I believe the extensions were expressly stated in the rendered opinions. The problem with Roe is not that it is illegitimate to invoke privacy rights, but that they are overstated. Clearly, rights against arbitrary search and seizure protect privacy. Equally clearly, they do not impose a high burden to allow invasion of privacy. "Due process" only requires that the state act reasonably.
On the other hand, ask yourself if it makes much sense to guarantee citizens the right to practice their religion, as far as federal law is concerned, but to allow the several states to impose restrictions effectively obviating the right. One of the favorite answers of "Constitutional libertarians" (i.e., libertarians who will defend the right of states to be tyrannical) is that that is why we can freely move about the country, so that we can find a congenial regime. Is that very practical, to allow the state implicitly to impose a heavy penalty (the forced sale of property, and the costs of moving a household, together with the uncertainties of reestablishing onesself) as as exaction against your right of conscience? You may as well not have articulated the right in the Constitution. To me, then, Incorporation cures a defect of the Constitution, and is a reasonable extrapolation from the language of the 14th amendment......... |
