The Right of Privacy: Emanations and Intimations

When Louis Brandeis and Samuel Warren wrote in 1890 of “The Right to Privacy,” they sought a means of protecting against unwelcome newspaper attention to social activities in the Warren household. Addressing their argument to the private law of torts, they presumably did not anticipate constitutional protection for other rights under the claim of privacy. Nevertheless, seventy· five years later that concept, now called the “right of privacy,” was used by the Supreme Court of the United States in Griswold v. Connecticut to describe a constitutional right. Some members of the Court said the new right was within the “penumbra” formed by “emanations” from specific guarantees in the Bill of Rights, while others emphasized that it was an always present, but previously undiscovered, “right of the people” preserved in the almost forgotten ninth amendment.