Supreme Court hears challenge to Texas Sodomy Ban [Archive]

minty green

03-26-2003, 05:35 PM

Would people please drop the Ninth Amendment stuff? Seriously, it seems like people are invoking it left and right in the last month or two, but it is nothing but a truism, folks. It merely says that the government can't deny an asserted right on the basis that it is not specifically enumerated in the Constitution. It does not, not, not prevent the government from denying an asserted right for any other reason or no reason at all.

Now, with that out of the way, I just want to say that the Court need not, and almost certainly will not, reverse Bowers to reach the result of striking down Texas' sodomy statute. Bowers was decided on the basis of Due Process; that is, there ain't no Due Process right not to go to jail for engaging in a little consensual sodomy.

This case asks a different question: Does the Equal Protection clause prevent a state from drawing a gender-based distinction as to who can go to jail for engaging in a little consensual sodomy. That is, Texas law permits couples of opposite sex to put their hoohas and dingles wherever they want with each other, but says that you can't do that if you're the wrong gender. This, according the the defendants, violates the 14th Amendment's guarantee of equal protection of the laws.

(Opposite sex couples already cannot be charged with sodomy in ordinary circumstances, even where state sodomy law applies to both heterosexual and homosexual conduct, because the courts have recognized a Due Process right to procreate yourselves silly without the interference of the state.)

Because this is not primarily a Due Process case, the likely result is that the Texas sodomy law will be (as held by Bowers okay under Due Process, but in violation of Equal Protection.

Either way, they wouldn't have taken the case if there wasn't some serious disenchantment on the part of the Court with the result in Bowers. I predict good things come about June.

Mtgman

03-26-2003, 05:37 PM

Argh! Another piece I left out. It is possible, as Dewey noted, for the court to uphold the Texas statute on grounds that it is "homosexual" is not a protected class. i.e. that discrimination on basis of sexual orientation is not the same as discrimination on basis of Race/Gender/Age/etc. Personally I think they wouldn't have taken the case if they don't intend to strike it down, since the Texas Court of Criminal Appeals(State SC) refused to strike it down, if they wanted it to stand they simply could have left it alone.

Enjoy,
Steven

minty green

03-26-2003, 05:38 PM

Originally posted by Dewey Cheatem Undhow
The better view of amendment IX is that it guarantees that other sources of rights, such as state constitutions, are valid. I'll avoid further hijack, but if you're interested, minty and I have been engaged in a long, rambling discussion that includes this topic over here (http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=170905). No, actually, you and I have been discussing the 14th Amendment in that thread. I believe that we agree on the 9th Amendment.

Dewey Cheatem Undhow

03-26-2003, 05:47 PM

minty: That thread covers a lot of ground. We ("we" meaning me and other thread participants) did indeed discuss the ninth amendment. You may not have entered the discussion until later on (in which case, mea culpa), but the discussion does "include that topic."

Mtgman

03-26-2003, 05:54 PM

Originally posted by Diogenes the Cynic
Bricker, there's no specific constitutional(sic) right to(sic) eat bananas either, or to jerk off, or to sleep on your back. Do states(sic) have the right to ban those activities? Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class].

Enjoy,
Steven

Bricker

03-26-2003, 06:15 PM

Originally posted by Diogenes the Cynic
Bricker, there's no specific constitional right tro eat bananas either, or to jerk off, or to sleep on your back. Do stae have the right to ban those activities?

As has already been answered by others, the answer is yes.

Although much of the historical support for the banning of sodomy, which was discussed at length in Bowers, would not apply to any of the activities you list here.

Priam

03-26-2003, 06:22 PM

I am of the belief that the Supreme Court will simply insist Texas modify its law to cover everyone or remove it from the books. Equal Protection is probably the clearest point in this whole case.

However, what would be even more interesting is attempting to get a ruling about Equal Protection based, not upon wording, but upon application. Most of the states which ban sodomy and oral sex for all have only really enforced the law when the couple was same-sex. Thus, would that be considered violation of Equal Protection regardless of the law's technical wording?

Diogenes the Cynic

03-26-2003, 06:22 PM

Polycarp

03-26-2003, 06:39 PM

Originally posted by Mtgman
Argh! Another piece I left out. It is possible, as Dewey noted, for the court to uphold the Texas statute on grounds that it is "homosexual" is not a protected class. i.e. that discrimination on basis of sexual orientation is not the same as discrimination on basis of Race/Gender/Age/etc. Personally I think they wouldn't have taken the case if they don't intend to strike it down, since the Texas Court of Criminal Appeals(State SC) refused to strike it down, if they wanted it to stand they simply could have left it alone.

Enjoy,
Steven

Steven, I think you have the wrong angle on the question here. I will concede that there are various categories invoking various degrees of scrutiny in the standard tests for whether a law violates due process, but this appeal is being brought on an equal protection issue. The state would have to show a very strong argument that the health and welfare of Texans depend on making the distinction the challenged law makes. Perhaps one of the lawyers will address this.

And, gentlemen of the Bar, I do feel that you have been Borked over. I am unaware of any definitive ruling that says that the Ninth Amendment is merely a truism. I am quite well aware that SCOTUS will jump through hoops with their robes on fire to find another justification for their decisions than recognizing a Ninth Amendment right, even if it involves "emanations and penumbras." But the assertion that the Ninth merely says that other rights may be recognized (by statutes, state constitutions, etc.) flies in the face of what Mr. Madison had to say about it and has validity only in the sense that nobody has ever written a majority opinion finding a right as among the unenumerated Ninth Amendment rights -- i.e., as a de facto statement about the current status of the law.

"Five votes can do anything." - the Hon. Wm. Brennan

Gorsnak

03-26-2003, 06:41 PM

I too think that the classification of interest here is gender, not orientation. The Texas law doesn't forbid a lesbian from fellating a gay man, ergo, it's not about the orientation of those committing sodomy. It's about their gender, and gender is a fairly heavily protected classification.

minty green

03-26-2003, 08:38 PM

Originally posted by Mtgman
Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class]No, because such a law would be, to borrow a phrase certain to send somebody or other into a fit, arbitrary, unreasonable, and downright stupid.

[Okay, actually I have no idea whether such laws would withstand judicial scrutiny under the Due Process clause. But I do want to point out that their constitutional validity would be eminently questionable.]

Dewey Cheatem Undhow

03-26-2003, 08:39 PM

Originally posted by Diogenes the Cynic
IANAL, but let me ask the ones who are, would it be possible to assert gender as a class in this case, rather than orientation. IOW, the law discriminates against men because it prohibits an act for them, that is permitted for women. Can it be argued that I have the same right to suck on a penis as a woman does? I'm not sure this would fly. The law isn't defined in gender terms; it appears to apply to lesbians using strap-ons just as much as plain 'ol gay sex.

Here is the relevant statutory language from the Texas Penal Code (http://story.news.yahoo.com/news?tmpl=story2&cid=514&e=3&u=/ap/20030326/ap_on_re_us/moynihan_obit):§ 21.01. Definitions

In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means, except as provided by Section 21.11 [re: Indecency With A Child], any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

§ 21.06. Homosexual Conduct

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.So to make the gender argument, you're stuck with saying it's discriminatory based on the fact that male-female relations are OK but same sex relations are not. Which is really just the preference of the person accused -- the law itself applies equally to men and women.

Besides, gender is a "quasi-suspect" class, so it doesn't get the same strict scrutiny other protected classes do. Still, it's more than rational basis scrutiny, and that's something.

Dewey Cheatem Undhow

03-26-2003, 08:41 PM

Originally posted by minty green
...to borrow a phrase certain to send somebody or other into a fit...Now who could that be...? :D

minty green

03-26-2003, 08:48 PM

Originally posted by Polycarp
And, gentlemen of the Bar, I do feel that you have been Borked over. I am unaware of any definitive ruling that says that the Ninth Amendment is merely a truism.Ah, it does my heart good to prove Polycarp wrong. It's like killing the Buddha with an RPG or something. :)

Anyway, allow me to introduce you to United States v. Darby, 312 U.S. 100, 124-25 (1941): Our conclusion is unaffected by the Tenth Amendment which provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, secs. 1907, 1908.

From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. Martin v. Hunter's Lessee, 1 Wheat. 304, 324, 325; McCulloch v. Maryland, supra, 4 Wheat. 405, 406; Gordon v. United States, 117 U.S. Appendix, 697, 705; Lottery Case, supra; Northern Securities Co. v. United States, supra, 193 U.S. 344, 345 , 24 S.Ct. 459, 460; Everard's Breweries v. Day, supra, 265 U.S. 558 , 44 S.Ct. 631; United States v. Sprague, 282 U.S. 716, 733 , 51 S.Ct. 220, 222, 71 A.L.R. 1381; see United States v. The Brigantine William, 28 Fed.Cas. 614, 622, No. 16,700. Whatever doubts may have arisen of the soundness of that conclusion they have been put at rest by the decisions under the Sherman Act and the National Labor Relations Act which we have cited. See, also, Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 330 , 331 S., 56 S.Ct. 466, 475; Wright v. Union Central Ins. Co., 304 U.S. 502, 516 , 58 S.Ct. 1025, 1033. Hey, when I say "truism," I mean "truism." :p

Dewey Cheatem Undhow

03-26-2003, 08:53 PM

Originally posted by Polycarp
But the assertion that the Ninth merely says that other rights may be recognized (by statutes, state constitutions, etc.) flies in the face of what Mr. Madison had to say about it and has validity only in the sense that nobody has ever written a majority opinion finding a right as among the unenumerated Ninth Amendment rights -- i.e., as a de facto statement about the current status of the law.Apologies for the hijack, and it may be better to address this over in the other thread, but you've mentioned this before and I'm wondering what it is you're referring to? I trotted over to Findlaw to see if their annotations (http://caselaw.lp.findlaw.com/data/constitution/amendment09/) mentioned it, and they said this, which seems to argue against your position re Madison:Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. (Emphasis added)Now I realize the Findlaw annotations are hardly a constitutional treatise, but since your view of what Madison was doing is clearly different, I was wondering if you would mind spelling it out?

Dewey Cheatem Undhow

03-26-2003, 08:57 PM

And I see minty beat me to the punch, with better cites to boot.

mykpart

03-26-2003, 09:00 PM

They have to do away with the ban on sodomy in Texas. Otherwise, every time Dick Armey shakes hands with Governor Rick Perry, they will be in violation of a law that says a p***k can't get anywhere near an a*****e in Texas! (Thanks for that joke, Molly Ivins!)

minty green

03-26-2003, 09:04 PM

Originally posted by Dewey Cheatem Undhow
And I see minty beat me to the punch, with better cites to boot. May it always be so. :D

[And given how I currently have three cases that could eventually end up before SCOTUS, and two that could actually be granted review, may it REALLY be so.)

minty green

03-26-2003, 09:06 PM

Also I told you we had the same reading of the Ninth. :cool:

Dewey Cheatem Undhow

03-26-2003, 09:09 PM

Hey, and I believed you.

minty green

03-26-2003, 09:13 PM

Kum bah yaaaaaahhh my lord
Kum bah yaaaaah.

ricksummon

03-26-2003, 09:44 PM

Um, Minty, if your cite is supposed to prove that the Ninth Amendment is a truism, how come it says:Our conclusion is unaffected by the Tenth Amendment

Gorsnak

03-26-2003, 10:32 PM

Originally posted by Dewey Cheatem Undhow
I'm not sure this would fly. The law isn't defined in gender terms; it appears to apply to lesbians using strap-ons just as much as plain 'ol gay sex.

Here is the relevant statutory language from the Texas Penal Code (http://story.news.yahoo.com/news?tmpl=story2&cid=514&e=3&u=/ap/20030326/ap_on_re_us/moynihan_obit) (text omitted)

So to make the gender argument, you're stuck with saying it's discriminatory based on the fact that male-female relations are OK but same sex relations are not. Which is really just the preference of the person accused -- the law itself applies equally to men and women.

Besides, gender is a "quasi-suspect" class, so it doesn't get the same strict scrutiny other protected classes do. Still, it's more than rational basis scrutiny, and that's something.
No, to make the gender argument, you are stuck saying that fellatio is a crime if performed by a man, but not if performed by a woman. It has nothing to do with the preferences of the people involved. The people involved could prefer anything whatsoever. It's the gender of the fellater that detemines if a crime has been committed.

Diogenes the Cynic

03-26-2003, 10:39 PM

I think Dewey was saying that it also forbids some acts for lesbians, so it doesn't really discriminate against one gender more than another. I'm not really sure I buy that, though. It seem sto me that it's just that the discrimination is situational. Sometimes it goes against men, sometimes against women.

minty green

03-26-2003, 10:46 PM

Originally posted by ricksummon
Um, Minty, if your cite is supposed to prove that the Ninth Amendment is a truism, how come it says: Because sometimes, I'm really just that amazingly stupid. Remind me to tell you about the time I accidentally omitted the word "and."

F***.

:(

I would point out, however, that one of the dissents in Griswold v. Connecticut described the 9th as a "truism" along with the 10th. And outside of the superfluous reference to the 9th in Griswold, the Supreme Court has uniformly rejected the 9th as the source of any kind of right whatsoever.

minty green

03-26-2003, 10:52 PM

Originally posted by Gorsnak
No, to make the gender argument, you are stuck saying that fellatio is a crime if performed by a man, but not if performed by a woman.
Originally posted by Diogenes the Cynic
I think Dewey was saying that it also forbids some acts for lesbians, so it doesn't really discriminate against one gender more than another. That, right there, is the choice in the primary issue presented to the Court. I'm guessing 6-3 in favor of the position described by Gorsnak.

I leave it to the gentle reader to decide who the three losers are.

Polycarp

03-26-2003, 10:56 PM

Minty, I see ricksummon beat me to the question I would ask you. Care to clarify? (I concur that the Tenth is effectively a truism -- it makes explicit what the original text implies strongly -- that the Federal Government is one of delegated powers, though supreme within its sphere of power, and that the states retain the powers they didn't delegate, except where the states, through the U.S. Constitution or their own acts, whether of constitutional stature or not, set a power aside as not capable of being exercised by them. For example, the power to pass an ex post facto law is in abeyance; the Constitution provides that neither state nor federal government may do so; it's "retained by the people" in the sense that they have not enabled either tier of government to pass one.

Dewey: Mr. Madison's remark is quite clear to me:

''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

IMHO, the Ninth Amendment attempts (unless balked by the Bork/Scalia school of thought) to make secure the rights which the FF would regard as basic human rights but which they did not see fit to spell out in Amendments I-VIII, including the permutations from them resulting from 214 years of change and growth in America and in world capabilities. Exactly what those rights are must be discovered by some means. (And here is where one's jurisprudential philosophy comes into play -- are there references to rights not specified in the works of the FF? Can one see an evolution of a concept of particular rights as part of the evolving concept of American freedom, e.g., "privacy"? To a textualist, it of course must be a nullity or a guarantor of statutory and state-level rights, since it says that some rights exist but not what they are.) But I would have no problem in a judge founding the right to marry or the right to travel in the Ninth's guarantee -- they are spelled out in various decisions, but I would hesitate to get particularly thrilled by the formularies used by the justices to arrive at them. Far better to say of them, "This is something that Americans have always concurred is a legitimate right which all people have, subject to the standard protection-of-minors provisions which nearly all laws are construed as taking into account, and it must be among the unenumerated rights which the Ninth Amendment guarantees."

But I think Madison's comment makes clear that he explicitly did not consider the original Constitution's provisions and the first eight amendments as a summary of all rights which the FF agreed were inalienable, and that the Ninth served to protect those others which were not enumerated in the previous text.

Blalron

03-26-2003, 11:03 PM

I leave it to the gentle reader to decide who the three losers are.

Scalia, Thomas, and Rehnquist of course!

minty green

03-26-2003, 11:12 PM

I shall praise thee for thine prescience come this June, Blarlron.

Gorsnak

03-26-2003, 11:23 PM

Originally posted by Diogenes the Cynic
I think Dewey was saying that it also forbids some acts for lesbians, so it doesn't really discriminate against one gender more than another. I'm not really sure I buy that, though. It seem sto me that it's just that the discrimination is situational. Sometimes it goes against men, sometimes against women.
Well, yes, he mentioned lesbians and strap-ons, but I don't see how that's different from fellatio.

A man can legally penetrate a woman's anus with a strap-on dildo. A woman can't. A man can legally allow a woman to penetrate his anus with a strap-on dildo, but a woman can't.

The claim of gender discrimination isn't made on the basis that there are fewer things men can do than women, or vice versa. It's based on the fact that for any given sexual act performed on any given person, you cannot determine whether it runs afoul of the law unless you know the gender of the person performing the sexual act.

Perhaps Dewey could clarify his point, because somehow I don't think I'm understanding it.

I would appreciate it if someone with greater legal acumen than myself (that is to say, anyone with any legal acumen at all) would comment on Priam's point about the possibility of a ruling based on lack of equality in the enforcement of non-specific sodomy laws ( though not in this case, obviously). My own guess is that the ruling in this case will strike down the Texas statute on equal protection grounds, but won't rule sodomy laws to be unconstitutional, leaving it open for states to pass general laws, and then continue to use them to persecute gays and lesbians. Sadly, I don't know that forcing the state of Texas to be more circumspect in how it persecutes gays and lesbians is any appreciable victory.

Diogenes the Cynic

03-27-2003, 12:24 AM

Gorsnak, I was just sort of guessing as to what Dewey meant, and he doesn't need me to speak for him, so I'll let him make his own clarification, but JFTR, I agree with you on the gender class angle. At least it seems right on an intuitive level to me, but, then, I would have also thought that consenting adults had a civil right to engage in whatever private sexual activity they wanted. I couldn't believe it when Bricker explained the constitutionality of sodomy laws in a thread on this case a few months ago.

I just hope the SCOTUS finds a sound way overturn this, if not on due process then on equal protection grounds.

Does anyone know if there's any movement in the Texas legislature to repeal this law?

Gorsnak

03-27-2003, 12:59 AM

Diogenes, I had already gathered that you pretty much agreed with me on the gender thing, yours was just the convenient post to quote to make my point. :) Dewey seems to be trying to suggest that the discrimination is somehow on the basis of the preferences of the participants, in spite of the fact that preferences are nowhere mentioned in the statute, and moreover seem to be irrelevant in determining whether the statute has been violated. I think the argument is supposed to be that they're not discriminating based on the gender of any given participant, but on the combination of genders between the participants, but for my money this is strictly semantic smokescreening, as I believe the phrasing in my posts above makes clear.

Blah. This whole topic ticks me off. It's one of those things that makes me glad to live in Canada. Trudeau might have been a pompous ass, but he was right on the money when he said "The state has no business in the bedrooms of the nation."

Apos

03-27-2003, 02:38 AM

---It merely says that the government can't deny an asserted right on the basis that it is not specifically enumerated in the Constitution. It does not, not, not prevent the government from denying an asserted right for any other reason or no reason at all.---

So, the purpose of this amendment is to prevent the government from using a particular basis to deny an asserted right... seeing as it can deny it with no basis at all? That doesn't seem to make a lot of sense.

While I concur that the ninth is by no means a sound place to found anything at all, the above interpretation of the ninth seems a little hard to believe.

minty green

03-27-2003, 06:51 AM

Originally posted by Apos
So, the purpose of this amendment is to prevent the government from using a particular basis to deny an asserted right... seeing as it can deny it with no basis at all? That doesn't seem to make a lot of sense.Actually, it makes perfect sense. It prevents the federal government from using the enumeration of certain rights in the Constitution to negate rights granted under state law, or even rights granted via legislation of Congress. No saying "Hey, you can't recognize a right to gay sodomy under your state law--that's not in the Constitution!"

Recall that at the time the Constitution was drafted in Philadelphia, they intentionally left out any kind of guarantees of individual rights, under the theory that by even getting involved at all, they'd be stomping on the very rights they were trying to protect. Thus, when it became clear that they were indeed going to have to put that stuff in the Constitution via the Bill of Rights, they inserted the 9th as a means of clarifying that Amendments 1-8 are not intended to be exclusive. And so they're not.

Shodan

03-27-2003, 08:57 AM

Originally posted by minty green
Actually, it makes perfect sense. It prevents the federal government from using the enumeration of certain rights in the Constitution to negate rights granted under state law, or even rights granted via legislation of Congress. No saying "Hey, you can't recognize a right to gay sodomy under your state law--that's not in the Constitution!"

Recall that at the time the Constitution was drafted in Philadelphia, they intentionally left out any kind of guarantees of individual rights, under the theory that by even getting involved at all, they'd be stomping on the very rights they were trying to protect. Thus, when it became clear that they were indeed going to have to put that stuff in the Constitution via the Bill of Rights, they inserted the 9th as a means of clarifying that Amendments 1-8 are not intended to be exclusive. And so they're not. This sounds very much like you are arguing in favor of 'original intent'. The Founding Fathers meant for the Ninth Amendment to mean such and such, therefore that is what it does mean.

Is that what you are saying?

Regards,
Shodan

Robb

03-27-2003, 09:06 AM

Dewey, not that I mean to insult the memory of Patrick Moynihan, but he's no Texas Penal Code.

§ 21.06. Homosexual Conduct (http://www.capitol.state.tx.us/statutes/pe/pe0002100.html#pe002.21.06)
§ 21.01. Definitions (http://www.capitol.state.tx.us/statutes/pe/pe0002100.html#pe001.21.01)

Optihut

03-27-2003, 09:17 AM

"On the other hand, Texas has every right to prohibit sodomy. This is permitted by the Constitution."

I don't care about Texas' "right" to prohibit sodomy or whether the constitution permits it. The state's role is to have certain guidelines for the organized life of people as a culture. To that end, every law and every rule needs to weigh the gains to society against its ill effects.

There is nothing good that can come out of the state telling people how to behave in their bedroom and that's why that law and every "legal" justification for having it in the first place needs to be removed, imho.

Dewey Cheatem Undhow

03-27-2003, 09:18 AM

Originally posted by Gorsnak
Dewey seems to be trying to suggest that the discrimination is somehow on the basis of the preferences of the participants, in spite of the fact that preferences are nowhere mentioned in the statute, and moreover seem to be irrelevant in determining whether the statute has been violated. I think the argument is supposed to be that they're not discriminating based on the gender of any given participant, but on the combination of genders between the participants, but for my money this is strictly semantic smokescreening, as I believe the phrasing in my posts above makes clear.Let me begin by saying this isn't a great argument I'm making -- I'm playing Devil's advocate here, which is to say I think this is a plausible argument but not necessarily a winner.

The point is the law is not couched in gender-organ-specific ways; it criminalizes genital-oral contact, not "fellatio" (i.e., it also encompasses cunninglinguis) and genital-anal contact, which I suppose theoretically with some gymnastics involved could be accomplished by determined lesbians. (Mmmmm....gymnastic lesbians....)

It isn't the sex of the accused, but the sex of the recipient that determines if an act is criminal. Courts have occasionally been more receptive to that kind of discrimination, see, e.g., Michael M. v. Sup. Ct. of Sonoma Cty.. 450 US 464 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=450&page=464), upholding a California statutory rape law that only criminalized intercourse with an underage female, holding the law bore a "fair and substantial relationship" to legitimate state ends --preventing teenage pregnancy and risks of intercourse-related physical injury.

Now, obviously, "legitimate state ends" is going to rest in the eye of the beholder; but if safeguarding traditional notions of sexual morality are one such end, then the act may well survive scrutiny. And FWIW, there is language in Bowers that seems to indicate that this is a legitimate state end. Granted, the court as currently constituted may find otherwise, but still...

Dewey Cheatem Undhow

03-27-2003, 09:20 AM

Originally posted by Robb
Dewey, not that I mean to insult the memory of Patrick Moynihan, but he's no Texas Penal Code. Stupid Windows clipboard.... :mad:

Dewey Cheatem Undhow

03-27-2003, 09:28 AM

Originally posted by Optihut
"On the other hand, Texas has every right to prohibit sodomy. This is permitted by the Constitution."

I don't care about Texas' "right" to prohibit sodomy or whether the constitution permits it. The state's role is to have certain guidelines for the organized life of people as a culture. To that end, every law and every rule needs to weigh the gains to society against its ill effects.

There is nothing good that can come out of the state telling people how to behave in their bedroom and that's why that law and every "legal" justification for having it in the first place needs to be removed, imho. Well, then, the obvious solution would be to change the law via the ordinary legislative process. I'd certainly back you on that.

But this raises an interesting point. Suppose the Court invalidates the Texas statute on equal protection grounds, essentially saying you can criminalize sodomy, but as per Bowers you've got to make it apply to heterosexuals and homosexuals alike.

Well, the court can't re-write the statute, so to comply with that ruling the Texas Lege would have to re-write and re-pass the law, essentially requiring a public debate on the topic.

Do you think, even in a conservative state like Texas, that in this day and age an act criminalizing such conduct could pass? I'm not sure it would. Let's face it: inertia keeps a lot of these laws on the books -- they are very old, rarely enforced, and thus not in the forefront of people's minds. Putting that law on the books anew is a whole 'nother ball of wax.

Bricker

03-27-2003, 09:32 AM

Originally posted by Optihut
"On the other hand, Texas has every right to prohibit sodomy. This is permitted by the Constitution."

I don't care about Texas' "right" to prohibit sodomy or whether the constitution permits it. The state's role is to have certain guidelines for the organized life of people as a culture. To that end, every law and every rule needs to weigh the gains to society against its ill effects.

There is nothing good that can come out of the state telling people how to behave in their bedroom and that's why that law and every "legal" justification for having it in the first place needs to be removed, imho.

Thanks for your opinion.

The debate is concerning constitutional rulings, however. I agree that the law should be removed, and since the Texas legislature wrote it, the Texas legislature should repeal it. If they fail to do so, the citizens of Texas should elect legislators that will.

But merely because the result is what you seek does not mean that the method used to get there is correct.

For example, how would you feel if the President announced that, by executive authority, he was curtailing enforcement of this Texas law, and he would send in the Army's 10th Mountain Division from Fort Drum, New York, to ensure that Texas sheriffs and police officers did not enforce the sodomy laws?

We're discussing whether this law is violative of the federal constitution. It's not particularly useful to declare that because you don't like the law, any finding or action that removes it is OK with you. I don't like the law myself, but I would oppose the Supreme Court finding that there was a constitutional right to sodomy when there now isn't.

- Rick

BrightNShiny

03-27-2003, 09:42 AM

IANAL, so here's my question:

My understanding is that "Roe v. Wade" is based on an implied right to privacy found in the US Consitution. Why wouldn't this implied right to privacy extend to consenting adult homosexuals having sex in the privacy of their home?

Dewey Cheatem Undhow

03-27-2003, 09:48 AM

Originally posted by BrightNShiny
My understanding is that "Roe v. Wade" is based on an implied right to privacy found in the US Consitution. Why wouldn't this implied right to privacy extend to consenting adult homosexuals having sex in the privacy of their home? Read Bowers, linked to earlier in this thread.

rsa

03-27-2003, 10:09 AM

Originally posted by minty green
(Opposite sex couples already cannot be charged with sodomy in ordinary circumstances, even where state sodomy law applies to both heterosexual and homosexual conduct, because the courts have recognized a Due Process right to procreate yourselves silly without the interference of the state.)

