding of all but ahandful; you may provide endless distractions to escape the tedium of your barren lives; you may rummage the whole planet for your ease and comfort. Itshall avail you nothing; the more you struggle, themore deeply you will be enmeshed. Not until youhave the courage to meet yourselves face to face; totake true account of what you find; to respect thesum of that account for itself and not for what it maybring you; deeply to believe that each of you is a holyvessel unique and irreplaceable; only then will youhave taken the first step along the path of Wisdom.Be content with nothing less; let not the heathenbeguile you to their temples, or the Sirens with theirsongs. Lay up your Treasure in the Heaven of yourhearts, where moth and rust do not corrupt andthieves cannot break through and steal."74Such is my message to you about "The PrivateI." But I would not leave you on such a sombernote. Let me close with an anecdote to which Itestify as an eyewitness. Its appropriateness willbe quickly apparent to you.74. Hand, Mr. Justice Brandeis, in The Spirit of Liberty173-74 (2d ed. 1953).123Some years ago a person who shall remainnameless, except to say that he was dean of a lawschool and later provost and president of a university, hosted a dinner party for some of his faculty members. At the end of the evening, when itcame time to say good night, one of the guestsapologized to the dean, saying, "I am sorry that IDecember 30, 1975We are pleased to report substantial improvements in Library operations for 1974-75. Theeconomic pressures of recent years continue, andwe have been forced to reduce or constrict important activities, but we are making significantheadway in our efforts to resolve the dilemma ofall major university research libraries in this decade: how to provide the growing and improvedservices educators and researchers must have despite inflation and economic retrenchment.When The University of Chicago opened itsdoors in 1892, the Library consisted mainly of theBerlin Collection of 130,000 volumes. It was eventhen one of the largest in the country and a majorfactor in the University's ability to attract a distinguished faculty and embark immediately on innovative teaching and research programs. Although the Library now has over 3.6 million volumes and 5 million manuscripts to serve thesesame functions, it still must continue to grow insize and service to meet the developing needs ofcontemporary and future scholarship.The classic 1828 Report of the Yale Facultyposited the nineteenth-century concept of highereducation when it stated that "Our prescribedcourse contains those subjects only which oughtto be understood ... by everyone who aims at athorough education." This course consistedmostly of classics and mathematics which, thefaculty insisted, were all that is necessary for "thediscipline and the furniture of the mind; expanding its powers and storing it with knowledge."This limited curriculum taught largely by a system of lectures and recitations required few booksand library services. But by the time The Univer- talked so much." The dean's reply was: "That'sall right; you didn't say anything."Philip B. Kurland is the William R. Kenan, Jr.,Professor in the College and Professor in theLaw School.sity of Chicago was founded at the end of thecentury all this had begun to change. The electivesystem replaced the former concept of a prescribed curriculum because, in the words of President Eliot of Harvard, it "fosters scholarship,because it gives free-play to natural preferencesand in-born attitudes [and] makes possible enthusiasm for chosen work." The educational implications of this concept were further developedby John Dewey, one of The University ofChicago's early professors, who popularized aparallel revolution in educational philosophy bydemonstrating that students learn best by studying a subject that interests them deeply and thenapplying to it the now familiar problem method ofgathering data, formulating hypotheses, and thentesting them.These changes required the Library to developlarge and broadly based collections and made itthe central tool of higher education. The librarysucceeded the classroom as a home of learning.President Harper pioneered at Chicago anotherdevelopment that has been a hallmark of majoruniversities in the twentieth century. He "proposed to establish, not a college, but a University. . . directed toward graduate work . . . the chiefpurpose [of which] is not to stock the student'smind with knowledge of what has already beenaccomplished in a given field, but rather to trainhim so that he himself may be able to push outalong new lines of investigation ... in otherwords, it is proposed in this institution to makethe work of investigation primary ..." This concept, furthered by the University's keen sense ofits obligation to investigate and serve social andpublic needs, led to a proliferation of degree programs and research activities which added sub-REPORT ON THE OPERATIONS OF THE LIBRARY, 1974-75124stantially to the Library's responsibilities. As aresult, knowledge and research becamespecialized and proliferated.So also the Library has grown greatly in sizeand administrative complexity. Because scholarsin the Humanities and Social Sciences use theLibrary as scientists use their laboratories, andbecause their work often crosses disciplinarylines, the Library must organize vast and complexcollections in such a way that they are all readilyand efficiently accessible. It must develop a staffof skilled specialists to collect all the importantmaterials in many fields, to organize these resources, and to guide users to the materials theyneed. It must develop accurate and up-to-datebibliographic and circulation systems. It mustcreate a proper atmosphere for original work.Complexity can be no excuse for confusion.Now the Library is a basic system of access tothe information sources that students and scholarsrequire in the educational and scholarly atmosphere of this research-oriented University. Tomeet this responsibility as best we can in a periodof severe financial restraints compounded by thehighest rates of inflation experienced in recentyears, our policies have been designed to reduceas many administrative and operating expenses aspossible and, at the same time, to improve ourinternal operations and to develop increasinglysophisticated services to our users in forms whichwe hope will also provide substantial long-termeconomies. Looking to the future, we are also inaugurating ambitious plans for fund-raising andcoordinating our efforts with the University's annual giving programs and the Campaign forChicago. Library BudgetBudget problems were the overriding concernduring the 1974-75 fiscal year and affected all aspects of the Library's activities. The Library successfully remained within its budget in 1974-75and is on a sound financial footing. Expenses exceeded $5 million for the first time and increased7.6 percent over the previous year and 22.7 percent since 1970-7 11 (see Table I).Direct comparisons can be misleading. Thelarge increase in the supply budget is caused bythe growth of the Library automation project, forexample, and the decline in the binding budget ispartly due to the Library's decision to use cheaperbindings in an effort to save money.Increases in dollar expenditures have beenmore than offset by rising costs. By applying1974-75 unit costs to the purchase level of 1970-71 ,the decline in the real budget becomes apparent(see Table II).The impact of rising costs is evident in manyways. Despite the 18.6 percent increase in totalsalary expense in the last five years, the size of thestaff has been reduced by 1 1 percent. The bookand serials budget has risen even more, 22.2 percent, but