progressivism, individualism, and the public ... - Telmarc Group

The Telmarc Group
PROGRESSIVISM, INDIVIDUALISM, AND THE PUBLIC
INTELLECTUAL
The to all those who object to the use of foreign law, possibly excluding English
Common Law, he states:
"The right to privacy, limited as such right must necessarily be, has already found
expression in the law of France."
He interjects the use of French Law, circa 1890 as a basis for his argument. In today's
world this would fly in the face of many legal scholars and jurists. He ends with:
"The common law has always recognized a man's house as his castle, impregnable, often
even to its own officers engaged in the execution of its commands. Shall the courts thus
close the front entrance to constituted authority, and open wide the back door to idle or
prurient curiosity?"
Here it is clear he uses Common Law and not Constitutional Law. When he ascended to
the Bench at the Supreme Court he in many ways on this issue of privacy, time and again,
found it lacking in the Constitution. Yet he found the fundamental right to exist, and
perhaps the Common Law Right could arguable be covered under the Constitution's
extension to such rights as being those un-enumerated rights. Remember the 9th Article
of the Bill of Rights says:
"Article [IX.] The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
Thus the Brandeis argument could be that if one could justify privacy via Common Law,
and Common Law is what the 9th Article is referring to then there is a Constitutional
right via this nexus. This was not the argument in Roe v Wade and its predecessors such
as Griswold. Nor did Brandeis argue this when faced with similar issues.
However we see Brandeis: (i) allowed for interpretation, (ii) permitted the current milieu
as a means to judge, (iii) allowed for use of foreign precedents as a basis for US
precedent, and (iv) used his personal relationship to the legal matter to drive his judicial
judgment. In today's world that may very well be a disqualification from sitting on the
highest bench.
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