No, the continuing hijack comes down that. It doesn’t have anything to do with my complaint about Scalia’s mockery of the Court. (But hey, it’s good to see that some people still remember the original topic.)
It’s not “whim” because the Court has (a) been incredibly restrained in applying the SDP doctrine (i.e., it protects very, very little) and (b) has shaped the doctrine so that it only can be applied in exceedingly limited circumstances.
Contrary to rumor, gentlemen, the sky is not falling.
litost - the Texas law did not violate equal protection, it applied to all people equally. The majority opinion considered the equal protection argument, but found it unpersuasive. The case was decided on the grounds of due process.
Dewey, I think you misread what I posted—I am will it accept that the misreading was in good faith. To be charitable, you may have misread what I meant to post or should have posted. In any event, I do not advocate an ad hoc view of the law. I do say that when you get into question where the answer is not compelled by the clear language of the text or the undistinguishable precedent, then you are in an area where the personal judgment of the judge about what the law ought to be, or more commonly what the out come ought to be, is the decisive consideration. I do not advocate that as a universal theory of the law, a general theory of relativity if you would. Rather I tell you that is a description of how this particular brand of sausage is made. It is a general principal in some areas of the law, however. As Dean Vernon (who Minty and Hamlet knew) said, the guiding principle in conflicts of laws questions is that the widow and kiddies prevail.
Clearly, broad Constitutional issues are decided as maters of policy. Were that not true then there would not have been a decision that separate racially segregated facilities passed Constitutional muster and then some 90 years later a decision that they did not pass Constitutional muster. The language of the document did not change, the mind set of the legislators who drafter the Reconstruction Amendments did not change, the opinions of the voters and state legislators who ratified the amendments did not change. What changed was the members of the Court and the opinion of the country. That is the way the machine works. You may deplore and decry the failure to adhere to some guiding principle until you turn blue in the face, you may protest against the stars in their courses, but the makeup and reasoned personal opinions of the Justices of the Supreme Court in debatable cases counts for more than many are willing to recognize. You and I and others as keepers of the secrets of the sacred wisdom need to acknowledge that, even though it is probably not a good idea to broadcast it among the great uninformed masses or at court bashing rallies. We may be sausage makes at heart but we need to maintain the pretence that this Constitution thing is predictable and knowable and springs from the strong loins of the Founders, fully formed and perfect like a Greek goddess from Zeus’s forehead.
Let me also suggest, because I am fond of the analogy, that saying that four lane high speed highways are bad because Hitler built the first ones is not equivalent to saying that because Cuban cigars are a delight and a boon to the frazzled soul Castro’s government is a good thing. It is worth noting that it has been our government’s policy that Cuban cigars are bad, evil, un-patriotic and it is a crime to have them, not because the Surgeon General says so, but because we hate Castro and all his works and the horse he rode in on as a mater of political policy.
As I read over this thread I get the idea that some of us are working with an extremely limited view of the Due Process and Equal Protection clause. Let me pose a silly hypothetical question. If the Congress of the United States, after due consideration, passed and the President upon the advise of the Attorney General, signed a federal statute, claiming authority under the Commerce Clause, clearly and unambiguously making it a felony punishable by at fine of not more than $250,000.00 and up to five years confinement for anyone subject to the jurisdiction of the United States to wear a bow tie, would such a statute be subject to attack as a deprivation of Substantive Due Process. Since view taken by some appears to be that Substantive Due Process is an imposter without foundation in jurisprudence, I take it that it is immaterial that there is no rational connection between the bow tie suppression statute and some objective which the government may accomplish by the exercise of its police power. The position of this particular straw man would be that the Bow Tie Criminalization Act of 2003 is a proper exercise of the government’s police power because it was properly enacted and there is no language in the Constitution that expressly guarantees the liberty to wear a bow tie. A silly and extreme example, I know, but no more silly that Texas’s criminalization of private, consensual, adult buggery.
Of course I read Justice Scalia’s dissent in the Texas sodomy case, all of it. It seems to me that the good Justice’s resort to talking about a homosexual agenda is a good and reliable indication that the basis for his opinion is a visceral adherence to a personal idea of public morals, his personal reaction to the out come of the case, anger that the case did not have the out come he wanted, and that he was looking for an argument that would give rise to a different out come.
I imagine they’d have been quite happy with it, since the plaintiffs in the Slaughter-House cases were attempting to have the state-sanctioned slaughtehouse monopoly declared unconstitutional under the 13th and 14th Amendments. They lost that one, as you may recall.
Good point, though the two sort of got melded together by some other posters first who jumped on Scalia for being Scalia not just for his public speaking.
