A clever bit of sophistry, Mr. Bond, but it won’t do. My point remains: by its very nature the Constitution must be subject to some degree of interpretation, if for no other reason that situations must necessarily arise that the Founding Fuckups could not possibly anticipate. To some degree or another, the Supreme Court has evolved to perform that function.
The “strict constructionists” are at pains to ensure that such a ghastly error as a “right to privacy” shall not be loosed to undermine a tight-assed, anal retentive Republic. Thier specious reasoning rests on the assertion that no such right is explicitly spelled out, and therefore cannot exist unless the Big C. is amended to include such, with all the attendant difficulty.
We on the left, in furtherance of our goal of undermining authoritarianism in all its many repugnant guises, assert that the spirit of the Big C., which is at pains to ensure the maximum acceptable liberty of all citizens, is with us. It is entirely clear to us that forbiding such behavior as consenting adult sex is contrary to that spirit, as well as being damned silly.
To turn fundamentalist reasoning against itself, if no other human rights exist save those explicitly spelled out by the Big C., why then does the Big C. not say so? Is there an Article that states “Unless clearly stated herein, or added by amendment, no further rights and liberties are endorsed”?
Therefore, Justice elucidator sides with the majority, on the grounds that Justice Scalia’s objection is moot and with the prejudice that said Justice Scalia is an uptight moralistic old prune who is haunted by the lingering fear that someone is doing something which he does not approve of, and getting away with it. In addition, his admonition about not believing the other Justices is the kind of snotty rejoinder ill suited to the dignity of the circumstances.
It’s “sophistry” to point out that none of the examples you cite are wholly fallacious?**
Do you own shares in a straw company?
Strict constructionists agree that the Constitution must be interpreted. Indeed, strict constructionism is precisely that, a school of thought on interpretation. **
For starters, it would be inaccurate, as there are other sources of legally cognizable rights, such as state constitutions and state and federal legislation. **
None of which addresses the merits of what Scalia is saying. Ad hominem is not a valid argument.
Yep. One read through the first famous SC case (Marbury) that every student of the Court must be aware of will show that the Court has been pulling crazy shenanigans since the beginning.
This isn’t strictly relevant, but I’ve got to share an exchange from the Estrada confirmation on strict constructionism. It’s just so darn amusing. During the hearings themselves, Senator Edwards asked Miguel Estrada whether he considered himself a strict constructionist. Estrada replied:
Senator Durbin followed up on this in his written questions to Estrada, asking him to distinguish between strict constructionism and fair constructionism. Estrada wrote back that
Senator Durbin’s next asked Estrada which of the current Supreme Court justices he’d classify as strict constructionist, and which as fair constructionist. Estrada’s response cracks me up:
Heh. No offense to Mr. Estrada, but that answer verges from “determinedly nonresponsive” to “meaningless drivel.” According to that definition, who wouldn’t Estrada consider a “fair constructionist”? Talk about terms I’ve never heard in law school…
I still assert, BTW, that an upholding of the Texas sodomy law would have been a de facto endorsement of anti-gay bigotry*, as outlined in my previous post. Therefore, any suggestion that this issue should have gone through the legislature, IMO, was made moot the moment the case went before the Supreme Court. After that, the law would have been overturned, or emboldened right-wingers would have kept these laws in place for the forseeable future. Hell, I wouldn’t have been surprised if they’d put them back up where they were previously struck down.
One may say this outcome is all right, given our system of justice, or that this wouldn’t have happened, but as I said before, all I can say is that this sort of thing feels wrong to me…
Especially if Scalia said the kind of things in any concurrence/opinion that he did in those famous sections of his dissent… Perhaps he was doing the right thing legally, but it’s pretty clear he was doing it for bigoted reasons, which is more the pity for those who agree with him. Thank goodness Thomas at least had the balls to distance himself from that crap…
I find this interesting. They rightly could have used equal protection, but they really felt that wouldn’t go far enough to actually provide those equal protections.
I’m impressed by that.
And I’d forgotten about this bit from the Bowers v. Hardwick case:
As matt_mcl is fond of quoting, there are equal laws in place so that neither the poor nor the rich may be allowed to sleep under bridges.
That CNN analysis piece was pretty crappy. They proceeded on Due Process grounds primarily because they thought it was improper to criminalize sodomy, period. An Equal Protection decision would have allowed criminalization of sodomy, so long as both heterosexual and homosexual sodomy were prohibited.
