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01/16/2013

Andrew Hyman on Jack Balkin, the Constitution and Sexual Freedom
Michael Ramsey

At RedState, Andrew Hyman: A Response to Jack Balkin's 'Sexual Freedom and the Constitutional Text'.  From the introduction:

In a recent blog post, Yale Law Professor Jack Balkin concedes that the "substantive due process" doctrine used by the U.S. Supreme Court to justify Roe v. Wade (and similar cases) was beside the point. But even while dismissing the Court’s rationale, Balkin says that those sex-related court decisions are valid anyway, because of two other clauses in the Fourteenth Amendment: the Privileges or Immunities Clause, and the Equal Protection Clause. Professor Balkin is sadly mistaken, and I’d like to briefly explain my reasons for saying so. I will focus mainly on Roe v. Wade, because that is the most controversial of the cases in question, but similar arguments apply to most of the related cases. And I will shoot down Balkin’s Equal Protection Clause argument first, because once that argument falls, his other argument (privileges or immunities) collapses too. ...