I really, really don't get how incorporating an enumerated right (one written in plain language right there in the Bill of Rights) opens the flood gates to any imagined right whatsoever. It's like expecting that my car keys will start every car in the neighborhood.
Incorporating an enumerated right isn't the problem, it is how you get there. Clearly the framers of the 14th Amendment intended the P&I clause to apply Second Amendment protections to the States.
And no one fanning the flames of the "anything goes" argument against PoR incorporation ever bothers to explain how that would work.
Where is the right described in Rowe v. Wade in either the Constitution or the understanding of rights as the Founding Fathers stood them? Look at the Privileges and Immunities as explained in Corywell, can you imagine any penumbras emanating from the rights described there as being part of the P&I?
The whole argument is that P&I only protects the rights envisioned by natural law or the privileges and immunities as it applied at the time of the framing of the 14th Amendment. If we can limit the interpretation of the P&I clause to this, then we have no problem with Pandora's Box - although even then, there is still a great deal of room to debate the extent and number of rights as understood then.
But what happens when we try to bring those rights into the 20th Century? The point about women is an apt one. You cannot get there through an originalist interpretation of the 14th Amendment. You have to supplement that understanding with something else - and almost any one of these "something else's" offers even more vagueness that a more liberal court can exploit.
It seems the 'chicken-little' crowd's fears are a little misplaced.
I think discounting those who are worried about where P&I might lead as the "chicken little crowd" is misplaced and doesn't serve the debate well. Whether you feel those fears are valid or not, those are the fears the Court has and you must address them if you want to get where you want to go.
Second, it isn't like those fears are unreasonable. Four of the current Justices aren't even willing to give meaning to words plainly written in the Bill of Rights when it doesn't suit them. If you are going to give life to a clause of the 14th Amendment that creates unnumbered rights, including about 20 or so vaguely described rights that are expressed, and applies them against the states, then we need to have a clear idea of which rights will pass that test or we have just killed federalism.
Tennessee Gentleman said:
If we are looking at an
originalist interpretation then that doesn't help us since at the adoption of the 9th Amendment, women did not commonly have a right to contract, a right to hold property, etc.
You cannot get those rights to women through an originalist interpretation of the Constitution as far as I can see, except to say that the originalist interpretation is simply wrong in that instance and we aren't going to abide by it - in which case, why wouldn't we later reach that same conclusion with something else related to P&I?
To put it simply, if the only way the right works is if we have dedicated, unbiased, Constitutional scholars who accept originalist interpretation on the bench - then it just isn't going to work.