The Development of a Legal "Right to Privacy" in the American Courts Throughout the Twentieth Century

Open Access
Whelan, Jessica Rachel
Area of Honors:
Bachelor of Arts
Document Type:
Thesis Supervisors:
  • Anne C. Rose, Thesis Supervisor
  • Cathleen Denise Cahill, Honors Advisor
  • Privacy
  • Liberty
  • Personal Autonomy
  • Constitution
  • Bill of Rights
  • Supreme Court
  • American History
Many modern Americans perceive a “right to privacy” as a fundamental component of their basic constitutional rights. Though elements of privacy are perhaps evident in various constitutional amendments, neither the body of the Constitution nor the Bill of Rights features an explicit provision dealing with a “right to privacy” that, prior to its affirmation by the judiciary or legislature, could provide sufficient legal protection for violations of an individual’s privacy. This essay details the development of a legal “right to privacy” from its inception in 1890 with Samuel Warren and Louis Brandeis’s law review essay, “The Right to Privacy,” to its formal recognition in 1965 by the Supreme Court in Griswold v. Connecticut, and finally to its most recent expansion in 2003 with Lawrence v. Texas. Though the “right to privacy” was initially conceived by Warren and Brandeis to act as a component of libel/slander law provisions, the American courts ultimately characterized the concept as dealing with the protection of personal liberty and autonomy, specifically in the form of sexual freedom. Two main conclusions underscore the establishment, affirmation, and development of a “right to privacy” in the American courts throughout the twentieth century. First, the development of societal institutions and attitudes regarding privacy-related issues over this period of time contributed greatly to the consideration and subsequent recognition of the “right to privacy” in the court system. Second, the changing stance of the Supreme Court regarding the maintenance of a governmental separation of powers with respect to the status of the judiciary as an individual entity played a key role in shaping the conception of a legal “right to privacy.” In other words, social change pushed forward recognition of a “right to privacy,” and yet the institutional question of the formal legal role of the Supreme Court in the federal system, a narrower yet influential issue, also shaped the judicial outcome. The legal articles and cases, as well as the larger social, political, and judicial themes that serve to emphasize their content, are all essential to the development of the modern perception of a “right to privacy.”