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Washington Times op-ed on Chicago case
Here.
I've mentioned before that there are three ways in which incorporation could be found:
1) Thru the Due Process Clause, as it's been done for a century or so.
2) Thru Privileges or Immunities, overruling back to Cruikshank (which held the first and second amendments were not privileges or immunities).
3) Thru P or I, going farther back and overruling The Slaughter-House Cases (which held the non-enumerated right to practice business w/o certain regulation was not a p or i).
The authors of the article want (2) and seem terrified of (3), arguing that it could lead to gay business marriages, destroy the Republic and so on. I really don't see the point. If the Court wanted to do the things they list, it could do them under the Due Process Clause.
In fact the Lochner case, so often cited as an example of that (it struck down a maximum hour law as a violation of liberty of contract) WAS a substantive due process case.
Comments
Ditto. The incredible stuff that the Court has already imposed on the states through due process demonstrates that it doesn't matter what you write, the activists will find a way around it.
Posted by: Clayton E. Cramer at December 11, 2009 03:24 PM
States "rights" (states have powers, individuals have rights) and the 10th amendment have both been a dead letter for many years. How would over turning Slaughterhouse change anything?
People tend to worry about an unelected judiciary will do if they think they won't like the result, but are for it in cases like Heller. I suspect that those who wrote and support this article are worried about the states being told that they must end the restriction of certain rights.
Posted by: James Nelson at December 12, 2009 01:49 PM
Dead wrong James. The difference it that Heller supports an explicit, written right in the 2nd Amendment. Compare and contrast prior judicial nullification (via "collective rights" interpretation) of 2nd Amendment rights with Roe v. Wade, where our black robed masters invented a strictly scrutinized right to infanticide ex nihilo.
Posted by: RKV at December 12, 2009 02:11 PM
Exactly my point RKV. The government should not be regulating abortion or gay marriage or drug consumption or any number of other issues that should be governed by personal choice. Your personal beliefs should not be imposed on others via the government.
Posted by: James Nelson at December 13, 2009 05:20 AM
I am not a lawyer but the article says basically the bill of rights applied only to the federal government which would seem to not right. It is my impression that these were fundamental rights that people and not granted by a government. If so then the states should not be able to limit them either. Am I wrong in this belief? Somehow, the founders of the country thought it was necessary to prevent the federal government from over-running these rights but that it was okay for the states to do so? This just does not seem logical to me.
So I guess I am asking if this idea is true that the states did not have to recognize those basic rights? It would seem that they traded the tyranny of the national government for the tyranny of a local government.
Posted by: Rich at December 13, 2009 02:33 PM
Well James, you don't tell it that way in your first post. The Bill of Rights is for ALL CITIZENS, and after the passage of the 14th Amendment the only ones denying that the Feds can and should enforce this are tyrants or tyrant wannabes. You miss the point completely about explicitly enumerated rights.
Posted by: RKV at December 13, 2009 07:05 PM