Calm down, Mockingbird. You’re coming across as a jerk. There are limits . . . even in The Pit.
Cajun Man ~ SDMB Moderator
I find it interesting that Dewey has been doing this in multiple threads to the ire of more than just me, and I am the one being warned.
As you wish.
I think limits on majoritarian rule need to themselves be put into place by democratic processes – I favor vigorous enforcement of existing constitutional provisions and the addition of such provisions via the amendment process, but disfavor the de facto judicial crafting of those provisions. For more, pull up virtually any of the vigorous discussions on the nature of rights and constitutional interpretation between Polycarp and myself.
Doing what? Having the temerity to challenge your more over-the-top diatribes? Pointing out your promiscuous use of the term “bigot”?
And dare I ask for a cite? Make with the linky-link or withdraw your accusation.
DCH: It looks to me like you’re kind of putting the cart before the horse. What’s the point of having well-crafted constititional provisions if people don’t use them? I mean, if you posit that such a government is a means to an end (personal freedom, economic success, open communications, etc.), and if the government is not making it to said end in a particular area (to wit, gay rights), why is it unjustified to settle things by judicial fiat?
I do understand DCU’s aversion to judicial interpretation of Constitutional rights, although I think that it shackles the judiciary’s function as the supreme interpreter of the Constitution’s meaning. Most of the advances in personal liberties have been decided by the judiciary, from Gideon vs. Wainwright, in which the Supremes found that the right to counsel for indigent persons was guaranteed by the Constitution even though such a right is not specifically enumerated, to Brown vs. Topeka, which overturned the doctrine of state-sanctioned segregation that had persisted despite the 14th amendment. If we had had to wait for a law or Constitutional amendment aimed specifically at ending segregation of public facilities, we would still have White and Colored drinking fountains, at least in the South.
My chief objection to DCU’s insistence that change come only from laws or amendments is that it does not prevent the noisily vocal, dishonest, and downright duplicitous fundamentalist Chrisitans from gaming the system and exerting power far out of proportion to their numbers in denying civil rights to gay people.
Pro-gay activism for change in the laws, handicapped as it is by the weight of popular prejudice and the inherent decency of its proponents, will always be outgunned by the fundies, who use every deceitful, vicious trick in the book to impose their religion-sanctioned hatred of gay people onto the ballots and statehouses.
Crap, can a mod fix my coding?
And Mockingbird, even though we are on the same side, your incessant name-calling is actually harming our cause. Heck, even the two gay moderators, who we know are on our side, are telling you to chill.
It’s possible for some folks to disagree with you without being bigots or Uncle Toms. DCU has a fetishistic reverence for strict construction of the Constitution which is maddening, but that’s just, you know, disagreement. He is still a decent, likeable guy who does not deserve the treatment you have dished out.
Who said I didn’t believe constitutional provisions should be enforced? I absolutely believe that the provisions found within the text of that document should be given full effect. I just don’t think the judiciary should start writing in new provisions. **
Because the ends do not justify the means. In a system where government derives its legitimate powers from the consent of the governed, judicial application of extraconstitutional rights is illegitimate, however noble or attractive those rights may be.
And gobear, fundies hardly have a monopoly on the use of hardball politics. Perhaps the gay rights movement should stop bringing knives to gunfights.
I also note that I approve of the holdings in Brown and Gideon, though I might quibble with some of the reasoning in each opinion. The constitution, by its very text, guarantees equal protection – most particularly in matters of race, given the circumstances leading to the passage of the 14th amendment – and a 6th amendment right to counsel in criminal trials, which is extended to the states via the 14th. In both cases, the court was not creating rights out of whole cloth, but rather merely interpreting existing constitutional text. Their use as counterexamples is therefore inappropriate.
Just curious. Did you expect anything else?
Heh. Point taken. 
And some would say that Gideon was creating rights out of whole cloth, too. From my POV there is no difference from the right to counsel found in Gideon and the right to privacy.
That would be an odd claim, as the right to counsel in criminal cases is plainly noted in last clause of the 6th amendment (the only issue in Gideon was the extent to which the 6th amendment would be incorporated to the states via the 14th amendment). Try finding a right to privacy with similar specificity in the raw text of the constitution.
The bottom line: Gideon has clear roots in the constitutional text. The privacy cases do not.
Dewey:
I do respect your stance, though I disagree with you vehemently. However, here’s where I’d found a “right to privacy”:
Amendment I’s right of the people peacably to assemble has for a long time been held to include a “right of free association,” which as you’ll recall was used as the standard for deciding the James Dale/BSA case a couple of years ago. One may therefore choose with whom to associate, and to what degree of closeness.
Amendment IV provides for “the right of the people to be secure in their persons, houses, papers, and effects” – this being explicitly guaranteed against “unreasonable searches and seizures” but I would construe that security to include a protection against legislation restricting what may be done in private that causes no harm to another non-consenting party.
Amendment XIV, Section 1 holds that “no state shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States.” I am well aware that following clauses of that section deal with due process (procedural or :eek: substantive :eek: ;)) and equal protection, and that the “privileges and immunities” clause has almost never been used as precedent.
However, I find the idea that people are privileged to do what they wish in privacy with whom they wish, so long as they do not cause harm to another and the person with whom they wish to do whatever has given informed consent to the doing of that whatever, to be protected by Amendments I and IV from Federal invasion, and by XIV from state invasion. I am very well aware that you do not construe them to cover this – but I do feel that the right is not “made up out of whole cloth.” And I get there without “substantive due process.”
This is not said to provoke argument with you. I’m aware of and respect your stance, and I believe we have agreed to disagree on this – but I felt impelled to spell out more clearly my own stance, for clarity’s sake.
Poly: Suffice it to say I think the horse is dead on this, and there’s no need to continue with the beatings. My response to your points would be, in brief:
-
The first amendment’s assembly clause (and the corollary right to exclude) has been held to only protect expressive associations. It is not a broad right to associate with or exclude anyone for any purpose; conspiring to commit murder is not constitutionally protected, nor is a lunch counter owner’s desire exclude blacks as customers.
-
The fourth amendment means what it says: freedom from unreasonable searches and seizures. It protects one privacy interest; it does not create more.
-
The fourteenth amendment’s privileges and immunities clause, as you note, has been interpreted very narrowly. I see no principled reason (and “I like the outcome” is not a principled reason) to deviate from that interpretation.
Fair. We’ll bury the horse right here!