The avalanche of ads that paid tribute to the joys of domesticity boosted the value of privacy both as an economic selling point and as  a social ideal.  At the same time, the commercialization of the private realm made the notion of the home as a haven increasingly hard to sustain.  After all, the telephone, radio, television, and, most recently, the Internet, blurred the boundaries between public and private, not simply by bringing outside forces directly into the domestic circle, but, more specifically, by filling it with anxiety-inducing messages about the need for additional spending.  Thus, in the course of the twentieth century, as the line between the marketplace and the home dissolved in a barrage of commercial exhortation, and consumerism became an organizing principle, if not the lifeblood, of the average American family, economic expansion conspired with possessive individualism to make the home seem more like an incomplete collection of commodities than a refuge from the outside world.  Indeed, in view of the nearly identical houses crammed with nearly identical objects that currently crowd the American landscape, it seems more realistic to define the American home as an involuntary response to market forces than as a shelter from extrinsic pressures, expectations, and trends.      

The popular conception of the home as a refuge is misguided, not only because it belies the extent to which commercial forces have shaped the private sphere, but also because it implies that we are somehow more free behind closed doors than we are on a public highway.  However, in spite of all we've been told  about which products will allow us to kick back, relax, and be ourselves in private spaces, it is hard to find any instance in which we could realize significantly greater freedom by shutting ourselves off from the wider world.  In fact, apart from being able to expose more of our bodies, which is the governing principle behind prohibitions against publicly performing or describing certain bodily functions and sexual acts, we have no more liberty in private than we do in public.^55s  Not only must we obey almost all the same laws on both sides of the public/private divide, but it would certainly be a stretch to imagine that we may somehow evade social expectations, moral strictures, and ethical considerations simply by drawing the shades.^56s 

Without denying the relief that may come from avoiding public scrutiny, we can see how the definition of the private realm as an area in which human beings may operate with some greater degree of autonomy has muddied our comprehension of the issues most closely tied to the right to privacy.  Abortion is, for example, not more or less private than brain surgery.  Like other types of medical treatment, it is subject to public regulation and can only be carried out with the assistance of people who are licensed and supervised by the state.^57s   Likewise, it has become less dangerous to engage in homosexual activity, not because this behavior is now located in the private realm, but because it has been decriminalized.^58s  Indeed, it makes more sense in the cases of abortion and homosexual sodomy to recognize that these activities have always taken place in private, and it was only public intervention, mainly in the form of grassroots activism and legal rulings, that enabled at least some individuals to access abortion services or to engage in homosexual relationships without having to fear retribution from either private actors or the government.

It is, moreover, helpful to remember that the space originally defended in "The Right to Privacy" and later defined, however vaguely, as deserving of legal protection was not the home or the family as a lived reality, but an idealized and largely commercialized vision of domesticity.  As a result, the "zone of privacy" that was mapped out hazily in court rulings and in legislation passed throughout the twentieth century has, for the most part, been legitimized only to the extent that it seemed to conform to accepted notions about the normal bourgeois family. It is, for example, no accident that William O. Douglas's tribute to marriage in Griswold v. Connecticut so closely resembles the sentimental images of domestic order that have permeated American culture since the heyday of Currier & Ives:

 We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that 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 as noble a purpose as any involved in our prior decisions. ^21p

 Without dismissing the appeal of these sentiments--or denying that the traditional dream of domesticity has lately been pervaded by same-sex couples--it is interesting to note that Douglas offered this salutation to marriage during an era when radical and even not-so-radical feminists were echoing Woodhull and Gilman's critique of the bourgeois family as an enervating cage.^59s   Douglas's concept of "bilateral loyalty" may be viewed step ahead of the paternalistic approach to domestic relations taken in "The Right to Privacy."  Nonetheless, his commentary on the sanctity of marriage harkens back to Brandeis and Warren's efforts to situate moral reality inside the apolitical confines of the ostensibly happy home.  In this respect, Griswold mimicked Brandeis and Warren's response to the nineteenth-century struggle for women's rights.  As we have seen, they responded to the women's movement, as well as the technological transformations of their time, by trying to carve out an area of life that would remain untouched by commercial pressures, social ambitions, and political disputes.  Similarly, at a moment when feminists shouting, "The personal is political!" had just begun to gather in public demonstrations, Douglas asserted the right to privacy as a means to separate the domestic realm from the social, commercial, and political "projects" that preoccupied the world outside the family. ^60s 

The poetic commentary contained in the Griswold decision allows us to see that Brandeis's contribution to the elevation of the right to privacy in American legal culture cannot be coherently tied to libertarianism or to a philosophy of limited government.  Instead, as shown in Brandeis's approach to government regulation both before and during his tenure on the Supreme Court, his definition of privacy as the premier value of civilized society translated into a sometimes highly intrusive dedication to calling on government to guarantee the priority of the family over everything else.  For example,  in his famous brief in Muller v. Oregon (1908), Brandeis marshaled social statistics to show that the biological destiny of women as wives and mothers supersedes their rights as individuals.  Advancing the same protectionist approach that he and Warren had adopted in "The Right to Privacy," Brandeis maintained that women needed to be secured from economic exploitation so that they could properly discharge their natural familial obligations.  His brief was accordingly designed, not to promote the well being  of workers in general, but to legitimize gender discrimination by forcing employers to take heed of the duties and disadvantages attached to womanhood. Just as the Court in earlier cases had singled out women's bodies as deserving of special protections, Justice Brewer drew on Brandeis's work to argue that the physical drawbacks of being female, as well as the burdens of maternity, legitimized treating "woman as an object of public interest and care."  In other words, even though there might at first glance seem to be some inconsistency between Brandeis's exaltation of privacy and his case for government regulation of female labor, both were interventionist efforts to safeguard family relations, and both endeavored to achieve that goal mainly by shielding the female body, in Brewer's words, "from the greed and passion of man."  ^13p  

The paradoxes that have arisen in the historical trajectory set off in "The Right to Privacy" make sense when we consider their starting point.  Writing in reaction to rapid social change, Brandeis and Warren's main objective was to discover legal instruments that would enable men to preserve their masculinity by screening themselves and their dependents from the ever more intrusive pressures of late nineteenth-century industrial society.  True to the progressive spirit of their age, as well as their conservative commitment to domestic tranquility, they found in the common law precisely the right tool to allow modern man to carry out this ancient prerogative, "a weapon...forged in the slow fire of the centuries, and to-day fitly tempered to his hand." ^2p  In line with these chivalrous sentiments, and in keeping with the valorization of the domestic sphere in subsequent decades, the lasting legacy of "The Right to Privacy" has been not to enlarge individual liberty, but to outline a legally sanctioned and socially acceptable context in which men and women could meet their moral obligations by conforming or, at least, seeming to conform to conventional family roles.