In the famous 1890 paper by Warren and Brandeis, The Right to Privacy, the authors noted that there was no Constitutional right to privacy. They noted:
That the individual shall have full protection in person and
in property is a principle as old as the common law; but it has been found
necessary from time to time to define anew the exact nature and extent of such
protection. Political, social, and economic changes entail the recognition of
new rights, and the common law, in its eternal youth, grows to meet the demands
of society. Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis. Then
the "right to life" served only to protect the subject from battery
in its various forms; liberty meant freedom from actual restraint; and the
right to property secured to the individual his lands and his cattle. Later,
there came a recognition of man's spiritual nature, of his feelings and his
intellect. Gradually the scope of these legal rights broadened; and now the
right to life has come to mean the right to enjoy life--the right to be let
alone, the right to liberty secures the exercise of extensive civil privileges;
and the term "property" has grown to comprise every form of
possession-- intangible, as well as tangible.
They continue:
It is our purpose to consider
whether the existing law affords a principle which can properly be invoked to
protect the privacy of the individual; and, if it does, what the nature and
extent of such protection is.
Owing
to the nature of the instruments by which privacy is invaded, the injury
inflicted bears a superficial resemblance to the wrongs dealt with by the law
of slander and of libel, while a legal remedy for such injury
seems to involve the treatment of mere wounded feelings, as a substantive cause
of action. The principle on which the law of defamation rests,
covers, however, a radically different class of effects from those for which
attention is now asked. It deals only with damage to reputation, with the
injury done to the individual in his external relations to the community, by
lowering him in the estimation of his fellows. The matter published of him,
however widely circulated, and however unsuited to publicity, must, in order
to be actionable, have a direct tendency to injure him in his
intercourse with others, and even if in writing or in print, must subject him
to the hatred, ridicule, or contempt of his fellow men--the effect of the
publication upon his estimate of himself and upon his own feelings not forming
an essential element in the cause of action. In short, the wrongs and
correlative rights recognized by the law of slander and libel are in their
nature material rather than spiritual. That branch of the law simply extends
the protection surrounding physical property to certain of the conditions
necessary or helpful to worldly prosperity. On the other hand, our law
recognizes no principle upon which compensation can be granted for mere injury
to the feelings. However painful the mental effects upon another of an act,
though purely wanton or even malicious, yet if the act itself is otherwise
lawful, the suffering inflicted is damnum absque injuria. Injury of
feelings may indeed be taken account of, in
ascertaining the amount of damages when attending what is recognized as a legal
injury; but our system, unlike the Roman law, does not afford a remedy even for
mental suffering which results from mere contumely and insult, from an
intentional and unwarranted violation of the "honor" of another
The conclusion is that they try to find one in Common Law and Torts, not in the Constitution. Thus the issue of privacy has at best been accomplishe by law not by the Constitution.