this should be considered in light of rising unit costs (see Table III).Since it is imperative to maintain a high level ofserials acquisitions so that the Library can remainabreast of current scholarship, an increasingproportion of the collection development budgetis devoted to this purpose (see Table IV).1. All budget data have been adjusted to compensate for prepayment in 1973-74 of some 1974-75 purchases and for a majorrestricted gift to Special Collections in 1974-75.TABLE I: TOTAL LIBRARY EXPENSES1970-71 1973-74 1974-75 % Change over1970-71 1973-74ExpendituresBook & SerialBindingSub -total $1,032,555183,748(1,216,303) $1,152,421176,639(1,329,060) $1,261,987168,618(1,430,605) +22.3- 8.2+ 17.6 + 9.5- 4.5+ 7.6SalarySupplies & all other 2,350,741509,525 2,680,457639,134 2,789,082781,569 + 18.6+53.4 + 4.0+22.3Total $4,076,570 $4,648,651 $5,001,256 +22.7 + 7.6125TABLE II: COMPARISON OF SELECT BUDGET CATEGORIES1970-71 with 1974-751970-711974-75 level1970-71 Unit @ 1974-75 Actuallevel Cost cost 1974-75 DifferenceSalaries 355.5 FTE 8,911 $3,167,860 $2,789,082 $-378,778Books 55,310 vols. 18.40 1,018,704 589,318 -429,386Binding 60,408 vols. 3.37 203,575 168,618 -34,957Serials 27,860 24.64[cost/title] 687,209 674,567 -12,642Supplies, etc. 12.5%budget 625,157 781,569 + 156,412Total $5,729,505 $5,003,154 $-726,351TABLE III: UNIT COSTS FOR BOOKSAND SERIALSCost/Book Cost/Serial1970-711972-731974-75 $10.6613.4418.40 $14.6116.3724.64Faced with a books and serials budget whichhas increased only 22.2 percent over the fiveyears, the Library has had to reduce its purchaseof books and monographs by 43.9 percent in orderto maintain its serial collections. Over the yearsthe result of this policy is almost certain to be adecline in the quality of the retrospective collections, which provide an essential perspective oncontemporary work.To summarize: the Library budget has increased significantly (22.2 percent) over the pastfive years but its purchasing power has still de clined dangerously. Substantial reductions in staffand in the quality of certain purchases, such asbindings, have resulted. Every effort has beenmade to advance the automation project whichpromises improved services at minimal increasesin cost. However, the balance and overall qualityof the collections is endangered.To restore the full level of activities of 1970-71would require more than the 1974-75 budget allowed. Of this sum the greatest need is for the$442,028 to maintain the quality of the collectionsfor which the Library is famed. If they are longallowed to fall into decline, it may be impossibleand certainly will be increasingly costly to restorethem.Collection DevelopmentOver the last five years, the Library has had toadjust its collection development activity to abudget that every year has bought only about 90percent as many books as the year before. Even inTABLE IV: EXPENDITURES FOR BOOKS AND SERIALSFiscalYear Books SerialsTotal %ExpenseforSerialsNumber Expense Number Expense1970-711973-741974-75 55,31035,26530,878 $597,663566,003589,318 41,62841,75142,120 $434,892586,418672,669 $1,032,5551,152,4211,261,987 42.150.953.3126a period of continuing decline in acquisitions,however, we can, and should, still speak of theexcellence of this Library's collections. Excellence, of course, is more than the accumulating ofso many million volumes of books and journals. Itinvolves, as well, an ongoing interaction of individuals in wide-ranging fields of learning with thediverse literatures of those fields and with eachother. One use of adversity is to force questionsof value, to make us define our objectives moredeliberately.To be of any real value, any revisions of collecting policy will have to clarify priorities and provide options for varying levels of funding.Likewise, we will have to answer a number ofgeneral questions such as the range of programsthe Library can realistically hope to support andto what role it can commit itself as a regional andnational resource. This sort of reappraisal has itsdangers. In setting priorities, the Library willhave to be rigorously critical but wary, too, that itdoes not overreact to the pressures of the moment. It must make adjustments to the immediatebudgetary situation, but it must also maintain continuity with its past and the probable needs of thefuture.Happily, there are other encouraging developments to report. Acquisitions for area study programs remained relatively strong. Our MiddleEastern Bibliographer initiated a blanket order forcurrent Turkish imprints to augment our alreadystrong holdings in this area. Now ranked amongthe top four Middle Eastern libraries in the UnitedStates, our collection was considerablystrengthened last year by an intensive program ofretrospective buying. In the Slavic area, non-current acquisitions through exchange yieldedsome 200,000 pages of text in microfilm, and anexchange arrangement for current Albanian imprints was added to our existing contracts for Bulgarian, Hungarian, Romanian, Czechoslovakian,and Soviet Union publications.Heartening advances were made in severalother areas. A recovery in the rate of acquisitionsoccurred in our Far Eastern Library, where 5,500volumes in Japanese were added, an increase of2,500 over the recent annual average, along with6,000 volumes in Chinese, the largest number inthe last four years. In the social sciences, HEWfunds provided some very specific benefits to ourSocial Services Administration and EducationLibraries: the one bringing its holdings in ethnicand urban studies up to a working strength andbeginning a core collection in women's studies;the other finally acquiring a long-needed basic col lection of audiovisual materials.Outside these few areas, the serious decline incollection development can be seen in the absolute arithmetic of the statistics. One can note thatthe allocation of book funds to the selectors thisyear was based on better documentation and morethorough discussion than in recent years and thatthis resulted in more adequate levels of supportfor a number of areas. Nonetheless, there are stillthe overall statistics that tell us the collection is introuble. Efforts to realize economies and makeour expenditures still more purposeful have beenmade and will continue to be made.Library StaffAlthough the turnover of personnel remained at anormal level, four long-term members of the staffretired during the year: Stanley Gwynn, Associate Director for Subject Services and Collection Development; Jan Wepsiec, Social SciencesBibliographer; Agnes Whitmarsh, Map Librarian;and Massimila Wilczynski, Cataloger. It will bevery difficult to replace the special knowledge andexperience of these able and committed people.We are working to improve the quality andefficiency of our staff. During the year we conducted a review of the top administrative positions in the Library. Our attempt to identify theskills required to improve administrativeefficiency resulted in the definition of a number ofnew positions and the inauguration of an intensiverecruitment program. A number of highlyqualified new administrators were on the staffby the Fall Quarter of 1975.The Library Personnel Officer in cooperationwith the Industrial Relations Center developedtraining programs to strengthen managementskills. We also formulated new personnel policiesto parallel this effort, giving particular emphasisto a performance evaluation procedure. We havedesigned and adopted a system to do this, and allprofessional supervisors have attended trainingsessions so that it can be fully implemented nextyear.Readers' ServicesServices to the public remained at about the levelof the previous year, but staff shortages resulted ina lower rate of efficiency and access to materials.It took longer to charge and discharge