So we shouldn’t be concerned because the dictator has been benevolent so far? Come on Minty, you’re smarter than that. The problem isn’t avoided because the doctrine has been shaped narrowly, the problem is that it has been shaped at all.
Findlaw dictionary entry for ‘due process’
Personally I find it difficult to believe that someone had to “invent” this. All the studies of the founding of the country and the design of the US government seem to indicate that the founders intended the government to butt the hell out of most affairs and fully expected that what we now call SDP would be the norm. Intrusion if and only if there is a legitimate government interest. SDP seems the very essence of the 9th ammendment. The rights which are not enumerated are still retained. You want to abridge them, show substantial government interest.
Enjoy,
Steven
Spavined: the whole of your post can be summed up as: the idea of a principled means of interpreting the constitution is a lie, it’s all ultimately about power and policy choices, and we should continue to lie to the American people about what we’re actually doing because it is convenient to do so.
Forgive me if I don’t sign on to that. I prefer a government that is forthright and honest, even if I don’t get it very often. And I think more highly of my fellow citizens than you – I don’t think they should be lied to simply because they didn’t have the good sense to go to law school.
As for your question:**
Since you make the validity of the commerce clause justification for this law a given, and since you direct my focus specifically to substantive due process (ignoring, for example, free speech issues), I think the law is perfectly constitutional due-processwise. The remedy, of course, is to bring pressure to bear on the numbskull lawmakers who passed the damned thing in the first place, and toss them out of office at the first available opportunity.
Doubtlessly George Will, Tucker Carlson, Arthur Schlesinger, Jr. and Louis Farrakahn will all find common cause on this issue and march their followers to the polls en masse. Democracy is its own check against some excesses.
So you don’t agree that authority entails responsibility? Unorthodoxly amoral viewpoint there. I asserted that it is part of what the Supremes must take into account, not that it is the entire basis, and I’ll thank you to unstuff that strawman.
Whoosh. The fact that there is a lively debate just means there are multiple views, and I would think you’d realize that’s what I was saying before that snide little crack. That is not evidence that those views you don’t hold are wrong or lack merit, as tempting as those thoughts may be. The fact that differing views are widely held does mean you need to understand them honestly before you denounce them. Clear now?
This part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” seems to apply to a state law which abridges the privileges or immunities of citizens who happen to have a particular sexual orientation - and there are plenty more that could be thought to apply, like equal protection (most importantly), search and seizure, even freedom of assembly … It seems clear that a right you have under the US Constitution cannot be limited or superseded by state law, and that’s what Texas was told. What’s the problem?
Mtgman: surely you’re aware that the Findlaw definitions reflect the way the courts have construed the phrase “due process,” and thus it’s unsurprising to find a definition matching substantive due process there. Your citation is a circular: you cite to a definition that looks to how the courts define things in order to prove that the court’s definition is appropriate.
And this belies a lack of familiarity with the constitution:**
Seeing how SDP is located in the fifth and fourteenth amendment, it’s tough to see how it is the “essence” of another amendment – if you think the ninth amendment is the locus of the power you seek, why turn to language in the fifth and fourteenth?. It’s like saying free speech is the essence of the fourth amendment.
Dewey
Why can’t you just be nice?
This is the most arrogant and disgusting tripe I have ever seen on this board. I am embarrassed that you are a lawyer, my embarrassment mitigated only by the fact that your thankfully remote location will limit the number of people who will have the distinct misfortune of making your acquaintance, and that your advanced age may allow them to excuse your idiocy as a sign of senility and not a reflection on the bar in general. Who the fuck do you think you are to keep the “sacred wisdom” from the “uninformed massed?”
Of course it does. We simply disagree about what the responsibility is. I see the responsibility to be to uphold the Constitution. You see it as something more than that.
So you just want to point out that there is a lively debate? You originally asserted that it was naive to believe that there is only one correct view on the issue. In support of that, you pointed out that there are multiple views held on the issue. I have news for you: There is only one correct way of looking at this issue. The two positions being advanced in this thread cannot both be correct. I understand the conclusion offered by the other side, though I profess I do not believe that their arguments support their conclusion.
Lib: Who says I’m not nice? I contest these points with vigor because the issue is important to me, but I haven’t gotten personal or anything. I think my tone has been perfectly acceptable; indeed, by the standards of the forum we’re in, I’ve been nothing but sweetness and light.
And franky, what does my relative niceness have to do with the validity of my arguments?
::whoosh::
As if there’s some sort of objective, measurable truth about how to interpret a law? You must be kidding.
It’s whimsy, (this being the Pit) you stupid fuck! Do you think people talk like that outside the confines of bad gothic novels? Get a life, for the love of Christ. With experence, Grasshopper, wisdom will come.
