Con Law August 19 Lecture 5

Con Law August 19 Lecture 5 - The Right to Privacy is very...

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The Right to Privacy is very controversial Read this chapter, especially the intro In 1890 – Louis Brandis published an article in the Harvard Law Review that urged that the right of privacy. The fundamental premise behind liberty is the right to be left alone. If you eliminate the idea of the right of privacy, you are fundamentally altering what the constitution is and does He said you have to have the right of privacy or the other constitutional constraints don’t make sense. He was talking about it in the context of civil libel cases. Newspapers were widespread and owned by party operatives We had partisan media right after the civil war, the golden age in newspaper. Argued that you had the right to privacy from the constitutional structure, if you take it away, you are gutting the constitution in a profound and serious way. Brandis becomes appointed to the supreme court bench and becomes a famous justice, he always provided well reasoned arguments. Scalia is known for being snotty to his colleagues, Renquist was known for being conclusary. O’Connor was known for being wishy washy, argued both sides of the matter and never really chose. She was trying to find the middle ground. There was great pride in writing something others found persuasive. 1928 – almost 40 years after the first time Brandis makes the argument that there is a constitutional right to privacy. He said that privacy has been there all along and the framers intended it. In the Revolutionary War if you got a tooth infection, you would have probably died. If you broke a limb, you would have died with complications. No understanding of bacteria… Phones become a big business, if you have one in 1930, you were rich.
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The court gets a series of wiretapping cases b/c of the capacity to wire tap and the extension of federal criminal law because of prohibition. They wanted to crack down on prohibition crime and other federal criminal crime. Brandis writes a dissent on Holmstead about wiretapping. Concludes nothing in 4 th and 5 th amendment prohibiting the government from wiretapping your phone anytime it wants without warrants, without probable cause, etc. Brandis reacts to this and says its crazy, you have to give the 4 th and 5 th amendment meat through privacy. He says privacy and liberty are intertwined. You have the right to be left alone unless they have probable cause, they cant just go in and do it. They have to have a reason to tap your phone. Brandis explained his dissent, to make the other rights have any heft at all. He changed the way jurisprudence developed. Said we hadn’t cared about it much because not much of the population had phones yet.
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Con Law August 19 Lecture 5 - The Right to Privacy is very...

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