books,shelving was delayed, pick-up of materials andstacks was slower, and lockers and faculty studieswere inspected less frequently. Desirable service127standards could not be maintained with reducedstaffing levels.But we have given considerable emphasis toimproving procedures for handling documentsand eliminating substantial backlogs. We haveexpanded the recording of currently received publications and developed procedures to transfermaterials to binding and cataloging morepromptly. Reference service is still somewhat limited, but the integration of documents into the general reference department increases the number ofknowledgeable service personnel and the hours ofservice available to users.The Library has implemented a new privilegecode and increased fees assessed for outside usersfor the first time since 1942. Fortunately we wereable to compensate for this limited access imposed on outside users by joining the Illinois Library Network as a library of last resort. Thismeans that the Library can participate in astatewide network to augment the resourcesavailable to its clientele and that we will receive afee for loans made from our collections to otherlibraries.Library AutomationThe area of greatest promise for improved operating efficiency and control of cost is the LibraryData Management System. The initial development grant from the National Endowment for theHumanities and the Council on Library Resources expired at the end of 1974 with manytasks remaining to be done. However, the Council on Library Resources has extended the grantuntil June 1976 by which time we should haverealized direct cost and operational benefits. Upto now the greatest emphasis in the Data Management System has been placed on the bibliographic and technical processing subsystem sothat work on the circulation system has had to bedeferred. Problems resulting from the conversionfrom the standard operating system to the virtualstorage system on the IBM 370/168, slow response time on the 370, and the difficulty of establishing the Varian 73 communication system delayed the implementation of various modules. Theimpact of these delays on Technical Services wasconsiderable, but by the end of the fiscal year allknown problems had been identified and werebeing addressed, and a production system for Library processing was close to reality.Unfortunately, this delay in the automation system for processing materials forced the Library torevert to manual procedures to order books for nearly six months. Interim cataloging procedures resulted in substantial backlogs in cataloging current materials and in preparing catalogcards. Only very limited and inadequate accesswas available for many current monographs. Bythe end of the fiscal year, however, many modulesof the Technical Services automation programwere in early production stage, and the prospectof a truly operational status by midsummer waspromising.Fund- RaisingWe hope to minimize and perhaps even to reverserecent financial trends by undertaking an ambitious fund-raising and development program. Afull-time experienced development officer joinedthe staff in November 1974. We are preparing abrochure for use in the Campaign for Chicagowhich explicitly states our needs for financialsupport for current activities and endowmentof book funds and key staff positions. In an attempt to develop clientele who are responsive toour problems, we have planned a series of receptions and exhibits in our Special Collections Department and formed a Library Society. The Society conducted a most successful founding meeting on May 20, 1975, and already has nearly 400memberships. The energetic and enthusiasticchairperson, Ann Dudley Goldblatt, and aFounding Committee of 20 members have helpedformulate a varied program for the 1975-76 fiscalyear. It may take several years for these efforts tobear fruit, but the Society has already made valuable contributions to the Library and we are convinced that its members are the nucleus of a largergroup of interested and responsive persons whowill help to insure our continued growth and development.ConclusionWe hope that on the whole 1975-76 will be morepositive than 1974-75 has been. The impact of ourimprovements in administration and personnelpolicies should begin to take effect soon. We anticipate that the inflation will continue, although,hopefully, at a lower rate. We fear that unless wehave stronger financial support there will be acontinuation of the decline in our collections andservices. Immediate prospects are that the clerical staff will be reduced by an additional five percent and that the book budget, although larger,will not be sufficient to maintain last year's rate ofacquisition.128Financial constraints have created seriousproblems for the Library in recent years, forcingsevere restrictions upon our ability to improvecollections and services. But, we have carefullyreexamined our role and responsibilities, instituted significant improvements in our internaladministration, and undertaken new programswhich will soon improve our services to users. WeTHE 359TH CONVOCATION ADDRESS:By CHARLES E. OXNARDJune 11 and 12, 1976I have no intention of explaining to you how thecorrespondence that I now offer came into myhands. Suffice it to say that the old don is a mostproductive scholar; it is doubtful if anything thathe writes could ever be lost; whenever he produces written materials he gives a copy to all inhis field, and also, of course, to the president.And the young professor interprets interpretations; he collects reprints and never throws awaythe written word; that will only be, of course, untilthe day that he writes some of his own.My listeners are also advised to remember thatprofessors (including this one) are full of doublemeanings. Not everything that Professor Curmudgeon, the old don, says should be assumed tobe true, even from his own angle. And I havemade no attempt to identify any of the studentsmentioned in the letters; the names have beenchanged to protect the innocent. But I think itunlikely that the portraits drawn briefly here ofMr. Applepolisher, Ms. Eversharp, Mr. Grind,and the others are either wholly just or whollyinappropriate. There is wishful thinking evenamong the professoriate. You may even recognizeyourselves — students, professors; that is not, ofcourse, my intention.We must further remember that there are twoequal and opposite errors into which professorscan fall regarding students. One is to harbor an continue to believe that the current financial constraints will abate and that the ingenuity and efforts of a highly qualified and dedicated staff willattain again the high quality of library serviceswhich the University requires.Stanley McElderry, DirectorThe University of Chicago Librariesexcessive and unhealthy interest in them. Theother is to disbelieve in their existence. You havebeen, all of you, unwitting sufferers from one orother of these grievous professorial faults; I leaveit to you to judge which applies to our correspondents.My Dear Professor Underdog:I note what you say about guiding your student'sreading and taking care that he sees a good deal ofyou, his closest adviser. But are you not being atrifle naive? It seems to me as if you believe thatteaching is the way to educate him. That mighthave been so were you at one end of the log andhe at the other. But your student, Mr. Applepolisher I believe you called him, has beenaccustomed from his childhood to seek out histeachers. He has been brought up to persuade youthat he has a thousand facts dancing about together inside his head, never minding that they arein total disarray. He doesn't think of hypothesesas true or false, but as academic or practical, asoutworn or contemporaneous, as conventional