Not really on topic, but can you explain what sodomy has to do with procreation? :confused:

Mtgman

03-27-2003, 10:30 AM

Originally posted by Dewey Cheatum Undhow
Do you think, even in a conservative state like Texas, that in this day and age an act criminalizing such conduct could pass? I'm not sure it would. Let's face it: inertia keeps a lot of these laws on the books -- they are very old, rarely enforced, and thus not in the forefront of people's minds. Putting that law on the books anew is a whole 'nother ball of wax.Dewey I think you underestimate the ability of the Texas legislature to pass stupid laws. The history of this particular law is that Texas has had a law against Sodomy since the 1800's. However, the law was changed in 1973 and again in 1993. I'm not sure what piece was revised in '93, but the fact that it wasn't repealed at that time shows that homophobia was alive and well in the Texas legislature less than a decade ago. This puts Texas in a different category than those other states where sodomy laws are 100+ years old, rarely enforced and never come to mind. This law came to mind less than ten years ago in the minds of the very people who could have repealed it. They made some sort of change to it(I wasn't able to find out what), but they did NOT repeal it.
Originally posted by minty green
No, because such a law[making it illegal to eat bananas, to jerk off, or to sleep on your back] would be, to borrow a phrase certain to send somebody or other into a fit, arbitrary, unreasonable, and downright stupid.

[Okay, actually I have no idea whether such laws would withstand judicial scrutiny under the Due Process clause. But I do want to point out that their constitutional validity would be eminently questionable.]Heh, we don't seem to share the same optimism regarding the ability of legislators to pass arbitrary, unreasonable, and downright stupid laws.

Enjoy,
Steven

Hamlet

03-27-2003, 11:23 AM

I had posted in an earlier thread about this case, and, oddly enough, I was in agreement with most of the lawyers here who think that the Texas Sodomy Law will pass constitutional muster under the Due Process Clause, but fail under the Equal Protection. Others before me have outlined my reasoning very well, so I won't repeat them. However, it may be wishful thinking.

However, I am a bit taken aback by Dewey's response to Gorsnak question regarding attacking the Texas statute under a gender-based arguement. To say it is a weak argument is silly. To find the law unconstitutional under the Equal Protection clause, SCOTUS will have to rely on the rational basis test and not a "fair and substantial relationship to important governmental objectives" test that comes with a gender-based analysis.

The Texas sodomy law does not discriminate on the basis of gender. It's that simple. Males and females are treated the same under the statute. The gay man and the lesbian are treated equally and the heterosexual man and the heterosexual woman are treated equally. The false comparison made by Grosnak that a woman who fellates a man and a man who fellates a man are treated different may work on a basic, intuitive level, but it holds no legal weight. The fact is that the law is not gender based. Even if SCOTUS was to reach and apply the analysis in Loving, they will not find that the law is gender based in effect or treatment. It isn't going to fly. Of course, this is all my little old opinion, but I would be really really really really really surprised if they find this law gets tested as a gender based law.

Dewey Cheatem Undhow

03-27-2003, 11:47 AM

Originally posted by Mtgman
Dewey I think you underestimate the ability of the Texas legislature to pass stupid laws. The history of this particular law is that Texas has had a law against Sodomy since the 1800's. However, the law was changed in 1973 and again in 1993. I'm not sure what piece was revised in '93, but the fact that it wasn't repealed at that time shows that homophobia was alive and well in the Texas legislature less than a decade ago.Not necessarily. The text mtgman is referring to appears at the bottom of the statute and relates its history, reading:Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.The trouble is, that same reference to Section 1.01 of Chapter 900 of the acts of the 73rd legislature appears throughout the Penal Code -- that exact same reference appears, for example, in the definition of murder, the definition of assault, and the definition of theft. That leads me to believe that the act in question didn't deal specifically with the homosexuality statute -- it likely was a simple re-organization of the Texas Penal Code.

Now, granted, that's just my gut instinct. The Texas Lege site only carries bills dating to 1995, so unless someone with LEXIS access wants to pull the referenced bill, it's all speculation.

Hamlet

03-27-2003, 11:51 AM

I just finished checking out the appellate briefs on this issue, and it appears that even Lawrence (the gay man challenging the case) did not even raise the issue, except in a footnote. In addition, the argument was rejected by the Texas Court. Instead of being really really really really really surprised, I'll go so far to say that if SCOTUS finds this statute to be subject to gender based analysis, I will personally write a 10 page legal analysis paper for anyone who posts in this thread. Any topic they wish.

Hamlet

03-27-2003, 11:54 AM

caveat: by SCOTUS, I, of course, mean the majority.

Of course, I just realized who would want a 10 page legal analysis paper from me if I'm wrong when I'm so convinced I'm right.

Dewey Cheatem Undhow

03-27-2003, 11:58 AM

Actually, I can confirm the 1993 Act was just a re-enactment of the entire Penal Code: Respondent's Brief (http://supreme.lp.findlaw.com/supreme_court/briefs/02-102/02-102.mer.pet.pdf) (Warning: PDF) at Footnote 3 indicates as much. Actually, pages 4-8 and their accompanying footnotes give a pretty good history of the Texas law, for those who are interested.

Mtgman

03-27-2003, 12:02 PM

Dewey at some point, probably in either '73 or '93, the law was changed from an outright ban on sodomy, the original form of which dated from the 1800s, to the current form which only outlaws it in an explicit "homosexual" context. That the law wasn't repealed completely in either '73 or '93, or whenever else it was before the Texas legislature shows that this isn't just some legacy of homophobia left to us by our great-great-great grandfathers over a century ago. The penal code was reviewed, that's what the notes indicate, in '73 and in '93. Perhaps this statute wasn't given much attention, but it certainly was up for review at those times.

I guess it could be that they were re-formulating definitions and tweaking some specific laws and this statue wasn't ever on the table for debate. Still it is documented that Texas did somethign few states did and changed its age-old anti-sodomy law to a anti-sodomy law which only applies in a homosexual context. This did NOT happen 100+ years ago. Someone with LEXIS access could settle this, but I don't have it. :(

Enjoy,
Steven

Dewey Cheatem Undhow

03-27-2003, 12:04 PM

Oh, and another thing mtgman: that history indicates that the law against homosexuality was passed in 1973 when Texas was decriminalizing other sexual activity. IOW, anal sex was illegal for heterosexuals and homosexuals alike prior to 1973 and the Texas Lege took affirmative steps to change that. Were the current law to fail on EP grounds, are you seriously saying that the Texas Lege would basically re-enact the law they explicitly rejected in 1973?

Dewey Cheatem Undhow

03-27-2003, 12:32 PM

Originally posted by Hamlet
The Texas sodomy law does not discriminate on the basis of gender. It's that simple. Males and females are treated the same under the statute. While I share your suspicion of this line of argument, I must point out that the language of the California statutory rape law (which has since changed) was gender-neutral, too -- neither men nor women could engage in sexual intercourse with an underage female. The court seemed to blithely assume that only a male could engage in sexual intercourse with a female (I've poked around the California Penal Code (http://caselaw.lp.findlaw.com/cacodes/pen.html) and can't seem to find a definition of that term, so I figure it must be an unstated assumption of the court), but that of course does not change the statutory language.

At any rate, it doesn't matter -- the hinge upon which the case turns is whether the state is purusing a "legitimate state interest," an element of both rational basis and heightened scrutiny analysis. If we assume a legitimate interest, I don't think anyone can seriously argue that the law isn't "fairly and substantially" related to that interest. If the state is pursuing a legitimate interest here, then the law would survive both rational basis and heightened scrutiny analysis.

Shodan

03-27-2003, 12:36 PM

I may be confused, but I thought I heard somewhere that this case was a set up - that the two people arrested arranged for a neighbor to make a false report of a man with a gun so the police would break in, and timed their (ahem) activities to coincide with the arrival of the police. Their intent was to get a case to bring to the Supreme Court.

If that were true, would it have any effect on the judgement? Is there such a thing as ruling that the defendents wanted to be arrested, so they consented to the arrest?

As I say, this is only something I vaguely remember, so I may be doing the defendants an injustice.

Regards,
Shodan

Dewey Cheatem Undhow

03-27-2003, 12:47 PM

Originally posted by Shodan
I may be confused, but I thought I heard somewhere that this case was a set up - that the two people arrested arranged for a neighbor to make a false report of a man with a gun so the police would break in, and timed their (ahem) activities to coincide with the arrival of the police. Their intent was to get a case to bring to the Supreme Court. This would not surprise me in the slightest. It's reasonably well-established, IIRC, that the arrest leading to Griswold v. Connecticut was an engineered affair, mostly concocted by a couple of Yale law professors to see if they could create a constitutional right. Granted, that may be a legal urban legend, but I've heard it from enough different places that I think it's probably true.

Shodan

03-27-2003, 12:51 PM

Maybe Griswold is the case I am remembering.

Does it make any difference in the courts? In some sense that says, "We are hardly interfering with your right to perform sodomy on each other if you have to go to so much trouble to get arrested for it. You actively sought arrest, so you could be understood to be waiving your right to sodomy."

Or classify it as "sodomy in furtherance of filing a false report", or something like that.

IANAL.

Regards,
Shodan

Dewey Cheatem Undhow

03-27-2003, 12:53 PM

Here's at least one reference to Griswold's manufacture in a law school casebook (http://www.radford.edu/~mfranck/images/439casebook/griswold.pdf). I would also note that the plaintiff, Estelle Griswold, was the executive director of the Planned Parenthood League of Connecticut, which makes the arrest a wee bit suspicious as well.

Dewey Cheatem Undhow

03-27-2003, 12:58 PM

Originally posted by Shodan
Maybe Griswold is the case I am remembering.

Does it make any difference in the courts? In some sense that says, "We are hardly interfering with your right to perform sodomy on each other if you have to go to so much trouble to get arrested for it. You actively sought arrest, so you could be understood to be waiving your right to sodomy." No, because so long as actual charges are brought, the plaintiff does indeed face legal jeopardy. Bert the cop may not have arrested you and Bob the prosecutor may not have prosecuted you in the ordinary course, but once they have (even if it's because you asked them to), they've put legal machinery into motion that can't just be stopped. If the plaintiff in this case fails in having the law declared unconstitutional, he'll face the legal penalty for his act -- even if he's the only one to face that penalty in ages because of the lack of enforcement. Or classify it as "sodomy in furtherance of filing a false report", or something like that. But the arrest report isn't false. No one contests that the parties were indeed engaged in the act of sodomy.

Gadarene

03-27-2003, 01:07 PM

I may be confused, but I thought I heard somewhere that this case was a set up - that the two people arrested arranged for a neighbor to make a false report of a man with a gun so the police would break in, and timed their (ahem) activities to coincide with the arrival of the police. Their intent was to get a case to bring to the Supreme Court.

This is exactly what happened; both petitioners' and respondent's briefs essentially acknowledge it.

Robb

03-27-2003, 01:11 PM

I don't know if Lawrence was a set-up, but the person who called the police has been convicted of filing a false report. (Petitioner's Brief (http://supreme.lp.findlaw.com/supreme_court/briefs/02-102/02-102.mer.pet.pdf) on the Merits, n.1, p. 2.)

The State's brief describes the facts leading to police involvement as
A citizen informed Harris County sheriff ’s deputies that an armed man was “going crazy” in the apartment of petitioner Lawrence. Pet. App. 129a. The investigating officers entered the apartment and observed the petitioners engaged in anal sexual intercourse. Id. They were then charged by complaint in a Harris County justice court with the commission of the Class C misdemeanor offense of engaging in homosexual conduct, ...
(Respondent's Brief (http://supreme.lp.findlaw.com/supreme_court/briefs/02-102/02-102.mer.resp.pdf) on the Merits, p. 1)

minty green

03-27-2003, 01:29 PM

Originally posted by Shodan
This sounds very much like you are arguing in favor of 'original intent'. The Founding Fathers meant for the Ninth Amendment to mean such and such, therefore that is what it does mean.

Is that what you are saying? More or less. The goal of statutory and constitutional interpretation is always to give effect to the "legislative intent." Ordinarily, that inquiry starts and ends with the plain language of the provision. In this case, the plain language states exactly what I described above.

If, on the other hand, the language is ambiguous--such as "equal protection" and "due process," which can mean almost anything--then it is appropriate to determine that legislative intent by other means, including legislative history, historical analysis, etc.

minty green

03-27-2003, 01:37 PM

Originally posted by rsa
Not really on topic, but can you explain what sodomy has to do with procreation? :confused: Roughly speaking, the courts have recognized a fundamental right to control procreation, which requires the government to steer clear of bedroom stuff for heterosexuals. Because the state can't go there, it can't charge anyone with consensual heterosexual sodomy.

Mtgman

03-27-2003, 01:53 PM

The 63rd Texas State Legislature(1973)(thanks for the clarification on the acts of the 73rd('93)) did NOT explicity reject a ban on sodomy. They rejected a ban on sodomy for heterosexuals. To my knowledge they have never been faced with the decision to make sodomy illegal for all or make it legal for all. To claim that they've already made this decision is disingenous. They may or may not decide that sodomy for all is better than sodomy for none. It will depend on how heinous they view heterosexual deviant sexual behavior(as the language of the bill puts it). If they see it as a big enough danger to public morality that they're willing to sacrifice the freedoms they granted a subset of the citizens in '73(the heterosexual subset) in order to keep it illegal for the homosexual subset. My personal feeling is that, if forced to make this decision by a mandate from the SCotUS based upon equal protection grounds, the state legislature will simply repeal the whole thing. BUT, I'm not putting money on it. This is a pretty puritanical state.

As to speculation on if this case was a setup to build a constitutional challenge to this statute... I don't know. Some of the reading I've done on the case(search my posts in prior threads about this topic for more info) indicates that at least one of these men was closeted at the time of the arrest. The law firm which is representing them, I forget the name but I researched them in an earlier thread, specializes in challenging this type of litigation. After they were found guilty it seems that someone from the firm decided they would be a great case to build a constitutional challenge on and approached them with the proposal to appeal the case all the way to the supreme court. I don't think these men themselves were the impetus of this challenge(so I don't think it was a setup from the first), but I do think it is certainly being used by activist groups to advance their cause. The men seem willing to have their case become the poster child for this effort, but that's not necessarially an indication of a conspiracy from the start.

Enjoy,
Steven

Mtgman

03-27-2003, 02:06 PM

Crap. One of these days I'm going to actually preview for content purposes not just a quick check for coding errors or accidental smilies. It will depend on how heinous they view heterosexual deviant sexual behavior(as the language of the bill puts it). If they see it as a big enough danger to public morality then they may be willing to sacrifice the freedoms they granted a subset of the citizens in '73(the heterosexual subset) in order to keep it illegal for the homosexual subset.Enjoy,
Steven

Blalron

03-27-2003, 02:29 PM

Roughly speaking, the courts have recognized a fundamental right to control procreation, which requires the government to steer clear of bedroom stuff for heterosexuals. Because the state can't go there, it can't charge anyone with consensual heterosexual sodomy.

Ok, so if heterosexuals can engage in non-procreative sex, why can't homosexuals do the same thing?

Ah, you might say. At least the heterosexuals have a CHANCE of procreating, so it's protected.

BUT WAIT! What about sterile heterosexual couples? What if the man has a vasectomy and the woman has gone through menopause? Why is their right to engage in heterosexual relations protected but homosexual relations are not?

If you are arguing that "that's the way things have always been done, it's deeply rooted in our history". I don't buy it. Laws against interracial marriage were deeply rooted in our history, yet they were still subject to constitutional attack in Loving v. Virginia. Or segregation in Brown v. Board of Education. Blind imitation of the past is not a reason to continue an injustice.

Left Hand of Dorkness

03-27-2003, 02:47 PM

Originally posted by minty green
Roughly speaking, the courts have recognized a fundamental right to control procreation, which requires the government to steer clear of bedroom stuff for heterosexuals. Because the state can't go there, it can't charge anyone with consensual heterosexual sodomy.

Apologies in advance for posting from ill-informed, vague memory.

In the Durham, NC newsweekly The Independent, I read a story some fifteen or so years ago about a rape trial in which the court found out that a woman had performed fellatio on a man. The man was found not guilty of the rape charge, but the judge, who was convinced the man was guilty, sentenced him to several years in prison using a North Carolina sodomy statute.

Has anyone else heard of this case? Would it have predated the court's recognition of a right to control procreation?

Daniel

Apos

03-27-2003, 03:40 PM

---It prevents the federal government from using the enumeration of certain rights in the Constitution to negate rights granted under state law, or even rights granted via legislation of Congress.---

But... they can just negate them in any case, so what's the point of denying them a particular justification?

---Roughly speaking, the courts have recognized a fundamental right to control procreation, which requires the government to steer clear of bedroom stuff for heterosexuals.---

On what is this "right" based?

Mtgman

03-27-2003, 04:36 PM

The Pursuit of Happiness of course :D

Enjoy,
Steven

Dewey Cheatem Undhow

03-27-2003, 05:03 PM

I realize you're kidding, mtgman, but enough people make this mistake that it bears pointing out for the benefit of any lurkers out there: "life, liberty and the pursuit of happiness" appears in the Declaration of Independence, which is not a source of judicially enforceable rights -- the Declaration is NOT the Constitution.

(I remember on the first day of law school, the first girl called on in Con Law was asked some question or another, and replied with the quoted language. The professor's response....well, let's just say that she did not have a good first day.)

Polycarp

03-27-2003, 05:07 PM

One of the numerous AP articles on the SCOTUS consideration of Lawrence v Texas mentioned that the police came to the scene in response to a false report of a man with a gun -- but it was not a setup; a vindictive neighbor with issues was suspected of making the false report. I'm not sure about the background with Griswold, though I gather it was in fact a setup.

Robb

03-27-2003, 05:13 PM

Dewey, I know you're right, but I find Mtgman's reasoning quite compelling.

Dewey Cheatem Undhow

03-27-2003, 05:25 PM

If it isn't a setup -- wow, are those cops assholes. I'm just trying to visualize how this whole thing might have gone down. I mean, most people, cops included, don't bust in on a couple doin' the pokey-pokey and immediately think "hmmmmm, this is a violation of the Penal Code." Most people, cops included, say "oh....sorry" and leave, closing the door behind them, especially once they establish that the only thing in the room that could go off with a bang is inside another guy's ass.

Putting aside questions of constitutionality -- yeah, it's illegal, but so is going two miles over the speed limit. It isn't like there's a bathhouse being run over there, or they left a window open or something like that. Show some discretion, f'rcryinoutloud.

erislover

03-27-2003, 05:28 PM

I want to post here just in case I can get Hamlet to write me a paper. :D

Mtgman

03-27-2003, 05:38 PM

OK, OK! You got me. Howzabout we compromise on "the blessings of liberty".

:D

Enjoy,
Steven

On Preview: Actually in a previous thread we had a long discussion about the chain of events that would have had to have occurred in order for this "offense" to have been prosecuted in the first place. It starts with asshole cops who, upon not finding an armed burglar, decide, instead of just saying "excuse us, we'll go kick the crap out of your neighbor for calling in a false report because he's a vindictive homophobe", to arrest the guys. That's pretty much what started the whole mess. I guess the DA could have refused to press charges, but it's a Class C misdemeanor(lowest crime on the books, 500 dollar fine MAX, on par with traffic tickets). The guys pleaded "no contest" which pretty much forced the judge to find them guilty. It's this point that it looks like the legal firm that currently represents them got wind of their case and the crusade began. It could have been surreptitously dropped by the legal system at a couple of points, but it wasn't and once the crusade started the only place it was going to stop was the SCotUS.

minty green

03-27-2003, 05:46 PM

Blalron: I am not arguing at all; I'm telling you what the courts have held. If, as it seems, you have a complaint with what they have held, don't look at me--I have no interest in defending it.

BrightNShiny

03-27-2003, 06:43 PM

So, I was told to go read Bowers, and I did. Please tell me if I'm understanding this right:

In Bowers, SCOTUS basically said:

1. Yeah, there's a right to privacy, and it covers a lot of things, but those things that are covered are really, really different than sodomy.

2. If we allow a right to privacy for sodomy, then we'll have to allow it for incest and pedophilia too.

Is this about right?

Gorsnak

03-27-2003, 07:11 PM

I will accept Dewey's assertion that my argument for this being an issue of gender discrimination is not legally compelling. That's fine - I'm not a lawyer, and my interest here is primarily being logically and morally correct, not legally correct. And, I maintain, my argument is logically and morally compelling. Frankly, the situation is precisely analogous to anti-miscegenation laws. Something is allowed for one combination of persons, not for another, where the difference is whether the race (or gender) is the same (or different). Anti-miscegenists screamed at the top of their lungs that the laws didn't discriminate on the basis of race, as members of each race had the same rights, i.e., to marry someone of their own race, and strictly speaking they were right, just as a hypothetical supporter of the Texas sodomy statute would be if he said that gays and lesbians have the same "right" to engage in sodomy as straights, i.e., to sodomize a member of the opposite sex. These arguments are precisely logically analogous, and carry precisely the same amount of logical and moral weight. That isn't to say that there isn't legal wiggle room for distinguishing between the situations, given the precise wordings of things, and there are moderately compelling reasons to prefer the courts behave rather conservatively in interpreting the law. But that doesn't change the logic of the situation.

More generally, this whole situation is clearly one appropriately described as the "tyranny of the majority". It is quite clear to me that the general populace would never support a non-gay-specific sodomy law if it were ever enforced. I don't have any cites, but I don't think I'm going out on a limb by suggesting that sodomy laws would be repealed extremely quickly if they were used with any regularity, either in direct prosecution or as legal leverage. ("I'm sorry Mrs. Doe, but the record shows that you began an affair with Mr. Roe following the trial seperation with your soon-to-be former husband, and it's reasonable to believe that said affair included oral sex, which is a felony (or misdemeanor, depending), and so I'm going to grant custody of Johnny to Mr. Doe." - I am led to understand that reasoning like this is used with some frequency against gays and lesbians.) The only sodomy laws which are tolerated are those that are either written so as to be only applicable to gays, or that are only enforced against gays. Since the general populace would never tolerate this limitation on their own liberty, it is discriminatory to impose this limitation on the liberty of a minority, and, I submit, this is precisely the sort of situation which the Bill of Rights is intended to prevent.

This is not intended to be a legally compelling case, and I freely grant that there is some reason to prefer that the courts err on the side of the letter of the law rather than the spirit, since the former is generally clearer than the latter, and opinions on the latter might vary widely. However, it saddens me that in the United States, which is supposed to be a bastion of freedom and liberty, well-intentioned people still argue with a straight face that the state is permitted to regulate physical expressions of love (or wild animalistic sex, for that matter) between consenting adults in the privacy of their homes.

Gorsnak

03-27-2003, 07:16 PM

Originally posted by BrightNShiny
So, I was told to go read Bowers, and I did. Please tell me if I'm understanding this right:

In Bowers, SCOTUS basically said:

1. Yeah, there's a right to privacy, and it covers a lot of things, but those things that are covered are really, really different than sodomy.

2. If we allow a right to privacy for sodomy, then we'll have to allow it for incest and pedophilia too.

Is this about right?
I haven't read Bowers for a while, and I'm not going to reread it to check, since it makes me want to vomit. But I think you missed:
3. Sodomy has been illegal a lot in the past.

Dewey Cheatem Undhow

03-27-2003, 08:36 PM

Gorsnak: I agree that the law in question is immoral and should be changed, just as I believe it was immoral to deny voting rights to women. But there is a right way to change a law you feel is immoral but which nevertheless does not violate the constitution: the ordinary legislative process (or amendment process, as the case may be).

I would support repeal of the Texas statute, just as I would have supported the passage of the 19th amendment. But agreement in moral principle does not justify reading language into the Constitution which simply is not there.

You suggest that the majority would never change the law because it only affects a minority, and that indifference must necesssarily rule the day. But clearly that isn't the case; moral argument has indeed effected change to give the previously disenfranchised power. The 19th amendment is a perfect example -- men essentially voluntarily diluted their own votes by giving women the right to the ballot box. And certainly none of the landmark civil rights legislation of the 1960s should have passed under your view -- yet oddly enough it did.

The law can be repealed. Maybe not tomorrow, maybe not this year, maybe not anytime soon, but with enough time, enough work, enough of an effort to change the tide of public opinion, it can be changed. The suffragettes had to work for many years to secure their rights, but eventually they did. Expedience ought not be a substitute for principle.

Blalron

03-27-2003, 08:51 PM

I would support repeal of the Texas statute, just as I would have supported the passage of the 19th amendment. But agreement in moral principle does not justify reading language into the Constitution which simply is not there.

In that particular case (womans suffrage), it would not be reading language that was "not there", it would be reading language that is wholly contradictary to the constitution. And the reason I say that is because voting rights were only guarranteed constitutionally to males 21 and over.

Diogenes the Cynic

03-27-2003, 08:57 PM

Does anyone know if there is any current initiative either in the Texas legislature or in the populace to overturn the sodomy law. Is anyone trying at all?

Blalron

03-27-2003, 09:05 PM

What would happen if this is struck down soley on Equal Protection Grounds, and then Texas decides, rather than to tolerate homosexuals, it will enact a broad ban on straight and gay sodomy.... but then it only chooses to enforce the ban on gays. What then?

Gorsnak

03-27-2003, 09:39 PM

Originally posted by Dewey Cheatem Undhow
You suggest that the majority would never change the law because it only affects a minority, and that indifference must necesssarily rule the day. But clearly that isn't the case; moral argument has indeed effected change to give the previously disenfranchised power. The 19th amendment is a perfect example -- men essentially voluntarily diluted their own votes by giving women the right to the ballot box. And certainly none of the landmark civil rights legislation of the 1960s should have passed under your view -- yet oddly enough it did.
WTF?? I most certainly do not suggest that the majority will never change the law because it only affects a minority. You completely misunderstand, and frankly, you reading that position into what I said violates the meaning of my text far, far more than reading a right to privacy into the Bill of Rights violates the meaning of its text. Many times majorities recognize the injustice of persecuting minorities, and take action to end that injustice, yes. For this they should be applauded. No one has ever taken the ludicrous straw man position you ascribe to me.

However, there are some times and places where the majority has no problems with allowing injustice to continue. In the case in question, for example, I see no groundswell of public support in Texas for repealing their obviously discriminatory law. Just because there are cases where unjust laws are repealed democratically doesn't mean that there aren't also cases where justice has to be rammed down the throats of bigots. Were anti-miscegenation laws repealed? Were they likely to have been repealed anytime soon when Loving struck them down? Give me a break.

So, tell me, do you think my general analysis is truly wrong? Is this not a case where the majority is engaging in tyranny? And is the Bill of Rights not intended to protect minorities from just that? Never mind that the details of the wording make such an application questionable in this case; that may be something the supreme court justices need to concern themselves with, and rightfully so, but it is not germaine to my question.

