and i think it's ridiculous to frame issues so narrowly. equal protection is broad. due process is broad. cruel/unusual is broad. just to name 3. to think that issues or phrases that aren't mentioned specifically within the constitution, leaving aside gay marriage for a second, couldn't be subsumed in perfectly logical, reasonable fashion within those terms explicitly mentioned within the constitution.

to state that every specific issue before the court must appear exactly in the constitution or that new issues can't arise that fit perfectly well within the substantive rights guaranteed by the constitution means that the constitution's restrictions are relegated to a specific meaning at a very specific point in history and thus their meaning/importance fades as time passes, leaving it all up to the good graces of the legislature.

to state that substantive rights are usually things that aren't found in the constitution is not a logical argument. equal rights = a substantive right. free speech, freedom of religion, right to bear arms, freedom from unreasonable searches and seizures, no cruel/unusual punishment, etc. are all substantive rights. it's the court's job to enforce those, regardless of unpopularity of the decision or current moral sensibilities.

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f/k/a mclamb6