orinnovative. Jargon is his theme.Don't waste time trying to teach him. Makehim think that he must now learn on his own. Bythat I mean that his last trip abroad, or the summer job that he took in the hospital pharmacy, arepreparing him for his diploma. Make him thinkthat the life that he has so far led leads on to adegree.THE CURMUDGEON CORRESPONDENCE:LETTERS FROM AN OLD DON TO A YOUNG PROFESSOR129I think you begin to see my point. Thanks toprocesses that were set at work in Mr.Applepolisher' s mind in his infancy, you will beable to avoid enlightening him. From the waysome of you young professors talk, anyone wouldsuppose it was our job to teach.Your affectionate colleague,CurmudgeonMy Dear Professor Underdog:I wonder that you should ask if it is essential tokeep your student Ms. Eversharp in ignorance ofyour existence. That question has, at least in ourpresent phase of educational development, beenanswered for us by the Administration. Our policy, for the moment, is to reveal ourselves.This faces us, of course, with a cruel problem.When you do not have contact with Ms. Ever-sharp, you cannot guarantee a deficit from lack ofcontact. Time, books, thoughts may all defeatyou. Thus, when you are commanded to meet together, you must not put off the occasion with theolder excuses of academic travel, visiting seminars, peer review, outside consultation, administrative committees, classified research, and thelike. Yet your presence with Ms. Eversharp may,however much you hope to blunt her, provide thevery stone against which she may sharpen herwits. The excitement of true scholarship, of trueresearch, is a hard thing not to communicate, although I do not think that you will have muchdifficulty here. Your best plan is to continue thisfootling, banal project that you told me of in yourlast letter. [Editor: There are some gaps in ourcorrespondence.]Should she not respond to such treatment, forsome student minds are yet able to dream dreamsand see visions, then your main ploy shouldchange. You should bring all your energies to bearon pamphlets, policies, meetings, movements,causes, comrades, crusades, and science for thepeople. You cannot thus fail to trap her into theinconsequential.Come some day and look at my old gradesheets. I can show you a pretty dull lot there.Your affectionate colleague,CurmudgeonMy Dear Professor Underdog:So you have great hopes that your student, Mr.Erratic, is displaying a dying away of hisacademic activity, have you? I always thoughtthat the faculty had gone to pieces, now that theyput at the head of it old . . . [Editor: Here the textseems to be stained with tea and marmalade]. Has no one ever told you about "the law of undulation"?Students are chimaeras: half academic, halfnonacademic. Their academic halves may be inthe ascendance and they produce. Then comesthe turn of their nonacademic halves. This iswhere Mr. Erratic is. Let me warn you, as an oldand experienced full professor: the nearest approach of such a student to constancy is undulation. If you had watched him carefully, you wouldhave seen this cyclicity in every department of hislife. Do not be misled. The dryness and dullnessthrough which your student is now going is not, asyou fondly suppose, your workmanship. It ismerely part of a natural phenomenon which willdo us no good unless you make good use of it.You must ask yourself what your student wantsto make of it and then do the opposite. Undoubtedly Mr. Erratic uses his nonacademic troughs (ashe probably believes them to be) in order to bracehimself for his assaults on the academic peaks (ashe thinks they are). Tomorrow morning he willrise with a shining desire to make amends. He willhurry to the laboratory and make that very discovery that you have been hiding from him. Ourcause is never then in greater danger.What better response can you make at this timethan to seize upon his desires; ply him with note-taking (your own, of course); present him withthat dusty packet of data produced by your previous student, Mr. Grind, and suggest six separateadditional analyses that should be undertakenupon it. Or choose this moment to discuss thematter of Mr. Erratic's last research projectwhich, in a moment of rare insight, he turneddown; rekindle his interest in those well-worn, indeed, outworn ideas. Suggest he take further timeoff to rethink his whole position. By these alternate, opposite actions you will be able to stall himin a measure of massive but worthless pseudo-academic activity. Thus, taking advantage of thelaw of undulation, you will merely have to awaithis next peak (or as he believes it, trough) ofnonacademia.I do believe I sense that you are making progress with your student. I hope that I am not beingmisled by the excellence of my own suggestions.Your affectionate colleague,CurmudgeonMy Dear Professor Underdog:I was delighted to hear from Professor Hardnosethat your student Miss Bright Eyes has madesome very desirable new acquaintances and thatyou seem to have used this event in a really prom-130ising manner. I gather that these are exactly thesort of people we want her to know. Smart,superficially intelligent, brightly skeptical abouteverything in the world. And I gather that theirmain contribution is that they believe, in a purelyfashionable sense, that connections between disciplines will form the main raison d'etre for theirpresence in this institution. They do not see howsuch connections, in the absence of solid pillarsgrounded in each parent discipline, form merelyan ephemeral archway in the sky.Well, Miss Bright Eyes is exactly the sort totravel upon such a bridge. Tell me more. Has shegone entirely upon this pathway? Does she provide those evidences that she is skeptical of the"conventional," proud of "innovation," and apractitioner in "futurism"? Can you be certainthat she is truly lost in this particular hazard ofacademia and, indeed, of life? You must preparefor the day of her awakening. Sooner or later, thenature of her new friends and the fragility of hernew position will become clear to her; then yourtactics will depend upon her intelligence.If she is really as big a fool as you believe, youwill always be able to persuade her of the realityof her case whenever you get her away from hernew friends. Your own approbation of her conduct, your own additions to her theoretical ideas(you will give some thought yourself as to howyou can contribute to her cross-disciplinary leanings) will all carry her through her periods ofself-doubt.However, if she is really rather more intelligentthan you think, you may have a bigger problem onyour hands. Here you must be somewhat morecreative. Suggest to her that her particular cross-disciplinary link is not as strong as it might be.Help her to find appropriate criticism of her newfound position. And she will turn away. Aha! Atthis point you must be ready. You must misleadher into believing that she is the complete, balanced, complex woman who sees all. Thus, whilebeing permanently unable in at least two academicareas or more, she will feel, instead of ineptitude,a continual undercurrent of sophistication.You may not even have to use very much newlanguage; pay attention to some of our presentdescriptive phrases; the word "gap" is mostuseful — credibility gap, generation gap, academicgap. Intelligent though she may be, I doubt if yourstudent will realize the utter truth in your newterminology.Your affectionate colleague,CurmudgeonP.S.: I suppose I just ought to remind you that Miss Bright Eyes may be lost to you forever if shediscovers the reality of well thought out interdisciplinary links. For just as we have succeeded bycreating pseudo-disciplines linking nonsubjects,so may your student succeed by realizing that realdisciplines, once well understood, do have