It wasn't litigated because its so basic as to be universally respected. I doubt there has ever been a court precedent that the government has the power to declare murder a crime and punish those who murder, either. That's not because it is 'new' or 'novel'. Quite the contrary...
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Yes, it’s “newness” is the main issue, way to hone in on that and edify your readers.
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TBF, WaPo also thinks "the electoral college," "the free exercise of religion," & "the right to bear arms" are new concepts built on a shaky legal foundation
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Aka but Trump jurisprudence
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