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.

[DVaut1]

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[DVaut1]

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There is no reference to STATES being prohibited from violating bill of rights freedoms such as freedom of speech or search and seizure.

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Re-read Section I of the 14th Amendment

[bobman0330]

My bad. I thought it said:

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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I guess it actually says that states may not abridge freedom of speech nor conduct unreasonable searches and seizures.

[DVaut1]

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I guess it actually says that states may not abridge freedom of speech nor conduct unreasonable searches and seizures.

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No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

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Clear, right?

[bobman0330]

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I guess it actually says that states may not abridge freedom of speech nor conduct unreasonable searches and seizures.

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No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

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Clear, right?

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I would suggest you do some research into 14th amendment jurisprudence. If you do, you'll find that free-speech/search and seizure/other Bill of Rights claims against states are based on the due process clause, not this language of the 14th amendment. As I explained earlier, all judges, including textualists, feel free to make the inferences required here, based on the fundamental rights analysis I described. A quick Google search on "privileges and immunities clause" gave me this site from Findlaw. Here's a highlight:

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Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a ''practical nullity'' by a single decision of the Supreme Court issued within five years after its ratification.

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Read more about the theories behind incorporation of the BofR against the states and I think you'll be surprised about how much "non-textual" law is accepted by all mainstream jurists.

[Chris Alger]

It would be unconstitutional under the due process clause of the 14th Amendment, the same provision under which federal courts review legislation regarding reproductive rights and privacy. You might ask what "due process of law" has to do with substantive rights to have children, get an abortion, buy contraceptives, or teach children German (as in Meyer v. Nebraska, 262 U.S. 390 (1923)). There's a convoluted history here, but the doctrine of "substantive due process" remains very real.

[natedogg]

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I don't think such a law would go far in the US, but if it did, you see it being supported by the right as opposed to the left??????

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You beat me to it.

natedogg

[giddyyup]

Right to make ones own child bearing decisions is fundamental and protected by the constitution, as held in in Skinner v. Oklahoma, 316 US 535 (1942).

Skinner is one of the "fundamental rights" cases used by the Roe court to craft the "right of privacy."

[JPinAZ]

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Where will a strict textualist (like Scalia) derive such an explicit and fundamental right from? It's not in my Constitution; is it in yours?

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Yep:
Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.