B-Bob insists:
--- the Supreme Court CAN "legalize" anything they want, simply by finding that there is a new "right" under the Constitution which protects such activity.
That is Justice Scalia's point. And if you do not understand that, you need to read his Dissent in the Texas sodomy case. He lays it out chapter and verse.
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I've read it, and Barnett best counters Scalias dissent, "chapter & verse".
National Review Online Address:
http://www.nationalreview.com/script/printpage.p?ref=/comment/comment-barnett071003.asp
Barnett:
" --- judicial conservatives say that there is no textual basis for the protection of a general right to liberty.
Unlike "privacy," however, both Due Process clauses explicitly mention "liberty."
The judicial-conservative response to this is to argue that liberty may properly be restricted so long as "due process" is followed.
As Justice Scalia wrote in his dissent:
"The Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided." (his emphases)
This is wrong on two counts.
First of all, the "due process of law" includes judicial review. And judicial review includes an examination of whether the government is acting within its delegated powers.
That is why, in U.S. v. Lopez and U.S. v. Morrison, the Supreme Court could properly strike down a federal statute that exceeded the power of Congress under the Commerce Clause.
Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights "retained by the people."
The Ninth protects against federal violations of liberty rights; the Privileges or Immunities Clause protects against violations by states like Texas of liberty rights plus the Bill of Rights and other privileges or immunities of its U.S. citizens. --"
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B-Bob asserts his authority:
"--- I am always grateful for your explanations to me of what the Constitution means, as written and amended to date. Every time you write, I am amazed that I had missed your point in a mere forty years of study, teaching, testifying, and practicing in the Supreme Court.
I look forward to your next ever-so-educational post on the subject. There, does that cover the waterfront? ---"
Your Obedient Servant,
J. Armor, Esq.
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'It' covers nothing Bob. --- I'm always amazed that you claim to have a "mere forty years of study, teaching, testifying, and practicing in the Supreme Court", yet you can't be bothered to dash off an actual counter to a mere layman's comments. --- Much less Barnetts arguments, -- a man who actually has argued before the USSC.
I countered your arguments with Scalia's Dissent. You don't want to believe it, that's your business. But that means two things: 1) you are not a "judicial conservative," and 2) you are wrong.
You give the surface appearance of being reasonable and being able to read with comprehension. But it's all a cover for your "layman's comments" which consist of your chronic misreading of the Constitution.
I will exercise more restraint in the future, and not waste time posting to you. "Never try to teach a pig to sing. It wastes your time and it annoys the pig."
Sorry for annoying you. It won't happen again.
Very Truly Yours,
John / Billybob