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The Right to Privacy

Louis Brandeis and Samuel Warren  were friends and classmates at Harvard Law School. They graduated in 1877 —

Samuel Warren, 1875

Samuel Warren, 1875

Warren was second in that class, second to Brandeis who not only was first, but also had the highest grade average in the history of the school, a record that lasted for 80 years.  In 1879 the two young lawyers founded the Boston law firm of Nutter McClennen & Fish. At the end of 1890 they published their famous law review article “The Right to Privacy.” It has remained a landmark in American legal history. What follows is a brief excerpt from  that famous article:

Brandeis, Louis

Louis Brandeis, 1900

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word  or by signs, in painting, by sculpture, or in music. Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.

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In 1916, Louis Brandeis — by that time a well known advocate of progressive causes — was confirmed by the Senate and became an associate justice of the United States Supreme Court.  His nomination by President Woodrow Wilson was controversial; there was opposition from some because of his “radical” views and from others because he would be the first Jew on the Supreme Court. The vote was 47 to 22. Forty four Democratic Senators and three Republicans voted in favor,  21 Republican Senators and one Democrat voted against.

More Notes


Tim Carmody, in his excellent piece, "How Haiti Became Poor", notes that President Trump's racist policies and vulgar language have sullied the word "shithole" which used to be one of the all-time great swear words. He's right. It's another terrible power this careless President wields.