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?
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