The fact that majorities sometimes refrain from tyranny is no reason to think that minorities shouldn't be protected when the majority does engage in tyranny.

Dewey Cheatem Undhow

03-28-2003, 07:57 AM

Originally posted by Blalron
In that particular case (womans suffrage), it would not be reading language that was "not there", it would be reading language that is wholly contradictary to the constitution. And the reason I say that is because voting rights were only guarranteed constitutionally to males 21 and over. Not so. The constitution is silent on eligibility to vote outside of the passage of the 15th (race), 19th (sex), 24th (poll taxes) and 26th (age 18) amendments. While restricting the franchise to male landowners of a certain age may have been the practice at the time of ratification, that practice most certainly was not enshrined in the constitution. Nice try, Sparky.

Dewey Cheatem Undhow

03-28-2003, 08:02 AM

Gorsnak: your post contradicts itself, for the examples I cited of a majority being persuaded to protect a minority position did not happen overnight. The fight for women's suffrage was a long one that ran into plenty of opposition and indifference. I see no reason why the current situation should be seen any differently. The mere fact that there is opposition to changing the law today does not mean that such opposition cannot be overcome tomorrow through the force of moral persuasion. Yes, that's a longer, harder road to follow, but in the end it is all the more worthwhile.

Dewey Cheatem Undhow

03-28-2003, 08:03 AM

Originally posted by Diogenes the Cynic
Does anyone know if there is any current initiative either in the Texas legislature or in the populace to overturn the sodomy law. Is anyone trying at all? The respondent's brief linked to above includes references to recent attempts to change the law.

t-keela

03-28-2003, 08:21 AM

Texas and many other states have IGNORANT laws on the books that should simply be stricken...IANAL... but IIRC laws can be removed without reversal of said law.

The State did reverse the conviction of these two men and basically negated the law when doing so. Remember the original charges were brought up in J/P court. The "neighbor" is the one who needs an ass whooping. This person obviously lied to the police in order to get these guys busted. A few strings pulled by "Bubba" and the good ol' boys is how this happened.

As far as the Fed. Supreme Court goes...it's not really in their best interest to start granting rights to specific groups. The State has the responsibility to look after it's citizens and will, I think, when made aware of these types of laws which are not usually enforced anyway. (doesn't justify their existence, I know) We needn't tie up the courts with obvious discriminatory laws...just get rid of them.

Robb

03-28-2003, 08:52 AM

originally posted by t-keela
The State did reverse the conviction of these two men and basically negated the law when doing so.
Are you saying that the men in Lawrence v. Texas have had their convictions overturned by a court in Texas?
The appeal of this case was whether the law was unconstitutional. As best I can tell, the Court of Appeals determined it was constitutional.

You can read the opinion (http://supreme.lp.findlaw.com/supreme_court/decisions/lower_court/14-99-00109-cr.html) to see if it conforms to your view of the case.

pravnik

03-28-2003, 11:18 AM

What, nobody's going to argue in favor of Blackmun's dissent in Hardwick?

"This case is no more about a 'fundamental right to engage in homosexual sodomy', as the Court purports to declare, ante, at 2844, than Stanley v. Georgia, 394 U.S. 577, (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about 'the most comprehensive of rights and the right most valued by civilized men,' namely, 'the right to be left alone.' Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)." Bowers v. Hardwick, 478 U.S. 186, 199 (1986).

Mtgman

03-28-2003, 02:20 PM

Originally posted by t-keela
Texas and many other states have IGNORANT laws on the books that should simply be stricken...IANAL... but IIRC laws can be removed without reversal of said law.This is entirely true, but, as with so many types of housecleaning, it often gets deferred until it gets forgotten. Usually these laws are not enforced, or prosecuted, but that isn't a real remedy.The State did reverse the conviction of these two men and basically negated the law when doing so. Remember the original charges were brought up in J/P court. The "neighbor" is the one who needs an ass whooping. This person obviously lied to the police in order to get these guys busted. A few strings pulled by "Bubba" and the good ol' boys is how this happened.The state did not reverse the conviction(which was indeed handed down by a Justice of the Peace), it certainly did not overturn the law. A three-person panel of the 1st Texas Court of Appeals(based in Houston)(pretty sure I've got the court right, been a bit since I did the research for a previous thread) ruled this law unconstitutional. The panel's decision was challenged(no idea why or by whom) and the full court reversed the panel's findings. Now the local court judge found them Guilty as a result of police testimony and their plea of "No Contest". There wasn't a trial originally(there isn't a trial for most misdemeanors, nothing out of the ordinary here). After the circuit Court of Appeals made its ruling the next rung up the ladder is the Texas Criminal Court of Appeals(half of the Texas Supreme Court. The Texas SC consists of the Court of Criminal Appeals and the Supreme Court and they split criminal/civil matters). The Court of Criminal Appeals has the authority to strike laws down on constitutional grounds, but they refused to hear the case so the ruling of the full 1st Circuit Court of Appeals stands until the SCotUS makes its ruling.

I agree that the guy who called in a false alarm should be the one fined/arrested.

Enjoy,
Steven

minty green

03-28-2003, 03:41 PM

Originally posted by Mtgman
[A three-person panel of the 1st Texas Court of Appeals(based in Houston)(pretty sure I've got the court right, been a bit since I did the research for a previous thread) ruled this law unconstitutional.Yes. The panel's decision was challenged(no idea why or by whom) and the full court reversed the panel's findings.Motion for en banc reconsideration, filed by the State. That just means they asked the full court of appeals to consider the question, due either to the significance of the legal issues or just the assertion that the 3-judge panel got it wrong. A majority of the whole court (9 or so judges in the First Court--size varies among the different courts of appeals) voted to grant en banc review, and the rest is history.
After the circuit Court of Appeals made its rulingActually, it's not a "circuit" court; it's just "The First Court of Appeals" in Houston. the next rung up the ladder is the Texas Criminal Court of Appeals(half of the Texas Supreme Court. The Texas SC consists of the Court of Criminal Appeals and the Supreme Court and they split criminal/civil matters).The Texas Supreme Court and the Texas Court of Criminal Appeals are wholly separate courts. As you note, the Supreme Court's jurisdiction is predominantly civil cases, although it also has appellate jurisdiction over criminal cases filed in juvenile court. (In fact, the TSC issued an opinion last year involving an interesting 5th Amendment question where teh criminal conviction was in a juvenile court.) The TSC is nominally a higher court than the Court of Criminal Appeals, though there is no review from one to another and each court's jurisdiction is pretty much exclusive, eliminating nearly all conceivable conflicts between them.

The Court of Criminal Appeals has the authority to strike laws down on constitutional grounds,As does the Court of Appeals, and the trial court, and any other court in the land. In fact, as all judges are sworn to uphold and must follow the Constitution of the United States, they are under a duty to declare the law to be unconstitutional if they find it to be so.

but they refused to hear the case so the ruling of the full [First] Court of Appeals stands until the SCotUS makes its ruling.Yep. In most criminal cases (with the notable exception of death penalty cases, the Court of Criminal Appeals' jurisdiction is discretionary, meaning they choose the cases they want to hear. In this case, they probably figured the issues were already settled by Bowers and other cases, and they pragmatically didn't want to take the heat of reviewing it. Unlike the US Supreme Court, the CCA judges are all elected. All Republicans too. Nasty consequences next primary season if they vote other than to imprison the queer folk.

minty green

03-28-2003, 03:51 PM

Oh, and I wish to stress that while the Texas Suprme Court is a good, thoughful court for which I have a ton of respect despite its conservatism, the Texas Court of Criminal Appeals is an absolute disgrace.

Gorsnak

03-28-2003, 04:09 PM

Originally posted by Dewey Cheatem Undhow
Gorsnak: your post contradicts itself, for the examples I cited of a majority being persuaded to protect a minority position did not happen overnight. The fight for women's suffrage was a long one that ran into plenty of opposition and indifference. I see no reason why the current situation should be seen any differently. The mere fact that there is opposition to changing the law today does not mean that such opposition cannot be overcome tomorrow through the force of moral persuasion. Yes, that's a longer, harder road to follow, but in the end it is all the more worthwhile.
:rolleyes: Apparently lawyers operate under a different definition of 'self-contradiction' than do philosophers. My post certainly did not contradict itself, nor do you even attempt to point out any way in which it does. You merely point out that in some (perhaps most) cases where the majority does voluntarily end a specific tyranny over a specific minority, the process takes time and is not without opposition. This is in no way in contradiction with the assertion that sometimes majorities do not voluntarily end their tyranny (and in any event would be you contradicting me, and not me contradicting myself), nor does it even attempt to answer the point my previous post made - that a minority subject to having their liberty restricted by the majority in a way that the majority would never tolerate being restricted themselves deserves protection regardless of what the will of the majority might be, or whether that will is malleable or not.

If I understand your argument in this extremely opaque post, you are attempting to say that in all cases where a minority is suffering under the tyranny of the majority, the majority will relent, eventually, though it might take a while. This is, of course, an empirical claim about things sociological, and not one which can be falsified, since it predicts no time line. Any cases where the majority is still a tyrant are just cases where the process is still under way.

To this I have two responses. First, I think it is overly optimistic, and you have provided no evidence for its truth. Perhaps I shouldn't complain on that point, since as noted it's not something that's open to scientific investigation, given its unfalsifiability; however, if you want it to carry any weight in this forum, I suggest you attempt to give it some sort of support. Why should we think that a tyrannical majority can always be persuaded to end their tyranny?

Second, it's largely irrelevant to the point I made. The Constitution has been set up, at least in part, to restrict the majority from tyrannizing minorities. Minorities being persecuted by majorities deserve protection now, and not a couple decades from now when the majority can be persuaded to change its mind. Loving was a good decision, in spite of the fact that a vast majority opposed interracial marriage at the time, and that particular tyranny would have taken decades at the least to have removed. Why is that a bad thing? Can you point me to the part of the constitution where the right to marriage is enshrined?

Look, your overall theme is one which does have a certain amount of merit. In general, it is preferable to change laws democratically rather than judicially, and when laws are changed judicially, it is preferable that judges refrain from making expansive rulings based on vague constitutional language. That's fine. I agree. I'm not overly keen on ceding too much power to the Supreme Court. However, that in itself is no reason to think Scalia had better arguments than Blackmun in Bowers v. Hardwick. Frankly, Scalia's opinion in that case was atrocious, from a moral and logical point of view if not a legal point of view, and I think Bowers v. Hardwick will quite rightly go down in history with Plessy v. Ferguson and Dred Scott as horrible decisions which may have adhered to the letter of the law, but violated its spirit.

Mtgman

03-28-2003, 04:14 PM

I should have explicitly stated that the Texas Court of Criminal Appeals and the Texas Supreme Court are completely seperate entities. The point I was making is that they are both effectively in the same "tier" with regards to the court system's hierarchy. This means they don't review each other's cases and you can't really appeal a Texas Court of Criminal Appeal's decision to the Texas Supreme Court(well, technically you may be able to, but the odds of the appeal being heard are tiny). Both are considered "the supreme court" but they typically split jurisdiction criminal/civil as their names would suggest. In fact, althouth the TSC is nominally a higher court than the CCA, the hierarchy chart published by the Texas Court system (http://www.courts.state.tx.us/publicinfo/crt_stru.htm) has the two courts sharing the "Stage Highest Appellate Court" tier.

Enjoy,
Steven

Kalt

03-28-2003, 04:39 PM

Let me put this in perspective. Here in texas, consensual homosexual conduct and sending junk faxes are both Class C misdemeanors. Boggles the mind. One doesn't harm anyone, and the other is stealing from innocent victims, worthy of being sent straight off to the death chamber at Huntsville. Yet they're both in the same classification.... what a world (or at least, what a state). Makes me embarrassed to be a texan.

Dewey Cheatem Undhow

03-28-2003, 05:01 PM

Originally posted by Gorsnak
The Constitution has been set up, at least in part, to restrict the majority from tyrannizing minorities. Minorities being persecuted by majorities deserve protection now, and not a couple decades from now when the majority can be persuaded to change its mind. Not so. The Constitution, in addition to setting forth the framework of the federal government, restricts the majority from "tyrannizing" (nice loaded phrase, BTW) minorities in certain specific areas. If a right ain't in there, it ain't protected, and the only appropriate remedy is the legislative or amendment process. And as history has shown, those remedies are not impossible to achieve.

BTW, "tyranny" in the sense you're using it is in the eye of the beholder -- any rule that doesn't get 100% support could be called "tyranny" by the minority opposing it. I'd bet dollars to doughnuts there are some folks in Arkansas who consider the incest laws to be "tyranny" against their sexual preferences.

Gorsnak

03-28-2003, 05:19 PM

'Tyranny', in the sense I have been using it, is restrictions to the liberty of minorities which the majority would not accept being applied to them. I have used this precise language at least twice, and it clearly does not apply to your hypothetical incest case. Please find another red herring.

And, I maintain that the personal liberty so beloved by Americans includes private consensual sexual activity, and hence this is protected by the spirit, if not the letter, of the Constitution.

Dewey Cheatem Undhow

03-28-2003, 06:21 PM

Originally posted by Gorsnak
'Tyranny', in the sense I have been using it, is restrictions to the liberty of minorities which the majority would not accept being applied to them. I have used this precise language at least twice, and it clearly does not apply to your hypothetical incest case. Please find another red herring.

And, I maintain that the personal liberty so beloved by Americans includes private consensual sexual activity, and hence this is protected by the spirit, if not the letter, of the Constitution. This is utter nonsense. Laws against incest are also restrictions on "private consensual sexual activity." Indeed, it is very similar to the challenged law in that it does not criminalize sexual activity per se but rather the choice of particular sexual partners. So I ask: is incest protected by the spirit, if not the letter, of the Constitution?

Kimstu

03-28-2003, 07:21 PM

somebody whose name I forgot to note: In the Durham, NC newsweekly The Independent, I read a story some fifteen or so years ago about a rape trial in which the court found out that a woman had performed fellatio on a man. The man was found not guilty of the rape charge, but the judge, who was convinced the man was guilty, sentenced him to several years in prison using a North Carolina sodomy statute.

Has anyone else heard of this case? Would it have predated the court's recognition of a right to control procreation?

I haven't heard of the NC case, but I've heard this argument in favor of antisodomy statutes, and more recently than Griswold. Supporters of the Rhode Island antisodomy law (which was repealed by the state legislature in 1998) argued that the law was valuable because it allowed for a conviction in rape cases where the prosecution didn't manage to prove that the sex was non-consensual: as long as oral or anal sex could be shown to have taken place, at least the defendant could get canned for something.

IANAL, but it kinda bothers me to think of any law being used selectively as a backup method to punish someone for a crime that you failed to prove they committed. Also, the RI antisodomy law in practice was mostly invoked against gay males, anyway.

Blalron

03-28-2003, 07:53 PM

Not so. The constitution is silent on eligibility to vote outside of the passage of the 15th (race), 19th (sex), 24th (poll taxes) and 26th (age 18) amendments. While restricting the franchise to male landowners of a certain age may have been the practice at the time of ratification, that practice most certainly was not enshrined in the constitution. Nice try, Sparky.

Not so fast, Dewey. Section 2 of the 14th amendment says, in part:

But when the right to vote at any election.... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion....

Voting rights were specifically provided only to males who are at least 21.

Blalron

03-28-2003, 08:17 PM

Originally posted by Dewey Cheatem Undhow
This is utter nonsense. Laws against incest are also restrictions on "private consensual sexual activity." Indeed, it is very similar to the challenged law in that it does not criminalize sexual activity per se but rather the choice of particular sexual partners. So I ask: is incest protected by the spirit, if not the letter, of the Constitution?

No, incest is not protected. There is a legitimate, secular purpose for a ban on incest. The very nature of family relationships make incest problematical, which can justify a blanket ban on such activities. There is also the problem of inbreeding, which could present serious problems.

Can you apply such reasoning for banning homosexual sodomy, but not heterosexual sodomy? I can't think of any reason other than religious proscription, or habitual dislike of homosexuals.

After all, "mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty." O'Connor v. Donaldson, 422 U.S. 563, 575 (1975).

As was noted in a case involving The Amish's right to withdraw their children from public school after 8th grade,

A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different." Wisconsin v. Yoder, 406 U.S. 205, 223 -224 (1972).

These above quotes were used in Blackmuns Dissent in Bowers v. Hardwick, they are as relevant then as they are now.

In Romer v. Evans, Scalia complained:

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986),

I hope Scalia puts his money where his mouth is and votes to overturn Bowers v. Hardwick, sticking with his claim that it's been contradicted already! Of course, I doubt that'll happen, but I can always hope.

Gorsnak

03-28-2003, 08:27 PM

Originally posted by Dewey Cheatem Undhow
This is utter nonsense. Laws against incest are also restrictions on "private consensual sexual activity." Indeed, it is very similar to the challenged law in that it does not criminalize sexual activity per se but rather the choice of particular sexual partners. So I ask: is incest protected by the spirit, if not the letter, of the Constitution?
Yes, utter nonsense. :rolleyes: First, you ignore the more salient point, to whit, that laws against incest would not qualify as 'tyranny of the majority' given my explication of that idea, in that they do not impose any restrictions on liberty that the majority is not willing to live with. Therefore, your assertion that incest laws could be seen as a case of tyranny of the majority in the sense I have been using it is utterly and completely false. "Tyranny of the majority" in the sense that I have been using it is not in the eye of the beholder, but rests on a simple, straightforward, and quite compelling principle. And you know that, and yet ignore the principle and bring in your red herring anyways, I imagine because you can't think of any argument against the principle. Perhaps arguments which rely for their force on the jury being distracted from relevant points work in a courtroom, but they don't contribute to honest debate seeking to reach a position based on reason.

As to incest qualifying as private consensual sexual activity, I submit that this is very much an open question, in that the power relations between family members make "consent" problematic to say the least, in much the same way that consent in doctor/therapist-patient cases is problematic. The state holds, not unreasonably, that it has a compelling reason to restrict liberty in the case of incest, both because of consent issues, and historically, because of medical issues when close relatives have children. There is no analogous state interest in the case of sodomy. The only "state interests" in the case of sodomy are a few religious views on sexual morality, and these cannot be argued to have any legitimacy whatsoever. There may be a case against incest laws, but it would perforce look very different from the case against sodomy laws, as the principles involved are very different. The similarities are entirely superficial, and anyone asserting otherwise is either ignorant or disingenuous. Again, get another red herring. This one doesn't work.

t-keela

03-28-2003, 09:25 PM

Originally posted by Robb
Are you saying that the men in Lawrence v. Texas have had their convictions overturned by a court in Texas?
The appeal of this case was whether the law was unconstitutional. As best I can tell, the Court of Appeals determined it was constitutional.

You can read the opinion (http://supreme.lp.findlaw.com/supreme_court/decisions/lower_court/14-99-00109-cr.html) to see if it conforms to your view of the case.

"Though a three-judge panel of the state Court of Appeals reversed the men's convictions under the Texas Equal Rights Amendment, the full appeals court reversed."
This is a quote from the original charges...the convictions were overturned. As far as the constitution-ality of the case, that is pending. Point being, the state recognizes the law as being unjust and is prepared to rule accordingly. A simple petition to revoke the law should be all that is required to dismiss it.

I went to school with our state senator and according to him it is an obsolete law that is not enforced under "normal" circumstances and that if the people would write their local representatives in protest that it would be off the books w/ no contest.

t-keela

03-28-2003, 09:28 PM

BTW...horse theft is still a hanging offense in Texas.;)

Polycarp

03-28-2003, 09:48 PM

It's also worth noting, as I pointed out on December's Estrada threads, that any court rules based on "the law" and not specifically on statute. That means it is possible to raise and have recognized a constitutional claim in any court whatsoever. There are cases in the New York State Justice Court system (town and village courts) where a misdemeanor or petty violation was charged, the circumstances closely mirrored a SCOTUS or State Court of Appeals ruling, and the courts threw out the charges owing to a violation of the defendant's constitutional rights.

Such rulings are confined to the jurisdiction of the court -- which is why SCOTUS is so valuable -- it is the sole court with the power to determine what is constitutional in all parts of the United States. The Village Court of Pelham Manor, NY, can indeed declare a given law unconstitutional, subject to appeals to the Westchester County Court, the New York State Supreme Court, and the remainder of the NYS court tiers, and, there being a federal question, to the appropriate U.S. District and Circuit Courts. But the decision of the Village Court only applies within the village limits of Pelham Manor, though it can be cited as non-binding precedent elsewhere. Likewise the county court's decisions are only binding within Westchester County, the state courts' decisions within the State of New York, and the Federal courts' decisions only within their geographic jurisdiction. (I'm sure one of our lawyer members can give a good example of a situation where two U.S. Circuit Courts of Appeals have ruled contrary to each other -- and until SCOTUS grants cert. to a case involving that situation, "the law" regarding that situation is different in, say, Texas and Michigan, being as they are in different circuits.

The Ryan

03-28-2003, 09:53 PM

Originally posted by Dewey Cheatem Undhow
Yes. They also have the right to be booted out of office for passing such stupid laws.
While there is no Constitutional prohibition against arbitrary laws, that doesn't mean that states have the right to pass them. If an Amendment were passed allowing the feds to strip the citizenship of anyone of Arab descent, that wouldn't give them the right to do it. Rights aren't obtained by simply signing a piece of paper saying that one has that right.

So I ask: is incest protected by the spirit, if not the letter, of the Constitution?
Absolutely.

minty green
No, because such a law would be, to borrow a phrase certain to send somebody or other into a fit, arbitrary, unreasonable, and downright stupid.
Why are bananas diferent from horses? Or is that law constitutionally suspect as well?

Kimstu:
IANAL, but it kinda bothers me to think of any law being used selectively as a backup method to punish someone for a crime that you failed to prove they committed.
Just kinda? There's something seriously wrong with a country in which being accused of rape is a crime. BTW: shouldn't the alleged victim be charged with sodomy as well?

Blaron:
There is a legitimate, secular purpose for a ban on incest. The very nature of family relationships make incest problematical, which can justify a blanket ban on such activities. There is also the problem of inbreeding, which could present serious problems.
I believe that the idea that people's rights can be violated simply to satisfy a public good goes against the spirit of the Constitution; isn't there a legitimate secular purpose in requiring people to testify against themselves? The nature of friend relationships makes stealing your friend's boyfriend/girlfriend problematic. Should that be illegal? As for inbreeding, I hope you're not suggesting the government has the right to regulate sexual activity on the basis of genetic compatability. That sounds suspiciously like eugenics.

Incest is, in most cases, a bad idea. But the right to make our own choices, good or bad, is precisely what the Constitution is about.

Dewey Cheatem Undhow

03-28-2003, 11:34 PM

Originally posted by Polycarp
(I'm sure one of our lawyer members can give a good example of a situation where two U.S. Circuit Courts of Appeals have ruled contrary to each other -- and until SCOTUS grants cert. to a case involving that situation, "the law" regarding that situation is different in, say, Texas and Michigan, being as they are in different circuits. Your wish is my command, and it's interesting that you picked Texas and Michigan. Consider affirmative action. The Hopwood case, involving racial preferences at the University of Texas Law School, invalidated such preferences at the 5th Circuit level. Thus only those states within the 5th Circuit are bound by the decision -- schools in other states can merrily go on discriminating in their admissions policies.

Dewey Cheatem Undhow

03-28-2003, 11:42 PM

Originally posted by Blalron
No, incest is not protected. There is a legitimate, secular purpose for a ban on incest. The very nature of family relationships make incest problematical, which can justify a blanket ban on such activities. Surely the mere possibility of difficult relationships ought not be enough to justify a ban on sleeping with your cousin. Incest is not the same thing as child molestation. There is also the problem of inbreeding, which could present serious problems.Most folks who have studied the origins of the incest taboo conclude it has nothing to do with genetic problems, and that justification is something of an urban legend. Consider this wikipedia article (http://www.wikipedia.org/wiki/Incest_taboo):Another theory is that the observance of the taboo would lower the incidence of congenital birth-defects caused by inbreeding. Anthropologists reject this explanation for two reasons. First, inbreeding does not lead to congenital birth-defects per se; it leads to an increase in the frequency of homozygotes. A homozygote encoding a congenital birth-defect will produce children with birth-defects, but homozygotes that do not encode for congenital birth-defects will decrease the number of carriers in a population. If children born with birth-defects die (or are killed) before they reproduce, the ultimate effect of inbreeding will be to decrease the frequency of defective genes in the population. Second, anthropologists have pointed out that in the Trobriand case a man and the daughter of his father's sister, and a man and the daughter of his mother's sister, are equally distant genetically. Therefore, the prohibition against relations is not based on or motivated by concerns over biological closeness.Given that, I have a hard time seeing the justification for the ban on incest as anything more than a moral rule imposed by law -- much like the ban on homosexual conduct.

Dewey Cheatem Undhow

03-29-2003, 12:03 AM

Originally posted by Gorsnak
Yes, utter nonsense. :rolleyes: First, you ignore the more salient point, to whit, that laws against incest would not qualify as 'tyranny of the majority' given my explication of that idea, in that they do not impose any restrictions on liberty that the majority is not willing to live with. Therefore, your assertion that incest laws could be seen as a case of tyranny of the majority in the sense I have been using it is utterly and completely false. "Tyranny of the majority" in the sense that I have been using it is not in the eye of the beholder, but rests on a simple, straightforward, and quite compelling principle. And you know that, and yet ignore the principle and bring in your red herring anyways, I imagine because you can't think of any argument against the principle. Perhaps arguments which rely for their force on the jury being distracted from relevant points work in a courtroom, but they don't contribute to honest debate seeking to reach a position based on reason. My example comports perfectly with your silly little proprietary definition. Incest laws are the denial of certain sexual activities to a minority (those wishing to consummate incestuous relationships) to which the majority is not bound. Incest laws say "you can perform certain acts with anyone, so long as it isn't your cousin," just as laws against homosexual conduct say "you can perform certain acts with anyone, so long as they aren't of the same sex." The two are directly analagous, and it's foolish to pretend they aren't. Indeed, I humbly submit that your screaming about your precious definition is little more than an attempt to obfuscate an example you're have trouble dealing with.

As for the rest of your post, see my response to Blalron.

Oh, and please don't suggest I'm a trial lawyer ever again. I am a much nobler breed -- a transactional lawyer. I don't debase myself by mucking about in courtrooms. :)

Just kidding, minty, just kidding...

Gorsnak

03-29-2003, 12:36 AM

Your response to Blalron says nothing about the difficulties of true consent in parent-child or older sibling-younger sibling situations. As for situations where such consent issues aren't present, I would agree that incest laws do go too far for precisely the same reason as general sodomy laws.* As I said, the question is whether there is a legitimate state interest, and protecting people from coercive sex is a compelling interest by anyone's account. Enforcing religiously-based sexual morality is not a compelling state interest. Nor is perpetuating the status quo, in case you think that the long history of sodomy laws legitimizes them somehow.