important things to say to one another.My Dear Professor Underdog:So you are in difficulties with your latest student,Mr. Argumentative; no doubt he is able to arguebetter than you. But you are correct; we can all ofus be trapped, by such individuals, into thinking.Did I ever tell you of my own most successfulploy in dealing with such a case: "The Principleof the False Dichotomy?"At that time I introduced most useful discordby emphasizing the conflict of teaching versus research. This successfully hid the reality of theresearch-teaching unity for a number of years andin many institutions. Unfortunately, that usefuldichotomy has been lost to us, for recent excavations into the archives have demonstrated unequivocally the falsity of setting research againstteaching in our institutional memory.It is not entirely certain just how clearly Mr.Harper saw this unity when he wrote: "The timehas not come in America to separate the collegefrom the university; the line between the two hasnot been clearly drawn." But Mr. Burton subsequently confirmed the advantages of a universityconducting college work: ". . . it injects into thecollege the spirit of research"; and Mr. Masonspoke of "education by participation in research.It is not too much to hope for. " There was then theperiod that was useful for my purpose: "A teaching faculty . . . separate from the research facultyof the university and . . . exclusively concernedabout undergraduate education." But Mr. Kimp-ton soon questioned this position: "How," [Mr.Kimpton asks], "do we begin to put these faculties back together again?"And with Mr. Levi this was legislated and Iquote: "... Research properly conceived is thehighest form of education; without new insightsand a new vision, no one can recreate for himselfor for others the great traditions of the past, understand the cultures of today, or work withtheory as a living structure" for tomorrow. It isclear that the research and teaching dichotomy isnot only false but dead.However, I can reveal to you that I have discovered another form of words that can beguaranteed to split faculty from faculty, and student from student. This is the dichotomy between131liberal education on the one hand and special education on the other. If you can play upon Mr.Argumentative, and perhaps also upon the facultywith whom he comes in contact, you may successfully apply this new dichotomy.But take care. You must not allow the reality tobe glimpsed even for a moment. You must findevery mechanism to prevent the realization, ineither your students' minds or those of your colleagues, that this idea, too, is truly false. Onceagain, the conception of unity must be hidden.Not once should you allow recognition of the factthat the thing that we customarily call liberal education is superficial, nay, even fails, to the extentthat it cannot recognize the liberating values ofspecial education. Not once should you allow awhisper to be heard that perhaps special education, nay, even professional education, must contain, and propagate, all the virtues of the liberalarts. [Editor: You will readily understand thatCurmudgeon's warning has great interests for me:one whose sole general education, and an excellent one I believe it to have been, having been thestudy of man leading to a medical qualification.]Again, let me warn you — do be careful.Your affectionate colleague,CurmudgeonThere are many further letters in such vein. Wemust now ask ourselves, what is the relevance ofthis for you, you who have reached a point in your359TH CONVOCATIONSTUDENT ADDRESSBY ROBERT BEALSIn preparing remarks to be addressed to a graduating class, a speaker is forced to deal with the double nature of the occasion. It marks both the conclusion of a significant part of our lives and thebeginning of a new chapter. Is it a time forreflection or for anticipation and preparation? Ihave chosen the former course; considering thestrong inclinations of U of C students toward introspection and self-analysis, that decision is notoverly surprising. But in looking back over fouryears on this campus, it is apparent to me that thedual nature of this event is no accident, that ourlife here has been characterized by opposites, and educational lives culminating in a degree? Youshould know that you will have successfully defeated such professors as Curmudgeon and Underdog only if your education has not ended atthis point. Both the learning you now have andthat yet to come provide underpinnings, for yourprofessional lives in whatever careers youchoose, for your public lives as responsible citizens, and for your intensely personal, pleasurablelives as educated men and women. If your education ceases at this point, then, a degree notwithstanding, Professors Curmudgeon, Hardnose,and Underdog and the others will still have wontheir little game.You may be interested to know more about thepseudonym "Curmudgeon" applied to our letterwriter. Dr. Johnson derives the word from coeurme chant or wicked heart and he gives credit to anunknown correspondent. Sutherland tells us thatDr. Ash, who borrowed the word from Dr. Johnson, derived it from coeur: unknown andmechant: correspondent. It is thus doubly appropriate in the present context. You will also nodoubt have recognized my indebtedness to C. S.Lewis and, of course, to Old Screwtape.Dr. Charles E. Oxnard is Dean of the College andProfessor in the Departments of Anatomy andAnthropology , in the Committee on EvolutionaryBiology, and in the College.that I cannot escape dealing with pairs merely bychoosing one of them.This student body seems at times to be a doubleor multiple one; certainly we cannot be accused ofbeing single-minded or united. One need onlynote that the last time this many members of ourentering class were together under one roof wason Sunday of orientation week, 1972, when wewere welcomed to the University with another setof forgettable speeches. And our physical separation pales in comparison with our political separation. We are incapable of agreeing on even a description of the political events which have occurred. We have seen a spokesman for a controversial opinion denied the right of free speech oncampus by individuals who mouth beliefs in civilliberties. Or did we witness a legitimate protestagainst the University's granting a platform and132an appearance of official sanction to a man whoseviews may be regarded as repugnant to decenthumans? We have seen a concerned inquiry intothe relationship between a University professorand a foreign government stifled. Or did we witness a witch-hunt stopped before it infringed onan individual's right to his own views? The listgoes on and on; we are not held together by acommon attitude toward campus politics.Similarly, our life-styles diverge. On-campusresidents and apartment-dwellers have formeddifferent views of life in Hyde Park. Stereo owners and nonowners are known to have occasionaldifferences of opinion. And in at least one collegehouse even the beer-drinkers and nondrinkerswere at each others' throats at one point.Education, and in particular education at thiscollege (The College), is no less a source of disagreement. The "common core" has its ferventopponents and equally dedicated proponentsamong us. The whole concept of a liberal education, to which the College seems to be dedicated,is viewed as a worthwhile ideal by some and animpediment by others.So, we are hopelessly splintered as a studentbody. But of course we are not; in true U of Cfashion we are conscious of a common identityamidst the differences; we share a common memory. In these four years all have experienced carefully thought-out, well-organized, interesting, exciting courses, which have provided exposure tosomething new — art, perhaps, or