Ummm…actually, I don’t think this is true:
Emphasis added.
I may or may not agree with you on SDP. You do make some compelling arguments and as I am not a lawyer, I simply haven’t thought about it enough to form an opinion yet. I find it interesting though, couldn’t Scalia have concurred that the law was unconstitutional, but on Equal Protection grounds rather than SDP? If so, why didn’t he? After all (from here:
So he was under obligation to consider it unconstitutional for any reason he could find, not just SDP. Or am I misreading that? (Meant seriously, not facetiously)
Or, on further reflection, maybe Whoosh, whoosh. Have I become the victim of the counter-whoosh?
You know what? The more I learn about the legal system the less I respect it.
Get this Dewey, I give not one micro-shit about the legal origins of SDP and the specific text the specific justices said they base it on. I assert the concept of SDP, in the form I quoted above, is rampantly obvious in the entire genesis of the US government. Limited government. Government where necessary. I personally find it in the ninth amendment. But I don’t even give a shit about that because the principle, in and of itself, is entirely in keeping with the ideals the US was founded on. Saying it shouldn’t exist because it can’t be derived from the text of the constitution in a derivitive process that you approve of means bupkis.
I don’t worship the words which flowed from the pens of the founders. I do have a lot of respect for the ideas they were trying to capture. I think they did a reasonably good job, but when I see a ideal which just fits so perfectly with all the other ideas the government is founded on, then I don’t give a shit about the fact that a bunch of dead guys didn’t capture that ideal in perfectly clear language. SDP makes sense. SDP promotes individual liberty by restricting the government from becoming uber-nanny. SDP may or may not be found in the text of the constitution, depending on who you ask, but the constitution was an attempt to capture ideas in language. Those ideas are the important part, not the language.
You seem to find this deference to ideals as opposed to concrete text abhorrent. As I said earlier, I, when speaking academically, also find the concept of adjudicating based on ideals distasteful. Too many grey areas leave room for injustice. Stick with what we can know definitely. If there are grey areas, let them be hammered out by the legislature and the democratic process. But when I leave the realm of academic thought and I start to look at how this affects real human beings on a daily basis, I find that this simply doesn’t work. The legislatures create as many problems as they solve and far too many of them are motivated by money and power instead of a sense of duty to their constituents. I said it earlier, some activist minority bullied the silent majority into accepting the “homosexual conduct” law. Perhaps some of those majority were bribed with promises of votes in their favor later, or party loyalty dicatated the vote, or pork, but the fact remains.
When it comes down to it, I’d rather the grey areas exist in the text and the judgement of humans be used for individual cases.
As a hijack, I’ve come up with a fantastic idea for an amendment. “All works of legislation proposed in federal or state legislatures will expire ten years from enactment. Renewal is possible, only on an individual basis, within two years prior to the expiration.” Auto-sunset. That helps clean out the cruft in the legal system and keeps the laws simple because you’d only continue to renew the important ones. It would never fly, but I think it would help somewhat.
Enjoy,
Steven
How? The ban was on sodomy performed by same-sex couples.
IIRC, Scalia in his dissent dismisses the EPC challenge by claiming that this law is similar to laws against homosexual marraige, which differentiate people not on criteria like race or gender but on sexual conduct. And, somehow that is acceptable to him because laws do differentiate on sexual conduct (read: nudity, fornication and incest). While theoretically appealing, it is sad he cannot distinguish between adult homosapiens fucking in private and a nude man thrusting himself on a sheep in public.
Why isn’t sexual orientation included as basis for equal protection?
Scalia was required to consider the Equal Protection argument (and did, as I recall), but not for the reason you cite. The text you quote appears to be discussing the standard for a federal trial court to apply when determining whether to summarily dismiss a plaintiff’s complaint. With exceedingly rare exceptions, appellate courts only consider the issues presented to them by the parties, and even then only do so if the issue was properly preserved (by timely objection, motion, or otherwise) in the lower court.
In a nutshell, the Supreme Court has (since the previously-referenced Slaughter-House Cases) held that the Equal Protection clause applies only to laws that distinguish between persons on the basis of race. If it’s not a race-based classification, it’s not a problem that Equal Protection is concerned with. This approach is rooted in the historical origin of the 13th and 14th Amendments, which were primarily (thouh not exclusively, I would argue) aimed at eliminating slavery and racial discrimination.
Equal Protection jurisprudence has evolved in recent decades so that it also applies (but with significantly less force) to laws that distinguish between people on the basis of gender. And of course, most infamously, it turns out that ballots in Florida are also entitled to equal protection when the alternative is the election of a president who is not a Republican. They’re still working out the parameters of that particular doctrine, however.