Your oh-so-cute mockery of my characterization of the 'tyranny of the majority' does nothing to undermine the legitimacy of the principle that minorities should not be subject to restrictions on their liberties that the majority are not willing to subject themselves to as well, or that this principle captures the spirit of one of the general themes of the Constitution.

*I would note, however, that your wikipedia article doesn't say quite what you want it to say. It says that from an evolutionary viewpoint, inbreeding won't result in the perpetuation of defective genes, since the offspring of inbreeding will more commonly homozygous for those genes, and will therefore die without passing on the genes, where heterozygous carriers can pass on the genes. That is, inbreeding will concentrate carriers of defective genes, who will die off, instead of dispersing defective genes amongst a lot of heterozygous carriers, which won't ultimately be a bad thing for the population. It will, however, truly suck for those with bad homozygous genes. You might think that means siblings should go ahead and have kids, but I sure as hell don't.

Dewey Cheatem Undhow

03-29-2003, 08:02 AM

Originally posted by Gorsnak
Your response to Blalron says nothing about the difficulties of true consent in parent-child or older sibling-younger sibling situations. Of course it does. Incest laws are distinct from laws against child molestation and statutory rape, which address precisely the consent/power issue you describe. Doing away with one does not do away with the other. [You might think that means siblings should go ahead and have kids, but I sure as hell don't. The article is a simple confirmation that concerns over birth defects are not the basis for the incest taboo. As it points out, incest doesn't actually increase the number of congenital birth defects, it just concentrates those numbers within a particular family line. IOW, the article does not say that incest is a "good thing" to be encouraged, just that it isn't a "bad thing" in the sense that it increases the number of congenital birth defects.

(Though it perhaps is a "good thing" evolutionarily speaking, since widespread incest will ultimately strengthen the gene pool).

Gorsnak

03-29-2003, 11:59 AM

Originally posted by Dewey Cheatem Undhow
Of course it does. Incest laws are distinct from laws against child molestation and statutory rape, which address precisely the consent/power issue you describe. Doing away with one does not do away with the other.
Concerns about consent due to inequality in familial relationships extend beyond merely those involving minors. While laws not mentioning incest could be tailored to protect everyone who needs it, the laws you mention do not do so. I would be entirely supportive of any rewriting of the laws on incest to make them apply more narrowly to cases only where this is a concern, if suitable language can be devised.

The article is a simple confirmation that concerns over birth defects are not the basis for the incest taboo. As it points out, incest doesn't actually increase the number of congenital birth defects, it just concentrates those numbers within a particular family line. IOW, the article does not say that incest is a "good thing" to be encouraged, just that it isn't a "bad thing" in the sense that it increases the number of congenital birth defects.

(Though it perhaps is a "good thing" evolutionarily speaking, since widespread incest will ultimately strengthen the gene pool).
Look, this is all entirely beside the point, but you're misunderstanding the article. All it says is that a population in which incest is common is at no evolutionary disadvantage. It does not say that in individual cases of incest, birth defects are not more common. Anyways, I'm less convinced by this article upon reflection anyways, for the following reason:

Suppose that x is a lethal recessive, so that xx individuals die young, while XX and Xx individuals are healthy. If two siblings are both Xx, their offspring will be 25% xx, 50% Xx, and 25% Xx. So, a quarter will die, and of those that survive, 67% will be carriers of the lethal gene. On the other hand, if the Xx siblings marry XX's from outside the family, there will be no lethal birth defects, and only 50% of the offspring will be carriers of the lethal gene. It seems to me that the incestuous population is at a disadvantage here, and I do not follow the reasoning which suggests that continued inbreeding will eliminate heterozygous carriers.

Of course, there's some chance that one of the siblings will be XX, and that an outsider will be Xx, but that merely shrinks the disadvantage, it does not remove it. In a heterogeneous society such as North America, it's probably correct to say that close relations could usually safely have children. However, in any cases where communities are more insular, and everyone is more closely related, the risk of inbreeding increases. Talk to anyone who's ever bred animals if you don't believe me. I remain unconvinced that the incest taboo isn't at least in part related to the increase in birth defects seen when it is violated.

However, this is entirely irrelevant to the case at hand, and if you wish to discuss this further, I suggest another thread.

To sum up the discussion, I have held that the sexual expression restricted by sodomy laws is an important aspect of individual liberty. Dewey agrees with me, but argues that these laws should be changed democratically rather than judicially. While I agree that there are downsides to such judicial "activism", I do not share Dewey's optimism that laws which impact negatively on a minority for which there is widespread animus are likely to be changed democratically, and argued that the spirit of the constitution is opposed to restricting the freedom of minorities in ways the majority refuses to allow itself to be restricted. Dewey thinks that by the same argument, incest laws would run afoul the spirit of the constitution, and I have responded that insofar as they protect people from coercive sex, they do not, but admit that insofar as they overreach that goal, they do, and so I hereby admit that if anyone wants to propose a way to write narrower incest laws, I'll be supportive. The medical stuff is all irrelevant to the law (logically, not historically), and can be discussed in another forum, if anyone really cares, which I doubt.

So Dewey, do you have any objection to courts overturning sodomy laws other than worries about straying from the letter of the law? What reasons can you give us to think that the reasoning to be found in Blackmun's dissent in Hardwick is likely to lead to bad precedents, if it were to be used in the current case to go beyond ruling on equal protection grounds to reverse Hardwick and rule all sodomy laws unconstitutional?

Gorsnak

03-29-2003, 12:01 PM

Err, the correct proportions of the heterozygous siblings should be 25% xx, 50% Xx, and 25% XX.

Dewey Cheatem Undhow

03-29-2003, 05:24 PM

Originally posted by Gorsnak
So Dewey, do you have any objection to courts overturning sodomy laws other than worries about straying from the letter of the law? What reasons can you give us to think that the reasoning to be found in Blackmun's dissent in Hardwick is likely to lead to bad precedents, if it were to be used in the current case to go beyond ruling on equal protection grounds to reverse Hardwick and rule all sodomy laws unconstitutional? The reasoning in Blackmun's dissent is likely to lead to bad precedents because the cases and rationale upon which Blackmun relies are themselves bad precedent (meaning I disagree with the reasoning in the precedents, not that the precedents are unenforceable as law).

Blackmun relies on the broad right to privacy first articulated in Griswold v. Connecticut. That case essentially wrote into the constutution a brand new provision based largely on the nonsense phrase "emanations and penumbras." The argument is essentially that because the constitution protects against searches without probable cause, it also protects other non-search-related privacy interests as an "emanation or penumbra" of the right to be free from unlawful searches. This is judicial sleight of hand of the worst kind -- there is no basis for an "emanation or penumbra" outside of the policy choices favored by the Brennan court. "Emanations and penumbras" might well as read "because we're making this shit up as we go along."

Far from being a hypertechnical legal objection, my objection goes to the very basis of the concept of the rule of law. When constitutional rules can be made up out of whole cloth, without any rational textual basis in the constitution itself, we cease to be ruled by law and start to be ruled by men. The Constitution is the people's document; it ought not have things added or subtracted from it without the people's consent. Although judicial interpretation will always be necessary, that interpretation should always be limited to the scope of the text of the document in order to guarantee we remain a society ruled only by the consent of the governed.

Apos

03-29-2003, 06:22 PM

Account of the proceedings so far (though obviously scoffing at one side):
http://slate.msn.com/id/2080746/

I do think it sums up the attitude presented by Texas as So—to sum up—any homosexuals out there who have renounced the actual having-of-sex, and are just gay for the privilege of being stigmatized: Know that you are not only loved in Texas, you may well be its next governor.

I have to say: I'm at little surprised at Scalia on two counts here.

First is that he gets near a line between pointing out potential legal arguments and views and simply showing his personal hand in the issue with sarcastic comments like "Only that children might be induced to follow the path to homosexuality." I could be reading him wrong, I guess.

Second, and more direct, is that Scalia very strongly seems to imply that gays SHOULD seek to get added as a protected group in civil rights law if they want to meet legal standard of social approval (not even for sex acts: just as a group). He uses their failure to be protected against them. That seems to be the opposite of what other prominent conservatives argue about civil rights protections: that they serve no purpose other than to specially favor groups. Now it seems that Scalia is endorsing (maybe not intentionally, but it's the clear implication of his statements) it as being a necessary hurdle for the gay rights movement.

Polycarp

03-29-2003, 06:41 PM

Originally posted by Dewey Cheatem Undhow
The reasoning in Blackmun's dissent is likely to lead to bad precedents because the cases and rationale upon which Blackmun relies are themselves bad precedent (meaning I disagree with the reasoning in the precedents, not that the precedents are unenforceable as law).

Blackmun relies on the broad right to privacy first articulated in Griswold v. Connecticut. That case essentially wrote into the constutution a brand new provision based largely on the nonsense phrase "emanations and penumbras." The argument is essentially that because the constitution protects against searches without probable cause, it also protects other non-search-related privacy interests as an "emanation or penumbra" of the right to be free from unlawful searches. This is judicial sleight of hand of the worst kind -- there is no basis for an "emanation or penumbra" outside of the policy choices favored by the Brennan court. "Emanations and penumbras" might well as read "because we're making this shit up as we go along."

Far from being a hypertechnical legal objection, my objection goes to the very basis of the concept of the rule of law. When constitutional rules can be made up out of whole cloth, without any rational textual basis in the constitution itself, we cease to be ruled by law and start to be ruled by men. The Constitution is the people's document; it ought not have things added or subtracted from it without the people's consent. Although judicial interpretation will always be necessary, that interpretation should always be limited to the scope of the text of the document in order to guarantee we remain a society ruled only by the consent of the governed.

With all due respect, Dewey, I consider your stated position to be utter horse manure. I dislike Douglas's "emanations and penumbras" language, myself, and thought it would be bad law until I read opinions in which he used such formulations -- and discovered that what he meant by them was the self-operating concomitants of having a given formulation of a right mean anything.

Let me construct a scenario for you, bizarre as it may be. (I was born on the day that Truman won the Presidency despite unanimous views of all pundits that he'd lose, and was told as a small child that we'd never put a man on the moon; I've lived to see the Evil Empire suicide, a war ten years ago in which Russia, Germany, England, France, Saudi Arabia, and Israel were all on the same side with us, and nothing surprises me any more!) Following a successful Operation Iraqi Freedom, Bush surprises the world by putting into place a coalition interim government, which proceeds to enact a stable government turning Iraq into a model Islamic democracy, not necessarily always agreeing with us but stable and friendly. Virtually all the Middle East suddenly shifts to a pro-U.S. stance in consequence, and world opinion does a sudden buck-and-wing in favor of Dubya. With Powell rapidly forging a new friendship with the Arab world, Israel takes on a severely militant stance, and starts sending out terrorists (with plausible deniability) to disrupt this state of affairs, which they deem hazardous in the extreme to their national survival. Anti-Semitism (meaning anti-Jew-ism in this case), never far from the surface in the West, suddenly becomes again respectable in consequence of these terrorists and their reputed link to Israel. Internally, the U.S. is faced with what's essentially guerilla warfare between Arab Americans and Jewish Americans supporting their respective homelands. (Yes, all this is improbable, but stranger things have in fact happened; all I'm doing is structuring a scenario where the next paragraph is at least vaguely justifiable.)

Now, I think that under this hypothetical scenario, we would have a legitimate governmental objective in preventing conspiracies to continue the terrorism and internal guerrilla warfare. Therefore, an act regulating Islamic and Jewish activities in America is passed by a complaisant Congress, not without dispute. Among its provisions are:
No Jewish or Islamic gathering for worship may exceed five adult males in number.
Sermons addressing certain specified aspects of each belief, including the jihad and the moral responsibility of Jews to support Israel, are not to be preached. The rabbis and imams who might hold these views are entitled to promulgate them one-on-one but may not preach on them.

Do these constitute violations of First Amendment rights? The right to express opinions freely is preserved; the right to gather for worship is preserved. Or are they invasions of the "penumbras" of First Amendment rights? Does a man retain freedom of speech if he is permitted to speak his mind only where nobody will hear him? Does he retain the right to counsel if his appointed counsel sleeps through much of the trial? (That last is from a real capital case here in NC, so don't laugh at it -- and the court's ruling was that it did constitute effective counsel, because there was no showing that the parts of the trial during which his attorney was asleep were ones that interfered with his receiving a fair trial. :mad: )

Mr Visible and I, as the Defense-of-Marriage conservatives are fond of saying, both retain exactly the same right: to marry the willing woman of our choice. That I was fortunate enough to find the woman who has fulfilled my life in ways nobody else could, while he is not in the slightest interested in marrying any woman, is moot, on that argument.

Perhaps, as you argue, the Ninth Amendment is a truism. But without some judicial interpretation, most of the amendments are similar nullities. "Sure, we can draw and quarter him as a punishment for this crime." "Cruel and unusual"? There's precedent for having done it in the annals of English law, and besides, the legislature specifically provided that such a punishment was not an Eighth Amendment violation in justifications clause, and their view, being elected representatives of the people, holds. "Black people don't have the vote? Don't be silly! They're entitled to vote for either of two slates of white electors for President and Vice President, and they can choose two representatives from among themselves to serve in the state legislature. We respect their Constitutional rights around here, suh!"

I think there are limits to judicial activism -- I personally agree with the results of Roe v. Wade but believe that Blackmun's opinion was the muddiest bit of judicial reasoning since Nathan Clifford retired. But a broad-brush constitutional guarantee means nothing if there is not a court willing to construe what it might mean in a given case. And more and more often, it seems that "strict construction" is a euphemism for "a constitutional guarantee means nothing unless our party agrees with it." And that, from either party, is highly offensive.

Blalron

03-29-2003, 06:51 PM

Like it or not Dewey, the precedents are here to stay. I've already pointed out how impractical it would be to reverse all decisions that went against your constitutional views.

I'd note one thing about the 14th amendment Due Process Clause that you've been claiming has been abused. The Republican Congress during the Reconstruction undoubtedly knew about the "Substantive Due Process" angle that had been applied to the 5th amendment with regard to federal action, so they must have known that they were giving wide discretion to the judiciary to determine what "Liberties" could not be taken away without Due Process when they adopted the 14th.

It is neccesary, and proper, and good, that the Supreme Court can give backward southern states a judicial kick in the rear end to catch up with the rest of the nations conceptions about what essential liberties are.

Your arguments that persuading the populace is a better option than judicial fiat is not without merit. But irrational hatred and bigotry, especially one that is religiously based and pervades and dominates an entire state, is a force that is next to impossible to reason with. It's hard to get past "[/b]The Bible says it, I believe it, that settles it.[/b]"

Dewey Cheatem Undhow

03-29-2003, 08:20 PM

Originally posted by Polycarp
Among its provisions are: No Jewish or Islamic gathering for worship may exceed five adult males in number.
Sermons addressing certain specified aspects of each belief, including the jihad and the moral responsibility of Jews to support Israel, are not to be preached. The rabbis and imams who might hold these views are entitled to promulgate them one-on-one but may not preach on them.Do these constitute violations of First Amendment rights? The right to express opinions freely is preserved; the right to gather for worship is preserved. Or are they invasions of the "penumbras" of First Amendment rights? One need not reach the absurdity of a "penumbra" to find either provision unconstitutional. The first provision is a clear violation of the right to peaceably assemble. The second is a content-based speech restriction, which is the clearest violation of "free speech" imaginable.
But without some judicial interpretation, most of the amendments are similar nullities. "Sure, we can draw and quarter him as a punishment for this crime." "Cruel and unusual"? There's precedent for having done it in the annals of English law, and besides, the legislature specifically provided that such a punishment was not an Eighth Amendment violation in justifications clause, and their view, being elected representatives of the people, holds. It isn't enough for something to have been done in the "annals of English law" to be cruel and unusual; after all, the Bill of Rights, in part, was written to address abuses inflicted on the colonies under British rule. And the view of the framers of the Constitution, not the view of the drafters of some subsequent legislation, properly controls the definition of constitutional terms. Neither of your justifications holds water here, and neither requires recourse to extraconstitutional rights via "penumbras." "Black people don't have the vote? Don't be silly! They're entitled to vote for either of two slates of white electors for President and Vice President, and they can choose two representatives from among themselves to serve in the state legislature. We respect their Constitutional rights around here, suh!"This would be a violation of the constitutional guarantee of a republican form of government. Art. IV, s. 4.

Dewey Cheatem Undhow

03-29-2003, 08:30 PM

Originally posted by Blalron
Like it or not Dewey, the precedents are here to stay. I've already pointed out how impractical it would be to reverse all decisions that went against your constitutional views. While I agree that outright reversal of many of those decisions is unlikely, and may even be undesirable in certain areas due to their deep embedding into the fabric of the law, that alone is not justification for further expansion of judicially-created extraconstitutional rights. Just because the courts have usurped power in the past is not justification for further judicial power grabs. I'd note one thing about the 14th amendment Due Process Clause that you've been claiming has been abused. The Republican Congress during the Reconstruction undoubtedly knew about the "Substantive Due Process" angle that had been applied to the 5th amendment with regard to federal action, so they must have known that they were giving wide discretion to the judiciary to determine what "Liberties" could not be taken away without Due Process when they adopted the 14th.The only genuine use of substantive due process prior to the passage of the 14th amendment of which I am aware was in the Dred Scott decision -- hardly a favorite judicial moment for the Radical Republicans. Dred Scott, even at the time it was handed down, was met with scorn and disapproval, both popularly and in the legal community. To suggest that the framers of the 14th agreement agreed with Taney's interpretation of the constitution is odd to say the least. Your arguments that persuading the populace is a better option than judicial fiat is not without merit. But irrational hatred and bigotry, especially one that is religiously based and pervades and dominates an entire state, is a force that is next to impossible to reason with. It's hard to get past "The Bible says it, I believe it, that settles it.[/b]" [/B]Ah yes, I see, you're right -- compared to all the rational, meritorious, non-bigoted arguments against giving women or blacks the right to vote, arguments which did not pervade an entire state or resort to religion for their force, the opponents of the sodomy law really do have a tougher row to hoe. :rolleyes:

Blalron

03-29-2003, 08:58 PM

To suggest that the framers of the 14th agreement agreed with Taney's interpretation of the constitution is odd to say the least.

Surely they were aware of it, if they wanted to clarify the meaning of "Due Process" with their Reconstruction amendments they could have. They probably declined to do so, realizing it was a double edged sword that could be used for good after their constitutional changes (such as reclassifying blacks as persons rather than property) were made.

Icerigger

03-30-2003, 06:25 AM

Cal Thomas,

"Adoption laws in some states now give children to same-sex couples. If the Texas sodomy law falls, "marriage" will be redefined and the demise of the human family will be complete. "

http://www.jewishworldreview.com/cols/thomas1.asp

Dewey Cheatem Undhow

03-30-2003, 08:13 AM

Well, Cal Thomas is an idiot. That's hardly news.

Blalron: Oh for Christ's sake -- if drafters went around clarifying for every oddball aberration of a case that came out of the judiciary, the Constitution would be longer than War and Peace.

Homebrew

03-30-2003, 09:47 AM

It seems to me that the various arguements made here boil down to two perspectives. Dewey, it seems to me, believes that rights are granted by the state. The other side argues that we are free to do as we please unless the state or federal government can show why a right should be constrained.

I don't think of "extraconstitutional" rights as a judicial power grab, because they aren't grabbing power with these rulings, they are limiting the government's over-reach of power. Which is as it should be, I think.

Oh for Christ's sake -- if drafters went around clarifying for every oddball aberration of a case that came out of the judiciary, the Constitution would be longer than War and Peace.
And if they listed every right it would be even longer. We should start from a base of freedom and limits should be justified. Sodomy laws have no justification outside of a religiously-based bigotry.

Icerigger

03-30-2003, 12:55 PM

To clarify, I posted the quote from Cal because he is an idiot not because I agree with him.

Blalron

03-30-2003, 07:20 PM

[quote]that alone is not justification for further expansion of judicially-created extraconstitutional rights. Just because the courts have usurped power in the past is not justification for further judicial power grabs.]/quote]

How, precisely, would the court "usurp power" if they declared that the State of Texas has no power to burst into bedroom doors and arrest two adults for engaging in consensual sexual activity?

Bricker

03-30-2003, 07:43 PM

Originally posted by Blalron
[quote]that alone is not justification for further expansion of judicially-created extraconstitutional rights. Just because the courts have usurped power in the past is not justification for further judicial power grabs.]/quote]

How, precisely, would the court "usurp power" if they declared that the State of Texas has no power to burst into bedroom doors and arrest two adults for engaging in consensual sexual activity?

Because THERE IS NO PARTICULAR CONSTITUTIONAL RIGHT to engage in that particular kind of activity. And the courts only have the power to interpret existing law, not make new law.

Of course, this doesn't apply to the "burst into" part; the Constitution does address the circumstances under which the state of Texas may burst into bedroom doors.

- Rick

Spiritus Mundi

03-30-2003, 07:48 PM

Because THERE IS NO PARTICULAR CONSTITUTIONAL RIGHT to engage in that particular kind of activity. And the courts only have the power to interpret existing law, not make new law.

Isn't it a bit early to be making that call? After all, the court has yet to rule, and they are the final authority for determining what rights are or are not found within our Constitutional framework.

Polycarp

03-30-2003, 07:58 PM

Originally posted by Spiritus Mundi
Isn't it a bit early to be making that call? After all, the court has yet to rule, and they are the final authority for determining what rights are or are not found within our Constitutional framework.

Actually, he's quoting what's usually taken as the summary of the decision in the case of Bowers v Hardwick, the one that held the Georgia sodomy law constitutional (as regards the U.S. constitution; it's since been thrown out as violative of the Georgia state constitution). This was a 5-4 decision with Justice Lewis Powell as part of the majority; there are extensive and believable reports that he decided later (and commented on it) that his vote was in error. The problems with that case are too intricately complex to warrant hijacking this thread to go into -- suffice it to say that a sane judge well below the Supreme Court should have thrown the original case out of court as a classic Fourth Amendment violation.

Dewey Cheatem Undhow

03-30-2003, 08:20 PM

Originally posted by Homebrew
It seems to me that the various arguements made here boil down to two perspectives. Dewey, it seems to me, believes that rights are granted by the state. The other side argues that we are free to do as we please unless the state or federal government can show why a right should be constrained. Then you gravely misunderstand my position. Rights are established by the people, either through the amendment process or through the legislative process. Unless the people have decided in some manner that a particular area is off-limits to legislation, then that area may be legislated by the government. To say otherwise is to deny the people the sacred right to self-govern.

The notions of substantive due process have been put to other ends. Around the turn of the century, it was used to prevent state legislation establishing minimum wages and maximum hour laws, on the grounds that this infringed upon the "freedom to contract." While as a conservative I applaud the conclusion that such laws are counterproductive and foolish, I cannot countenance the striking of those laws by the federal judiciary. Like it or not, there is no "freedom to contract" in the federal constitution. The people have the right to enact laws which are counterproductive and foolish, so long as such laws do not violate some specific provision of the constitution. The ends do not justify the means. And if they listed every right it would be even longer.Poppycock. Writing a broad right to privacy into the constitution could be done with one sentence. We should start from a base of freedom and limits should be justified. Sodomy laws have no justification outside of a religiously-based bigotry. No, we should start from a basis of respect for the decision of the people as expressed through their duly elected and only challenge that decision if it infringes on some area deemed off-limits by the text of the constitution. Starting from a "base of freedom" is meaningless drivel that can mean anything to anybody.

Originally posted by Blalron
How, precisely, would the court "usurp power" if they declared that the State of Texas has no power to burst into bedroom doors and arrest two adults for engaging in consensual sexual activity?As noted by Bricker and Polycarp, the fourth amendment does indeed have quite a bit to say about when an officer can "burst into" a person's home, and I suspect if this was being defended as an ordinary criminal matter rather than as an attempt to alter constitutional law the case would have been thrown out on the basis of an unconstitutional search.

As for the rest -- it is an usurpation because it takes from the people the power to legislate in a subject area not forbidden by the constitution.

Blalron

03-30-2003, 11:01 PM

Poppycock. Writing a broad right to privacy into the constitution could be done with one sentence.

Great idea! How about adding:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

oh wait, it's already in there.

Bricker

03-30-2003, 11:06 PM

Blaron, that language is fine if you're talking about searches and seizures. But can you use that language to prove that women have a constitutional right to abortion?

David Simmons

03-30-2003, 11:29 PM

Originally posted by Bricker
No. There is no federal constitutional right to sodomy.

The remedy for such state laws is repeal at the legislature.

As has been pointed out by others, there is no specific right to any sex at all in the constitution.

We do not get our rights from the constitution, dammit!! James Wilson of Pennsylvania who was both an important member of the Constitutional Convention and a signer of the Declaration of Independence opposed the idea of a Bill of Rights. His grounds were that the naming of specified rights would necessarily be incomplete and there was a danger that those not mentioned would be assumed not to exist. And it turns out he was right. That is what is happening.

The constitution guarantees certain rights and specifically says in Amenment IX that others that there are others not named that are retained by the states or the people.

Blalron

03-31-2003, 01:37 AM

Blaron, that language is fine if you're talking about searches and seizures. But can you use that language to prove that women have a constitutional right to abortion?

Well if you want to go purely into Fourth Amendment grounds...

One could make an argument with abortion, similar to the line of reasoning in Griswold v. Connecticut regarding contraception. To enforce that law would require intrusion into the marital relationship, which would be inherently unreasonable.

To enforce anti-abortion laws would require an unreasonable intrusion into the doctor patient relationship, which is not constitutionally acceptable.

Dewey Cheatem Undhow

03-31-2003, 07:17 AM

Blalron: as Bricker points out, the fourth amendment by its own terms only applies to searches and seizures. It has nothing to do with anything beyond that narrow topic area. It cannot be read to create anything like a broad right to privacy without some serious judicial bootstrapping (i.e., "emanations and penumbras").

It would be quite easy to create such a broad right by amending the constitution. One sentence, something like "The right of privacy of any person shall not be unreasonably denied or abridged by the United States or by any State." At least then when the judiciary defines the scope of that right, they'd have a textual provision to hang their hat on.

PS: That "unreasonable interference with the doctor-patient relationship" is absurd. Using that reasoning, any law preventing marijuana from being used for medically prescribed purposes would be unconstitutional.

David Simmons

03-31-2003, 03:53 PM

Originally posted by Dewey Cheatem Undhow

Using that reasoning, any law preventing marijuana from being used for medically prescribed purposes would be unconstitutional.

And why is that bad?

Dewey Cheatem Undhow

03-31-2003, 04:37 PM

Originally posted by David Simmons
And why is that bad? Because the ends do not justify the means.

Polycarp

03-31-2003, 04:44 PM

In view of the radical disconnect between several posters' conceptualizations of what "the rights of Americans are" and how they connect to the Constitution, amply fostered by the choices of verbiage used here, I want to express my own conceptualization with why I think what I do, not as the definitive statement but as a point from which people can argue (and I'm quite confident that Dewey will see fit to shoot it out of the water within an hour of my hitting "submit post" ;)).

