Great article. Two questions: (1) Does the privileges or immunities clause adequately protect unenumerated rights assuming judges do not use a flawed "history" test to identify the rights it protects, or does the clause lack important tests inherent in the concept of due process of law (generality, public purpose, rationality, comprehensibility, etc.)? (2) Did Obergefell give ammunition to opponents of substantive due process by wrongly using substantive due process to find a "positive" right (a right to receive the honorific title of marriage)? Should it instead have relied on the right to freedom of contract to uphold a right to same-sex marriage? Jack Painter - Jack@JackPainter.com
Great piece, Tim.
Great article. Two questions: (1) Does the privileges or immunities clause adequately protect unenumerated rights assuming judges do not use a flawed "history" test to identify the rights it protects, or does the clause lack important tests inherent in the concept of due process of law (generality, public purpose, rationality, comprehensibility, etc.)? (2) Did Obergefell give ammunition to opponents of substantive due process by wrongly using substantive due process to find a "positive" right (a right to receive the honorific title of marriage)? Should it instead have relied on the right to freedom of contract to uphold a right to same-sex marriage? Jack Painter - Jack@JackPainter.com