Foreword to the Sullivan Lecture Essay: Is Privacy on Life Support?

• Author: Mark R. Brown
• Position: Newton D. Baker/Baker and Hostetler Chair of Law, Capital University Law School.
• Pages: 67-675

FOREWORD TO THE SULLIVAN LECTURE ESSAY:

IS PRIVACY ON LIFE SUPPORT?

MARK R. BROWN*

Liberty or licentious.

1

Autonomy versus anarchy. Privacy against

security. America has struggled with these quandaries for over two hundred

years. Our framers were incensed over British searches and seizures. They

particularly disliked quartering troops. Thus, they left us with the Third and

Fourth Amendments to the U.S. Constitution. Within the broad contours of

these guarantees, the founding generation thought (apparently) that people

would enjoy some kind of what Louis Brandeis described one hundred years

later as a “right to be let alone.”

2

Shades of this right have been recognized throughout the nation’s

history, but it has never been an absolute. Although quartering troops—and

presumably FBI agents—is prohibited, searches and seizures have always

played a part in American history, at least under some circumstances. Even

during the heyday of the “mere evidence rule,” which one hundred years ago

prohibited searches for “mere evidence” of crime,

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searches for contraband

were still permitted. The only textual restriction in the Constitution is that

these searches be reasonable.

The devil lies in the details, of course, and the language of the Fourth

Amendment provides few details. It may be that the Fourth Amendment’s

Warrant Clause is separate and distinct from the reasonableness

requirement, or it could be (as the modern Supreme Court of the United

States has assumed

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) that they are indelibly linked. Judicial assistance might

Copyright © 2016, Mark R. Brown.

* Newton D. Baker/Baker and Hostetler Chair of Law, Capital University Law School.

1

Today, we often forget that the Constitution was not meant to secure liberty at all costs.

The Framers were equally—and probably more—concerned with the survival of their new

community. Their generation viewed the abuse of law as licentious (from “license”). See,

e.g., DAVID LOWENTHAL, NO LIBERTY FOR LICENSE: THE FORGOTTEN LOGIC OF THE FIRST

AMENDMENT 92–103 (1997) (explaining that the Framers rejected a “freedom so broad it

would destroy free society itself”); Neil K. Komesar, A Job for the Judges: The Judiciary and

the Constitution in a Massive and Complex Society, 86 MICH. L. REV. 657, 686–90 (1988)

(discussing competing views of the Federalists and Anti-Federalists).

2

Samuel D. Warren & Louis D. Brandeis, The Right to P rivacy, 4 HARV. L. REV. 193,

193 (1890).

3

See Gouled v. United States, 255 U.S. 298, 309 (1921). This rule was chipped away for

a number of years and was finally laid to rest in Warden v. Hayden, 387 U.S. 294, 310 (1967).

4

See, e.g., United States v. Chadwick, 433 U.S. 1, 10 (1977) (“[W]e have held warrantless

searches unreasonable, and therefore unconstitutional, in a variety of settings.”).