Introduction
In The Right to Privacy, Brandeis discusses several core themes underpinning his belief that not only does a right to privacy exist, but that it must be protected. This includes the origins of the need for privacy protection, his interpretation of it and its limitations. While nearly 40 years passed between his seminal article and Olmstead, Brandeis echoed these themes in his vehement dissent against Justice Taft’s majority opinion. Taft’s decision goes to the core of Brandeis’s Right of Privacy argument when he rejects common-law privacy protection for telephone messages, noting the need for “direct legislation” by Congress. (Solove and Schwartz 89) The idea that “the United States takes no such care of telegraph or telephone …show more content…
In his earlier work, Brandeis reasoned that the right of privacy was separate and distinct from defamation, from copyright protections, and from protections against physical battery based on the idea that it is man’s intangible, inviolate personality (beliefs, feelings, intellect) that require privacy protection. Consequently, he answers Taft’s dependence on physical search and seizure by reaffirming man’s inviolate personality. In doing so, he recognized that our founding fathers understood that “only part of the pain, pleasure and satisfactions of life are to be found in material things” and that “they sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.” (Ibid 91) If this were truly the intention of our founding fathers, then it would certainly be a reasonable interpretation of the Constitution to include respect for intangibles. Taft’s literal reading of the amendments ignores this possibility and detracts from the right of …show more content…
To this end, the subjective expectations test in the Katz concurrence certainly strikes me as a vast improvement over Taft’s rigid interpretation of the fourth amendment. Notably, as one scholar asserts, “according to Brandeis, the underlying general purpose of the Fourth Amendment was the protection of the right to privacy.” (Steiker 153) As such, Brandeis’s forty-year reliance on themes of flexibility, growth, intangible assets and common law origins of the right of privacy has withstood the test of
In The Right to Privacy, Brandeis discusses several core themes underpinning his belief that not only does a right to privacy exist, but that it must be protected. This includes the origins of the need for privacy protection, his interpretation of it and its limitations. While nearly 40 years passed between his seminal article and Olmstead, Brandeis echoed these themes in his vehement dissent against Justice Taft’s majority opinion. Taft’s decision goes to the core of Brandeis’s Right of Privacy argument when he rejects common-law privacy protection for telephone messages, noting the need for “direct legislation” by Congress. (Solove and Schwartz 89) The idea that “the United States takes no such care of telegraph or telephone …show more content…
In his earlier work, Brandeis reasoned that the right of privacy was separate and distinct from defamation, from copyright protections, and from protections against physical battery based on the idea that it is man’s intangible, inviolate personality (beliefs, feelings, intellect) that require privacy protection. Consequently, he answers Taft’s dependence on physical search and seizure by reaffirming man’s inviolate personality. In doing so, he recognized that our founding fathers understood that “only part of the pain, pleasure and satisfactions of life are to be found in material things” and that “they sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.” (Ibid 91) If this were truly the intention of our founding fathers, then it would certainly be a reasonable interpretation of the Constitution to include respect for intangibles. Taft’s literal reading of the amendments ignores this possibility and detracts from the right of …show more content…
To this end, the subjective expectations test in the Katz concurrence certainly strikes me as a vast improvement over Taft’s rigid interpretation of the fourth amendment. Notably, as one scholar asserts, “according to Brandeis, the underlying general purpose of the Fourth Amendment was the protection of the right to privacy.” (Steiker 153) As such, Brandeis’s forty-year reliance on themes of flexibility, growth, intangible assets and common law origins of the right of privacy has withstood the test of