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Old June 5, 2009, 07:15 PM   #7
gc70
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Join Date: May 24, 2005
Location: North Carolina
Posts: 2,903
Quote:
I had in mind cases that must be overturned in order to restore the 14th to it's originally intended scope.
Slaughterhouse put a stake through the heart of the "privileges or immunities" clause, which was probably the 14th Amendment's code phrase for the Bill of Rights. My layman's guess is that Slaughterhouse will not be reversed because the legislative record suggests that "privileges or immunities" is at least as broad as the Bill of Rights, and probably much broader. Reversing Slaughterhouse might throw open a very wide door to an undefined number of possible "new" Constitutional rights, which is a form of uncertainly that SCOTUS traditionally does not pursue.

SCOTUS does not need to reverse Slaughterhouse because the desired end (applying the Bill of Rights to the states) has largely been achieved through due process incorporation. SCOTUS can tidy up any remaining loose ends through further due process incorporation without opening a possible Pandora's box by reversing Slaughterhouse.
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