[XJarhead]

Test cases are nothing new, they have existed in virtually every area of civil rights doctrine, from integrated lunch counters, Florida beaches off-limits to blacks in the segregation era, to MLK's disobedience to an ostensibly lawful, if clearly unconstitutional court order in Birmingham. So what?

The "so what" is that in those cases, 1) those laws actually were being enforced, 2) some of those people were advocating legislative changes, and/or 3) they weren't seeking to have new rights read into the Constitution.

Farah missed this point completely, because he's a dunce. But the argument for invention of a "right to privacy" or expansion of substantive due process is asking the Court to expand its authority into areas where it should not go. And the fact that these cases were set-ups shows that the Court did not need to intervene. The changing social mores that allegedly justified the manufacture of new "rights" already had led to those statutes not being enforced in a manner that would concern the average person.

[middie]

If you choose to begin with the premise that the rights expressed by the Court were manufactured from whole cloth where none previously existed then you reject the principal of constitution interpretation that emmantes from Marbury vs. Madison, 1803. So be it, that's a discredited school of thought and I'm not going to engage in a lengthy debate here on a subject that occupies half of every constitutional law class at every law school.

To opine that the court''didn't have to take the case'' is to restate the obvious and adds nothing.