Vernacular Legal Discourse: Revisiting the Public Acceptance of the ''Right to Privacy'' in the 1960s

Abstract

This article provides an analysis of the legal and public discourse concerning the ''right of privacy'' in the 1960s. During that period the legal community had ambivalent feelings about recognizing the right of privacy, and scholars split on the question of whether legal formalism or legal realism should dominate American jurisprudence. This ambivalence created a situation where a wide range of public rhetors articulated a common appeal for expanding the right to privacy. When Justice Douglas and the rest of the United States Supreme Court eventually recognized the privacy right in Griswold v. Connecticut (1965), many legal scholars worried that this was an exercise in judicial activism. Yet, the legal arguments that were used in defending the establishment of the ''right of privacy'' mirrored the public defenses of that right that appeared in the broader rhetorical culture.