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Politics : Sharks in the Septic Tank
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To: Neocon who wrote (73681)8/29/2003 5:41:00 PM
From: TimF  Read Replies (1) of 82486
 
The courts must be reliable. Thus, the doctrine of stare decesis creates a high bar for overturning settled law. That is one example of "how the courts work"

I think that much was already agreed to, the question was - "Was the original decision correct.


If the purpose of the Amendment is to ensure that citizens of the United States are not arbitrarily deprived of fundamental rights by a state, then it doesn't much matter if the original amendment was phrased "Congress shall...." What matters is that the fundamental right is upheld.

If the amendment is to grant a legal right (whether you consider it recognizing a natural right and protecting it with the law or just inventing a right) then it should be expressly stated and any extension should also be so stated. I think the court is to fond of finding vague hints or ghosts of ideas in the constitution, and elevating them to the status of law. At least here the hint might be considered more then such a ghost but its far from solid, while the original amendment (the 1st) that is supposed to be extended used very clear and specific language. Incorporation strikes me as similar to (if perhaps not quite of bad of case of judicial activism as) Roe vs. Wade, where the idea of privacy was also "generalized".

Tim
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