Dewey
It’s not that it’s a sodomy statute. It’s that it’s a same-sex sodomy statute that creates the tension (at least IMHO).
From the SC Majority opinion
Don’t you see the difference? Oddly enough, (again IMHO), I think Texas was perfectly within its rights to pass the original statute outlawing sodomy generally. It’s when they amended it remove the prohibition against differing sex sodomy that they crossed the line (both USC and TC).
I wasn’t offering challenges to dismiss his concept. I was seeking greater detail so that I might properly analyze how the constitution might apply to his proposed law.**
All of which does not change the fact that both laws are examples of the majority legislating protections for minorities, something the assertion to which I was responding said was highly unlikely occurrence. This, in spite of the fact that the rights-based amendments to the constitution have pretty much been about nothing but enacting protections for aggreived minorities.
My, aren’t we Mr. Snip Away Context Man.
No, I’m Bottom Line Guy. Snip Away Context Man was back on page 2.
Then we are no longer a nation of laws, but of men.
There is a world of difference between interpreting the law – exploring the contours of statutes already enacted, and having that exploration become a de facto part of the substantive law as a simple matter of stare decisis – and judicially legislating – creating rights quite literally out of thin air (or, at least, out of “emanations and penumbras”). The terms are just a convenient shorthand, but the meanings are clear. Calling bullshit on the use of the term “judicial lawmaking” because of the existence of stare decisis is almost willful obtuseness on your part. **
I agree that the Constitution embodies broad principles. I have no problem with judicial interpretation of the free speech clause, or the equal protection clause, or the search and seizure clause. Those short phrases embody big concepts, and should be treated accordingly.
I do, however, have a problem with the judiciary finding principles in the Constitution that simply aren’t there.
One thing advocates of living constitutionalism never seem to be able to do is to put a limit on what the court can do – they either remain silent when asked, or they respond with a meaningless glittering generality. In a constitution devoted in no small part to the limiting of governmental power, it is jarring to see a theory promultaged which effectively gives absolute power to one of the three branches of government. **
Lawrence was not decided on equal protection grounds; it was decided on substantive due process grounds.
As you full well know from earlier threads on the topic, I am not unamenable to (though neither am I wholly convinced of) the idea of invalidating the Texas statute on equal protection grounds – a state can ban sodomy or not ban sodomy, but it can’t draw a distinction between same-sex and mixed-sex sodomy for reasons of gender equality.
But the court didn’t go that way. They went with the broader concept of substantive due process, which I oppose as a blank slate upon which judges can impose their own policy choices at will.
NOTE: the above point also addresses grem0517.
I’ve dealt with your view of the privileges and immunities clause in earlier threads. I see no need to reargue the point.
As for “counting heads,” I have never claimed the sodomy statue was constitutional or unconstitutional based on the number of states that had repealed said statute. I did point out the overwhelming number of states opting for repeal as an example of the legislative process working, but that point is unrelated to the question of constitutionality.**
Zero acrimony? Of course not. But it wouldn’t be nearly the angry wellspring of bile we see today.
Meh. Now you’re Mr. Snarkiness Above Substance Man.
Hey minty, check back with the Babba ho-Tep thread and see if Nov 2, afternoon or evening, dinner, or just drinks and such, works for you. Also, Moxmaiden and myself are planning to hit the Matrix on the 6th(cause it’s her birthday) and we’re thinking of making it a mini-dopefest again. Any interest? How is Mrs Green? Drop me a line if you want to do some baby-shopping like we had spoken about earlier.
Enjoy,
Steven
Respectively: Plans in the evening, definite interest, swollen ankles but generally good, how’s this Saturday?
Or, you could just check your email in a few minutes. 
“Baby-shopping”? You guys are way too strange for Texas.
Dewey
Alas, no. But unless I am very mistaken, (and given the convolutions of your reasoning, I may very well be), you are in agreement with me as to this. You agree that Mr. Scalia is defending a Bad Law, which might best be described as a law designed and ratified for a Bad Purpose, in this case, stigmatizing and oppressing otherwise blameless citizens. You agree that at least some of Mr. Scalia’s remarks are nasty.
Yet you rush to defend Mr. Scalia’s legal reasoning as valid, as if somehow that validity had a value of its own, outside of the purpose to which it is prostituted. That gets close to implying that the law has a sanctity outside of its effect on human beings, a proposition I deny as bordering on the metaphysical. I don’t honestly care how splendid and refined his jurisprudence may be held to be, he uses it to a malicious end, hence he is a malicious person. I know kindly and gentle retards who stuggle with “See Spot Run”, in my opinion, they are superior to him in every meaningful way. YMMV, as I’m sure it does.
