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Published in 1890, "The Right to
Privacy," by Louis Brandeis and Samuel Warren, remains widely regarded as the most influential law
review article in American history. While it would be
impossible to summarize here even a portion of the commentary,
criticism, and praise that have been heaped on Brandeis and Warren's
essay over the past century, we may draw three conclusions
about its contribution to the configuration of the public/private
dichotomy in American legal and social thought:
First, the perspective adopted in "The Right to Privacy" was
highly interventionist, however much that fact has been buried
in references to "the right to be let alone." Judges and other
public officials in Brandeis and Warren's day may have chosen to
look the other way in cases of sexual assault and household
violence, but the entire purpose of "The Right to Privacy" was
to extend the reach of the legal system so that men would not
have to fend for themselves in avenging injuries to their
feelings and reputations
Second,
as evidenced in Brandeis and Warren's approval of legal fictions
to guard against the disclosure of sexual crimes, as well as
their perception of newspaper gossip as a blight on common
decency, "The Right to Privacy" can be most accurately
described, not as a call for the
state to step back from the private sphere, but as an approach to
public discourse that upheld the threat of litigation as a means
to encourage the press and other people to
practice self-censorship.
Third,
the contrast between Brandeis and
Warren's appeals to tradition and history and first-wave
feminist calls for a transformation of both the public and
private spheres shows that "The Right to Privacy" can be better
understood as an effort to cement social conformity than as a
defense of individual freedom.
More generally, setting "The Right to
Privacy" against the backdrop of the cult of domesticity in the
late nineteenth century allows us
to understand more clearly how the public/private dichotomy unfolded in
later years. The historical forces that fomented
twentieth-century concerns about privacy are far too complex to capture in a few
paragraphs. It is, however, obvious that Brandeis and Warren's views on
the sanctity of the home took hold in part because they
dovetailed so seamlessly with the privatizing tendencies of
industrial capitalism. Although its authors railed against the
vulgar exhibitionism of commercial culture, "The Right to
Privacy" confirmed the commercial messages that were quickly
becoming ubiquitous in American life. The idea that every
man's home is his castle is, after all, exceedingly familiar, not
because lawyers like to quote Lord Coke, but because it has been so
tirelessly repeated in so many forms by the advertising industry.
Indeed, if there was one directive that middle-class Americans received more
often than any other during the twentieth century, it was that the
greatest joys and pleasures can be had within the properly
furnished, smartly equipped, tastefully decorated, fully secured,
and well-stocked private home. 52s
However much
Brandeis and Warren may have wished to
shield the home from commercial modernity, the cult of
domesticity was and still remains a mother lode for American business.
Construction companies such as Aladdin, which offered
every man his own readymade "Castle" for under $500 in 1909, flourished by
helping to install homeownership as a standard component of the
American dream. Slews of others prospered by pointing out
the breathtaking wonders that right-minded people enjoy within
safety, comfort, and, above all, privacy of their homes.53s
Elevating popular preoccupation with domestic relations to new heights,
advertisements for appliances, furniture, clothing, decorative
objects, and other must-have merchandise reinforced Brandeis and
Warren's vision of the home as the place where individuals find
self-fulfillment within the bosom of their families.
Paradoxically, however, the advertisers conveyed this message mainly
by placing private life on display, flooding American culture with
images of intimacy, and turning previously unmentionable
topics such as ladies' underwear and male impotence into subjects of
social discourse. 54s
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.
60
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.
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