Constitutional Law

Washington Times op-ed on Chicago case

Here.

I've mentioned before that there are three ways in which incorporation could be found:

1) Thru the Due Process Clause, as it's been done for a century or so.

2) Thru Privileges or Immunities, overruling back to Cruikshank (which held the first and second amendments were not privileges or immunities).

3) Thru P or I, going farther back and overruling The Slaughter-House Cases (which held the non-enumerated right to practice business w/o certain regulation was not a p or i).

The authors of the article want (2) and seem terrified of (3), arguing that it could lead to gay business marriages, destroy the Republic and so on. I really don't see the point. If the Court wanted to do the things they list, it could do them under the Due Process Clause.

In fact the Lochner case, so often cited as an example of that (it struck down a maximum hour law as a violation of liberty of contract) WAS a substantive due process case.

Full post as published by Of Arms and the Law on December 11, 2009 (boomark / email).