astronomy, oranthropology. . . . And all have endured dreadfulcourses, which have made new material unbearably boring or confusing, and which usually seemto be scheduled for 8:30 in the morning or forimmediately after lunch in a warm room. All students here, I think, have been inspired by at leasta few great teachers, whose knowledge of theirsubject is vast, whose enthusiasm is unbounded,and whose ability to transmit that enthusiasm,even to students interested in fields totally unrelated to their own, is amazing. And all, I know,have had a few genuinely terrible teachers, whosehandling of material has been so inept, or so boring, as to stifle any possible spark of interest thestudent might have in the subject, and whose performances have been poor enough in some instances to result in their prohibition from teachingany more undergraduate courses.We have shared a common life-style, to a greatextent. The campus libraries, especially Regenstein, have been central to a great part of thesefour years, as befits a campus where academicsare taken more seriously than sports. On the other hand, sports facilities, or the lack of them, havebeen a cause of unanimous concern; an appropriate situation for a campus where recreation ishighly regarded, and academics are not taken tooseriously.Education here does provide us with anothercommon denominator. The desire to analyze andask "why" is deeply ingrained, even to the pointwhere analysis is so detailed as to be absurd andanswers become impossible, We have a feeling forthe importance of intellectual pursuits, and ofourselves, and also of the relative insignificance ofboth. After all, we are graduating from a renowned university and seat of learning which isalso virtually unknown, not only to the averageperson, but to the average Chicagoan.The College has tempered us; the word seemsappropriate since it has two essentially oppositemeanings, both of which apply. Intellectually thisschool toughens, but it also moderates at the sametime, so that its students seem able to stand backand view the world with a slightly bemused expression on their faces. We have been molded bythe College, or manipulated perhaps, and broughtfull circle. When, at our last gathering, we werebrought together, it was to be separated— students one way, parents the other. Now weare brought together again to be separated — onlythis time in all directions. Has The University ofChicago made us into one, or two, or many? Yes,of course it has.Robert Michael Beals received a Bachelor ofArts degree and a Master of Science degree duringthe Convocation; his major area of study wasmathematics.359TH CONVOCATIONSTUDENT ADDRESSBy MICHAEL LEWIS DVORKINAs we sit here, graduating seniors of The University of Chicago, we all ask ourselves the sameimportant question: what is our place in the universe and have our years at the U of C preparedus for it? Is there room for us on the long unemployment line of life? Are we prepared to enterthe real world of responsibilities, taxes, andreturnable coke bottles? Or, to put it another way,133if we were blindfolded and dropped somewhere inChicago, with only 45<fc in our pocket, would wemake it home alive? It is to these questions that myspeech will be directed in the hope of coming to areasonable conclusion.Our education at The University of Chicagorivals that of any other institution of higher learning in the country. Although we may not yet beable to beat Harvard in a game of football, wecould massacre them in a game of Chess or Mah-Jongg. For here at the U of C, we receive ageneralized liberal education, producing well-rounded individuals. Yes, ladies and gentlemen,what you see up here is the Renaissance man. Nolonger will I feel awkward at a cocktail party orother social gatherings, for my knowledge of triviais boundless. No longer can I be tricked by someone claiming that Aristotle was a star pitcher forthe New York Yankees or that Socrates was theman behind Bozo the Clown. For yes, I have readthem and read them and read them and read them.My education, to say the least, at the Universityhas been excellent. I was a biology major in themidst of the Pre-Med rat race. However, I cansafely say that I have never had any one of my labexperiments deliberately tampered with to ruinmy results. Then again, one did not have to ruinmy experiments, I usually did it myself. This littleanecdote can perhaps shed some light on theproposed question. Just the other day, I was walking down the street and a man wanted to know if Iwished to buy an original Cezanne for ten dollars.However, due to my excellent art history trainingand the fact that I had just bought the originaldown the block for five dollars, I knew it was onlya copy and an expensive copy at that.We are not only educationally, but also sociallyprepared for our place in the universe by TheUniversity of Chicago. We have all made friendshere whom we will cherish for the rest of ourlives. We have also made enemies whom we willforget as soon as we leave. Our lives have beenbrightened by attending a university that is secluded but at the same time in the midst of a hugeurban metropolis. No longer will I be able to takelong walks to the Point and watch the dead fishroll up onto the beach or take strolls on the Midway marveling at the wonders of nature, one handpointing at the beautiful cloud formations and theother firmly planted on my wallet so it wouldn'tget stolen. How often we would use the benefitsof Chicago and go downtown to Orchestra Hall,the Auditorium, the Art Institute, or a massageparlor for a bit of relaxation. But we didn't have to go downtown very often for campus offered us asocial life that rivaled a Las Vegas Hotel on aweekend night. On a Saturday night, there wouldalways be a square dance, a ping pong or badminton tournament to occupy our time. If thisproved too exciting for us, we could always go toRegenstein Library, our beautiful social center, tolet off a little steam or go to a dormitory party.Dormitory life for most of us was a vital step inour preparation. I lived in Woodward Courtwhose architecture reminded me so much ofSing-Sing Penitentiary. How many of us remembered having our clothes stolen while showering,being involved in a good water fight, or paying anall-night tribute to the porcelain goddess whosesiren-like flush reminded us of that evening's bigmistake. And let us not forget Jimmy's, the localtavern, which is as U of C as President Wilson.One could always go there to meet a student orprofessor and have a beer or two or three. Itsimmaculately kept furniture and wonderful atmosphere made us feel as if we were in aConrad-Hilton lobby. The homeyness of Jimmy'swas reinforced by the melodious voice of Jimmyhimself yelling "CHEESEBURGER." Thus,with our active social lives and our opportunitiesto meet many types of people, so many weirdtypes of people, we are prepared to meet the universe head on.Even athletically we have been conditioned forour niche in the cosmos. More than 70 percent ofthe students at The University of Chicago compete legally and illegally in intramural sports. Inmy career as a collegiate wrestler for the University I have learned one important lesson: pain. Ihave been contorted into as many positions as youcould imagine during wrestling season. But TheUniversity of Chicago's days as an easy opponentin intercollegiate athletics are numbered. Our athletic programs are making great strides and it isonly a matter of time before Chicago's athletictradition is as great as that of past years.In concluding, I believe that the University hasprepared us for our place in the universe. In itsways, it has matured us and given us the ability toface and accept the real world. That is, if we wereblindfolded and dropped somewhere in Chicago,which by the