It all hinges on the literalness required of the court in interpreting statute. I am a little annoyed that you did not address my point about the inadequacy of Roe, pretending that I had defended it. I said that the court was correct, that the one could draw from the Constitution a concern with privacy rights, but that the mistake was to make it a trump, when all that was required to invade privacy was a reasonable state interest.
Here is a good example of the sort of decision a court might have to make. Is the invasion of the body, for example, to draw blood in a criminal investigation, forbidden by the 5th amendment? or is it more analogous to search and seizure, and requires only a warrant? Since one can be forced to turn over other evidence in one's possession, the question must be raised, why is confession to be uncoerced? Obviously, to discourage the application of undue means of suasion, which would taint the reliability of confession and subject the suspect to untoward punishment before conviction. Thus, the rationale is adduced to clarify matters, and things like blood tests are categorized under ordinary evidence gathering.
None of this is immediately clear from the text, and yet the meaning of "self- incrimination" hinges on figuring it out.
I have argued that a similar analysis says that, by the 14th amendment, what is forbidden to the Congress, in respect of coercion in matters of conscience, is forbidden to the several states.......... |
