Fowler "Chick" Vincent Harper
Fowler "Chick" Vincent Harper 1867-1965
Ohio Northern College of Law Class of 1921
Author of 'the Right of Privacy'
Harper was born in Germantown, Ohio, in 1897. He graduated from West High School in Columbus, Ohio, before attending Denison University. Harper enrolled in the law program at Ohio Northern in 1918 and became a popular student. He participated in many campus organizations, sang with the Men's Glee Club, participated in basketball and football, and wrote a newspaper column for the Ada Record. Harper passed the bar exam during his third year of law school and was admitted to the Ohio bar before his graduation in 1921.
Instead of practicing law, Harper chose to coach a football team at Wilmington College. The Quakers had not won a game in three years, and under Harper's coaching, won 16 out of 20 games in a period of two years. Unhappy with the administrative support at Wilmington College, Harper resigned in 1923.
Harper's academic career began at Ohio Northern when he accepted a temporary appointment as a substitute English instructor. He then went on to teach law at the University of North Dakota, the University of Oregon, Louisiana State University, the University of Texas and Lucknow University in India. He spent most of his career at two schools: Indiana University, where he served as professor of law for 16 years, and Yale University, where he served of professor of law for 17 years, holding the prestigious Simeon E. Baldwin chair.
It was at Indiana and Texas Law Schools in the 1930s where Harper made his mark in the field of torts. From 1926 to 1939, Harper published 30 law review articles, 22 book reviews, three casebooks and a seminal treatise on the law of torts. During this time, he was also active in the preparation of the first "Restatement of Torts." Virtually everyone in the field of tort law was taken with Harper's treatise. His peers called it "much the best thing yet written on the law of torts," "extraordinary power of analysis," and "a clear, accurate and intelligent analysis of the law as it is becoming."
By the end of the 1930s, Harper became increasingly involved in public life. In 1939, he was appointed general counsel to the Federal Security Agency. This position involved him in five major New Deal agencies, which led him to become an adamant New Dealer by 1940. Harper was a delegate in the 1940 and 1944 Democratic National Conventions, where he consistently took liberal positions. During this time, he also appeared regularly on a radio show called "What America Thinks." These years really shaped the direction Harper would follow the rest of his life. While he would go on to accomplish a great deal more as a legal scholar and teacher, he increasingly worked as a legal activist. .
Harper joined Yale's faculty in 1947. Many consider Yale's faculty in the post-war years the finest law faculty ever assembled. Harper consistently took stands against the rising tide of McCarthyism. He attacked the unfairness of proceedings before the House Committee on Un-American Activities and urged its abolition. He worried about the effects of McCarthyism on the nation as well as the profession. This led to several members of the Yale law faculty to urge Harper to debate William F. Buckley shortly after Buckley had published his book, McCarthy and His Enemies. The debate, held at Yale in 1954, had a major impact on the audience.
Harper's greatest scholarly achievement was his 1956 multi-volume treatise The Law of Torts, written with his Yale colleague Fleming James. This achievement received international recognition, and a fellow of Pembroke College, Oxford, wrote that the "publication of this work is a major event for all those on both sides of the Atlantic who are interested in the development of the common law." Lawyers and judges have repeatedly recognized the authority of the treatise.
It was in the 1950s and 1960s that Harper made his mark as the "author of the right of privacy." In the 1950s, a criminal statute of the state of Connecticut prohibited the use of contraceptives. Doctors and druggists who sold contraceptives were liable to prosecution in the state as accessories. Harper sought to challenge it and filed a declaratory judgment action on behalf of a physician, C. Lee Buxton, and two of his patients, seeking a ruling on the constitutionality of the statute. Harper argued the statute offended the most basic sense of individual liberty, a fundamental right of privacy. The case was eventually put in front of the Supreme Court, but Justice Frankfurter, writing for a 5-to-4 majority, ruled the action did not present a genuine case since Buxton and his two patients had not been prosecuted under the statute. The case was dismissed in 1961.
Harper had another chance to bring his case to the Supreme Court in the landmark case Griswold v. Connecticut. After the dismissal of the case against him in 1961, Buxton opened a Planned Parenthood Center in New Haven. Estelle Griswold was the executive director of the center. Both dispensed birth control devices to women at the center and consequently were arrested for violating the Connecticut statute. Only a few months before his death, Harper argued before the Supreme Court of the United States that the Ninth and Fourteenth Amendments to the Constitution protect a right of personal privacy. He contended that the right of privacy encompassed a number of rights or interests that the framers of the Bill of Rights recognized in the First, Third, Fourth and Fifth Amendments.
Harper died of cancer on Jan. 8, 1965. Later that year, the Supreme Court decided the Griswold case in favor of Harper's clients. In a fragmented opinion, the court ruled the Constitution did protect a right of privacy but could not reach agreement on exactly what language of the constitution supported such a right. Justice Douglas' lead opinion used the entire Bill of Rights as the textual standard and found the right of privacy in the "penumbra" of the first 10 amendments. Other justices looked to the Ninth Amendment or the liberty clause of the 14th Amendment.
In 1989, the Ohio Northern University College of Law established the Fowler V. Harper Faculty Scholarship Award for Outstanding Contribution to Legal Scholarship in honor of Harper and his great influence on our law as a civil libertarian and activist. His passion for civil liberties, and in particular his belief that the Constitution protects a general right of privacy, continues to shape our law.