"Ed Huntress" wrote in message news:...
wrote in message
oups.com...

It's a subtle piece of law but there are no holes in it. That's what
drives
conservative legal scholars up a wall. All they can do is argue that it
mis-weights the competing interests, or argue that the 14th doesn't apply,
and that the states can do as they wish.

However, if they argue the latter, there goes the ol' 2nd Amendment, among
others.

Catch-22. g

Whoops, I forgot an important conservative argument: that Griswold was
decided wrongly, that states do indeed have a right to tell married couples
that they're not allowed to use contraception, and that there is no right to
privacy. Bork has argued this precisely. Thomas almost certainly would. They
would basically say that the Ninth Amendment is meaningless (Bork has almost
come out and said this), thus limiting our rights to those expressly stated
in the Bill of Rights.

Madison feared such an interpretation, as did Jefferson. The originalists
would solve the problem by saying, simply, that there are no more federally
protected rights than those stated expressly in the first eight Amendments.

This would have the result of tossing the question back to the states, which
Scalia and many others favor. Scalia probably would apply his considerable
talents as a legal juggler and sophist to avoid saying outright that the
Ninth is meaningless. He could say, for example, that the Ninth and Tenth
Amendments provide for the states the right to decide who has additional
rights, and who does not -- and then crossing his fingers that some state
won't decide that someone has a right that contradicts the right of someone
else, under *federal* law. At least, not during his tenure. d8-)

I think that's Catch-23.

--
Ed Huntress