Louis D. Brandeis: Dissent in Olmstead v. United States

Explanation and Analysis of the Document

The United States adopted Prohibition through the Eighteenth Amendment, which was ratified by the needed number of states in January 1919; the manufacture, sale, or transportation of liquor was henceforth to be a crime. That ban gave rise to a lively and illegal bootlegging business that flouted the law and soon evolved into large-scale organized crime. Roy (“Big Boy”) Olmstead of Seattle was a major smuggler of alcohol. Undercover agents of the U.S. government detected the activities of Olmstead and his associates (around fifty of them) and placed secret wiretaps on their telephones. For almost half a year they listened to all their phone calls, taking nearly eight hundred pages of notes. On the basis of the evidence they gathered by this method, the government arrested and convicted Olmstead and some seventy others.

The question before the Supreme Court was straightforward: Did the use of evidence obtained by secretly wiretapping telephones violate the Fourth and Fifth Amendments to the Constitution? The Fourth Amendment reads, in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Fifth Amendment stipulates due process in criminal cases and protects citizens against self-incrimination. A slim majority of five justices, speaking through Chief Justice William Howard Taft, upheld the conviction, arguing that wiretapping did not contravene the Fourth Amendment's prohibition of unreasonable searches and seizures because it did not involve actual physical entry. Nor was the Fifth Amendment's protection against self-incrimination held to be violated by words spoken over the telephone. Four justices dissented, each writing a separate opinion, but the spirited dissent of Brandeis was the most prominent; two of the other dissenters explicitly mentioned in their opinions that they largely agreed with Brandeis's views.

No one who knew Brandeis could have been surprised at his dissent. Back in 1890 Brandeis and his law partner, Samuel Warren, had published a pathbreaking article in the Harvard Law Review entitled “The Right to Privacy.” Roscoe Pound, the illustrious dean of Harvard Law School, later said of that article that had added a chapter to the law. To this day, appeals to a right to privacy must be traced back to that pioneering article. To Brandeis and Warren, it was one of the principal marks of a civilized society that every individual deserved to be protected from unwanted invasions of privacy.

In this dissent, Brandeis reminds readers that a living constitution must be flexible enough to change with new inventions and discoveries, especially innovations that the Founding Fathers could not possibly have foreseen. The fact that the word wiretap is not mentioned in the Fourth Amendment did not excuse the Court from weighing the intentions of the amendment and applying it to the modern world. But Brandeis's main thrust in his dissent is that the government must always be a scrupulous follower of legal and ethical practice, that the end (in this case, a conviction of Olmstead and his friends) cannot justify morally questionable means (such as wiretapping). The government must serve as a teacher of ethical behavior and a model of legal practice because citizens take behavioral cues from what they see the government doing. Justice Holmes, in his dissent, after writing that Brandeis had summed up his own view, added, “We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.”

This was another case in which the dissents (particularly Brandeis's) were more noteworthy than the majority's view. In 1934 Congress passed a law outlawing the use of wiretapping, and a series of Supreme Court cases since then have taken the dissenters' views about a fundamental right to privacy.