Brandeis’s Law
Crime is contagious. If the government becomes a lawbreaker it breeds contempt for the law.
Supreme Court Justice Louis Brandeis made this observation in the course of a minority opinion in Olmstead v. United States (1928). In this case the court decided 5-4 that wiretapping the telephones of a gang of bootleggers did not violate the Fourth Amendment’s prohibition against unauthorised searches and seizures of evidence, because government agents had placed the taps without actually trespassing upon the property of the defendants. Justice Brandeis took a broader view of the Fourth Amendment, arguing that it was intended to protect citizens from unjustifiable intrusions by the government by whatever means, including electronic or other measures not invented when the Bill of Rights was written.
Forty years later, in Katz v. United States (1967), the court came around to Brandeis’s way of thinking with Justice Potter Stewart holding for a 6-1 majority that physical intrusion is not the key factor in determining the legality of searches and seizure because “the Fourth Amendment protects people not places.”
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