To start out with, IMHO the overwhelming majority of the Founding Fathers believed in the "natural rights" theory -- that rights are not "created" or "given" (save by the Creator who endows us with them, from a Christian/Deist standpoint) -- they just are. And in a "state of nature," every man is equipped with every conceivable right.

Governments are equipped with powers to act in the despite of the individual, trammeling on these rights. This is neither good nor evil in and of itself. One's right to shoot anyone who crosses him, for example, is one which badly needs restriction, since those who do so will inevitably cross someone else who will then be justified in shooting them.

There are, however, some basic human rights which a "good" government will not infringe upon. They are specified in the various Federal and state constitutions and amendments to them, sometimes in inordinate detail. For example, Eve, Ukulele Ike, Manny, and the other New York Dopers have the right to have the state's Forest Preserve maintained in a "forever wild" state by the state government in trust for them.

These guarantees specify what rights are not subject to abridgement by the government -- or, in some cases, under what circumstances the government may abridge them and under what restrictions it must act in doing so. For example, your right to drive a sound truck around town broadcasting your personal opinions on a given issue may be restricted to within the hours of 8:00 AM to 10:00 PM, but may not be restricted on the basis of what your opinions are.

It is in this context that I maintain that the Ninth is not a nullity, and that the Fourteenth guarantees other rights than those incorporated from Amendments I-VIII in consequence. For example, nobody ever thought that there would be a need for an amendment guaranteeing the right to travel, but unique circumstances involving a Wisconsin woman brought a case that forced recognition of that right to SCOTUS. Loving v Virginia defined a right to marry explicitly found nowhere in the Constitution, but rather obviously among those rights that Americans conceive themselves as having retained. Griswold v Connecticut likewise established a right to use contraception. All these rights must be found either in the Ninth or Fourteenth Amendments or in the "emanations and penumbras." There is a constitutional right to privacy in the majority opinions of several Supreme Court cases, but its circumstances and delimitations are pretty nebulous at present -- one can define specific circumstances where that right is protected, but not the limits on it, save that the right to commit sodomy in violation of state law is not among them (at present). It was intriguing that Herb Block saw in the Hardwick decision an assault by Burger and Rehnquist on the right to privacy in his cartoon on the decision -- Mr. & Mrs. John Q. Public are sitting up in bed, while Burger swings a sledgehammer at the partially-demolished outside wall of their bedroom, and Rehnquist, grinning, wheels away a wheelbarrow full of brick that had been a part of that wall.

In sum, then, Americans are possessed of all rights that government has not seen fit to remove; there are some rights that it is explicitly restricted from removing; and there are other undefined rights that are sufficiently a part of the nature of "liberty" that government may likewise not restrict them, or may restrict them only in the pursuit of an overwhelmingly important government objective. (In perhaps my sole agreement with Mr. Justice Scalia, I would say that Lincoln's suspension of habeas corpus was covered by that last clause.)

Dewey Cheatem Undhow

03-31-2003, 05:38 PM

The problem is that determining what is or is not a "natural right" which hath been "endowed by the creator" is, at base, a policy choice -- nothing more, nothing less. And I'm not particularly swayed by some of the founder's belief in the existence of natural rights -- the founders also believed leeching to be a valid medical treatment; that doesn't make it so. I'm a fan of original intent, true, because it is a valuable means of safeguarding the democratic self-governance aspects of constitutional law; however, that view does not require attaching to the founders some mystical power to divine supernatural truth.

At base it's all about policy choices. The first amendment is a policy choice: we the people decided that putting things like free speech beyond the reach of Congress was a good idea. That's the only reason the "right" to free speech exists. Ain't nothing supernatural about it.

Given that it's all about policy choices, the question then arises: who decides? I'd suggest that in a government ostensibly of the people, by the people, and for the people that, jeepers, the people ought to decide. And before the chorus of "tyranny of the majority" starts to swell, let's remember that the constitution and its amendments are in fact the work of the people -- it was representative democracy that took free speech off the bargaining table, that elected to prevent unreasonable searches and seizures, and to protect all the other rights listed in that document.

Absent a restriction the people have previously agreed upon, the people are properly endowed with the power to legislate -- the power to craft their government into whatever type they choose. Whether it's laws restricting the spread of slavery, or instituting a mandatory minimum wage or maximum work hours, or setting forth restrictions on abortion's availability, the people should be allowed to shape their government, for good or ill.

When the judiciary, in considering the constitutionality of legislation, exceeds the bounds of the restrictions the people have previously agreed upon, it usurps from the people a power rightfully in their possession. It effectively replaces the people's policy choices with policy choices of their own. And that simply cannot be reconciled with notions of a government deriving its just power from the consent of the governed.

Dewey Cheatem Undhow

03-31-2003, 05:43 PM

...and eight minutes to spare. :D

Blalron

03-31-2003, 06:15 PM

At base it's all about policy choices. The first amendment is a policy choice: we the people decided that putting things like free speech beyond the reach of Congress was a good idea. That's the only reason the "right" to free speech exists. Ain't nothing supernatural about it.

The judiciary is part of our constitutional framework, along with life time job security for federal judges so they are insulated from being controlled by popular opinion.

The vague phrase "Due Process of Law" was put into the constitution, which practically screams for judicial interpretation. Same with "liberties" and "privlidges and immunities of citizens", "cruel and unusual punishments". At some point the courts have to use their discretion to determine what those phrases actually mean.

And before the chorus of "tyranny of the majority" starts to swell

Most people are stupid.

Dewey Cheatem Undhow

03-31-2003, 08:26 PM

Originally posted by Blalron
The vague phrase "Due Process of Law" was put into the constitution, which practically screams for judicial interpretation.As Professor John Hart Ely (no friend of strict constructionism, BTW) put it, "there is simply no getting around the fact that the word that follows 'due' is 'process'" Only a willful disregard for the English language renders this clause as vague as you seem to think. It is basically a requirement for fair procedures -- a fundamental right to be heard, as my Civ Pro prof would have put it. Granted, there is room for interpretation as to the sufficiency of those processes -- the judiciary gets the final say on exactly how much "process" is "due." But to transform that clause into a more sweeping requirement that laws be metaphysically fair and just does damage to both the English language and the text of the Constitution. Same with "liberties" and "privlidges and immunities of citizens", "cruel and unusual punishments". At some point the courts have to use their discretion to determine what those phrases actually mean. Of course, I have never suggested that judges don't need to interpret constitutional terms -- of necessity, of course they do. I'm just arguing that they should not effectively write in new provisions wholesale. There is a categorical difference between determining if a given act is a "search" and saying the right to be free from unreasonable searches equates to a broad right to privacy.

I would also add that constitutional terms should be interpreted as to be consistent with other language contemporary to the addition of that term, which is why it's ridiculous to suggest the 8th amendment bans the death penalty -- the 5th amendment clearly countenances it. Most people are stupid. And this, laid bare, is the crux of your argument: a fundamental hostility to democratic self-governance. To wit: you like democracy as long as you agree with the outcome; otherwise, you have no problem with imposing your will by any means necessary.

Blalron

03-31-2003, 09:37 PM

As Professor John Hart Ely (no friend of strict constructionism, BTW) put it

The constitution says what the Supreme Court says it says, and they've been saying it means substantive due process as well as procedural due process since the 1850s.

Blalron

03-31-2003, 09:49 PM

And this, laid bare, is the crux of your argument: a fundamental hostility to democratic self-governance. To wit: you like democracy as long as you agree with the outcome; otherwise, you have no problem with imposing your will by any means necessary.

I wish to "impose my will" only insofar as it is neccesary to keep the state from unfairly imposing its will upon me.

Blalron

03-31-2003, 09:55 PM

As for my hostility towards democracy:

Any State that still reserves the power to kick in your door and drag you away to jail for the sole reason that your lover has the "wrong" pair of genitals is in no way deserving of my respect for this "democratic" decision.

Polycarp

03-31-2003, 09:56 PM

And this, laid bare, is the crux of your argument: a fundamental hostility to democratic self-governance. To wit: you like democracy as long as you agree with the outcome; otherwise, you have no problem with imposing your will by any means necessary.

Dewey, I dislike lecturing you on the basics of American government at a high school level, but this one seems necessary from my POV, and I hope you won't see it as being as supercilious as it probably will sound:

We live in a nation whose government is characterized by separation of powers, and which consists of three branches: the Congress, the Administration (headed by the President), and the Federal court system (headed by the Chief Justice and the Supreme Court). Each has an assigned role in how our government operates, and without each playing that role, we do not live in a Constitutional democracy. That specifically includes judicial review of laws in the context of a true case or controversy involving it, and judges construing the law as they best understand it.

Like you, I'm opposed to a full-fledged nebulous assumption of the existence of rights on no evident grounds. But unlike you, I believe that some of the vague terms in the Bill of Rights and elsewhere (e.g., the Fourteenth) were left vague for good reason, and the Ninth Amendment was placed there as a safeguard against the assumption that the first eight Amendments summed up all rights that were guaranteed by the Constitution. "Cruel and unusual punishment" means that which a judge feels is unduly cruel or unusual either in an absolute sense (e.g., drawing and quartering) or as applied to a specific case (e.g., applying the maximum sentence for a given category of felony to a relatively minor non-violent felony offense with mitigating circumstances present).

I'd suggest that one way of figuring out what the Ninth actually means is the hoary old concept of "judicial notice" -- the act of the judge (often prompted by counsel) in observing the world outside the courtroom as engaging in particular behaviors as a rule. If most people feel that they have a right to marry or to travel, those are rights assumed to exist by the people. That means that John and Mary can marry even though their particular marriage is not one that the people tend to approve of, by equal protection; that means that Fred can travel, even though someone has a problem with his doing so that results in a court case.

Finding a right to "streak" (other than as symbolic speech) in the Ninth or Fourteenth would be an example of the sort of "rights creation" we agree is improper -- most Americans (excepting iampunha ;)) do not believe they have a right to go nude in public, save in particular specialized circumstances if they so choose. Finding a right to gay marriage based on the overall right to marry and the equal protection clause of the Fourteenth would not be -- it would be extending the right to marry, already a part of our constitutional law, to two adult persons who have chosen to exercise that right in a way forbidden by statute law at present.

Dewey Cheatem Undhow

04-01-2003, 07:40 AM

Originally posted by Polycarp
Dewey, I dislike lecturing you on the basics of American government at a high school level, but this one seems necessary from my POV, and I hope you won't see it as being as supercilious as it probably will sound:

We live in a nation whose government is characterized by separation of powers, and which consists of three branches: the Congress, the Administration (headed by the President), and the Federal court system (headed by the Chief Justice and the Supreme Court). Each has an assigned role in how our government operates, and without each playing that role, we do not live in a Constitutional democracy. That specifically includes judicial review of laws in the context of a true case or controversy involving it, and judges construing the law as they best understand it.I've got to say, Poly, that you sound pretty damned patronizing here. Nowhere have I suggested that this isn't how things work. Indeed, I've gone the extra mile by making clear that there is a certain measure of wiggle room in the constitution as judges must determine what various constitutional terms mean. So yeah, spare me the high school civics lecture. Like you, I'm opposed to a full-fledged nebulous assumption of the existence of rights on no evident grounds. But unlike you, I believe that some of the vague terms in the Bill of Rights and elsewhere (e.g., the Fourteenth) were left vague for good reason, and the Ninth Amendment was placed there as a safeguard against the assumption that the first eight Amendments summed up all rights that were guaranteed by the Constitution.I'm not going to reargue this. I've made my case on the Ninth Amendment front in that other thread (http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=170905) as well as in this one. "Cruel and unusual punishment" means that which a judge feels is unduly cruel or unusual either in an absolute sense (e.g., drawing and quartering) or as applied to a specific case (e.g., applying the maximum sentence for a given category of felony to a relatively minor non-violent felony offense with mitigating circumstances present). I'm not sure about that last example, but I have absolutely no objection to the courts defining "cruel and unusual," including proscribing certain methods of execution. I DO have a problem with them defining it as to ban the death penalty in whatever manner applied, because a contemporaneous amendment clearly countenances the practice. Again, I've covered this argument in more detail over in that other thread. I'd suggest that one way of figuring out what the Ninth actually means is the hoary old concept of "judicial notice" -- the act of the judge (often prompted by counsel) in observing the world outside the courtroom as engaging in particular behaviors as a rule. If most people feel that they have a right to marry or to travel, those are rights assumed to exist by the people. That means that John and Mary can marry even though their particular marriage is not one that the people tend to approve of, by equal protection; that means that Fred can travel, even though someone has a problem with his doing so that results in a court case. See, here's the problem: you blithely presume that judges are in a good position to know what "most people" feel they have the right to do. But that isn't the case. At most, they know what "most people" at elitist cocktail parties feel they have a right to do. It reminds me of the story of the Manhattan socialite who was shocked when McGovern lost to Nixon because "she didn't know anyone who voted for him."

What you're left with is just some judge's gut feeling that "most people" agree that a given right ought to be enshrined into constitutional law. And hey, we wouldn't accept that as a cite here on a damned internet message board -- why on earth should it be considered a valid basis for judicial rulemaking?

The better answer is that what "most people" feel ought to be a right is best expressed via the ordinary political process, either through amendment or legislation.

Dewey Cheatem Undhow

04-01-2003, 08:09 AM

Originally posted by Blalron
The constitution says what the Supreme Court says it says, and they've been saying it means substantive due process as well as procedural due process since the 1850s. Outside of Dred Scott -- which was largely considered discredited the day it was handed down -- substantive due process wasn't part of the judicial scene until 1896 in the court's decision in Allgeyer v. Louisiana, finding its ultimate expression in Lochner v. New York in 1905. Needless to say, this was well after the passage of the 14th amendment, so the suggestion that the framers were adopting that judicial construct is an odd one to say the least.As for my hostility towards democracy: Any State that still reserves the power to kick in your door and drag you away to jail for the sole reason that your lover has the "wrong" pair of genitals is in no way deserving of my respect for this "democratic" decision.Again, the power of the state to "kick in your door" is circumscribed by the fourth amendment. Why you continue to use that particular imagery is puzzling. I wish to "impose my will" only insofar as it is neccesary to keep the state from unfairly imposing its will upon me. What is or is not "unfair" is in the eye of the beholder. Several posters have suggested that a "right to smoke pot" would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn't that a valid argument?

David Simmons

04-01-2003, 08:10 AM

Originally posted by Dewey Cheatem Undhow
Because the ends do not justify the means.

I don't understand what you are saying. And I'm not sure you are saying anything.

Morphine is a controlled substance but can be rescribed for medicall use, likewise codeine and others. If marijuana is useful for medical purposes why is it treated differently than those two controlled drugs? It is even virtually impossible to conduct experiments to find out what, if anything, it is that is of medical benefit in the drug.

As to the rights issue. I think that the idea that our rights come from the Constitution is an anachronistic hangover from the age when the lordly sovereign deigned to throw the subjects a few crumbs.

Dewey Cheatem Undhow

04-01-2003, 08:32 AM

Originally posted by David Simmons
I don't understand what you are saying. And I'm not sure you are saying anything.This is not a complicated point. A good and noble end (medical marijuana) does not justify nefarious means (judicial re-writing of the constitution). I'd agree that medical marijuana is a good thing, but that it should be made part of the legal landscape via ordinary political processes.

And even if you believe that rights do not come from the Constitution, there's no getting around the fact that laws are declared "unconstitutional," not "metaphysically wrong." The judicial power is properly limited to the contents of that document.

David Simmons

04-01-2003, 08:42 AM

Originally posted by Dewey Cheatem Undhow
This is not a complicated point. A good and noble end (medical marijuana) does not justify nefarious means (judicial re-writing of the constitution). I'd agree that medical marijuana is a good thing, but that it should be made part of the legal landscape via ordinary political processes.

And even if you believe that rights do not come from the Constitution, there's no getting around the fact that laws are declared "unconstitutional," not "metaphysically wrong." The judicial power is properly limited to the contents of that document.

Well, I'm sorry but it didn't require a "judicial re-writing of the constitution" to get morphine, etc. in as approved medical procedures.

I'm beginning to think lawyers get too tangled up in process and forget substance.

Evil Captor

04-01-2003, 08:42 AM

Originally posted by minty green
Ah, it does my heart good to prove Polycarp wrong. It's like killing the Buddha with an RPG or something. :)

Anyway, allow me to introduce you to United States v. Darby, 312 U.S. 100, 124-25 (1941): Hey, when I say "truism," I mean "truism." :p

Nice argument to authority. Too bad this is a general debate board and not a court. Your cite does not change the fact that the "truism" argument flies in the face of common sense. The language of the Ninth Amendment clearly implies that the authors thought there might be rights not yet enumerated in the Bill of Rights, and that should those rights be discovered, the Amendment ceded those rights to the people, not the government. The right to privacy, implied as it is by the Fourth Amendment and by the right to life, liberty and the pursuit of happiness, perfectly fills this bill. "States rights" arguments are just not logically sound in this instance.

Dewey Cheatem Undhow

04-01-2003, 08:47 AM

Originally posted by David Simmons
Well, I'm sorry but it didn't require a "judicial re-writing of the constitution" to get morphine, etc. in as approved medical procedures. No, you're right, it didn't: that change was made via ordinary political processes. As it should be.

I have no problem with legislation removing the ban on marijuana for medical use (heck, I have little objection to removing the ban on marijuana, period). I DO have a problem with the suggestion that the issue is of constitutional import, and that the judiciary can impose that change on their own.

Homebrew

04-01-2003, 09:28 AM

Originally posted by Dewey Cheatem Undhow
When the judiciary, in considering the constitutionality of legislation, exceeds the bounds of the restrictions the people have previously agreed upon, it usurps from the people a power rightfully in their possession. It effectively replaces the people's policy choices with policy choices of their own. And that simply cannot be reconciled with notions of a government deriving its just power from the consent of the governed.
I still don't understand how you characterize the court's actions which protect minority rights as a "power grab". The courts were given the power to rule on constitutionality of laws at least in part to keep the majority from over-reaching and abusing their power. The courts were created and given that authority with the consent of the governed.

You position that every natural right needs to be explict would require a constant stream of amendments. Our Constitution works because it is broad enough that it can adapt to changes in society without the necessity of amendments every year.

I suspect that if there was some fundamental right of yours being violated, you would be less inclined to wait on the benevolence of the majority that has to date has shown itself to be not so benevolent.

David Simmons

04-01-2003, 09:49 AM

Originally posted by Dewey Cheatem Undhow
No, you're right, it didn't: that change was made via ordinary political processes. As it should be.

I have no problem with legislation removing the ban on marijuana for medical use (heck, I have little objection to removing the ban on marijuana, period). I DO have a problem with the suggestion that the issue is of constitutional import, and that the judiciary can impose that change on their own.

But, you see, you feel that the judiciary has to change something to grant a previously non-existant right. I maintain that the government has to prove that a citizen doing something is hazardous to the general public welfare because the rights belong to "we the people" in the first place and are not granted by the sovereighn.

The indiscriminate use of drugs that alter behavior, like alcohol, is a legitimate concern to everyone. However, the medical by-prescription use of a drug to aid in alleviating symptoms of disease is not in that category, in my opinion.

Dewey Cheatem Undhow

04-01-2003, 09:24 PM

Originally posted by Homebrew
I still don't understand how you characterize the court's actions which protect minority rights as a "power grab". The courts were given the power to rule on constitutionality of laws at least in part to keep the majority from over-reaching and abusing their power. The courts were created and given that authority with the consent of the governed. Yes, but they were given that power only within the confines of the constitution. Put simply, there must be some textual constitutional basis for the judicial invalidation of laws; anything else is the usurpation of the power to craft government rightfully held by the people. Without a basis in the constitution upon which to issue a ruling, a court is just substituting their own policy choices for that of the people. You position that every natural right needs to be explict would require a constant stream of amendments. Our Constitution works because it is broad enough that it can adapt to changes in society without the necessity of amendments every year.It would not require a "broad stream of amendments;" as I've noted before, a broad right to privacy could be placed in the constitution with one sentence.

I've asked this question repeatedly, and no one has bothered to answer it: if you really believe that the constitution allows for the judiciary to invalidate laws on grounds not found within the constitution's text, why have any of the amendments after the fourteenth been necessary? Why bother adding the nineteenth amendment when giving women the vote could just be judicially created via substantive due process? I suspect that if there was some fundamental right of yours being violated, you would be less inclined to wait on the benevolence of the majority that has to date has shown itself to be not so benevolent. This isn't an argument, it's an appeal to emotion, and deserves all the respect accorded wholly emotional appeals -- namely, none.

Just because you have cancer doesn't make you an oncologist. Just because you are personally effected by a law doesn't give your position vis-a-vis constitutionality any greater weight.

Besides, as I've pointed out, substantive due process has been used to reach results that I like as a matter of policy -- the invalidation of minimum wage and maximum hour laws. But just because I like those things as a matter of policy does not excuse the judiciary imputing those policies into the constitution. Much as I dislike minimum wage laws, a state undoubtedly has the power to enact them, and that policy choice ought to be accorded respect.

Dewey Cheatem Undhow

04-01-2003, 09:32 PM

Originally posted by David Simmons
But, you see, you feel that the judiciary has to change something to grant a previously non-existant right. I maintain that the government has to prove that a citizen doing something is hazardous to the general public welfare because the rights belong to "we the people" in the first place and are not granted by the sovereighn.That's fine as far as it goes, and I thik it's a perfectly legitimate guideline for legislators in crafting legislation. But the judiciary is not present to declare laws metaphysically unfair or unjust; they are present to declare laws unconstitutional. Absent a textual basis in the constitution for their rulings, they are taking away a power legitimately in the hands of the people -- the power to self-govern. The indiscriminate use of drugs that alter behavior, like alcohol, is a legitimate concern to everyone. However, the medical by-prescription use of a drug to aid in alleviating symptoms of disease is not in that category, in my opinion. I'm not debating the policy merits of marijuana laws here -- as I've said, I am extremely sympathetic to the cause of outright decriminalization, much less medical use. This has nothing to do with the particulars of that policy choice. It has everything to do with the people's right to make that policy choice -- even if that choice is a foolish one.

minty green

04-01-2003, 09:45 PM

Originally posted by Evil Captor
Nice argument to authority. Too bad this is a general debate board and not a court. Save your patronizing snottiness for somebody who doesn't know what he's talking about, EC. Or better yet, another forum.[quore]The language of the Ninth Amendment clearly implies that the authors thought there might be rights not yet enumerated in the Bill of Rights,[/quote]Quite so. I have never stated otherwise. and that should those rights be discovered, the Amendment ceded those rights to the people, not the government.False. No language anywhere in the amendment says any such thing. You're pulling it out of thin air.
"States rights" arguments are just not logically sound in this instance. And where the heck have I ever stated any such thing?

minty green

04-01-2003, 09:57 PM

Actually, this deserves a bit of clarification that I didn't feel like giving in the face of those opening lines:
Originally posted by minty green
No language anywhere in the amendment says any such thing. You're pulling it out of thin air.My criticism is of the vague language "discovered," which can mean anything and everything. The Ninth Amendment does not protect anything and everything; it protects "certain rights." But here's the clincher: It doesn't tell you what those rights are or how they can be determined, nor does it give any person or institution the power to make such a determination.

This "discovered" thing is, w/r/t the Ninth Amendment, a crock, and a crock with no textual basis whatsoever.

Where Dewey and I differ is that "Equal Protection" and "Due Process" do have textual bases, and are so intentionally vague that they can only have been defined by the discretion of the courts. There is no equivalent in the Ninth Amendment; nothing says that enumeration "shall not be construed to deny or disparage other rights as defined by the courts."

Blalron

04-02-2003, 12:09 AM

nothing says that enumeration "shall not be construed to deny or disparage other rights as defined by the courts."

So basically, what you are saying is that the Ninth Amendment can't ever have any legal effect, it's just there to look pretty?

minty green

04-02-2003, 07:15 AM

It has the legal effect of preventing courts from denying an asserted right on the basis that it is not explicitly enumerated elsewhere in the Constitution.

It says the rights listed in the Constitution are not necessarily exclusive.

It prevents the courts from deciding that rights granted under federal statute or state law are void because the Constitution does not recognize them.

But it says nothing whatsoever--zip, zilch, nada, less than zero--about how to determine the existence and scope of any other right, and it says even less than that about the Ninth Amendment being the source of any other rights.

It's just not there.

Evil Captor

04-02-2003, 09:22 AM

Originally posted by minty green
Save your patronizing snottiness for somebody who doesn't know what he's talking about, EC. Or better yet, another forum.

My point was that a legal argument based on cites doesn't win here -- this isn't a court of law, and most people reading and engaging in the debate are not lawyers. This is kinda what the Founders had in mind when they enumerated the right to free speech -- ordinary folks standing around (virtually standing around, in this case) and discussing whether or not the laws of the land are fair and just. Court precedent does not constitute an automatic win in such discussions.

This isn't to say that we should discount your legal expertise totally, frex, I haven't challenged the cite itself, just its nature as a clencher, nor has anybody argued that the Court has historically put the Ninth Amendment to good use.

But we can and should take issue when we encounter legal interpretations of language that fly in the face of common sense. It seems to me that the language of the Ninth Amendment very clearly implies that unenumerated rights exist, and that if they do exist, they belong to the people, not the government. A right to privacy seems to fill that bill exactly. If the government wants to intrude on the right of people to privately conduct their business, they must show a compelling reason why, one that will stand up to rigorous examination. The people should not have to go to the tremendous effort of creating an amendment to the Constitution to protect such a right, the onus should be on the government to demonstrate why it's so important that it be violated.

This is what I think protecting unenumerated rights is all about. You may think a right to privacy doesn't exist, well, I think you're completely wrong. It may not be spelled out in the Constitution, but it exists, and most Americans think it exists, and hence it should be PROTECTED.

You may differ in your reading of this law, but I think it's a commonsense reading that is completely consistent with the language of the Ninth Amendment.

As for the name-calling. I started debating online on Usenet. I've heard it all. Didn't impress me then, doesn't impress me now.

minty green

04-02-2003, 09:51 AM

Originally posted by Evil Captor
My point was that a legal argument based on cites doesn't win here -- this isn't a court of law, and most people reading and engaging in the debate are not lawyers. So the law has nothing to do with an argument about what the law is? Feh.

pravnik

04-02-2003, 09:59 AM

I need some clarification, I think. Do those in the thread who think that the decision should go to the State of Texas think so because of the reasons set forth in Bowers v. Hardwick, or because the line of cases setting forth a right to privacy is flawed? I'm getting the impression it's the latter. Hardwick didn't overrule the privacy cases, of cuss, it just said privacy didn't extend so far as to protect sodomy in light of the long standing prohibition against such behavior. Even the hard-liners on the Court are by and large unwilling to get rid of the right to privacy altogether.

If you do think there's no right of privacy under the Constitution, do you advocate throwing out the line of cases establishing a right to marry and divorce, use contraceptives, have an abortion, read obscene material in the home, live with family members, make decisions concerning the care and custody of ones children, deciding whether or not to have a child, etc.? Would you support such a decision in a case upholding a law mandating, say, random castration of males and forced abortions for females by the state to control overpopulation? Govenment implanted tracking devices on all adults?

