< the
history of the state action doctrine (requiring action by the state to
implicate constitutional rights) is an incoherent flight from those
implications.
======
> How does the court avoid implicability? Where's the State's [in]action?
******* Brazenly and frequently. And if you point it out to them they will laugh at you. I heard a story about hoaw a law prof was lecturing Justice Scalia on some error he had in her view committed. He said, well, you may be right, but I'm on the Supreme Court.
> a very
short and now fixerd list of fundamental rights.
=====
> How and who "fixed" these "fundamental" rights?
You get no guesses. The S.Ct fixed them in case law. The list is now closed because we have a conservative court that doesn't want to give people more fundamental rights. That may change.
**************
> Because if you let Shelly v. Kramer run amok, on the left, you get
socialism, and on the right, you get constitutionalization of lots of things
that we none of us want the feds involved in.
=========
> Well, how do create a catalog of these cases so we can duke it out with the
right? "First" in texts, articles, etc. re-exploring past cases and then
thinking of bringing potential new cases back into the circuits to revisit
the questions?
Sure, that's what left wing law professors and progressive lawyers do. But mainly we are occupied with a fight to hang on to what was won in the Warren & Burger court eras rather than in a frankly hopeless battle to get the Rehnquist court to see if it wants to go beyond the Warren & Burger courts.
> Even though the law is running on [tired and obsolete] experience, there are
only so many
[il]logical moves the right can make since the positivism that informs their
methodology is tapped out.
You wish. And we on the left should talk about being tapped out.
> Aren't the Feds already involved in precisely
the things we don't want them involved in, much to the joy of the right?
Well, yes, but do you really want, for example, that someone Doug shuts up on this list should have a cause of action against him under 42 USC 1983 for violation of his First Amendment rights, and so forth? Limited government is not such a bad idea. The alternative is totalitarianism or Kafka.
--jks