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@krisnelson
"Women and Pockets" (1885)
I occasionally come across fun little writings as I go about my own research. Here’s one from the “Boston Beacon” (and republished in the San Francisco Chronicle) in 1885 (via Proquest):
The straights to which helpless woman has been subjected by the absence of pockets in her gowns have wring from her many complaints that have availed her nothing. She has begged and pleaded for “more” in vain,…
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The telegraph and the domestic home
The telegraph and the domestic home
In considering how the telegraph and privacy law interacted in the nineteenth century, I’ve developed the theory that the failure of telegrams to gain the same constitutional privacy protections granted to mailed letters and, eventually, to telephone calls, is due in part to a failure to connect it to the domestic home (the strongest source of privacy rights in American law).
I still think this…
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Locke: "where there is no law, there is no freedom"
Eighteenth-century political theorists John Locke is often associated with “libertarian” ideals that suggest that almost any exercise of government power is a problem and that almost all government functions (except those dedicated to protecting property and enforcing contracts) ought to be put in private hands.
But Locke’s view was much more nuanced than those of many (but not all) current…
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Thoughts on Meyer v. Nebraska and its connection to Griswold v. Connecticut
In the 1923 case of Meyer v. Nebraska, 262 U.S. 390 (1923), which grew out of the anti-German sentiment of World War I, the Supreme Court “upheld the right of parents to direct the upbringing and education of their children by striking down … a state statute prohibiting the teaching of any modern language other than English in any public or private grammar school.”1
How does this relate to Griswo…
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Griswold v. Connecticut, privacy, and the home
Griswold v. Connecticut, 381 U.S. 479 (1965), is one of the foundational cases of a constitutional “right to privacy” in the United States — though, as many have pointed out, the word “privacy” does not appear in the text of the Constitution itself. The precedent in the majority opinion by Justice Douglas is nonetheless strong and deeply rooted in tradition.
Two Kinds of Privacy
The line of…
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The Supreme Court and James Q. Whitman's "The Two Western Cultures of Privacy: Dignity Versus Liberty"
James Q. Whitman‘s 2004 article, “The Two Western Cultures of Privacy: Dignity vs. Liberty,” compares American perspectives on privacy with those of Germany and France, and reveals an interesting contrast: whereas American law and rhetoric is strongest when privacy is approached as a protection against state interference, privacy protections in Germany and France are at their peak when the…
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Publishing leaked materials: the Pentagon Papers case
Publishing leaked materials: the Pentagon Papers case
Within a month of taking office, President Donald Trump announced his desire to go after “leakers” who have helped embroil his administration in controversy. He also declared many traditional news outlets to be “enem[ies] of the American People!” What does this mean for those who publish such material? The so-called “Pentagon Papers case” from 1971 suggests newspaper publishers have a strong…
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Promoting involuntary sterilization: early hints of problems in the 1930s
Promoting involuntary sterilization: early hints of problems in the 1930s
In 1937, William M. Kantor published an interview with an early pioneer in sterilization (especially of men), Dr. Harry Sharp, in the Journal of Heredity.[1] Kantor had, according to documents in the archives of California’s Human Betterment Foundation (California was a pioneer in eugenic sterilization), interviewed Dr. Sharp in 1935 about his role as a physician and surgeon at Jeffersonville, a…
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Fake news, libel, and press protections against executive power
Fake news, libel, and press protections against executive power
The press serves an important role in checking executive power in the American system. Two cases, both involving The New York Times, are illustrative — and, since both involve the Constitution, neither can be changed by either executive orders or congressional lawmaking.
The first article in this series deals with libel suits against newspapers; the second will cover the publication of leaked…
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"Baloney Detection" in the era of "fake news"
Much has been written recently about the explosion of so-called “fake news” — much of which is, unlike real fake news such as that generated by the Onion or Andy Borowitz— falls somewhere on the spectrum between “snake-oil” pieces that generate income via advertising (“clickbait”), to shrill scare pieces about the evil doings (e.g., vaccines cause autism), to full-out political propaganda by…
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Privacy, autonomy, and birth control in America, 1860-1900
Privacy, autonomy, and birth control in America, 1860-1900
Access to birth control became, controversially, protected by the “right to privacy” in 1965;1 a hundred years before, “procreation was a matter of public concern.”2 Yet, contradictorily and confusingly, Victorian women — and their bodies — were protected (and limited) by a powerful social division between private and public spheres.
Birth rates drop in the 19th century
Women seeking to control…
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Victorian domestic specialization and gender roles
Victorian domestic specialization and gender roles
In a response to the common fact that young mothers so often died — through disease but especially in childbirth — the Victorians developed “what amounted to a dead-mother cult.”1Though the scale of death of mothers was not radically different than in prior centuries, the impact on Victorian families appears to have been greater than in previous generations, due to factors like the…
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Justice Scalia on the Constitution, privacy, and criminality
Justice Scalia on the Constitution, privacy, and criminality
A nice little “inkling” from the Indigo Book, a public-domain implementation of U.S. legal citation standards (of note: the Indigo Book emerged despite threats from the Harvard Law Review, publishers of that other standard work on the topic):
Justice Scalia once noted that “the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all,” Arizona v.…
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Prohibition and the domestic home
Prohibition and the domestic home
The domestic home has consistently been a key source of privacy protections in American law. From the old maxim that “a man’s home is is castle” to Justice Scalia’s opinion in Kyllo that warrantless use of thermal-imaging devices aimed at private homes violates the Fourth Amendment, the domestic sphere has occupied a special place in American jurisprudence.
Even the National Prohibition Act,…
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Franz Neumann on the importance of history to freedom
Franz Neumann on the importance of history to freedom
Franz Neumann, a key political theorist of the mid-twentieth century, on freedom:
For today, freedom is defined — as it has been for decades — as essentially negative-juristic, that is, as absence of coercion … and “coercion” is defined in such a way that the activity of the state alone appears as coercion. The less the state intervenes the greater the freedom, and vice versa. … [F]undamentally…
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Eugenic sterilization in California: practicing "good medicine"
Eugenic sterilization in California: practicing “good medicine”
Indiana may have passed the first sterilization law in 1907, but before World War II, it was California that led the nation in eugenics sterilizations. The goal? To “apply science to social problems”:1
Such legislation was part of a wave of Progressive Era public health activism that encompassed pure food, vaccination, and occupational safety. … [It] granted the medical superintendents of asylums…
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Surveillance and Sodomy in 1918 Sacramento
Surveillance and Sodomy in 1918 Sacramento
Nayan Shah’s 2011 book on race, sexuality, and the law in the North American West, Stranger Intimacy, deals with the complexities of a growing, migratory, contradictory population of the western United States and Canada during the first half of the twentieth century.
Shah challenges the traditional story of nuclear families relocating from one settled region to a new one, essentially…
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