I think the point is that SCOTUS should be consistent, one way or the other.
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I think the point Dan is making is that neither situation is actually a constitutional question at all, despite 5 SCOTUS justices voting to make it one.
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Well sure ... but *stipulate the former* and it's hard to deny the latter follows.
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Yea the is the problem with penumbra of rights, really only means what 5 justices thinks is fashionable.
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I can't remember the rights that come from a penumbra v. the rights that come from an emanation. Silly me!
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I thought that was exactly his point.
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