way just happened to a friend ofmine last week, we would make it back to the U ofC alive; perhaps not in one piece, but alive. If Ihad these four years to do over again, I would stillcome back to the University with no regrets. It hasbeen a lot of hard work but also a lot of fun. Inleaving the University, a part of it remains with134me: a Regenstein clock, sixteen text tubes, threeErlenmeyer flasks, and one athletic departmentbaseball cap.Michael Lewis Dvorkin received a Bachelor ofArts degree during the Convocation; his majorarea of study was in the biological sciences.359TH CONVOCATIONSTUDENT ADDRESSBy JOHN VAILThere's a rumor about convocations around herethat if the heat doesn't kill you, the student speakers will; so I'll try to be brief.I know that it's hot and stuffy in here, and ifthere's one thing I've learned in four years in theCollege, it's that there's nothing I hate more thansitting in hot stuffy rooms listening to hot stuffyharangues. I'd say I'll be damned if I give one,but I've heard that one very popular punishmentin hell is making you wait in insufferably longlines, and I vowed that after I got out of the College, I wasn't going to wait in line for anything.Quite seriously, though, completing the degreeprogram has occasioned quite a bit of seriousreflection, and I'd like to share some of mythoughts with you. I'll try to do so without pomp-ousness or pontification — for my own sake, if notfor your's, because I can't stand either. But becareful; I might just try to slip in some moralizingwhile you're not looking.There is a tendency on the part of people connected with this University to think of it as a special place, a place different in some important waynot only from other institutions in general, butfrom other institutions of its kind. Well, that'sprobably true. Where else do they print the"Keep Off the Grass" signs in Latin?Equally, there is a tendency to think of ourselves as different, at least from people who havenot been connected with this kind of institution.Well, that's probably true, too. After all, whatself-respecting resident of any normal communitywould tolerate four years in a neighborhood thatonly has one bar? Yes, I'll admit that we're different, but no one has convinced me yet— andseveral have tried — that we're any better; that four years sweating through the jungle ofacademia makes a person any better than a personwhose sweat has been spent on other toil.As we prepare to accept roles in the "realworld" — that area which has been defined asanywhere north of 47th Street, west of CottageGrove, or south of 61st (purposely leaving outeast of the lake, because I wouldn't want anyoneto think I was including New Jersey in the realworld) — we tend to think of ourselves as beingsapart from the rest of society. We cast ourselvesas square pegs in a society that only has roundholes — or, for the more accurate-minded amongyou, prismatic pegs in a society that only hascylindrical holes. We dichotomize those who areor have been associated with academia and theteeming millions who have not been as fortunateas ourselves. That dichotomy is valid in the limited sense that it differentiates two groups, but todichotomize the world so is to analyze only twoparts of an entity which is multifaceted. Asacademicians, we ought to look at how useful it isto distinguish so. In any case, the dichotomizationitself is of little significance. What is important,and what I find repugnant, is the assertion thatthose dichotomized parts can be ranked, that education implies some sort of necessary and immediate personal superiority.We do leave here different, we're distinguishedby the remarkable tools of intellect we havelearned to use. But that distinction alone is nomeasure of our worth. We, as all others, are servants of our culture. As persons marked by qualities of intelligence and imagination, we are fit forroles equivalent to those which call for physical ormechanical aptitude. But, for all the talents wemight possess, our roles will be ill-filled if we failto bring to them appropriate qualities of character. It is character which distinguishes the merepedagogue from the person of use to his or hercommunity.As we go on to fill our social roles, if we fail tobring to them the qualities of thoughtfulness, ofintrospection, of morality, of respect for theworth of others, and, yes, even of love for yourfellow person — notice that the atmosphere became awkward when I spoke of love; we ought toquestion why it has to be awkward to speak froma public platform about love for your fellowbeings — if we fail to bring these qualities to thoseroles, we will serve as no more than embarrassments to those teachers who have accepted thesacred roles of passing on the knowledge theyhave acquired and of protecting that knowledge135from being profaned by those who offer nothingbut talent. To pride ourselves on our talents whileneglecting our duty to serve is to betray our culture.I charge you — and you might ask who am I tocharge you with anything; perhaps because I'mno different than yourselves I dare to do so — notto bask in your education, but to grow in it; not torevel in the breadth of your experience, but totranscend its limits; not to pride yourselves inyour accomplishments, but to shrink in humilitybefore the vastness of that which you do notknow. I charge you to become all that you arecapable of being: that is the only valid measure ofyour worth.Walk in peace, people.John Vail received a Bachelor of Arts degreeduring the Convocation; his major area of studywas in the Politics, Economics, Rhetoric, and LawProgram in the New Collegiate Division.SUMMARY OF THE 359THCONVOCATIONThe 359th Convocation was held on Friday andSaturday, June 11 and 12, 1976, in RockefellerMemorial Chapel. John T. Wilson, President ofthe University, presided.A total of 1,575 degrees were awarded: 387Bachelor of Arts, 14 Bachelor of Science, 104Master of Arts in the Division of the Humanities,4 Master of Fine Arts, 94 Master of Arts in theDivision of the Social Sciences, 1 Master of Artsin Teaching, 16 Master of Science in Teaching, 3Master of Science in the Division of the Biological Sciences and The Pritzker School ofMedicine, 24 Master of Science in the Division ofthe Physical Sciences, 27 Master of Arts in theDivinity School, 14 Master of Arts in theGraduate Library School, 191 Master of Arts inthe School of Social Service Administration, 348Master of Business Administration, 156 Doctor ofLaw, 1 Master of Comparative Law, 106 Doctorof Medicine, 2 Doctor of Ministry, and 82 Doctorof Philosophy.Three Llewellyn John and Harriet ManchesterQuantrell Awards for Excellence in Undergraduate Teaching and seven honorary degreeswere also awarded. Recipients of Doctor of Humane Letters degrees were Henry Chadwick, Dean of ChristChurch in the University of Oxford; MaryRosamond Haas, Professor of Linguistics at theUniversity of California, Berkeley; Eric J. Hobs-bawm, Professor of Economic and Social Historyat Birkbeck College of the University of London;and Cesare Segre, Professor of Romance Philology at the University of Pavia. Doctor of Sciencedegrees were awarded to Donald David Brown,Member of the Carnegie Institution of Washington and Professor of Biology at Johns HopkinsUniversity; William Alfred Fowler, Institute Professor of Physics at California Institute of Technology; and Gunther Wilke, Director of theMax-Planck-Institut fur Kohlenforschung atMulheim and Professor of Organic Chemistry inthe University of Bochum.Dr. Charles E. Oxnard, Dean of the Collegeand Professor in the Departments of Anatomyand Anthropology, in the Committee onEvolutionary Biology, and in the College, delivered the principal Convocation Address, entitled:"The Curmudgeon Correspondence: Lettersfrom