In fact, I would argue that the Equal Protection route would have been much more beneficial to gay rights on all kinds of other issues. The majority’s Due Process holding protects nothing but the right to screw ourselves silly–it has no obvious affect on issues like marriage, benefits, discrimination, etc. By contrast, an Equal Protection ruling would have called into question every orientation-based denial of equality under the law.
As noted elsewhere, minty, I differ respectfully from this. It’s my firm contention that Justice Kennedy very carefully transmogrified the nebulous Douglasian concept of a “right to privacy” with no clear limits into a carefully defined right to autonomy in personal conduct where an individual’s right to decid with whom he or she will form intimate relationships, with or without sexual contacts, is Constituionally protected. I can see this as precedent for a wide range of cases including marriage, benefits, and discrimination claims.
I am aware that traditional analysis sees this as a subset of Dewey’s favorite bogeyman, Substantive Due Process, but I see it as a quite distinct definition of a recognized right.
I’ve thought about this for a couple of days now and I’ve read and re-read the thread. I guess I haven’t made my point clear and we’re still talking past each other. Let me see if I can summarize and get us back on the same page. Unlike Tamerlane I don’t think our disagreement is one of opinion and isn’t worth debating.
You’ve asserted a couple of times now that the Lawrence decision has the effect of negating morals as a basis for laws. A specific quote would be this one
I’ve read the decision and I’ve even quoted pieces of it which refer to morality(and searched the entire document for the word “moral” to see if I could find a passage which makes an assertion like yours. So how does this reasoning go? Something like this?
P1. One of the major holdings of Bowers was that laws governing sexual conduct can be based on morals.
P2. Lawrence reversed Bowers.
C. So now laws governing sexual conduct can’t be based on morals.
Is that a fair description?
I’d like to get us back on the same page here. I’m rapidly losing faith in a legal system whose modeling of real life is such that legalizing consensual adult sodomy in private would logically lead to legalizing (consensual?) adult necrophilia in private.
I realize the legal system is often it’s own little world and it has it’s own rules and jargon, but it seems to me that a legal system which can’t make this distinction is an inadequate framework to help govern real-world human behavior. Moreover, I don’t see the arguement that if the model of human rights and their interactions used by the legal system would necessitate legalizing necrophilia if sodomy is legalized is a compelling reason to keep sodomy illegal. The arguement runs something like this.
Legalizing sodomy leads logically(using legal logic) to legalizing necrophilia!
I refuse to be punished by the limitations of your model. If you can’t separate necrophilia from sodomy in your legal system that isn’t my problem. The two are separate in the real world and laws should be able to be made to restrict one without restricting another.
Sorry, but I have to disagree here, Poly. Kennedy’s majority opinion certainly employs some pretty sweeping language, but in the end (see p. 17), it merely adopts Justice Stevens’ dissenting opinion from Bowers, and that opinion is indisputably a substantive due process analysis. Kennedy expressly locates the liberty interest at issue within the Due Process clause, saying “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”
What’s truly odd about the opinion is where it says right near the end “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” That “legitimate” is crucial, because a “legitimate state interest” is all it takes for a state to regulate a subject under low-level scrutiny. All the other right-to-privacy SDP cases–abortion, reproduction, marriage, etc.–have always applied strict scrutiny, which requires a “compelling state interest” to justify a regulation. I honestly have no idea whether Kennedy & Co. were applying strict scrutiny or low-level scrutiny or anything in between. All in all, it’s a very, very odd opinion there at the end.
You are certainly entitled to see it as such. But even assuming that Lawrence creates a “right to autonomy in personal conduct,” those things you’re talking about fit very poorly within that category. Lawrence compels the state to leave gay folk alone in their private conduct. It does not compel the state to confer legal status on their relationships (marriage), nor does it compel private parties to do anything at all that they don’t want to do (benefits, discrimination). Equal Protection would have served those ends much better–which is one reason why I suspect the majority stayed away from O’Connor’s approach.
Actually, now that I think about it, that’s not completely accurate. When the Court reaffirmed abortion rights in Planned Parenthood v. Casey, they applied a wierd test that bypassed the usual “compelling state interest” analysis in favor of determining whether the regulation at issue placed an “undue burden” on the exercise of that right.
