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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, September 14, 2005 ::
    From transcript section 16:

    SCHUMER: ...Just explain to me why you can say it about Griswold, which I'm glad that you did, but not about Wickard. Both of them have been litigated -- tangentially, at least -- in the last five or six years.

    ROBERTS: Well, Wickard was litigated directly in the Raich case. I don't think that the issue in Griswold is likely to come before the court. It was unlike...

    SCHUMER: Isn't Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom?

    ROBERTS: Well, that's one of the issues. But the difference between the issue that was presented in Griswold and its ramifications of the analysis, those are two very different issues.


    ME: I think what he meant was, there's a big difference between a precedent being cited and a precedent being challenged. The continuing validity of Wickard -- challeged by at least one concurrence (Thomas) in Lopez -- was at issue in Raich. The role of Griswold in Lawrence, by contrast, was merely its now-customary place in the "privacy" string-cite that usually starts with Pierce.

    :: David M. Wagner 12:21 PM [+] ::

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