Evil Captor

04-02-2003, 10:24 AM

Originally posted by minty green
So the law has nothing to do with an argument about what the law is? Feh.

I didn't say that, I only said that legal cites in and of themselves don't constitute cappers in a debate like this, as opposed to a law court or classroom. You have to cede morality ethics and logic and applicable elements here.

minty green

04-02-2003, 10:40 AM

Gee, that would be a really nice point if I hadn't been responding to Poly's request to explain where I got the descriptor "truism."

P: Hey, where did that come from?

mg: It came from right here (http://www.supremefreakingcourt.gov).

EC: Appeal to authority! That's not what we're discussing! General debate only! No law stuff!

Yeah, it's called legal authority, and in a legal discussion at that. You can handle that without getting snotty every time somebody cites a case, can't you? Otherwise, you and I are simply not going to get along very well.

Blalron

04-02-2003, 11:07 AM

It has the legal effect of preventing courts from denying an asserted right on the basis that it is not explicitly enumerated elsewhere in the Constitution.

It seems to me that the Tenth Amendment serves that very purpose by itself.

Blalron

04-02-2003, 11:16 AM

Since marital privacy is not mentioned anywhere in the constitution, how would you feel if the Court threw that out the window tomorrow? What about the right to travel? I want answers. What if they reversed and said those aren't rights? Would that be a proper decision?

minty green

04-02-2003, 11:28 AM

Originally posted by Blalron
It seems to me that the Tenth Amendment serves that very purpose by itself. No. The 9th addresses unenumerated "rights" of the people. The 10th addresses undelegated "powers" that are reserved to the states as well as the people. "Rights" and "powers" may overlap to some extent, but they are not synonymous.

minty green

04-02-2003, 11:41 AM

Originally posted by Blalron
Since marital privacy is not mentioned anywhere in the constitution, how would you feel if the Court threw that out the window tomorrow?May I suggest that you read my previous responses throughout this thread and the linked one in the Pit. You will find, I am quite certain, that Dewey and I are directly opposed on the substantive due process doctrine that protects marital relations, procreation, etc. I'm also quite the big fan of stare decisis, which is addressed once or twice in the same discussions.

Sheesh, just because I point out that the 9th Amendment doesn't ensure any right whatsoever, you think I'm some sort of Scalia-worshiping reactionary hiding behind the guise of textualism? Despite everything I've said to the contrary regarding Due Process and Equal Protection? Come on, do me the courtesy of reading my posts before composing such accusatory questions.

Apos

04-02-2003, 12:17 PM

---When the judiciary, in considering the constitutionality of legislation, exceeds the bounds of the restrictions the people have previously agreed upon, it usurps from the people a power rightfully in their possession. It effectively replaces the people's policy choices with policy choices of their own. And that simply cannot be reconciled with notions of a government deriving its just power from the consent of the governed.---

So you say. Ironically, the constitution doesn't place any such limits on what the judiciary can do in practice at a whim. To argue for such limits, you'd have to make exactly the same argument you are foreswearing elsewhere.

Evil Captor

04-02-2003, 01:16 PM

Originally posted by minty green
Yeah, it's called legal authority, and in a legal discussion at that. You can handle that without getting snotty every time somebody cites a case, can't you? Otherwise, you and I are simply not going to get along very well.

Howzabout you call 'em like you see 'em, and I'll call 'em like I see 'em, and we'll see how well we get along.

Dewey Cheatem Undhow

04-02-2003, 02:14 PM

Originally posted by Apos
So you say. Ironically, the constitution doesn't place any such limits on what the judiciary can do in practice at a whim. To argue for such limits, you'd have to make exactly the same argument you are foreswearing elsewhere. Not so. Article III gives the high court jurisdiction for all matters "arising under the Constitution." There's no getting around the fact that when the court considers a law, its review is ostensibly to find a conflict with the written constitution, not to find a conflict with some free-ranging sense of metaphysical justice. See Marbury v. Madison (http://www.tourolaw.edu/patch/Marbury/) for further explication.

More fundamentally, in a system of government such as ours, established in large part because of a lack of representation in important governmental decisionmaking, the people's power to craft the shape of government should be broadly protected; limitations on that power should be narrowly construed. To do less abrogates the ideal of democratic self-governance so central to America's history, purpose and character.

minty green

04-02-2003, 02:21 PM

Originally posted by Evil Captor
Howzabout you call 'em like you see 'em, and I'll call 'em like I see 'emFine. Try it with a modicum of respect and civility next time.

Dewey Cheatem Undhow

04-02-2003, 02:27 PM

Originally posted by minty green
You will find, I am quite certain, that Dewey and I are directly opposed on the substantive due process doctrine that protects marital relations, procreation, etc. Point of clarification: is it just the procreation aspects of SDP precedent that bothers you? IIRC, you're OK with SDP as a general principle.

Of course, my feelings on SDP are well-established. :)

Apos

04-02-2003, 02:38 PM

---See Marbury v. Madison for further explication.---

Are you trying to whoosh me? MvM is probably one of the most ridiculous cases in the history of the court in terms of its wide-ranging reasoning: it only goes to prove my case that the court has a free-ranging power to use any wacky rationale at all, and the only thing really checking its authority is that it has zero power to enforce any of it.

MvM is a case where justice Marshall and his fellows essentially spent the summer at a house drinking with the other justices dreaming up how they were going to thumb their noses at Jefferson without simply being ignored (and they got him too, good, essentially laying the Constitutional groundwork that made all his dreams for our government moot).

The right they claimed for the court wasn't even exercised again for fifty years. The opening reasoning is some of the most hilarious (perhaps even intentionally) legal reasoning in history. Even Stevie Wonder knows that it's "Signed, Sealed, Delivered."

---More fundamentally, in a system of government such as ours, established in large part because of a lack of representation in important governmental decisionmaking, the people's power to craft the shape of government should be broadly protected; limitations on that power should be narrowly construed. To do less abrogates the ideal of democratic self-governance so central to America's history, purpose and character.---

Sounds like penumbras and emenations to me. My point is that while you might read all these considerations into the mission of the Court, the Court is under no explicit raitonale to consider any of them. The issue of jurisdiction is all they are explicitly bound by, and its not even clear who would overrule them if they ignored it. No insight is given in the document to how they go about deciding how to interpret the Constitution.

minty green

04-02-2003, 02:54 PM

Originally posted by Dewey Cheatem Undhow
More fundamentally, in a system of government such as ours, established in large part because of a lack of representation in important governmental decisionmaking, the people's power to craft the shape of government should be broadly protected; limitations on that power should be narrowly construed. Quite so, Dewey. Where you're going off the track is your sky-is-falling insistence that the reach of substantive due process represents some terrible affront to democracy. As it exists, SDP under the 14th Amendment is extraordinarily limited, protecting only the following: Procreatin' and related activities, as long as they're not too gay; Raisin' young 'uns; Maybe, sometimes, possibly the right to tell the state to fuck off 'cause you don't want the life-sustaining medical treatment they're trying to force on you.That's it. No more. The sky is not falling, the democracy is intact, Justice Scalia is still on his throne, and all is well with the world. :)

Dewey Cheatem Undhow

04-02-2003, 03:32 PM

minty: Is an affront to democracy any less of an affront because it is limited in scope? I mean, really -- is a little corruption in Congress OK so long as it isn't on a Teapot Dome scale?

apos: You conveniently snipped the textual basis I provided. And since Marbury is pretty much the foundation of judicial review, I'm not sure rearguing it is productive for either side of the debate (FTR, it's an unusually structured case, and not without error -- it should have been flatly dismissed for want of jurisdiction, a point Marshall doesn't reach until the very end, and Marshall distorts the statute it invalidates -- but it is spot-on in its analysis of the constitution and the role of the courts).

PS -- the claim that judicial review wasn't utilized for fifty years is patently false. Marbury was handed down in 1803; Fletcher v. Peck, handed down in 1810, invalidated the recission of a land grant on the basis of the constitution's Contracts Clause.

minty green

04-02-2003, 04:05 PM

Originally posted by Dewey Cheatem Undhow
Is an affront to democracy any less of an affront because it is limited in scope? I mean, really -- is a little corruption in Congress OK so long as it isn't on a Teapot Dome scale?So, you go hysterical for multiple pages every time a lobbyist buys a congressman a Dr. Pepper?

Have a little perspective, Dewey. There are all sorts of laws that limit legislative power; surely you can find better things to get worked up about than Connecticut's inability to prohibit the sale and use of IUD's. I assure you, the safety and security of the nation will not suffer even the tiniest little bit if it turns that Texas can't toss someone in jail for doing the nasty with a member of the non-opposite sex.

pravnik

04-02-2003, 04:19 PM

Originally posted by Dewey Cheatem Undhow
PS -- the claim that judicial review wasn't utilized for fifty years is patently false. Marbury was handed down in 1803; Fletcher v. Peck, handed down in 1810, invalidated the recission of a land grant on the basis of the constitution's Contracts Clause.

In his defense, I think he meant it wasn't used again to strike down a statute passed by U.S. Congress as unconstitutional for another fifty years, in Dred Scott v. Sandford.

Dewey Cheatem Undhow

04-02-2003, 05:47 PM

minty:

1. I hardly think I've been "hysterical."

2. Lobbying != corruption. And I would no sooner excuse a $100 bribe to a congressman than I would excuse Teapot Dome.

3. One reason it's important to stand on principle in these narrower situations is that the principle is inevitably extended to newer, more avant garde areas -- power is taken by erosion rather than outright seizure. As you are familiar with historical commerce clause jurisprudence, you should recognize this practice in action.

pravnik: if that is his point, he certainly didn't make it clearly, nor did he explain why that distinction would be of any importance in the context of his criticism of Marbury.

Dewey Cheatem Undhow

04-02-2003, 05:52 PM

Originally posted by Dewey Cheatem Undhow
Point of clarification: is it just the procreation aspects of SDP precedent that bothers you? IIRC, you're OK with SDP as a general principle.minty, please disregard the above question, as I misread the text that led to it -- my mind put a "to" where the "on" was. :)

The Ryan

04-03-2003, 01:55 AM

Dewey Cheatem Undhow
To say otherwise is to deny the people the sacred right to self-govern.
So you reject the idea that people have natural rights, but they do have a “sacred” right to self-govern? Seems to me your position has no more valid basis than ours. Also, I find it rather deceptive to refer to people telling other people what to do as “self-governing”. The US has more people, I believe, than all the other countries in North America. So if everyone in the US agrees that Mexicans should be prohibited from speaking Spanish, would Mexico refusing to comply constitute a violation of North America’s right to “self-govern”?

Poppycock. Writing a broad right to privacy into the constitution could be done with one sentence.
You respond to the argument that protecting all of our rights would make the constitution longer by making a claim about one right. Do you really not see the problem with that? I also find it odd that you claim that such a vague term as “privacy” can be summed up in one sentence, while the concept of personal freedom is somehow so complicated as to defy description. Furthermore, your proposal falls short:
One sentence, something like "The right of privacy of any person shall not be unreasonably denied or abridged by the United States or by any State." At least then when the judiciary defines the scope of that right, they'd have a textual provision to hang their hat on.
Some problems:
Creating an amendment that can be used to protect privacy is a far cry from an amendment that will be used to protect privacy.
Your proposed amendment would simultaneously both fail to ensure that valid violations of privacy will be prevented and allow a huge array of invalid uses. I don’t see how that’s a good thing.
Creating something to “hang their hat on” is not enough. There would be plenty of people who would use language similar to yours to argue that they are “overreaching” and taking the amendment to absurd lengths. There are already clauses to “hang your hat” for most decisions. Take abortion, for instance. “The right of the people to be secure in their persons… against unreasonable seizures…”. Prohibiting abortion can be seen as an unreasonable seizure of the uterus. Or “nor be deprived life, liberty, or property, without due process of law”. Prohibiting abortion can be seen as depriving someone of liberty and property (or even life, if there are medical reasons for the abortion). Or “nor shall private property be taken for public use without just compensation”; “nor cruel and unusual punishment inflicted”; or “Neither slavery nor involuntary servitude…”.

Starting from a "base of freedom" is meaningless drivel that can mean anything to anybody.
Simply because people disagree about what something means, that doesn’t mean it’s meaningless. Is “democracy” meaningless”?

Again, the power of the state to "kick in your door" is circumscribed by the fourth amendment. Why you continue to use that particular imagery is puzzling.
Circumscribed, yes. Prohibited, no.

What is or is not "unfair" is in the eye of the beholder. Several posters have suggested that a "right to smoke pot" would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn't that a valid argument?
Again, disagreement does not constitute invalidation. Perhaps you really believe in this nihilistic point of view, but the vast majority of people agree that there is such a thing as fairness, even if they don’t agree what it is.

And even if you believe that rights do not come from the Constitution, there's no getting around the fact that laws are declared "unconstitutional," not "metaphysically wrong." The judicial power is properly limited to the contents of that document.
And yet people speak freely of the state having the “right” to do this or that, rather than simply being constitutionally empowered to do so.

A good and noble end (medical marijuana) does not justify nefarious means (judicial re-writing of the constitution).
Something I’m curious about: the passage of the 18th amendment, in place of simply passing a law to that effect, implies that the people at the time considered the federal government to not have the power to ban drugs. Were they in error?

I've asked this question repeatedly, and no one has bothered to answer it: if you really believe that the constitution allows for the judiciary to invalidate laws on grounds not found within the constitution's text, why have any of the amendments after the fourteenth been necessary?
Because there’s a world of difference between “may” and “must”.

Just because you are personally effected [sic] by a law doesn't give your position vis-a-vis constitutionality any greater weight..
I don’t believe he was saying that being affected gives one’s position greater weight, but rather that he finds it hard to believe that you would be as complacent if it were you that was prohibited from having sex with your lover.

Besides, as I've pointed out, substantive due process has been used to reach results that I like as a matter of policy -- the invalidation of minimum wage and maximum hour laws.
I’m no mind reader, but I suspect that that Homebrew’s reaction to having a law prohibiting his sexual activites being compared to a minimum wage law would be… unpleasant.
“I’m not allowed to have sex with my lover”
“Oh yeah? Well, some states have instituted economic policies which I don’t agree with”.
Sorry, just don’t see how these are even in the same league.

More fundamentally, in a system of government such as ours, established in large part because of a lack of representation in important governmental decisionmaking, the people's power to craft the shape of government should be broadly protected; limitations on that power should be narrowly construed. To do less abrogates the ideal of democratic self-governance so central to America's history, purpose and character.
Democracy means that the people can tell the government what to do, not that they get to tell the people what to do. We’re not talking about the shape of government, but rather the conduct. And I find the idea that simply because the government is being run by the people, that means we are safe to have as few limitations on governmental power as possible, to be terribly naïve. Surely you wouldn’t say this about a country run by one man; why is it any different when run by the majority? Furthermore, I disagree with you as to what are the principles that lie at the heart of America. From the Declaration of Independence. “We hold these truths to be self evident: That all men are created equal; that they are endowed by their Creator with certain inalienable right; that among these are life, liberty, and pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive to these ends, it is the right of the people to alter or abolish it…” So summarize: the purpose of government is to secure rights. Not to make policy decisions, not to engage in social engineering, not to govern for the sake of governing, not to provide a forum in people can get together and decide what they think everyone else should do, but to secure rights. And when those rights are violated, the people have the right to alter or abolish it. You seem to confusing the claim that nothing is just without the consent of the governed with the claim that everything is just with it. And I certainly don’t give my consent to a government with a blank check.

Blalron

04-03-2003, 02:24 AM

That's it. No more. The sky is not falling, the democracy is intact, Justice Scalia is still on his throne, and all is well with the world.

The more I think about, the more I realize that the juxtaposition of the words Justice and Scalia is an oxymoron. :p

Dewey Cheatem Undhow

04-03-2003, 07:27 AM

Originally posted by The Ryan
So if everyone in the US agrees that Mexicans should be prohibited from speaking Spanish, would Mexico refusing to comply constitute a violation of North America’s right to “self-govern”? This question is almost stupid beyond belief. There were more people in Britain than there were in the colonies; the issue over which a war was fought was the lack of representation accorded to the colonies. Same deal here -- Mexican citizens would lack representation on such decisions made by the US alone. Unless we make Mexico the 51st state your argument is stupid. I also find it odd that you claim that such a vague term as “privacy” can be summed up in one sentence, while the concept of personal freedom is somehow so complicated as to defy description. Who said I thought a concept of personal freedom was "complicated"? I just said it wasn't in the constitution, outside of the very specific search and seizure provisions. Creating an amendment that can be used to protect privacy is a far cry from an amendment that will be used to protect privacy.So? You can say this about any amendment. Consider: "Creating an amendment that can be used to protect free speech is a far cry from an amendment that will be used to free speech." Your proposed amendment would simultaneously both fail to ensure that valid violations of privacy will be prevented and allow a huge array of invalid uses. I don’t see how that’s a good thing. Your point, if you have one, escapes me. The judiciary would certainly define the scope of "privacy," just as they define the scope of "free speech." To which "invalid uses" would this amendment be put that the interpretation you favor of the constitutional status quo does not? What "valid violations" would it not protect that the status quo interpretation does not? There are already clauses to “hang your hat” for most decisions. Take abortion, for instance. “The right of the people to be secure in their persons… against unreasonable seizures…”. Prohibiting abortion can be seen as an unreasonable seizure of the uterus. Even the Brennan court didn't say this. The state isn't taking anything, unless you're prepared to say that anything the state says you may not do with your body is a seizure. Is the prohibition on prostitution a seizure of the vagina? Or “nor be deprived life, liberty, or property, without due process of law”. Prohibiting abortion can be seen as depriving someone of liberty and property (or even life, if there are medical reasons for the abortion). The constitution does not prohibit deprivations of life, liberty or property; it just requires that sufficient process be accorded the deprivee before it does so. Unless you're going to argue in favor of notions of "substantive due process" -- the problems with which have already been extensively discussed in this thread -- the language you cite is a simple guarantee of adequate procedural fairness. Or “nor shall private property be taken for public use without just compensation”; “nor cruel and unusual punishment inflicted”; or “Neither slavery nor involuntary servitude…”. 1. The uterus isn't being taken for public use. Hell, it isn't even being taken. And even if it was, the language you cite would just require that the state pay for the privilege of doing so.

2. You're seriously comparing pregnancy to slavery? :rolleyes:
Again, disagreement does not constitute invalidation. Perhaps you really believe in this nihilistic point of view, but the vast majority of people agree that there is such a thing as fairness, even if they don’t agree what it is. This doesn't answer the question asked. Again: several posters have suggested that a "right to smoke pot" would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn't that a valid argument? And yet people speak freely of the state having the “right” to do this or that, rather than simply being constitutionally empowered to do so. The term "right" is frequently abused, true. That doesn't change the fact that statutes are invalidated for constitutional infirmity, not for metaphysical unfairness. Because there’s a world of difference between “may” and “must”. So you're saying the 19th amendment was wholly unnecessary, and that the suffragettes should have just accomplished their goals by litigation? Would've been news to them. I’m no mind reader, but I suspect that that Homebrew’s reaction to having a law prohibiting his sexual activites being compared to a minimum wage law would be… unpleasant.
“I’m not allowed to have sex with my lover”
“Oh yeah? Well, some states have instituted economic policies which I don’t agree with”.
Sorry, just don’t see how these are even in the same league.Well, I'd say the ability to earn a living -- including the ability to underbid my competitors in the labor market -- is pretty damned important. But that's beside the point really. The point is that I decry judicial abuses even when they are put to ends with which I happen to agree. Hell, I think the Texas law should go the way of the dinosaur. I agree that it is dumb, stupid, and wrong. I just don't think it's unconstitutional, and thus it should be removed via the ordinary political process. So summarize: the purpose of government is to secure rights. Not to make policy decisions, not to engage in social engineering, not to govern for the sake of governing, not to provide a forum in people can get together and decide what they think everyone else should do, but to secure rights. And when those rights are violated, the people have the right to alter or abolish it. You seem to confusing the claim that nothing is just without the consent of the governed with the claim that everything is just with it. And I certainly don’t give my consent to a government with a blank check. The key, of course, is that "the people" have the right to alter or abolish it -- not some small cabal of judges, but the people themselves. That's why the constitution can be amended. That's why judicial usurpations of the people's power are wrong.

Homebrew

04-03-2003, 08:36 AM

Originally posted by The Ryan
Democracy means that the people can tell the government what to do, not that they get to tell the people what to do.

[snip]

You seem to confusing the claim that nothing is just without the consent of the governed with the claim that everything is just with it. What a strange world I find myself in when I stand firmly beside The Ryan.

The Ryan

04-06-2003, 04:23 PM

Originally posted by Dewey Cheatem Undhow
This question is almost stupid beyond belief. There were more people in Britain than there were in the colonies; the issue over which a war was fought was the lack of representation accorded to the colonies. Same deal here -- Mexican citizens would lack representation on such decisions made by the US alone. Unless we make Mexico the 51st state your argument is stupid.
I don't see what Britain has to do with it, and as for Mexicans being represented, that was already taken into account. Since the US has so many people more than Mexico, allowing Mexicans to vote wouldn't change the outcome (keeping in mind the premise of the hypothetical, namely that the people of the US are unaminously opposed to Mexicans speaking Spanish).

Who said I thought a concept of personal freedom was "complicated"? I just said it wasn't in the constitution, outside of the very specific search and seizure provisions.
I recall you making statements such as "Starting from a 'base of freedom' is meaningless drivel that can mean anything to anybody" which implied a belief that any amendment guaranteeing freedom would be unworkably vague.

So? You can say this [can is a far cry from will] about any amendment.
No, for instance quartering troops in peacetime without the owner's consent is clearly prohibited by the 3rd amendment. While the SCOTUS could theoretically ignore the 3rd amendent, they could not have any honest interpretation of it which would allow quartering troops in peacetime without the owner's consent. Your amendment, however, admits perfectly honest interpretations which fail to protect human rights.

Your point, if you have one, escapes me.
My point is that your amendment is neither broad enough to include everything that it should, nor narrow enough to exclude everything it should.

To which "invalid uses" would this amendment be put that the interpretation you favor of the constitutional status quo does not? What "valid violations" would it not protect that the status quo interpretation does not?
Answering those questions would require me reading the minds of the judiacary. Furthermore, by "valid violations" I was referring to violations that are not protected by the status quo, and would continue to be not protected.

Even the Brennan court didn't say this.
You seem to have lost track of what the claim is. The claim is that most, if not all, court decisions have something in the constitution which they can "hang their hat" on. Whether the courts actually make use of these "hatracks" (to extend the etaphor) is beside the point.

The state isn't taking anything, unless you're prepared to say that anything the state says you may not do with your body is a seizure.
Well, first of all, prohibiting abortion is not simply prohibiting a person from doing something, but is also forcing them to do something (carrying the fetus to term). Secondly, I think that it rather clear that at least some things that the state says that you may not do with your body is seizure. For instance, if the state says that you may not remove your body from the jail cell, wouldn't that be considered seizure?

Is the prohibition on prostitution a seizure of the vagina? [/quiote]
It certainly is a "hatrack".

[quote]The constitution does not prohibit deprivations of life, liberty or property; it just requires that sufficient process be accorded the deprivee before it does so. Unless you're going to argue in favor of notions of "substantive due process" -- the problems with which have already been extensively discussed in this thread -- the language you cite is a simple guarantee of adequate procedural fairness.
Unless we are discussing a case in which a woman is issued an injunction not to abort, I don't see how she has had any process, due or otherwise. And remember, to be a "hatrack", there is no need to be free of problems.

The uterus isn't being taken for public use. Hell, it isn't even being taken. And even if it was, the language you cite would just require that the state pay for the privilege of doing so.
1. There is no way in which society benefits from having more members?
2. It isn't being taken in the sense of being moved, but it is being taken in the sense of being made use of.
3. Have you ever heard of a state offering to compensate a woman for bringing a child to term?
4. Remember, I'm just presenting a "hatrack", not an ironclad legal argument.

2. You're seriously comparing pregnancy to slavery? :rolleyes:
Where did I ever do that?

This doesn't answer the question asked. Again: several posters have suggested that a "right to smoke pot" would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn't that a valid argument?
If we start with the premises that laws against marijuana are unfair, and that due process means metaphysical fairness not only of the process, but of the law behind it, then I think it would follow that laws against marijuana are generally unconstitutional.

So you're saying the 19th amendment was wholly unnecessary, and that the suffragettes should have just accomplished their goals by litigation?
Huh? How did you get that? What I'm saying is that without the 19th amendent, the suffragettes may have been able to get the courts to declare male-only suffrage to be unconstitutional. With it, the courts must declare it unconstitutional. Clearly the latter better supports their cause. Failing to promote an amendment because litigation might work is like not warming up before a match because the referee might disqualify the other team.

The point is that I decry judicial abuses even when they are put to ends with which I happen to agree.
I do too. However, I find it difficult to believe that had you been a slave two hundred year ago, and some activist on the Supreme Court had invented some reason why slavery was unconstitutional, you would be able to summon up much indignation.

The key, of course, is that "the people" have the right to alter or abolish it -- not some small cabal of judges, but the people themselves.
Aren't judges members of the set "people"? Do judges not have freedom of assembly, because that is reserved for the people as a whole, not to anyone individually?

Dewey Cheatem Undhow

04-07-2003, 12:49 AM

Originally posted by The Ryan
I don't see what Britain has to do with it, and as for Mexicans being represented, that was already taken into account. Since the US has so many people more than Mexico, allowing Mexicans to vote wouldn't change the outcome (keeping in mind the premise of the hypothetical, namely that the people of the US are unaminously opposed to Mexicans speaking Spanish). Allowing the colonists to vote probably wouldn't change the outcome, either -- Britain had a lot more people than the colonies, so what would stop them from taxing the colonies with impunity? Again, the issue is representation. Mexico is not the 51st state. Congress has no power to dictate policy to them because they are not represented in any fashion in the American government. I recall you making statements such as "Starting from a 'base of freedom' is meaningless drivel that can mean anything to anybody" which implied a belief that any amendment guaranteeing freedom would be unworkably vague. My point about meaningless drivel was directed towards a comment attempting to justify judicial reworkings of the constitution on a nontextual basis. Using a word like "freedom" or "justice" as a justification for your position is beyond meaningless. Your amendment, however, admits perfectly honest interpretations which fail to protect human rights.Such as? My point is that your amendment is neither broad enough to include everything that it should, nor narrow enough to exclude everything it should. Such as?Answering those questions [To which "invalid uses" would this amendment be put that the interpretation you favor of the constitutional status quo does not? What "valid violations" would it not protect that the status quo interpretation does not?] would require me reading the minds of the judiacary. Furthermore, by "valid violations" I was referring to violations that are not protected by the status quo, and would continue to be not protected.Again I ask: such as? You keep saying that the proposed language suffers from these serious defects, but never bother to posit even a single example of a defect in action. You seem to have lost track of what the claim is. The claim is that most, if not all, court decisions have something in the constitution which they can "hang their hat" on. Whether the courts actually make use of these "hatracks" (to extend the etaphor) is beside the point. You claimed that the abortion right was premised on the notion that failing to permit abortions was a "seizure" within the meaning of the fourth amendment. That is patently not the basis for the court's decision. The court did not say abortion was a right based in the text of the fourth amendment; they said the fourth amendment was an example of a broader "right to privacy" found in the "emanations and penumbras" of the constitution (as per the Griswold birth control case), and that abortion was protected as a function of this broader right.

