Note that the court case that first invoked “emanations from penumbras” involved a Connecticut law banning the the use of contraceptives. Do you believe such a restriction should be constitutional?
If we’re talking about what “should be constitutional,” we’re no longer talking about “the law” but instead policy or philosophy.
Regulating the “public health, welfare, and morals” is the prerogative of state legislatures. So the question is whether there is anything in the constitution that overrides that general power. Resort to “emanations from penumbras” is a concession that there isn’t.
By the way, this isn’t even some U.S.-centric take. The constitutional law in most western democracies leaves regulation of drugs to the discretion of the legislature.
I'm asking about your personal opinion: in Griswold v. Connecticut should the Supreme Court have upheld states right to ban access to all contraceptives, including condoms?
> Regulating the “public health, welfare, and morals” is the prerogative of state legislatures. So the question is whether there is anything in the constitution that overrides that general power. Resort to “emanations from penumbras” is a concession that there isn’t.
Your comments these past months seem to evince an extreme textualist view of the Constitution's limits on government power.
Would it be fair to say that, in your view, a state government can take whatever action it wants, so long as the action isn't literally prohibited by the text of the Constitution? (In other words, for state governments, anything not prohibited is allowed?)
I'm curious: What's your view of the doctrine that under the 14th Amendment, state governments must comply with the Bill of Rights to the same extent as the federal government?
You periodically mock "emanations from penumbras" — is it your view that the phrase has more significance than simply a figure of speech to communicate the underlying concepts? (I have my own issues about Justice Douglas's track record, but that's not one of them.)
rayiner|7 months ago
Regulating the “public health, welfare, and morals” is the prerogative of state legislatures. So the question is whether there is anything in the constitution that overrides that general power. Resort to “emanations from penumbras” is a concession that there isn’t.
By the way, this isn’t even some U.S.-centric take. The constitutional law in most western democracies leaves regulation of drugs to the discretion of the legislature.
syntheticcdo|7 months ago
dctoedt|7 months ago
Your comments these past months seem to evince an extreme textualist view of the Constitution's limits on government power.
Would it be fair to say that, in your view, a state government can take whatever action it wants, so long as the action isn't literally prohibited by the text of the Constitution? (In other words, for state governments, anything not prohibited is allowed?)
I'm curious: What's your view of the doctrine that under the 14th Amendment, state governments must comply with the Bill of Rights to the same extent as the federal government?
You periodically mock "emanations from penumbras" — is it your view that the phrase has more significance than simply a figure of speech to communicate the underlying concepts? (I have my own issues about Justice Douglas's track record, but that's not one of them.)