July 2015

Privacy, liberty, dignity: Kennedy in Obergefell

Kennedy took a fascinating approach to discussing fundamental rights in Obergefell, making an argument that combined substantive due process with equal protection. To do this, he moved away from “privacy,” used in many of the cases he cited, to “dignity” and “liberty.” Using the term “liberty” instead of “privacy” (as in Griswold and Roe v. Wade) when discussing issues of […]

January 2014

The “third-party problem”: one reason telegrams were not constitutionally protected

Unlike postal mail or, later, the telephone, telegrams never received constitutional protection. Yet they were the quintessential nineteenth-century technology of communication, used extensively for business, government, and personal communication, much of which both senders and receivers would have wished to keep to themselves.