Incidentally, when I say the court should have some textual basis to "hang their hat on," I'm including an assumption that that basis will be reasonable in its reading -- that it isn't based on redefining words willy-nilly or bootstrapping of the sort found in Griswold. Playing the constitutional equivelant of the six-degrees-of-Kevin-Bacon game in finding a textual hook does not make that hook valid. Well, first of all, prohibiting abortion is not simply prohibiting a person from doing something, but is also forcing them to do something (carrying the fetus to term). This is worse than Orwellian doublespeak. The government is not seizing a goddamn thing, any more than it is seizing a woman's vagina when it says she cannot rent that organ out for money.Secondly, I think that it rather clear that at least some things that the state says that you may not do with your body is seizure. For instance, if the state says that you may not remove your body from the jail cell, wouldn't that be considered seizure? This is becoming increasingly absurd. Under this line of reasoning, any act prohibited by the government is a "seizure" and thus must be unconstitutional. The government says I can't run through the park naked -- a seizure? Are all public nudity laws unconstitutional? Unless we are discussing a case in which a woman is issued an injunction not to abort, I don't see how she has had any process, due or otherwise. Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act. If you are speeding, due process issues do not arise until you are charged with speeding. 1. There is no way in which society benefits from having more members?
2. It isn't being taken in the sense of being moved, but it is being taken in the sense of being made use of.
3. Have you ever heard of a state offering to compensate a woman for bringing a child to term?
4. Remember, I'm just presenting a "hatrack", not an ironclad legal argument. You're just being stupid. A fetus is not taken for "public use" when it is brought to term. Period. As swell a guy as I am, I do not count my birth as some tremendous benefit to the commonweal. Most people with a reasonable command of the English language understand that much. Where did I ever do that [compare pregnancy to slavery]?When you suggested that the 13th amendment would operate to require abortion's legality. If we start with the premises that laws against marijuana are unfair, and that due process means metaphysical fairness not only of the process, but of the law behind it, then I think it would follow that laws against marijuana are generally unconstitutional.Thank you for illustrating why I think substantive due process is lousy constitutional theory: it can mean anything to anybody, and can ultimately be used to strike down any policy choice a given judge disagrees with. See, e.g.,, basically everything I've written in this thread. Huh? How did you get that? What I'm saying is that without the 19th amendent, the suffragettes may have been able to get the courts to declare male-only suffrage to be unconstitutional. With it, the courts must declare it unconstitutional. Clearly the latter better supports their cause. Failing to promote an amendment because litigation might work is like not warming up before a match because the referee might disqualify the other team.You miss the point. Why take all the time and efforts -- literally years of work of extensive politicking and lobbying -- to give women the franchise when a lawsuit could do it in a fraction of the time and with considerably less effort? Why not try the easier route first, and then only if it fails go the amendment route? I do too. However, I find it difficult to believe that had you been a slave two hundred year ago, and some activist on the Supreme Court had invented some reason why slavery was unconstitutional, you would be able to summon up much indignation.Oddly, the constitutional theory you favor was actually used to forbid the federal government from making federal territories and new states into areas without slavery.

But I would decry a pre-13th amendment attempt by the judiciary to find slavery unconstitutional as fiercely as any other form of activism. The simple, tragic fact is, the constitution recognized the existence of slavery (see, e.g., the 3/5 compromise) and did not forbid it (neither, I hasten to add did it require slavery to exist). The constitution was simply silent on the issue. It is foolish and wilfully ignorant to pretend otherwise.

Thus, the appropriate thing to do in that era was to work to pass legislation forbidding slavery, and to pass the 13th amendment.

(PS -- the "if you were a slave" bit is a stupid emotional appeal; having cancer does not make you an oncologist, and being a slave does not make you an expert on constitutional law.) Aren't judges members of the set "people"? Do judges not have freedom of assembly, because that is reserved for the people as a whole, not to anyone individually? Judges are a part of "the people," and nothing I've said diminishes their ability to vote for the candidates of their choosing and otherwise participate in the political process (subject to the limits of judicial ethics, of course). But when "the people" is used in the fashion described, it means the whole of the people, not some small subset thereof. It is the general body politic that has the rightful power to "alter or abolish" the current form of government, not some tiny insular portion thereof.

Blalron

04-07-2003, 03:23 AM

Dewey, do you think there's any such thing as a right to bodily integrity within the framework of the constitution?

For example, lets say the state wanted to castrate you for its eugenics program. What's to stop them? If Due Process only means Due Procedure, that means that as long as a legal procedure is set up to deprive you something, they can deprive you of anything they so choose, including your testicles.

Dewey Cheatem Undhow

04-07-2003, 09:36 AM

Originally posted by Blalron
Dewey, do you think there's any such thing as a right to bodily integrity within the framework of the constitution?No, there is not.

This does not mean that a right to bodily integrity isn't a good thing, or that one's bodily integrity shouldn't be respected by the government as a matter of policy. It just means the constitution (outside of the specific area of searches and seizures) is silent on the issue. For example, lets say the state wanted to castrate you for its eugenics program. What's to stop them? If Due Process only means Due Procedure, that means that as long as a legal procedure is set up to deprive you something, they can deprive you of anything they so choose, including your testicles. Well, there is the fifth amendment's takings clause -- they'd have to give you just compensation. :)

Interestingly, as a purely technical matter a state could do this even under existing law. The Supreme Court in Buck v. Bell (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=274&invol=200) explicitly made eugenics programs constitutionally acceptable (the case gives Justice Holmes his infamous quip: "three generations of imbeciles are enough"). A later case, Skinner v. Oklahoma (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=316&invol=535), struck down a law requiring sterilization for certain criminal acts on equal protection grounds, but it does not reverse Bell (indeed, it goes out of its way to distinguish its facts from Bell). Having said all that, I have little doubt that a court would today render such a law unconstitutional on one ground or another.

As for me, I think the constitution is silent on the issue. This does not mean I favor that kind of policy -- quite the opposite. I would invest considerable energy in kicking out of office any legislator who advocated such a program. And I think that would be effective -- it's hard to defend to the electorate support for a program carrying the Nazi seal of approval.

Polycarp

04-07-2003, 02:18 PM

Dewey, granting for the sake of argument your stance on "guaranteed rights," IYO what are the meanings of:
an establishment of religion
the freedom of speech (in the sense of what Congress may not abridge}
the freedom of the press (in the same sense)
the right of the people peacably to assemble
the right of the people to petition the Government for a redress of grievances
the right of the people to keep and bear arms
the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seraches and seizures
the right of a person not to for the same offense to be twice put in jeopardy of life or limb
the right of a person not to be compelled in any criminal case to be a witness against himself
the right to a speedy and public trial
the right to be informed of the nature and cause of any accusation
the right to be confronted with witnesses against one
the right to have compulsory process for obtaining witnesses in his favor
the right to have the assistance of counsel for one's defense
the right to a jury trial
the right not to be required to post excessive bail
the right not to be mulched excessive fines
the right not to be inflicted with cruel and unusual punishment
the privileges and immunities of citizens of the United States
the right to due process of law
the right not to be deprived of life, liberty, or property without due process of law
the right to equal protection of the laws

More particularly, how does one arrive at a definition of those rights without judicial interpretation? And if one grants judicial interpretation, how does one define what is reasonable and unreasonable interpretation?

I'm frankly annoyed -- not at your taking a stance contrary to mine; I relish exchanging viewpoints and learning more of how others see things -- but rather at a rather nebulous stance that I am seeing in your posts that there is no middle ground between textual literalism (but with a presumption in favor of the legislature that the broad-brush definitions of rights are not being infringed on by laws that seem to some to be strongly infringing on them) and a Devil-take-the-hindmost let's-write-my-personal-feelings-into-the-Constitution judicial activism of the worst sort. I state this frankly in the hope that you will clarify things so that I may better understand where it is that you are coming from in these discussions.

W/R/T the OP, there is nothing more evident in my mind than that the Texas law precludes behaviors to half the population that it permits to the other half, i.e.:
no male may commit fellatio
no female may commit cunnilingus
no male may have anal intercourse with another malebut any female may commit fellatio
any male may commit cunnilingus
any male may have anal intercourse with a female
Now, granted that it is probable that a heterosexual male would not wish to commit the first and third items on the first list, and a heterosexual female the second, that presumption need not come into the legal analysis. In point of fact, all males in Texas (and three other states) are being legally prohibited from committing acts that females can, and vice versa. In my mind, that is a clear violation of the equal protection clause. I personally feel that there is a right to privacy implicit in the Fourth Amendment's terms but not spelled out beyond prohibiting unreasonable searches and seizures, and that the Ninth exists (though I'm aware you disagree) in part to protect that right.

Dewey Cheatem Undhow

04-07-2003, 03:27 PM

My word, Poly -- just because I'm currently unemployed [1] doesn't mean I have the time to write a full-length treatise on the constitution. Give me a break.

Suffice it to say that I find substantive due process to be a constitutional theory with dubious merit at best, and that constitutional theories that require "emanations and penumbras" to form their constitutional basis are by definition absurdly far removed from the text.

I also take issue with your "no middle ground" characterization. I've stated repeatedly that there is an interpretive function legitimately served when the judiciary must define key constitutional terms (e.g., what is or is not a "search;" what specific procedural safeguards are "due"). I think that they cross a line when they ascribe facially nonsensical definitions to constitutional terms (e.g., "due process" means metaphysical substantive fairness rather than a simple right to be heard). Just because there is play in the constitutional joints does not mean anything goes.

If you want to discuss a specific example or case or constitutional provision, fine, but I'm just not going to do a comprehensive magnum opus here.

As for the gender-based EP argument and the OP: if you'll peruse this thread, you'll find that I've stated this is the only argument that has any possible merit, though I think it is not without flaws.

I think I've covered the fourth amendment, and God knows I've hashed through the ninth amendment. Unless you're going to add a legitmately new line of argument on those topics, I'd just as soon point you to my prior posts as my response.

1. As I was composing this, I got an email about an interview Thursday. Wish me luck.

The Scrivener

04-07-2003, 05:02 PM

On an utterly frivolous note, I wrote this limerick (http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172233&perpage=10&pagenumber=9) about Bowers v. Hardwick in a "literary limericks" thread.

:D

Polycarp

04-07-2003, 06:33 PM

Fair enough, Dewey. That list of rights was more or less rhetorical, aimed at trying to get you to articulate your views on what the Constitutional extent and limitations on rights are. And that summary of what you've "stated repeatedly" is more or less what I was looking for. The comment was made over in GQ that "substantive due process," insofar as it can be articulated, means, more or less, that the result must end up as an act of Constitutional justice as well as one that meets the requirements of procedure. E.g., a hypothetical state law that permitted everyone to say whatever they liked only in a given deserted stretch of desert, provided that nobody else was there, would meet due process as regards preserving freedom of speech, but would be substantively inequitable -- freedom of speech implies freedom that one's speech will be heard by those who are willing listeners, though that is sort of "penumbral."

Hypothetical for you: It's 1986, and Justice Powell has suffered a stroke and retired, just before Hardwick is to be decided. You know the facts behind the case, I presume --they've been reviewed here several times. (If not, I'll be glad to do a summary.) President Reagan, casting about for a bright young conservative who will have a long stay on the court, has targeted you, and the Senate, not without some flack from Sen. Kennedy, has consented to your appointment. Now you're faced with the Hardwick case. How will you vote? What are the reasons behind that vote? And will your decision take into account the reason behind the suit in the first place?

Dewey Cheatem Undhow

04-07-2003, 07:31 PM

Originally posted by Polycarp
E.g., a hypothetical state law that permitted everyone to say whatever they liked only in a given deserted stretch of desert, provided that nobody else was there, would meet due process as regards preserving freedom of speech, but would be substantively inequitable -- freedom of speech implies freedom that one's speech will be heard by those who are willing listeners, though that is sort of "penumbral."Of course, the challenge to such a law would not need to trip due process arguments, substantive or otherwise. Putting aside full incorporation issues, all that is necessary to find such a law unconstitutional is the first amendment. One need not stretch to penumbras to find this law an abridgment of free speech. Hypothetical for you: It's 1986, and Justice Powell has suffered a stroke and retired, just before Hardwick is to be decided. You know the facts behind the case, I presume --they've been reviewed here several times. (If not, I'll be glad to do a summary.) President Reagan, casting about for a bright young conservative who will have a long stay on the court, has targeted you, and the Senate, not without some flack from Sen. Kennedy, has consented to your appointment. Now you're faced with the Hardwick case. How will you vote? What are the reasons behind that vote? And will your decision take into account the reason behind the suit in the first place? I would find that although I find the Georgia law personally distasteful, the constitution is silent on the issue of government's power to criminalize certain sexual practices and therefore the Georgia law is not unconstitutional. I would close with a quip from Oliver Wendell Holmes, Jr.: "If my fellow citizens want to go to Hell I will help them. It's my job."

BTW, thanks for ruining any shot I may have had at appointment to a judgeship. I can picture Ted Kennedy reading this post, and it ain't pretty. :)

Blalron

04-07-2003, 08:19 PM

This does not mean that a right to bodily integrity isn't a good thing, or that one's bodily integrity shouldn't be respected by the government as a matter of policy. It just means the constitution (outside of the specific area of searches and seizures) is silent on the issue.

Forgive me if it offends your ideology of States Rights, but if my State wants to take my testicles, they aren't going to do it without a prolonged and bitter court battle. ;)

Polycarp

04-07-2003, 08:24 PM

Unfortunately, you would be right on the money, thanks to the overambitious arguing stance Tribe undertook on the case.

However, IMHO, the facts of the case are such as to provide a quite different view of the incident.

Michael Hardwick was a bartender at the Cove, a former gay Atlanta nightclub. On the night of July 4, 1982, Hardwick spent the night installing insulation in an expansion of the Cove's facilities, left in the morning, grabbing a beer as he left, which he finished and discarded just as he was observed by Keith Torrick of the Atlanta City P.D., who ticketed him for drinking in public. Torrick allegedly had a grudge against gays generally and Hardwick in particular. Torrick did warn Hardwick that he would be arrested if he failed to show up in court; Hardwick did show up, pay a $50 fine, and figured that ended the matter.

Torrick then, on August 3, 1982, got a warrant for Hardwick's arrest for failure to appear (he claimed he "mistakenly" thought Hardwick was a scofflaw) and proceeded to Hardwick's house. According to the accepted story, a friend who was sleeping off a hangover on Hardwick's living room couch let him in (a variant story says the front door was open). The friend said that he didn't know whether Hardwick was home. Torrick proceeded through the house, pushing open a bedroom door to find Hardwick and a houseguest in town to look for work engaged in mutual fellatio. He placed them under arrest for committing the felony crime of sodomy, publicized the reason for their arrest to the prisoners at the jail. Hardwick posted bail within one hour but was not released for 12.

Kathleen Wilde and John Sweet of the local ACLU chapter contacted Hardwick, who agreed to be a test case for the sodomy law's constitutionality. However, Lewis Slaton, the D.A. who would have to prosecute the case, decided to drop the charges.

Wilde and Sweet then filed in Hardwick's behalf to sue Michael J. Bowers, Attorney General of Georgia, challenging the case. U.S. District Judge Frank Johnson addressed the issue of privacy head on: The Constitution prevents the states from unduly interfering in certain individual decisions critical to personal autonomy because those decisions are essentially private and beyond the legitimate reach of a civilized society.... The intimate association protected against state interference does not exist in the marriage relationship alone... For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.

In sum, a police officer with an invalid arrest warrant enters a private home without the consent of the homeowner and observes conduct constituting a felony being engaged in in private. Regardless of whether Georgia's sodomy law is constitutional, the entire circumstances surrounding the arrest and its consequences are a violent breach of Fourth Amendment rights as explicitly spelled out in previous cases. And there is some evidence that Torrick targeted Hardwick from the start.

In short, while Torrick may have had valid grounds for making the arrest when he observed the 69 going on, he had no business being where he could make that observation -- and Slaton knew that. Hence, while the ACLU and Tribe mounted the argument against the constitutionality of the Georgia law, the actual argument that ought to have been made was one of an unlawful entry by the police -- which should ring a bell in connection with Lawrence v. Texas.

BTW, thanks for ruining any shot I may have had at appointment to a judgeship. I can picture Ted Kennedy reading this post, and it ain't pretty.

Oh, don't worry, December will handle your public relations! :D

:: d & r :::

Dewey Cheatem Undhow

04-07-2003, 09:11 PM

Poly: Oh, I agree on the fourth amendment point -- indeed, earlier in this thread, I think I said the Texas case, were it being normally defended, would have been thrown out on improper search grounds. But that wasn't the issue presented on appeal in either case.

Dewey Cheatem Undhow

04-07-2003, 09:14 PM

Originally posted by Blalron
Forgive me if it offends your ideology of States Rights, but if my State wants to take my testicles, they aren't going to do it without a prolonged and bitter court battle. ;) Actually, I agree -- you have a right to due process, meaning that you must be given a full and fair opportunity to be heard before the state does anything to you. While I disagree with the doctrine of substantive due process, I don't think we should ignore the due process clase altogether.

And, more to the point, if the state wants to take my testicles, they're going to need a lot more than a prolonged legal battle. They're going to need lots of men with guns. :D

The Ryan

04-08-2003, 07:48 PM

DCU
Allowing the colonists to vote probably wouldn't change the outcome, either -- Britain had a lot more people than the colonies, so what would stop them from taxing the colonies with impunity?
I don’t see what your point is. This supports my position.

Again, the issue is representation.
No, it’s not. Even if the US allowed Mexico to vote on the issue, it still wouldn’t be justified.

Again I ask: such as? You keep saying that the proposed language suffers from these serious defects, but never bother to posit even a single example of a defect in action.
It should be quite of obvious that if the SCOTUS can find the right to abortion in the constitution without your amendment., it could find its absence with your amendment.

You claimed that the abortion right was premised on the notion that failing to permit abortions was a "seizure" within the meaning of the fourth amendment.
No, I said no such thing.

This is worse than Orwellian doublespeak. The government is not seizing a goddamn thing, any more than it is seizing a woman's vagina when it says she cannot rent that organ out for money.
Is this the “deny really forcefully while making literary references” strategy? “This is worse than firemen that start fires rather than put them out. The government most definitely is seizing something.” Convincing? I didn’t think so.

This is becoming increasingly absurd. Under this line of reasoning, any act prohibited by the government is a "seizure" and thus must be unconstitutional.
If you wish to read that into the argument, then that is your choice. But arguing against something based on what you read into it is a rather odd strategy. You seem to arguing that since some things which the government prohibits are not seizure, then nothing is, which is clearly fallacious.

Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act.
“No person shall… be deprived of life, liberty, or property, without due process of law”. Doesn’t say “this issue does not arise until the government tries to penalize someone”. Are you saying that if the government wants to take $1000 as a fine for breaking the law, it must follow due process, but if it wants to take $1000 with absolutely no justification, no due process concerns arise?

You're just being stupid.
And you’re violating forum rules.

A fetus is not taken for "public use" when it is brought to term.
I never said it was. But unless you’re disputing that in this context “taken for public use” means “used to provide a benefit against the owner’s consent”, the uterus is taken for public use.

As swell a guy as I am, I do not count my birth as some tremendous benefit to the commonweal.
That’s a strawman. I never claimed that the public derives a “tremendous” benefit, only that it derives some benefit. If you honestly believe that your existence in no way benefits humankind, I’m not going to try to convince you otherwise, but the fact remains that generally speaking, the public derives benefits from additional members.

When you suggested that the 13th amendment would operate to require abortion's legality [you compared pregnancy to slavery].
I don’t see how.

You miss the point. Why take all the time and efforts -- literally years of work of extensive politicking and lobbying -- to give women the franchise when a lawsuit could do it in a fraction of the time and with considerably less effort? Why not try the easier route first, and then only if it fails go the amendment route?
Presumably the suffragettes thought that an amendment had a better chance than a lawsuit. But I don’t really know what their motivation was, nor is it relevant. Although, as long as we’re playing this game, why did the temperance movement go for an amendment? Why not just pass a law?

But when "the people" is used in the fashion described, it means the whole of the people, not some small subset thereof.
What is “the fashion described”?

PS -- the "if you were a slave" bit is a stupid emotional appeal; having cancer does not make you an oncologist, and being a slave does not make you an expert on constitutional law.
You already said that (in fact, my statement was I response) and you’re not adding anything except uncalled for rudeness. It’s not an emotional appeal; it’s not even an appeal at all.

It is the general body politic that has the rightful power to "alter or abolish" the current form of government, not some tiny insular portion thereof.
So the colonists had no rightful power to abolish British rule?

The Ryan

04-08-2003, 07:55 PM

The facts presented regarding the Hardwick case prompted some wondering on my part as to what constitutes consent to a search:
If someone other than the owner gives consent, and the cops assume that the person giving consent is the owner, will the evidence tbe thrown out?
Has anyone who was the owner and gave consent successfully argued that his mental state was such at the tie of the entry that he was not competent to give consent? (eg hung over, drunk, not fully awake, on painkillers)
Once they have consent to enter the house, do they have to get separate consent to open closed doors?

Dewey Cheatem Undhow

04-09-2003, 08:31 AM

The Ryan -- I started to do another line-by-line response, but then decided it just wasn't worth the time. Your arguments are just plain nonsensical. I feel as though I'm at tea with the Mad Hatter and March Hare. And this isn't the first time, either -- you pretty much did the same thing in the Patriot II thread (http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=167336).

If you want to have a serious, adult discussion, take notes from minty, Blalron and virtually every other participant in this thread. As much as I disagree with them on various points raised here, I respect them because they bring up substantive points with considerable merit. They do not spew out book-length posts of nonsense and expect to be taken seriously, a practice you evidently favor.

The Ryan

04-09-2003, 11:02 PM

I'm open to respectful, cogent, specific and useful explanations for how my posting style can be improved. You have presented nothing of the sort. In your previous posts, you have used insulting language and directed many of your most extreme reactions to statements which I never made. "Your arguments are just plain nonsensical" is an only slightly more sophisticated response than the tactic of repeating "nuh-uh" after everything someone says. You have had plenty of opportunity to show how my arguments are nonsensical, and instead you have chosen to present blatant strawmen and non sequitors, then pretend that you have shown my arguments to be nonsensical. If by "same thing" you mean "present arguments which I ignored and instead argued against something else", then your statement "you pretty much did the same thing in the Patriot II thread" is true. It's also odd that you would complain about my post length. seeing as how not only do you have posts just as long, but you also earlier complained that my posts weren't detailed enough.

You think my arguments are nonsensical. I think yours are. Would you be convinced if I posted something like what you did? I think I'm safe in assuming that the answer is "no". So do you think a post consisting of nothing more substantial than "You're wrong; you're not making sense; I'm right; you're wrong" is going to convince me?

And I haven't found minty to be a good example of "serious, adult, discussion", this thread notwithstanding.

Dewey Cheatem Undhow

04-10-2003, 12:43 AM

Originally posted by The Ryan
And I haven't found minty to be a good example of "serious, adult, discussion", this thread notwithstanding. And this tells me all I need to know about how seriously I should take you.

Look, I've played along with your posts for a full page in this thread, and longer in that other thread. It's like herding cats -- your arguments just all over the place. It's ridiculous.

A good example is your absurd Mexico example. Mexico is not part of the US political system. Mexican citizens have no representation or participation in the setting of US policy. That being the case, of course the US cannot dictate an official language to the Mexican people. Most normal people understand this basic concept. You evidently do not.

(I'll also note that within the US, many states do disallow the use of Spanish - and any language other than English - for various purposes. Although some specific aspects of those statutes have been successfully challenged, the statutes themselves have generally survived constitutional scrutiny. And that's just fine -- that's democratic self-government in action. If you don't like English-only laws, your proper remedy is at the ballot box, not the courthouse.)

So you'll excuse me if I don't continue chasing you down the rabbit hole. After five pages of substantive discussion with folks like minty, Polycarp, Blalron, mtgman and others, I'm not terribly concerned that folks will think I'm dodging your argument. But you go ahead and believe whatever makes you feel better.

The Ryan

04-10-2003, 03:18 PM

Originally posted by Dewey Cheatem Undhow
A good example is your absurd Mexico example. Mexico is not part of the US political system. Mexican citizens have no representation or participation in the setting of US policy. That being the case, of course the US cannot dictate an official language to the Mexican people. Most normal people understand this basic concept. You evidently do not.
This is a good example: of how you're completely missing my argument. I'm not saying that the US has the right to dictate Mexican language usage; in fact, I'm arguing the opposite. Where we diasagree is the reason why the US does not have that right. You say that the reason is that Mexico has no representation in US government. I say that even if the US allowed Mexicans to vote on the "Should Mexicans be prohibited from speaking Spansih?" resolution, that wouldn't make it justified. You have completely ignored this. You haven't provided any reason why it would be justified, or even explicitly stated one way or the other that it would be justified. Instead you just keep repeating your implication that I think that the US does have the right to dictate language to Mexicans, which is only one of the least egregious examples of your misrepresntations. The discussion has basically been: "Imagine a situation where this would pass even if Mexicans are allowed to vote. This still wouldn't be justified. Therefore, representation is not sufficient" "But the Mexicans aren't represented" "Yes, but imagine a situation where the Mexicans are represented, and the resolutions still passes. It wouldn't be justified" "But the Mexicans aren't represented" "But what if they were?" "You're just not making sense. The Mexicans aren't represented. Why can't you understand that? I'm going to quit trying to discuss this with you, because you're just not making sense"

And add argumentum ad populem to the list of logical fallacies you have committed in this thread.

Dewey Cheatem Undhow

04-10-2003, 04:07 PM

Originally posted by The Ryan
This is a good example: of how you're completely missing my argument. I'm not saying that the US has the right to dictate Mexican language usage; in fact, I'm arguing the opposite. Where we diasagree is the reason why the US does not have that right. You say that the reason is that Mexico has no representation in US government. I say that even if the US allowed Mexicans to vote on the "Should Mexicans be prohibited from speaking Spansih?" resolution, that wouldn't make it justified. You have completely ignored this. You haven't provided any reason why it would be justified, or even explicitly stated one way or the other that it would be justified. :rolleyes:

The key, of course, is precisely that Mexico lacks political representation in US policymaking, and thus a US-created rule on any issue -- official language, taxes, whatever -- cannot properly be imposed on the Mexican people. Of the states that have passed "official English" statues, many are southwesterns states with substantial Spanish-speaking populations. Yet I don't see you bitching about that. I mean, really, why do you think I mentioned existing state laws in the first place? With the exception of the critical fact that the citizens of those states have representation in the legislative process, how is that any different from your Mexico example?

