| > Privileges and Immunities clause analysis Thomas suggests would be entirely superfluous unless the Court not only through our the substantive due process theory but also just read the Equal Protection Clause into a nullity. Have you read Thomas’s thoughts on these issues? He’s not hiding the ball here, he’s been addressing them for years. He does not think the Equal Protection Clause is a “nullity” lol. > Thomas also leaves out that the Court has (long before coming up with the Substantive Due Process theory he calls on it to reject), actually already done the P&I analysis he calls for and rejected the idea that that clause covers anything other than explicitly enumerated rights, Which Thomas thinks is incorrect and he’s got a good argument for why. Again, Thomas acknowledges there are unenumerated rights. He disagrees with liberals about the source of those rights and their scope, but he doesn’t deny they exist. > (note that this problem would not exist with the Ninth Amendment which is fairly explicitly about unenumerated rights The Ninth Amendment is a savings clause. It isn’t a source of rights. It’s not a vehicle for 20th century judges to create new rights. > The US doesn't even have a doctrine similar to Griswold; the right in Griswold was upheld by later cases on a substantive due process basis (closer to Byron and Harlan’s concurrence), but Griswold itself wasn't actually a substantive due process case. I’m asking whether it matters that there is a Constitutional protection for contraception or not. To my knowledge, other developed countries get along fine without one. |