Constiutional thought question

[bobman0330]

There is no reference to STATES being prohibited from violating bill of rights freedoms such as freedom of speech or search and seizure. Yet Scalia undoubtedly believes they are. Why? Because it is accepted by all interpreters of the constitution (based on historical materials, congressional debates, etc.) that the 14th amendment's Due Process Clause (which specifically applies to the states) incorporates certain fundamental notions of liberty. One way in which a judge can determine whether a right is fundamental for due process purposes is to see whether it was included in the Bill of Rights. If not, a very strong historical case must be made that the right is so fundamental that its abridgement violates the due process of law.

Textualism, which you have grossly distorted thus far, does not forbid looking to other sources for context in which to interpret the text. If that were the case, it would be a crackpot theory with no adherents. What it really means is putting the literal text ahead of the interpretative material. Where the text has a clear meaning, it should be followed without regard to what other interpretative materials suggest. Where textualism comes into rights analysis is not in determining whether unenumerated rights exist, but rather, which ones.