8 Justices rejected incorporation via the P&I clause. 4 of them rejected incorporation entirely. 4 accepted incorporation via Due Process, and one had a concurring opinion in the outcome, but held for incorporation via the P&I clause.
The "outcome" that this case holds the 2nd as incorporated is a simplistic view of the case, which flatly rejected the notion that there was ever any content to the P&I clause... again.
When a fundamental portion of constitutional text is examined / legislated in terms of an object or process that is only part of the experience or exercise of any rights thereunder, the net effect may or may not be to limit the object or process in question, but it is almost always has a net effect to diminish rights overall for all objects and manners of exercise. In short, rejection the notion that the P&I clause carries any content related to the Bill of Rights, rejects the notion that those rights are fundamental with respect to the states, and puts forth the notion that only due process violations of said "rights" are to be worried about. There are many ancillary problems that derive from a due process basis to fundamental rights.
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Date: 2010-06-28 04:32 pm (UTC)The "outcome" that this case holds the 2nd as incorporated is a simplistic view of the case, which flatly rejected the notion that there was ever any content to the P&I clause... again.
When a fundamental portion of constitutional text is examined / legislated in terms of an object or process that is only part of the experience or exercise of any rights thereunder, the net effect may or may not be to limit the object or process in question, but it is almost always has a net effect to diminish rights overall for all objects and manners of exercise. In short, rejection the notion that the P&I clause carries any content related to the Bill of Rights, rejects the notion that those rights are fundamental with respect to the states, and puts forth the notion that only due process violations of said "rights" are to be worried about. There are many ancillary problems that derive from a due process basis to fundamental rights.