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Privacy and Autonomy Rights Before the New Deal
While the Fourth and Fifth Amendments were not incorporated against the states until the 1960s, debate over the legal and constitutional status of privacy well predated the Warren Court. In 1890, for example, future Justice Brandeis coauthored a Harvard Law Review Article that argued for social privacy, conceptualized as a “right to be left alone.” The efforts in this article were directed at private forces such as sensationalist newspapers, but Brandeis would aim his views on privacy against the government once he reached the Supreme Court. In Olmstead v. United States (1928), the Court held that federal wiretaps on Olmstead’s phone lines did not violate the Fourth Amendment’s limitations on searches involving an individual’s “persons, houses, papers, and effects.” Brandeis famously dissented, arguing that:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.
These views—that a free society must limit government from violating a zone of autonomy and choice in intimate personal matters—would resurface in contemporary right-to-privacy cases.
While Brandeis may be the most famous American jurist linked to the development of legal privacy in the early 20th century, it was primarily pre-New Deal conservatives who led the way in developing privacy and autonomy jurisprudence in this era. This was in part a function of the larger political debate on economic regulation: conservatives supported a broad reading of substantive due process to protect economic rights, while liberals supported a narrow one in order to defend economic regulation. Though economic rights were the primary focus for both, Supreme Court conservatives would also employ this broad reading to support autonomy and choice in other issue areas.
Two cases in this latter mold are worth noting, given how often they would later be cited as precedents. The first decision is Meyer v. Nebraska (1923). Soon after the end of World War I, Nebraska passed a law banning grade school students from learning any language but English. The law seemed motivated both by still-present war fever (i.e. not learning the language of the enemy) as well as the goal of making it harder for first or second-generation immigrants to learn and use their native tongue. Meyer taught German at a Lutheran school in Nebraska and was convicted of violating the law.
In striking down the law on appeal, Justice McReynolds wrote that liberty under the Fourteenth Amendment means
not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized … as essential to the orderly pursuit of happiness.
The broad vision of liberty that McReynolds supports here can be found in abortion and gay rights jurisprudence.
The second substantive due process case often referenced in contemporary opinions is Pierce v. Society of Sisters (1925). Like Meyer, Pierce involved a state law motivated by distrust of immigrants, here anti-Catholic distrust that was common in many states at the time. Oregon—a hotbed of anti-Catholic and white supremacist sentiment in the early 20th century—passed a law in 1922 requiring all students to attend public schools, essentially outlawing private religious (and mainly Catholic) schools in the state altogether.
The Court unanimously held that this ban violated the Fourteenth Amendment. Parents, the Court held, had the right to control the upbringing and education of their children. While the state had the police powers to regulate the quality of private education or the qualifications of instructors, its total ban “unreasonably” interfered with parental rights. As the majority opinion held, “the child is not the mere creature of the State.”
These cases illustrated how the Court would sometimes protect individual liberty in an era where the incorporation of the Bill of Rights had barely begun. The death of economic substantive due process after the New Deal, however, also halted the doctrinal developments seen in these two cases. Nevertheless, these cases remained good law and would serve as precedents for justices who wished to revive substantive due process for privacy rights in the 1960s.