an Old Don to a Young Professor."At the undergraduate session, three membersof the graduating class also spoke. They wereRobert Michael Beals, John Vail, and MichaelLewis Dvorkin.QUANTRELL AWARDSThe University's 1975-76 Llewellyn John andHarriet Manchester Quantrell Awards for Excellence in Undergraduate Teaching were presentedduring the 359th Convocation, June 11-12, 1976.Upon the recommendation of Charles E. Oxnard, Dean of the College, and D. Gale Johnson,Provost, John T. Wilson, President, designatedthe following three winners.Frank Kinahan, Assistant Professor in the Department of English and in the College.Leonard K. Olsen, Associate Professor ofHumanities in the College and in the Committeeon Ideas and Methods.Richard P. Taub, Associate Professorial Lecturer in the Department of Sociology and in theCollege and Co-chairman of the Public AffairsProgram and the Sociology Program in the College.A total of 143 Quantrell Awards have beenmade since the program was established in 1938.136THE UNIVERSITY OF CHICAGO MEDALCREATEDTo: The University of Chicago RecordFrom: D. J. R. BrucknerVice-President for Public AffairsThe Board of Trustees has created a University ofChicago Medal, to be given by the Trustees fromtime to time. The resolution adopted creating themedal reads, in part:It is proposed that the Trustees establish an award tobe known as The University of Chicago Medal, thepurpose of which is to recognize distinguished serviceof the highest order to the University by an individualor individuals over an extended period of time. Theaward would be made by the Board of Trustees,through an appropriate Committee of Trustees, onthe basis of recommendations arising within theBoard itself or from those brought to the attention ofthe Board by an officer of the University. The awardshould represent the highest honor that the Univer-BOARD OF TRUSTEES ELECTS NEWOFFICERSTo: The University of Chicago RecordFrom: D. J. R. BrucknerVice-President for Public AffairsAt its annual meeting on June 10, 1976, the Boardof Trustees elected new officers:Robert W. Reneker, Chairman of the Board.Robert S. Ingersoll, Deputy and First Vice-Chairman.Kingman Douglass, Jr., Second Vice-Chairman.Mr. Reneker is the ninth head of the Board ofTrustees. His predecessors were:President of the BoardE. Nelson Blake, 1890-1892Martin A. Ryerson, 1893-1922Harold H. Swift, 1922-1949Chairman of the BoardLaird Bell, 1949-1953Edward L. Ryerson, 1953-1956Glen A. Lloyd, 1956-1963Fairfax M. Cone, 1963-1970Gaylord Donnelley, 1970-1976 sity can bestow upon an individual or individuals forreasons related to sustained distinguished service,other than scholarly achievement.The standards and criteria which determine thebasis for awarding the Medal should be sufficientlyhigh that it will be made only for services to the University which evidence an unusual and sympathetic understanding of the unique qualities and character of this University and its aims, which reflect acontinuing dedication and personal commitment overand above that which might reasonably be expectedof those associated with the University throughTrusteeship or otherwise, and which benefit the University as a whole.The Medal should not be regulated by any calendaror frequency of award. Most importantly, the Medalshould be seen as reflecting recognition by the Boardof Trustees of rare and exceptional friends of theUniversity, who have given distinguished and sustained service to it.On June 10, 1976, the first University ofChicago Medals were presented by the Trusteesto Mrs. Helen Regenstein and Mrs. C. PhillipMiller.NEW TRUSTEE ELECTEDJames T. Rhind, a partner in the law firm of Bell,Boyd, Lloyd, Haddad & Burns, has been electedto The University of Chicago Board of Trustees.DEPARTMENTS OF PHYSICAL EDUCATION FOR MEN AND FOR WOMENMERGETo: The University of Chicago RecordFrom: D. J. R. BrucknerVice-President for Public AffairsOn June 21, the Trustees of the University approved the merger of the separate Departments ofPhysical Education for Men and for Women. Thenew department is known as the Department ofPhysical Education and Athletics.137BOARD OF ATHLETICS ANDRECREATIONAL SPORTS ESTABLISHEDTo: The University of Chicago RecordFrom: D. J. R. BrucknerVice-President for Public AffairsOn June 21, the Trustees approved the establishment of a University Board of Athletics and Recreational Sports as a governing board. The creation of the Board had been concurred in by theDepartments of Physical Education for Men andfor Women, and by the Committee of the Counciland the Council of the University Senate.The scope, function, and responsibilities for theboard follow:A. This Board shall be concerned with all phasesof athletics, intramurals, and recreational sportsin the University, including the effective implementation of the University's athletic and recreational programs and the use and condition ofthe athletic facilities.B. In furtherance of the foregoing, the Boardshall:1. Recommend policy on the scope, functions,and objectives of the sports programs in the University, including intercollegiate athletics, intramurals, and recreational sports. It will reviewfor effectiveness the programs in physical education.2. Review and make recommendations in connection with the annual budget for the Department of Physical Education and Athletics.3. Conduct an annual review of the conditionsof athletic facilities and equipment, which shallinclude consideration of the priorities for allocating facilities to the various groups who use them.4. Request an annual report from the Directorof Athletics concerning achievements, implementation of policies, and objectives of the Department of Physical Education and Athletics.5. Review annually intercollegiate athleticschedules with the Director of Athletics. (Theprimary responsibility for scheduling shall restwith the Director of Athletics in consultation withthe coaches of the individual sports.)6. Recommend candidates for the position ofDirector of Athletics. 7. Maintain communication with: (a) the faculty and professional staff of the Department ofPhysical Education and Athletics through the Director of Athletics; (b) the Midwest CollegiateAthletic Conference (and recommend appointment of the faculty representative to that Conference); (c) related groups in the University (suchas faculty, staff, and students), the undergraduateOrder of the "C," the Women's Athletic Association, the several "athletic clubs" which areaffiliated with the University, the graduate Orderof the "C," the Alumnae Board of the Women'sAthletic Association, and the Visiting Committeeon Student Programs and Facilities. (Representatives of these groups may be invited to appearbefore the Board, as the occasion arises.)C. In implementing its responsibilities, it is expected that the Board will rely on the Director ofAthletics for staff assistance and will solicit theDirector's recommendations.ERRATATo correct the last issue of the Record, VolumeX, number 3, please note these changes:Page 86, paragraph 2. Copy should read: ". . .The nine women represent 10 percent of thefemale population, whereas the eleven men represent 3.6 percent of the male population. Proportionately, then, our women show a higher rate ofunemployment than do the men."Page 103. Edward E. Lowinsky was listed as the"Ferdinand Schevill Distinguished Service Professor"; his professorship should read: "Ferdinand Schevill Distinguished Service ProfessorEmeritus."Page 104. "Edward A. Shils, Jr." should read"Edward Shils."138THE UNIVERSITY OF CHICAGO RECORDVICE PRESIDENT FOR PUBLIC AFFAIRSRoom 200, Administration Buildingb C/3 §t* fD o4O fDH1 H* HU> P3 ftO h-»^O OO COH» fDH» 3fD ftO 13-rt P3H- h-»O3CO_ O zTP I om* c ?33 P u?> -0) 3POSTAGAID0,ILLINTNO.31 o§-* O rn a*> 5T o0) 3