Privacy in the Constitution

Notes for April 22

Main points

We reviewed the major decisions in three Supreme Court cases: Olmstead v. United States, Griswold v. Connecticut, and Roe v. Wade.

The aim was not to evaluate the claims about Constitutional law or to understand why the different Courts ruled the way they did, with privacy losing in Olmstead and winning in the two later cases.

Rather, I just wanted to understand how the authors of these opinions were thinking of privacy.


Warren and Brandeis had talked about privacy in the private law, that is, the part of the law that enables private citizens to sue one another. Olmstead presented a natural extension of their ideas into the rights that citizens have against the government in the Constitution.

Taft’s majority opinion restricted the Fourth Amendment’s protection to property. Since the phone lines were not Olmstead’s property, the government could “search” them without violating Olmstead’s Fourth Amendment rights. (Kenny raised some reasonable questions about whether it makes sense to describe tapping a phone line as search or seizure. Point taken, though I think it’s reasonable to say it’s a search.)

As we know from last time, Brandeis thought the right to privacy is not the same as the right to property: the right to privacy gives control over information, not just the physical items in which the information is encoded.

Even if Brandeis were right about the common law right of privacy, of course, it would not follow that there is such a right in the Constitution. We paid special attention to the last paragraph on p. 473, where, I said, he made his case that the Constitution includes a right of privacy.

Amelia liked Brandeis’s observation that a phone tap involves prying not only into Olmstead’s conversations but those of others as well. Still, as Josh C. observed, that would not matter on Taft’s analysis: no one has a right against being searched on the phone lines. If there is an objection, it will have to be based on something more like Brandeis’s view of privacy and the Fourth Amendment.

Griswold and Roe

I said that I thought the decisions in Griswold and Roe conflated privacy with liberty. Liberty involves the freedom to act. Privacy involves control over information, in my opinion. So I have a lot of trouble understanding those decisions.

I should add that my difficulty is in understanding how these cases involve privacy as I understand it. Maybe there is a legal meaning of “privacy” that is different than the one I have. However, I keep reading these cases hoping to discern what that might be and I am continually frustrated.

Angela made an interesting reply. She said that if the government is regulating decisions about procreation, that means it would have some knowledge of these decisions. Since the decisions are private, that would be ruled out under a right to privacy. I have to confess that I did not hear her all the way out, so I may have this wrong and I’m not sure I fully understand. But it sounded interesting. If she can make that out, maybe should would have an answer to my criticism.

Key concepts

  1. How privacy is understood in Brandeis’s dissent in Olmstead.
  2. How privacy is understood in Taft’s majority opinion in Olmstead.
  3. The distinction between liberty and privacy.
This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2014. It was posted April 22, 2014.
Philosophy of Law