Inviolate Personality and the Literary Roots of the Right to Privacy

Abstract

Despite the formative influence of Warren and Brandeis’s article “The Right to Privacy” (1890) on subsequent U.S. law, few assertions have caused more confusion and dismay than their claim that privacy is protected fundamentally by the individual’s right to “an inviolate personality.” Troubled by the evidently spiritual nature of this claim, commentators have attempted to locate privacy rights in narrower, more easily definable tort protections, like freedom from intrusion. This article makes the claim that, to be properly understood, Warren and Brandeis’s emphasis on “inviolate personality” must be read as the culmination of a two-centuries-old debate about the nature of the individual—a debate that was conducted primarily in literature, and especially in poetry. During the course of the eighteenth century, poets mounted an increasingly sophisticated attack on the dominant social-constructionist psychology of the age. In opposition to contemporary views that a person was the product of his or her environment, poets came to see the individual as self-generated—through a process requiring solitude. The pivotal figure in this history is Wordsworth, whose argument and language Warren and Brandeis echo. Although some present-day scholars have attempted to recoup Warren and Brandeis’s emphasis on inviolability, they have tended to do so through recourse to social-constructionist arguments. In so doing, they have missed the spirit of Warren and Brandeis’s original claims.