Jamison E. Colburn, Penn State Dickinson Law, has posted Nineteenth-Century Navigable Waters:
The Supreme Court's doctrinal Odyssey with "navigable waters" began in the nineteenth century and spanned a tremendous range of constitutional and statutory disputes. Indeed, by century's end, the Court had taken more opportunities to opine on what comprised "navigable waters" than perhaps any other doctrinal term. The Court's misadventures with the term continued in the twentieth century, but those contests were shaped in largest part by the confusing cross currents churned up from the nineteenth. Today, as the Court so regularly acts by doctrinal fiat, this history should be under a great deal more scrutiny than it has been in a long time. What it reveals, beyond considerable judicial conceit, is the treachery inherent in judges deciding for the republic what our real interests in these waters are and why and how they should be governed.
--Dan Ernst
