He was referring to the right to be left alone from the government — a right that today we call privacy.

Olmstead was involved in bootlegging, and the feds tapped his phones without any search warrants. The Supreme Court, which had never recognized the right to privacy, permitted the use of the tapes of the overheard conversations as evidence in his criminal trial and he was convicted.

Two generations later, in Griswold v. Connecticut, a case involving the sale of contraceptives in violation of state law, Brandeis' dissent was embraced by the court's majority. How odd that it took 175 years for the court to recognize that the Fourth Amendment — which was written to keep all government out of our bodies, homes, papers and effects — protects the fundamental right to privacy.

Yet, there is a difference between recognizing a right and preventing the government from violating it. The court's instrument of prevention is known as the exclusionary rule. Courts are required to exclude from use at trial all evidence obtained by the government in violation of a recognized right.