Okay, I've read everything but the dissents at this point. (I am not sure I am up for another long piece by Stevens or Breyer making up yet another new test.)
I totally agree with you otherwise, but I think it's unfair to say Alito avoided talking about the history of the amendment. He just avoided talking about the history of the P&I clause -- there's lot of history in there.
Alito pretty much admitted that there was widespread agreement that substantive due process was the wrong way to go, but then just kind of dropped the subject and moved on. I read it as "if we can do it with substantive due process, let's just do that and get it over with, and hope no one ever sends us a straightforward P&I question (but we'll give someone status as an intervenor if they do)".
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Date: 2010-06-30 09:12 pm (UTC)I totally agree with you otherwise, but I think it's unfair to say Alito avoided talking about the history of the amendment. He just avoided talking about the history of the P&I clause -- there's lot of history in there.
Alito pretty much admitted that there was widespread agreement that substantive due process was the wrong way to go, but then just kind of dropped the subject and moved on. I read it as "if we can do it with substantive due process, let's just do that and get it over with, and hope no one ever sends us a straightforward P&I question (but we'll give someone status as an intervenor if they do)".