June 4, 1928 – Olmstead v. U.S. & Justice Brandeis on the Government as Role Model

On June 4, 1928, the U.S. Supreme Court handed down its decision in Olmstead v. United States (277 U.S. 438, 1928).

In this case, the Court reviewed whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights provided by the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were violated. (This decision was overturned by Katz v. United States in 1967.)

The famous conclusion to the dissent by Justice Louis Brandeis is not only a wonderful piece of writing, but a ringing endorsement of government integrity:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

Justice Louis Brandeis