Abstract

RECENT POLITICAL DEBATES MAY SUGGEST TO SOME OBSERVERS THAT the right of privacy was cut out of whole cloth, or even more ethereal stuff, by the Warren Court in the 1960s.1 The constitutional right of privacy, which provides protection from government intrusion, may arguably have such a recent pedigree. But the common law right of privacy, which protects against intrusions by other persons, finds its roots in certain cultural and technological developments which occurred during the Victorian age.2 In that period, as in our own, the need for privacy was linked to the ideas of selfhood and personal identity. Cultural historians have recognized that there were subtle and complex transformations in constructions of the self among bourgeois Americans during the late Victorian period. Their work indicates that the change largely concerned the enhanced role of feeling, emotion, or sentiment as aspects of selfhood. This same recognition of the importance of feeling or emotion contributed to the recognition of the legal right of privacy. The modern scholarly literature on the right of privacy includes, for the most part, doctrinal histories and analyses, philosophical analyses, and combinations of the two.3 Scholars have debated whether the tort of invasion of privacy is composed of a number of distinct torts, each protecting a distinct interest, or whether it protects a single, broad interest.4 They have rehashed the debates of the Victorian era over

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