Federal Judiciary

Oliver Wendell Holmes v. Louis Brandeis

By AndrewHyman

Earlier today, I was reading over John McCain's excellent speech in 1987 supporting the Bork nomination (hat tip to Powerline). After McCain's speech, Senator Lloyd Bentsen explained his opposition to the Bork nomination, and Bentsen said: "I happen to agree with a former Supreme Court Justice named Louis Brandeis that the makers of the Constitution 'conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men.'" But did Bentsen really understand what Brandeis was actually saying? I doubt it. Even nowadays, this quote from Brandeis is often cited (by people like Senator Biden) as a reason to obstruct and hound and filibuster judicial nominees. Here's what Brandeis said in his 1928 dissent in Olmstead v. United States:

They [the framers] conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. (emphasis added)

Brandeis didn't mean that judges have discretion to constitutionally protect wife-beating, abortion, and other harmful acts that are performed in private.

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Full post as published by ConfirmThem on May 08, 2008 (boomark / email).