The Bill of Rights still does not apply to the states, in toto. Only fundamental rights have been incorporated. That's the point of the "remedial" instruction.
Anticipating your response, I assume you would argue that the right to privacy is a fundamental right. It's a clever argument but it ignores, or pretends to ignore, about 200 years of history. If it's so fundamental, why did it take us almost 200 years to realize this?
The "penumbra" argument is also clever, but it has never commanded a majority of the SCOTUS. There are no consistent opinions on the source of the right to privacy -- one justice finds it in the 9th, another in the 10th, another in the 14th, and the dissenters don't find it at all.
I agree that the right to privacy is a natural right, a human right, but it was never intended (at least not by the Founders) to be a Constitutional right.
I understand that you like the result, so you don't give a whit what gets destroyed to get there. After all, you can't make an omelette without breaking eggs. |