Look, assuming that Congress has the power to craft an official language statute (not too far-fetched under commerce clause jurisprudence), and assuming that the statute is crafted to not conflict with the petition right of the first amendment, and assuming that Mexico became the 51st state, then there is NO PROBLEM constitutionally with such a statute. The presence or absence of Mexico as a state within the political entity called the United States does not alter the constitutional analysis.

Your argument is simply absurd: if Mexico isn't a state, it lacks representation and thus isn't properly subject to US law; if Mexico is added as a state, then the analysis is no different than if Congress passed such a law absent Mexico's admission. In short, your Mexico hypothetical is irrelevant.

And as for this:And add argumentum ad populem to the list of logical fallacies you have committed in this thread.I do not think it means what you think it means. (http://www.smouse.demon.co.uk/logargnew/lapop.htm) I never said I was right because I had substantive discussions with other posters, nor did I say I was right because other posters wouldn't think I was dodging you. I'm right because your arguments are nonsensical, and because my points have been substantive (though certainly debatable) over the course of this thread. I was just expressing my faith that other posters would recognize that distinction.

The Ryan

04-10-2003, 07:24 PM

Originally posted by Dewey Cheatem Undhow
I mean, really, why do you think I mentioned existing state laws in the first place?
Is it my responsibility to write your argument for you? If you wanted to say that "many US states disallow Spanish in some cases and this is okay, in these states people have representation, therefore all cases in which people who have respresentation are told not to speak Spanish are okay", then you should have said that. And then I could have argued against that. Or was that what you were trying to avoid? Is figuring out someone's argument some sort of macho thing? You don't explicitly tell me what your argument is because if I'm intelligent enough I should be able to figure it out, and if you don't understand my argument you don't ask me to clarify because doing so would be admitting that you aren't omniscient?

With the exception of the critical fact that the citizens of those states have representation in the legislative process, how is that any different from your Mexico example?
And you call my posts nonsensical? I just complained about your inability to grasp the concept that in my hypothetical, Mexico does have representation (or at the very least, provide an argument why this is not so), and you respond with a post that implies that Mexico doesn't have representation. As for how this is different, it probably isn't. I don't know what laws you are talking about, but I would probably consider them either immoral for both cases or moral for both.

Look, assuming that Congress has the power to craft an official language statute (not too far-fetched under commerce clause jurisprudence), and assuming that the statute is crafted to not conflict with the petition right of the first amendment, and assuming that Mexico became the 51st state, then there is NO PROBLEM constitutionally with such a statute.
This doesn't address my hypothetical for two reasons:
1. Mexico being a 51st state was not part of the hypothical. You seem to think that being a state is the only was to be represented, which is certainly not the case. So unless you're saying that the current relationship between states in the US is the only legitimate form of representation, I don't see where this is coming from. And if that's your position, then you should change your claim from "The key, of course, is precisely that Mexico lacks political representation in US policymaking," to "The key, of course, is precisely that Mexico lacks political representation in US policymaking in the form of being a state". Which is quite a different claim.

2. If you look at where this issue originally came up, it was from the discussion on whether it is moral for a majority to tell a minority what to do. Not whether it was constitutional, but whether it was moral. I consistently used words such as "right" and "justified". I never made any reference to constitutionality. So the fact the there is no problem constitutionally is irrelevant. (And if we were simply talking constitutionality, then I don't see what representation has to do with anything. "No taxation without representation" was a revolutionary rallying cry, not a constitutional principle. There's nothing in the constitution that says that telling Mexicans what to is not allowed if they don't have representation).

The presence or absence of Mexico as a state within the political entity called the United States does not alter the constitutional analysis.
Exactly! So why did you bring this issue up?

Your argument is simply absurd: if Mexico isn't a state, it lacks representation and thus isn't properly subject to US law;
So territories aren't subject to US law?

You seem to be saying that if the people of the US get together and decide something, then everyone in the US is bound by it, because they all have representation. I'm saying that by that logic, if everyone in North America gets together and decides something, then everyone in North America is bound by it, because they all have representation. All this stuff about states is just obfuscation.

And as for argumentum ad populum, there is no requirement that someone explicitly state "I am right because people agree with me". All it means is that someone is suggesting or implying this. In fact the most effective use of it is when the audience doesn't notice it.

Blalron

04-10-2003, 09:00 PM

Dewey, the Texas Legislature once passed a bill honoring the Boston Strangler (http://66.165.133.65/legal/desalvo.htm). It was a stunt done by a representative to show how easily things can get passed, but I think it goes to show that state legislatures aren't the bastions of competancy that you are representing them to be.

Dewey Cheatem Undhow

04-10-2003, 09:57 PM

The Ryan: Your absurdity continues; I'm bowing out.

Blalron: Whoever said the state legislatures were bastions of competency? Certainly not me. My position is that absent constitutional restriction, a state should be able to any damned fool thing it wants to.

Dewey Cheatem Undhow

04-10-2003, 09:58 PM

Er...to do any damned fool thing....

Blalron

04-12-2003, 02:19 AM

From the Lawrence vs Texas oral argument transcript:

Mr. Smith: It was conceded by the State of Georgia 17 years ago, that married couples can't be regulated as a matter of substantive due process in their personal sexual expression in the home.

Justice Scalia: They conceded it. I haven't conceded it.

That's your hero talking, Dewey. :eek:

Dewey Cheatem Undhow

04-12-2003, 08:57 AM

Blalron: Yeah, because Scalia correctly recognizes that putting "substantive" and "due process" in the same phrase creates an oxymoron. For reasons I've already been over ad nauseum.

Blalron

04-12-2003, 02:08 PM

Blalron: Yeah, because Scalia correctly recognizes that putting "substantive" and "due process" in the same phrase creates an oxymoron. For reasons I've already been over ad nauseum.

No it doesn't. Some things are so fundamentally unjust that no matter how much "fair" procedure you tack on to it, the process can't be considered "due". That is the substance of due process.

I am saddened that you refuse to look at due process as anything but procedural.

Hamlet

04-12-2003, 02:39 PM

Originally posted by Polycarp
W/R/T the OP, there is nothing more evident in my mind than that the Texas law precludes behaviors to half the population that it permits to the other half, i.e.:
no male may commit fellatio
no female may commit cunnilingus
no male may have anal intercourse with another malebut any female may commit fellatio
any male may commit cunnilingus
any male may have anal intercourse with a female
Now, granted that it is probable that a heterosexual male would not wish to commit the first and third items on the first list, and a heterosexual female the second, that presumption need not come into the legal analysis. In point of fact, all males in Texas (and three other states) are being legally prohibited from committing acts that females can, and vice versa. In my mind, that is a clear violation of the equal protection clause.Perhaps in your mind, but there is no way this is a gender based Equal protection issue. The Equal Protection issue is in regards to homosexuals being treated differently than heterosexuals, rather than men and women. You can reread my posts on the second page for more elaboration.

Dewey Cheatem Undhow

04-12-2003, 03:28 PM

Originally posted by Blalron
No it doesn't. Some things are so fundamentally unjust that no matter how much "fair" procedure you tack on to it, the process can't be considered "due". That is the substance of due process.

I am saddened that you refuse to look at due process as anything but procedural. Process is procedure. If I may repeat myself from earlier in this thread: as Professor John Hart Ely (no friend of strict constructionism, BTW) put it, "there is simply no getting around the fact that the word that follows 'due' is 'process.'"

The due process clause is not a guarantee of metaphysical fairness; it is a guarantee of a right to be heard. Period.

But I've argued this issue pretty darned extensively in this thread already. Re-read my posts if you want a fuller answer.

Blalron

04-12-2003, 05:26 PM

Let's see.... 150 years of Supreme Court precedant versus Dewey's sincere desire for the Court to abdicate its responsibility of providing checks and balances. Tough choice!

Dewey doesn't want the court to overturn all its "Substantive Due Process" decisions, he just wants them to stop making new ones. So that means that "liberty" is forever constitutionally frozen at one particular point in time.

I don't buy your cramped notions of freedom, nor your idealization of states rights. States are ficticious entities. They are cold, unfeeling creatures just like a corporation. PEOPLE have rights. MY feelings can be hurt. The State of Texas does not have feelings.

Texas is made up concept, and this made up concepts right to throw men in jail for having sex with other men in the privacy of their own home is what you are defending. Remember that.

Dewey Cheatem Undhow

04-12-2003, 07:06 PM

Originally posted by Blalron
Let's see.... 150 years of Supreme Court precedant versus Dewey's sincere desire for the Court to abdicate its responsibility of providing checks and balances. Tough choice!That 150 years of precedent is a decidely mixed bag. Remember, that 150 years of precedent includes notions that substantive due process forbade the federal government from preventing the spread of slavery. Remember that that 150 years of precedent includes notions that substantive due process forbade the states from passing laws that made working conditions a little more humane. Remember that that 150 years of precedent includes notions that substantive due process forbade the states from passing laws requiring a decent wage.

Why you're so energized over a theory that has caused such a disgraceful amount of harm is beyond me. The US may be an artificial entity, but Dred Scott was a real person. The theory you love so much helped keep him in bondage. I don't buy your cramped notions of freedom, nor your idealization of states rights. States are ficticious entities. They are cold, unfeeling creatures just like a corporation. PEOPLE have rights. MY feelings can be hurt. The State of Texas does not have feelings. State governments are representative in nature; they reflect the wishes and desires of the very real people who live under them. You're correct, people do have rights. One of them is the right to self-govern. That self-governance finds expression through laws passed by the legislatures. That you are so eager to trample on that right is indeed telling -- your view of freedom is far more cramped than mine could ever be.

PS -- "Hurt feelings" is hardly a basis for legal argument.Texas is made up concept, and this made up concepts right to throw men in jail for having sex with other men in the privacy of their own home is what you are defending. Remember that. Fine. The power of the judiciary to forbid Congress from restricting the spread of slavery is what you are defending. Remember that.

Blalron

04-12-2003, 08:58 PM

That 150 years of precedent is a decidely mixed bag. Remember, that 150 years of precedent includes notions that substantive due process forbade the federal government from preventing the spread of slavery. Remember that that 150 years of precedent includes notions that substantive due process forbade the states from passing laws that made working conditions a little more humane. Remember that that 150 years of precedent includes notions that substantive due process forbade the states from passing laws requiring a decent wage.

Mistakes were made, I admit. But there's still no need to throw the baby out with the bathwater.

Dewey Cheatem Undhow

04-12-2003, 10:45 PM

Originally posted by Blalron
Mistakes were made, I admit. But there's still no need to throw the baby out with the bathwater. I don't see any principled reason to call those decisions "mistakes." If due process includes the power of a judge to strike down a law because he sees within it some metaphysical unfairness, then due process is essentially carte blanche for judges to invalidate legislation based on their own moral views. The judges who issued the decisions I noted above were doing exactly that: striking legislation, not on a basis firmly rooted in the constitution, but on their own moral view. And that's the position you're advocating -- that the judiciary should be more than an interpreter of the constitution, that they should also be moral arbiters of acceptable law.

Again, there's no principled basis to distinguish the cases I note from the ones you favor. They all come from the same root. The only distinction is that you like the results in one and you dislike the results in the other. Constitutional law should be based on firmer ground than that.

Blalron

04-12-2003, 11:27 PM

Constitutional law should be based on firmer ground than that.

Freedom of contract was based upon faulty notions of the infallibility of pure laizze faire capitolism which were later proven to be wrong. Eventually the Court reversed.

I think the situation with civil rights are a world apart from economic rights. There is a demonstratable compelling government interest in regulating working conditions and hours.

If you want to tell me there is a compelling government interest in jailing two men for having sexual relations in their own home, go ahead. I'll listen to what you have to say.

Dewey Cheatem Undhow

04-13-2003, 12:21 AM

Originally posted by Blalron
I think the situation with civil rights are a world apart from economic rights. And your point is....what? This is wholly a matter of subjective opinion. You consider certain civil rights more important than economic rights. Others may differ.

But there is no basis in the constitution for protecting one but not the other -- "substantive due process" is a blank page upon which any judge can write his own particular policy preferences. It is only the mood of the judiciary and not a principled constitutional rule that makes "substantive due process" currently protect, say, a right to privacy but not protect economic rights.

What you are basically saying is that so long as you agree with the whims of the judges, you care not how they achieve their results. I on the other hand say the ends do not justify the means.

Blalron

04-13-2003, 01:30 AM

And your point is....what? This is wholly a matter of subjective opinion. You consider certain civil rights more important than economic rights. Others may differ.

A large number of legal disputes boil down to a matter of subjective opinion, otherwise the circuit courts would always agree with each other and the supremes would always make unanamous decisions.

If you honestly want to tell me that your right to sexual relations in the privacy of your own home is less important than being able to work for $1 an hour, you are simply blinded by strict constructionist ideology.

Blalron

04-13-2003, 01:38 AM

Fine. The power of the judiciary to forbid Congress from restricting the spread of slavery is what you are defending. Remember that.

The decision was legally valid under the laws at the time.

Article IV, Section 2:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Dewey Cheatem Undhow

04-13-2003, 08:06 AM

Originally posted by Blalron
If you honestly want to tell me that your right to sexual relations in the privacy of your own home is less important than being able to work for $1 an hour, you are simply blinded by strict constructionist ideology. So the right to diddle yourself senseless is more important than providing for your family? I can quite easily see why a jurist might consider economic rights to be paramount. The decision was legally valid under the laws at the time. The decision was not premised on Article IV. Dred Scott was not an "escaped slave." He was a slave taken into a federal territory by his owner. What Dred Scott held was that the due process clause meant that the federal government could not ban slavery in the territories because a slaveowner might wish to bring his slaves there.

Polycarp

04-13-2003, 08:22 AM

So the right to diddle yourself senseless is more important than providing for your family? I can quite easily see why a jurist might consider economic rights to be paramount.

Somewhere, the shades of McReynolds, Butler, Sutherland, and Van Deventer are nodding sagely and one of them is saying, "See, somebody understands us!" ;)

Gorsnak

04-13-2003, 11:39 AM

Originally posted by Dewey Cheatem Undhow
State governments are representative in nature; they reflect the wishes and desires of the very real people who live under them. You're correct, people do have rights. One of them is the right to self-govern. That self-governance finds expression through laws passed by the legislatures. That you are so eager to trample on that right is indeed telling -- your view of freedom is far more cramped than mine could ever be.
Whoa, whoa, whoa, back the train up. People do not have the right to self-governance. Given your own arguments, people only have the rights granted to them by the Constitution, which nowhere states "The right of individuals to self-governance shall not be infringed upon by the States." Sure, the Constitution lays out the structure of a representative democratic system of government, but this doesn't equate to a guarantee of self-government - it equates to a guarantee of government by a body of elected officials, which is not the same thing as self-governance. Syria's governed by "a body of elected officials" too, after all. Heck, so far as I can tell, Americans don't even have a right to vote - they just can't be prevented from voting on the basis of certain criteria (gender, race, age over 18, and failure to pay a poll tax). So unless I'm missing something (and I may well be), it would be perfectly constitutional to prevent a given class of people from voting, so long as that class isn't picked out by one of the proscribed criteria. Restricting voting rights on grounds of handedness, eye colour, percentage of body fat, or foot size all seem to be permissible. That certainly isn't a right to self-governance.

I conclude that you believe the right to self-governance is one of those metaphysical innate rights - you have after all described it as the "Sacred Right to Self-governance", but I must confess I find this to be verging on incoherence on your part. First, if people have any "sacred rights", I submit the right they have is the Sacred Right To Do Whatever They Damn Well Please So Long As They Aren't Hurting Anyone. This seems more like a right to self-governance (in the sense of governing oneself) than the right you seem to be advocating, which appears to be something like a right to live in a representative democracy - why anyone should think that people have an innate right such as that is truly beyond me. But anyways, you cannot by your own arguments countenance any innate rights, at least, not any with any legal weight - rights exist for legal purposes solely if they appear in the Constitution in unambiguous language, according to you, and the right to self-governance makes no such appearance. Moreover, since the people have no right to self-governance, the courts can hardly illegally infringe upon this right by interpreting the Constitution in controversial ways. So if they want to see emanations and penumbras, or expound upon the rights implicit in the 9th Amendment, that's all perfectly kosher. (I have to admit that's a bit of a loophole in the whole checks and balances scheme - SCOTUS has the power granted to it by the Constitution, including the power to interpret that self-same Consitution as it sees fit - better hope that the Justices don't let such untrammelled power go to their heads.)

Surely the proceeding cannot be all correct. Please explain to me why this isn't a glaring self-contradiction on your part, since I shall charitably assume you aren't making such a gross error, but rather that I'm misunderstanding something about your position.

Dewey Cheatem Undhow

04-13-2003, 04:56 PM

Forgive me the poetic use of the word "right" in "right to self-govern."

I think we could broadly agree that a government only justly derives its powers from the consent of the governed. That is the driving force behind the constitution; it was the driving force behind the American Revolution; and it continues to be the driving force behind the spread of western democracy around the world even to this day. It is literally the cornerstone upon which the nation was founded. Which is why I stubbornly insist that laws only be invalidated on bases that the people have already consented to, i.e., those enshrined in the actual text of the constitution.

Besides, the Constitution does guarantee self-governance. Article I, Section 2 requires that representatives be elected "by the People of the several States," and the 17th amendment requires that US Senators be elected "by the people" of their state. Article IV, Section 4 guarantees that the states will maintain a republican form of government. That's a guarantee of representative democracy, which is effectively a guaranteee of self-governance without using that specific phrase.

Gorsnak

04-13-2003, 06:34 PM

Originally posted by Dewey Cheatem Undhow
Besides, the Constitution does guarantee self-governance. Article I, Section 2 requires that representatives be elected "by the People of the several States," and the 17th amendment requires that US Senators be elected "by the people" of their state. Article IV, Section 4 guarantees that the states will maintain a republican form of government. That's a guarantee of representative democracy, which is effectively a guaranteee of self-governance without using that specific phrase.
Come now. Bashar Al-Assad has been "elected by the People of Syria." Fidel Castro has been elected (many times) "by the People of Cuba." The right to elect your government is not equivalent to the right to democratic self-government. Anyways, this doesn't dispute the fact that States can restrict voting rights for most any reason, barring those few proscribed in various amendments, which certainly gives the lie to any right to self-governance. (Do I have that right? That seems a grotesque oversight in the document, and since I'm no expert, I tend to think I must be missing something, but I can't see what it would be.)

Now, if you want to argue that the spirit of the Constitution requires free and open elections, and thereby guarantees democratic self-government, I'm right with you. But that line of argument isn't open to you, given your refusal to acknowledge that, say, the spirit of the 14th Amendment clearly renders the Texas Sodomy statue unconstitutional, insofar as a majority is restricting the liberty of a minority for no good reason.

Forgive me the poetic use of the word "right" in "right to self-govern."

I think we could broadly agree that a government only justly derives its powers from the consent of the governed. That is the driving force behind the constitution; it was the driving force behind the American Revolution; and it continues to be the driving force behind the spread of western democracy around the world even to this day. It is literally the cornerstone upon which the nation was founded. Which is why I stubbornly insist that laws only be invalidated on bases that the people have already consented to, i.e., those enshrined in the actual text of the constitution.
Sure, I can agree with all this. But it doesn't get you to your conclusion, since I think we could also broadly agree that a government only justly exercizes its powers when it refrains oppressing minorities who cannot defend themselves at the ballot box. That is the driving force behind the 14th Amendment (among others), and it continues to be a driving force behind core notions of social justice in western democracies and around the world. Which is why I stubbornly insist that laws which unjustly persecute minorities should be invalidated, even if they originate in legitimate democratic fashion and technically avoid violation of the terms of the Constitution.

You, sir, cannot have this both ways. Either the "spirit and driving force" type argument carries legal weight in both cases, or in neither case. If the former, the Texas statute should clearly be struck down. If the latter, then SCOTUS can dispute the will of the people whenever it pleases with perfect legal legitimacy. You cannot argue that one course of action is closed to SCOTUS on the grounds of moral considerations, but then insist that a second moral argument reaching another conclusion is invalid because only legal principles can be legitimately consulted.

Well, you can, but you'd be contradicting yourself.

Polycarp

04-13-2003, 06:42 PM

Originally posted by Dewey Cheatem Undhow
Forgive me the poetic use of the word "right" in "right to self-govern."

I think we could broadly agree that a government only justly derives its powers from the consent of the governed. That is the driving force behind the constitution; it was the driving force behind the American Revolution; and it continues to be the driving force behind the spread of western democracy around the world even to this day. It is literally the cornerstone upon which the nation was founded. Which is why I stubbornly insist that laws only be invalidated on bases that the people have already consented to, i.e., those enshrined in the actual text of the constitution.

Besides, the Constitution does guarantee self-governance. Article I, Section 2 requires that representatives be elected "by the People of the several States," and the 17th amendment requires that US Senators be elected "by the people" of their state. Article IV, Section 4 guarantees that the states will maintain a republican form of government. That's a guarantee of representative democracy, which is effectively a guaranteee of self-governance without using that specific phrase.

Actually, I can think of a better source, Dewey:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
[Emphasis added]

Now, I'm aware that you legal eagles claim that the Declaration has no legal status -- but the day a bunch of lawyers decide to claim that the above is not something important to every American, that's the day that you see something truly bizarre: the DAR, the ACLU, the Montana and Idaho weirdos who claim the 16th Amendment is unconstitutional, the American Legion and VFW, and People United for the American Way all joining together to denounce the ABA.

And you'll pardon me for saying once again that the exact reason for the Ninth Amendment was to indicate that people do have the right to marry, to travel, to use contraceptives if they so choose, and perhaps even to commit "the abominable crime against nature" in private if they wish to do so (I'll bet you Ben Franklin, at least, approved of the ability to do so!).

That, and that only, was the reason that we are not part of Her Majesty's Dominion of North America, along with our friends in Ontario and Manitoba and B.C. -- because a mercantilist government under George III and Lord North decided that the British Parliament knew better what was best for us than we did ourselves, and we disagreed -- vehemently.

Respect for the law is something we inherited from England, and is a major part of America, and why we have a stable, free form of government, instead of recurrent coups, and a subscription to the Constitution of the Month Club.

It can be eroded. It is being eroded by people who use the law in partisan divisiveness. I live in the South, but was raised in the North. People have long memories -- a time period when that sort of partisan divisiveness was rampant still hangs heavy over memories here.

Most Americans are not Constitutional lawyers. But they are very firm about what their rights are -- though a fair number of them cannot care a whole lot about what somebody else's rights are, nonetheless if the issue is placed before them as one of fair play, they will in fact rally to defend rights that they personally may not wish to be given to people. Pettifoggery that appears to be taking away rights that they believe they have, whether or not it's backed by hoary precedent and the text of the Constitution, they will fight, and fight as vehemently as did their forefathers 228 years ago.

"Caesar had his Brutus -- Charles the first his Cromwell -- and Mr. Justice Scalia -- may he profit from their example."

Dewey Cheatem Undhow

04-13-2003, 08:30 PM

Gorsnak: the constitution did not descend from on high. It is the product of representative democracy. The reason the Constitution is valid is because it is a product of representative democracy, and the reason that courts should not expand the limitations on government beyond those things found in the text of the document is for the precise reason of respecting decisions made in a representative democracy.

Far from being contradictory, my view is perfectly consistent. The due process clause is properly restricted to procedural matters because that is what "process" means -- and thus that is what the framers of the 5th and 14th amendments were trying to protect, and nothing more. The fourth amendment is properly limited to searches and seizures, and not a broader notion of privacy, because that is the text selected by the framers -- they took certain searches and seizures off the table for future generations, and nothing else. Come now. Bashar Al-Assad has been "elected by the People of Syria." Fidel Castro has been elected (many times) "by the People of Cuba." Syria and Cuba are lying. What's your point?

Dewey Cheatem Undhow

04-13-2003, 08:43 PM

Originally posted by Polycarp
Most Americans are not Constitutional lawyers. But they are very firm about what their rights are -- though a fair number of them cannot care a whole lot about what somebody else's rights are, nonetheless if the issue is placed before them as one of fair play, they will in fact rally to defend rights that they personally may not wish to be given to people. Pettifoggery that appears to be taking away rights that they believe they have, whether or not it's backed by hoary precedent and the text of the Constitution, they will fight, and fight as vehemently as did their forefathers 228 years ago. Odd, then, that in such egregious situations they would need to go to the courts in the first place. If "most Americans" are willing to resort to armed violence to secure their rights, surely a stern letter to their representatives isn't too much to ask.

Polycarp

04-13-2003, 09:08 PM

Originally posted by Dewey Cheatem Undhow
Odd, then, that in such egregious situations they would need to go to the courts in the first place. If "most Americans" are willing to resort to armed violence to secure their rights, surely a stern letter to their representatives isn't too much to ask.

Because you asked, Dewey, though it's something of a hijack: My perception (which may be wrong) is that a majority of Americans think their representatives in Congress tend to listen more to the guys who make the big campaign donations than to their constituents.

And I didn't say that "most Americans are willing to resort to armed violence" -- I pointed out that the Declaration, which says that it's a last resort, not to be used to "light and transient reasons," says that full-fledged revolution is our heritage when government doesn't protect the rights of the governed, from whom they derive their powers.

I'm not advocating it -- I'm prophesying -- in the classic sense -- if 'repentance' on the part of the leadership doesn't occur, then they will find they have no followers. And the next election "won" by legal prestidigitation will not have the consequences of merely leaving a disgruntled minority grumbling.

Gorsnak

04-13-2003, 09:33 PM

Originally posted by Dewey Cheatem Undhow
Gorsnak: the constitution did not descend from on high. It is the product of representative democracy. The reason the Constitution is valid is because it is a product of representative democracy, and the reason that courts should not expand the limitations on government beyond those things found in the text of the document is for the precise reason of respecting decisions made in a representative democracy.

Far from being contradictory, my view is perfectly consistent. The due process clause is properly restricted to procedural matters because that is what "process" means -- and thus that is what the framers of the 5th and 14th amendments were trying to protect, and nothing more. The fourth amendment is properly limited to searches and seizures, and not a broader notion of privacy, because that is the text selected by the framers -- they took certain searches and seizures off the table for future generations, and nothing else.
Ah, okay, I understand you now. The only moral principle which carries any weight in matters of governance and law is that the will of the majority shall be sacred. It can constrain its own future actions, but nothing else can. Any other moral principles only matter insofar as the will of the majority endorses them. I suppose that's internally consistent. I can't imagine why you believe it, but that's another issue. To paraphrase everyone's mother, if all the other kids said you should jump off a bridge, would you do it?

I note you still haven't responded to my question regarding voting rights. This isn't an axe I'm trying to grind; I'm honestly curious as to where my analysis is wrong (if it is), since I don't particularly care for its conclusion.