In 1928, in his famous dissent in Olmstead v. United States (1928), Supreme Court Justice Louis Brandeis crowned the right to privacy as the core value in American life.1p “The makers of our Constitution,” Brandeis declared, “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men.”1p Brandeis’s ringing tribute may have been on the losing side in the 1920′s, but since then Americans have increasingly come to share his view of the right to be let alone as the key to individual dignity, autonomy, and fulfillment.1s Indeed, in our time, commitment to the right to privacy shapes debate on everything from media analysis to medical treatment.2s Meanwhile, calls to shift governmental functions from the public sphere, which is usually associated in this discourse with incompetence, waste, and stagnation, to the private realm, which is typically linked with resourcefulness, efficiency, and progress, have grown apace.3s
Rather than attempting to explain how Americans came to put such a premium on private life or why we seem less and less inclined to participate in public affairs, this essay presents a snapshot of the historical moment when the right to privacy was first recognized as a fundamental principle of American law. By locating the arguments that Brandeis and his law partner, Samuel Warren, advanced in“The Right to Privacy” (1890) within the social, cultural, and political landscape of the late nineteenth century, I hope to show that the valorization of private life that is so evident in postmodern American society began as what may be described, to borrow a phrase that has been used in other contexts, as a revolt against modernity. 2p 4s While this revolt can be generally defined as a reaction against the rise of industrial capitalism, it can be more specifically understood an attempt to preserve the traditional family from both the unsettling effects of the women’s rights movement and the invasive aspects of mass culture, especially as embodied in the popular press.
Many other scholars have drawn attention to the conservative, patrician, and patriarchal standpoint of “The Right to Privacy.” 5s Taking these works, most notably, Anita Allen and Erin Mack’s “How Privacy Got Its Gender,” as my starting point, I try to place Brandeis and Warren’s article even more concretely within the cult of domesticity that consumed American society in the decades after the Civil War.6s What becomes clear when “The Right to Privacy” is set directly within the flood of lithographs, advice books, advertisements, newspaper editorials, political tracts, and legal rulings that idealized the family throughout this era is that Brandeis and Warren were not mapping out an area in which individuals–male or female–could exercise some type of freedom of choice. In the late nineteenth century, the private realm was almost never seen as a space in which individuals enjoy a significant degree of liberty.7s Instead, marching in lockstep with contemporary celebrations of the family, “The Right to Privacy” equated the private sphere with the traditional family circle, an arena in which individuals were expected to find fulfillment, not by choosing among various modes of behavior, but by bending to the discipline inherent in the hierarchy of the home.
Placing Brandeis and Warren’s work within its historical context also shows that the public/private dichotomy did not, in its original iteration, draw a boundary between political coercion and individual freedom. On the contrary, in nineteenth-century American culture and legal theory, the public realm generally signified the world of social climbing, economic conflict, and political one-upmanship. The private sphere, in contrast, referred to that part of life in which human beings meet (or fail to meet) their moral obligations. Whereas classical European versions of the public/private split revolve around the distinctions between state and family, politics and biology, reason and passion, citizenship and self-interest, freedom and necessity, the public/private dichotomy in the United States, at least as it emerged near the end of the nineteenth-century, provides yet more evidence of American exceptionalism.8s As indicated by the anti-political sentiments expressed by Brandeis and subsequent champions of the right to privacy, the political process, at least in times of relative peace, usually appears in the American intellectual tradition, not as an expression of our capacity engage in the vita activa, but as a largely superficial system in which self-interested groups and individuals scramble for pieces of pie. 9s
Brandeis and Warren accordingly defended the private realm as an asylum from the whole of modern society and did not even single out government from other ostensibly distasteful features of modernity such as mass entertainment and yellow journalism. Meanwhile, by celebrating the domestic sphere as the area in which each man develops his “inviolable personality” or, as Brandeis later put it in Olmstead, his “spiritual nature,” “feelings,” and “intellect,” they set up the family as the site of authentic experience. The private/public dichotomy, from this peculiarly American standpoint, pits the moral reality of the family against the hollow and frequently corrupting spectacle of business, politics, and social frivolity. In short, for Brandeis and Warren, the family home was the genuine center of human existence, and everything else was just the shallow world outside.
In order to comprehend how the right to privacy evolved over the course of the twentieth century, it is, therefore, necessary first to locate its origins in late nineteenth-century anxieties about the ways in which the forces of modernity seemed to threaten the order of family life. What we shall see if we set aside more recent tendencies to conflate privacy and freedom is that Brandeis and Warren wrote “The Right to Privacy,” not because they felt that the conditions of modern industrial society were impinging on individual liberty, but because they believed that these conditions had made it increasingly difficult for individuals to practice the discipline required to discharge properly their particular duties as fathers, mothers, daughters, sons, sisters, brothers, husbands, and wives.