LoAndEd at AOL.COM
Thu Sep 30 23:23:41 PDT 1999
Even taking Scalia's views on their own terms (not that I'm recommending
it!), I think Michael H. doesn't quite lead to the inquiry that Prof.
McConnell suggests. As I recall it, the Scalia plurality simply would *deny*
that there's a fundamental right if there *has been* a tradition of state
regulation of the activity in question. He does not say (not that I recall,
anyway) the opposite -- that there *is* a fundamental right simply because
states *haven't* traditionally restricted the activity. Moreover, his
opinion in McIntyre suggests the opposite. In McIntyre, Thomas argues that
the framers must have contemplated a First Amendment right to anonymous
pamphleteering, since so much such activity took place without regulation.
Scalia responds that just because an activity was frequent and unregulated
doesn't mean that the right was regarded as fundamental (constitutional, in
that case), or that the possibility of regulation of that activity was
regarded or widely considered to be illegitimate. 514 US at 373. In other
words, the lack of regulation should not be read as suggesting a perceived
lack of power to regulate or a constitutional restraint on regulation.
(in my personal capacity)
Michael McConnell writes:
I can't agree with Sandy Levinson about the grandparent issue. To
begin with, "anyone who signed Scalia's Michael H. opinion" would
inquire: in our constitutional tradition, have state legislatures ever
exercised the power to tell parents they must give visitation rights
to other people? I believe the answer is "no."
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