As to defining the crime of “ugly”, well, we might apply currently acceptable community standards, or apply the " curdles milk at twenty paces" standard. Unless, of course, your response was nothing more than a facetious avoidance of a question you’d prefer not to deal with.
Nah, not so weird when you think about it. I’ve offered to help Mr. and Mrs. green in selecting baby items. Mostly this will consist of me walking with them around a big baby superstore and bitching about how “I bought one of them, it sucked, waste of my hard-earned cash.” If that doesn’t fit right in with other Texan virtues then I don’t know what does.
Enjoy,
Steven
Plus, I’m bringing the beer. Shiner Bock, of course.
If I may respond, the law is bad. Thomas explicitly and Scalia, at least implicitly, both admit as much. But, their reasoning does have value of its own. Law does have a sanctity outside of its effects on actual people. We may not simply disregard the law because we don’t like the results.
You display a startling lack of understanding of the role of the courts in American government. It isn’t for SCOTUS to decide whether or not a law is good or bad, it is for them to say whether or not the law is permissable. It is for the people to say if the law is good or bad, and they do so through their votes. You are looking to the court to cure what you (and I) see as a bad law, that isn’t the right place to go. Those concerns are properly addressed to the legislature only. To those who argue that the system is no longer works, then amend the system.
Once you begin to look beyond the law, and the Constitution, and engage in debate in the courts as to whether certain laws are “good” or bad" you are left with nothing. Like I said to Minty a few posts ago you live in a nation of men, and not of laws.
a baby minty?? well, hell, congrats!
Depends. Is she barefoot?
You know why I’m so goddamned cranky all the time? Four fucking years without a regular Shiner Bock supply, thats why.
(Crossing my fingers that this will change soon if some things work out in my favor…)
elucidiator: what Rhum Runner said.
Sure you jest. Even apart from the obvious desirability of determining whether a given law is beneficial, most laws can be interpreted and applied in any number of ways. That’s particularly true with the intentionally-briad-and-vague constitutional provisions that give Scalia and Dewey such fits. If you can apply a law in different ways, why on earth wouldn’t you apply it in the “good” way instead of the “bad”?
No offense, but that’s crap. Laws are meant to create a bottom line. You can argue all you want about where it lies, but the fact that laws lead to specific outcomes hardly makes this a nation ruled by mere whim.
Thanks, wring!
It isn’t jest at all. I was responding to elucidator who claims that it is the result only that matters, and that the law has no validity outside of the effect it has on people. elucidator would have the court strike down as unconstitutional any law that the court considers bad (a definition which he undoubedly hopes is in line with his own) irrespective of the authority of the legislature to pass such a law. If that is the rule, then where are we Minty? I have not always agreed with everything you have posted here, but I don’t think that I need to point out the dangers of going down that road to you. It should be obvious.
No offense taken. It is ruled by whim when we start creating new constitutional rights out of nowhere, which is what is going on in Lawrence. The “living” constitution works both ways. So far the doctrine has been used by Courts seeking to expand personal rights, but what if that power falls into a different Court? What if the Court decides it can disregard the original meaning of the 4th amendment in favor of a “modern” and “evolving,” less protective, interpretation? My concern is that once power is surrendered, or stolen, by the court (or any other branch) that it can be used for good or ill and seldom can it be reclaimed. It is to a much lesser extent that history can be rewritten, and thus the way to protect indivdiual rights is to force government to remain grounded in history. I have little to no faith in government’s respect for individual rights, and would like to see it kept on the shortest leash possible. I believe that the purpose of a written constitution is to act as that leash. That may mean in individual cases “silly” laws remain on the books, but that is preferable to me than wandering around in the morass of substantive due process.
Look what has been done with the commerce clause. Sure, much of it has had good results, but much of it has been bad. To wit I would argue that the increased political apathy people have cited here as justification for the courts being more active is directly a result of the swelling federal government, allowed through the Court’s refusal pre-Lopez to restrain the use of the commerce clause over the last 60+ years. Government has shifted to far away from the state and local arena to the national one, and political apathy is the result. It has distorted the federalism upon which our system rests. Don’t feel the need to respond to this, as it is probably a topic for another thread, I bring it up only to illustrate the point that shifting power and judicial decisions have effects that radiate beyond the immediate case.
But what about the children? Won’t someone think of the children?
No sir. It was recognized on the basis of the 14th Amendment and a long line of exceedingly narrow cases applying it. You may disagree with the majority’s analysis in Lawrence, but claiming that it was created out of thin air is contrary to reality.
Start 'er up. You are, of course, completely wrong. 