Quote:
Originally posted by Captain
When you read the Brandeis article you posted earlier together with his dissent, you get an interesting idea of Brandeis' view of the relationship of common law and constitutional principals. He views the common law (first protecting battery, then protecting from libel, etc.) as forming the basis of rights ultimately enshrined, referenced or implied in constitutions; he is not viewing the constitution like a contractual construction between government and people but instead an expression of the people delegating authority to government based in part on common law prinicipals.
I know this has been an issue, with arguments that "there is no Federal common law" being in the ascendancy today. But I'm not sure that's right.
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Of course its not right, and of course there is a common law, and of course both the constitution and common law on which it is based give people the basic right to privacy. Strict constructionalism is just a trick of the Right to take away common law basic human rights. Its absurd. "If its not explicitly written exactly as a 'right to privacy' in the Constitution, then it doesn't exist." Its the sort of silly hypertechnical procedural argument judges routinely throw out because to side with it would "frustrate the very intent of the law."
Strict constructionalism throws common sense out the window. Its as intellectually dishonest and imbecillic as biblical literalism.
