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Google+Periodically various lay people attempt to interpret the law in ways that fit their version of (un)reality. While I appreciate the mainstream media simply ignoring these people (in general), it can occasionally be educational to refute its points as if they were logical and rational. A good example of this is the lawsuit Gordon Warren Epperly filed in Alaska challenging President Obama’s inclusion on the 2012 presidential ballot. It shows a fuzzy grasp of the law, legal terminology, logic, and history (a little reading of case law is a dangerous thing!), but pointing out some of its flaws can help illustrate these concepts.
supreme court
Protecting vested interests in the face of new technology: the case of the Charles River Bridge
New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost–and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).
But hadn’t the old company taken a risk initially? Didn’t its investors deserve to reap their new profits because they had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually inhibit future investment?
Federal common law in the nineteenth century
When the United States Constitution bound the states together in 1789, the common law (in sense #2)–inherited largely from England–was slowly but inexorably being replaced by statutory laws that often, but not always, codified earlier practices.
Federal vs. State Power in Antebellum America
Before the Civil War, the states and the federal government were locked in an uneasy balance of power. The federal constitution listed certain areas (treaties, post offices, patents, interstate commerce, constitutional interpretation, and more) where federal supremacy was clear (via Article VI, Clause 2), but other areas defaulted to the states (made explicit by the 10th Amendment).
Ben Bratman on the First Amendment and Brandeis & Warren’s “The Right to Privacy”
Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy.”
What is the First Amendment?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Thinking about privacy and the First Amendment
This post is about Eugene Volokh’s article on free speech and privacy in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?
Free speech and broadcasting: Cohen v. California and FCC v. Pacifica Foundation
Balancing strong First Amendment (“free speech”) speech protections with the desire to protect the delicate sensibilities of America’s youth is always a complex task. Two seminal Supreme Court cases–Cohen v. California and FCC v. Pacifica Foundation–illustrate the struggle the Court has had to find the right path.
Liberty or inflexibility: reading Antonin Scalia
Antonin Scalia, current Supreme Court justice and originalist extraordinaire, wrote “Common-Law Courts in a Civil Law System” as a part of A Matter of Interpretation: Federal Courts and the Law. In it explains his approach to legal reasoning and especially to Constitutional interpretation, and especially rejects both legislative history and the so-called “living Constitution” of liberal justices like Stephen Breyer.
The long-forgotten “mere evidence” rule
The “mere evidence” rule, forbidding searches for documents that were themselves not “instrumentalities” crimes (or contraband themselves) lasted well into the twentieth century before being abandoned. So why were telegrams never explicitly covered by the rule?
An argument for the “Inviolability of Telegraphic Correspondence”
Former Michigan Supreme Court Justice Thomas M. Cooley, in a forward-looking article, advocated for extending Fourth Amendment protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late 19th century concerns.
The slow pace of Fourth Amendment change
In Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment, Alexander Scolnik wrote:
As technology evolves, giving individuals new forms of communicating and government agents increasingly sophisticated tools for surveillance, courts have had to continually interpret the Fourth Amendment and define the extent of its reach in light of these new advances.
Constitutionalizing the sanctity of the mails
Anuj C. Desai explains that the extension of the Fourth Amendment to cover postal mail, and then later to telephones, is based not so much on the inherently Constitutional nature of opening mail, but instead on the increasingly firm belief in the sanctity of the mail as expressed by Congress, legislators, and the public.
New technologies lead to new constitutional protections
The boom in transportation and communications technologies in the nineteenth century outpaced the pace of legal change. It was only through the emergence of new concerns around both privacy and confidentiality that people themselves began to realize their importance in a way never before imagined.
Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)
Ex parte Jackson, which dealt with government agents opening mail in search of banned lottery materials, hints at the future Court’s ruling on wiretaps in Katz v. United States that the Fourth Amendment “protects people, not places.”
The 1971 Supreme Court on WikiLeaks
In that 1971 case, New York Times Co. v. United States, 403 US 713, the Court ruled against an attempt by the Nixon Administration “to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled ‘History of U. S. Decision-Making Process on Viet Nam Policy.”
